TORONTO – Ontario’s top court will soon decide whether the Charter protects municipal elections. The Canadian Constitution Foundation is pleased to announce that it will take part in the case as an intervener.
On Friday, the Court of Appeal for Ontario granted the CCF leave to intervene in Toronto (City) v. Ontario (Attorney General). The appeal, which will be heard June 10th and 11th, raises the question of whether participating in a municipal election, either as a candidate or as a voter, is protected as “expressive activity” under s. 2(b) of the Charter.
Last year, Premier Doug Ford’s government passed legislation that reduced the number of seats on Toronto’s city council. A judge of the Ontario Superior Court struck down the legislation (Bill 5) on the basis of the Constitution’s guarantee of freedom of expression (s. 2(b)). The judge’s decision was stayed by a panel of the Court of Appeal, which allowed the election to proceed on the basis of the Ford government’s legislation. The substantive legal issues — in other words, whether the judge was right to strike the legislation down in the first place — remain to be decided.
The CCF’s intervention is focused on how courts should approach the hard work of constitutional interpretation. It will ask the Court of Appeal to decide the case in a manner that ensures respect for the limits of the judicial role in deciding when and how governments may limit Charter rights.
“Just as the constitutional questions on these appeals are fundamental to our democracy, so too is the underlying issue of how properly to approach them”, said Amanda D. Iarusso of McCarthy Tétrault LLP, counsel for the CCF along with Adam Goldenberg.
The CCF will argue that the Constitution’s framers chose to protect participation in federal and provincial, but not municipal, elections in s. 3 of the Charter, and that this choice must inform the proper interpretation of s. 2(b). One Charter guarantee cannot legitimately be used as a vehicle to cloak in constitutional protection that which another Charter guarantee has expressly excluded. Courts must be attentive to the internal limits of Charter rights, and not simply rely on the limitations clause (s. 1) to leave it up to judges to decide subjectively, in every case, whether the government has overstepped. This requires a consistent, disciplined approach to constitutional interpretation. Such an approach was lacking in this case, the CCF will argue, and the Court of Appeal will say so.
The original emailed release can be found here.