Experience Notable Cases Superior Court: Bill 5 interferes in Toronto election contrary to the Charter

Superior Court: Bill 5 interferes in Toronto election contrary to the Charter

September 10, 2018

Superior Court: Ford government’s interference in Toronto city election violates the Charter

The Ontario Superior Court of Justice has overturned Bill 5 – the so-called Better Local Government Act, finding it violated the Canadian Charter of Rights and Freedoms.

Background

The election period for Toronto City Council began on May 1, 2018, and was based on a 47-ward structure chosen by the Council following an extensive consultation process known as the Toronto Ward Boundary Review. In late July, the Ontario government announced that it would enact Bill 5, which would reduce the number of City wards and councillors from 47 to 25 and effectively double the ward populations.

Bill 5 received Royal Assent on August 14, 2018, more than halfway through the campaign period for the 2018 municipal election.

Candidate Chris Moise, elector Ish Aderonmu, and elector Prabha Khosla, representing herself and Women Win TO, filed an application alleging that Bill 5 violated ss. 2(b) (freedom of expression), 2(d) (freedom of association) and 15 (equality) of the Canadian Charter of Rights and Freedoms. The City of Toronto and other individuals also filed applications challenging Bill 5 on various other grounds.

The Superior Court’s decision

The Court granted the applications, finding that Bill 5 “substantially interfered with both the candidate’s and the voter’s right to freedom of expression as guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms,” and could not be saved under s. 1 of the Charter. It did not consider the other arguments raised in the applications.

The Court noted that freedom of expression is of crucial importance in a democratic society, and extends not only to candidates but to every participant in a political election campaign, including volunteers, financial supporters and voters. The Court noted that the “enactment of provincial legislation radically changing the number and size of a city’s electoral districts in the middle of the city’s election is without parallel in Canadian history,” and found that “The Province has clearly crossed the line.”  It found that Bill 5 breached s. 2(b) of the Charter in two ways:

• because the Bill was enacted in the middle of an ongoing election campaign, it breached the municipal candidate’s freedom of expression and
• because Bill 5 almost doubled the population size of City wards from an average of 61,000 to an average of 111,000, it breached the municipal voter’s right to cast a vote that can result in effective representation

On the first breach, the judge found that the “immediate impact of Bill 5 was wide-spread confusion and uncertainty” given that the election was already underway and candidates already decided “where to run, what to say, how to raise money and how to publicize their views.” In considering whether Bill 5 substantially interfered with candidates’ expression, the judge observed, “Perhaps the better question is “How could it not?” Campaign material had been purchased and time had been spent campaigning in existing wards. As a result:

There was confusion about where to run, how to best refashion one’s political message and reorganize one’s campaign, how to attract additional financial support, and what to do about all the wasted campaign literature and other material. There was uncertainty flowing from the court challenge, the possibility that the court challenge might succeed and the consequences for all concerned if this were to happen.

The evidence is that the candidates spent more time on doorsteps addressing the confusing state of affairs with potential voters than discussing relevant political issues. The candidates’ efforts to convey their political message about the issues in their particular ward were severely frustrated and disrupted. Some candidates persevered; others dropped out of the race entirely.

This “substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters”, the Court concluded. “This mid-stream legislative intervention not only interfered with the candidate’s freedom of expression, it undermined an otherwise fair and equitable election process.”

Once the Province has entered the field and provided an electoral process, it may not suddenly and in the middle of this electoral process impose new rules that undermine an otherwise fair election and substantially interfere with the candidates’ freedom of expression…

I have no difficulty finding on the evidence before me that the enactment of Bill 5 changing the number and size of the electoral districts in the middle of the election campaign substantially interfered with the candidate’s freedom of expression. A breach of the municipal candidate’s right to freedom of expression under s. 2(b) of the Charter has been established

Turning to the second breach, Justice Belobaba held that the rights of electors were violated, because voting is an expressive activity, and the right to vote is in essence the right to “effective representation”. Since voting is one of the most important expressive activities in a free and democratic society, the voter’s freedom of expression must include a right to cast a vote that can result in meaningful and effective representation. He found on the evidence that, given the unique role of city councillors and the significant increase in ward size, 25 wards would undermine the effective representation of the citizens of Toronto:

On the basis of the evidence before me, I find that the Impugned Provisions (that impose a 25-ward structure with an average population size of 111,000) infringe the municipal voter’s right under s. 2(b) of the Charter to cast a vote that can result in meaningful and effective representation. Once the Province has provided for a right to vote in a municipal election, that right must comply with the Charter.

Finally, the judge held that the breaches of s. 2(b) could not be saved under s. 1 of the Charter, which requires the government to establish a pressing and substantial objective, and that the legislation was proportional to that objective.

The government had relied on two objectives: improved efficiency (“better decision-making”, a “more streamlined” City Council) and voter parity (which the Superior Court found had barely been mentioned as a goal before the case came to court).

Considering the minimal evidence submitted by the government, the Court observed that “It appears that Bill 5 was hurriedly enacted to take effect in the middle of the City’s election without much thought at all, more out of pique than principle.” It concluded that the government had failed to establish a pressing and substantial objective:

In any event, the constitutional problem here is two-fold: (i) there is no evidence (other than anecdotal evidence) that a 47-seat City Council is in fact “dysfunctional” or that more effective representation can be achieved by moving from a 47-ward to a 25-ward structure; and (ii) even if there was such evidence, there is no evidence of any urgency that required Bill 5 to take effect in the middle of the City’s election

Moreover, even if the government could have established a pressing and substantial objective, the Court held that it would have failed the proportionality part of the s. 1 test, particularly the requirement to establish that the rights had been impaired as minimally as possible. In this regard, the government had not shown why a significantly less intrusive and equally effective measure was not chosen to achieve the objective.

Turning to the alleged objective of voter parity, the Court concluded that there was no evidence that other options had even been considered.

The Court therefore concluded that the impugned provisions of Bill 5 had no force and effect and set them aside immediately. It noted that, as a result, the “City’s election on October 22, 2018 shall proceed as scheduled but on the basis of 47 wards and not 25 wards.”

Update: The Court of Appeal grants a stay

The Ford government sought to stay the Superior Court’s decision, pending an appeal. On September 19, 2018, the Ontario Court of Appeal granted the stay. In its decision, the Court of Appeal expressed doubt that the Superior Court’s interpretation and application of the Charter was correct, noting that “unfairness alone does not establish a Charter breach.” As a result of the stay, the provisions of Bill 5 continued in force and the Toronto election was conducted on the basis of 25 wards.

Further Updates

The Court of Appeal subsequently held that Bill 5 was constitutional and overturned the Superior Court’s decision.  The City of Toronto obtained leave to appeal to the Supreme Court of Canada. However, in a 5 to 4 split, the majority of the Supreme Court upheld the Court of Appeal’s decision.