The Canadian Constitution Foundation (CCF) applauds today’s Supreme Court of Canada [SCC] decision, Toronto (City) v. Ontario (Attorney General). The Court held that purposive interpretation of Charter rights must begin with and be rooted in the text. In arriving at its decision, the SCC relied on many of the CCF’s arguments. Along with its recent decision in 9147-0732 Quebec Inc, another 2020 decision the CCF intervened in, the SCC has shown a clear commitment to the primacy of constitutional texts.
In 2018, 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 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 later confirmed that the judge wrongly struck down the law.
The CCF’s intervention at the Supreme Court focused on a principled and constrained approach to constitutional interpretation. It submitted that the Supreme Court ought 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.
“Today’s decision is an important clarification of the relationship between written constitutional laws and unwritten constitutional principles. In order to ensure that the rule of law’s demands of certainty and predictability are respected, unwritten constitutional principles cannot be used to invalidate legislation”, said Joanna Baron, the CCF’s Executive Director.
The CCF argued at the Supreme Court 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.
