This morning the Ontario Superior Court of Justice released its decision on Bill 5, the controversial legislation introduced by Doug Ford to drastically reduce the size of Toronto City Council mid-election.
Justice Edward P. Belobaba issued his 18-page decision this morning. Excerpts of the decision are provided below.
3. The matter before me is unprecedented. The provincial legislature enacted Bill 5, radically redrawing the City of Toronto’s electoral districts, in the middle of the City’s election.
4. The election period for Toronto City Council began on May 1, 2018 and was based on a 47-ward structure. Election day is October 22, 2018. At the end of July, shortly after taking power, the newly elected Ontario government announced that it would enact legislation directed primarily at the City of Toronto, reducing the number of City wards and councillors from 47 to 25 and de facto doubling the ward populations from an average of 61,000 to 111,000.
5. Bill 5 received first reading on July 30, second reading on August 2, 7 and 8 and Royal Assent on August 14, 2018. Bill 5 took immediate effect in the middle of August, by which point some 509 candidates for the October 22 election had been certified, the candidates were in the midst of their campaigns and the City Clerk’s preparations for a 47-ward election were well underway.
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. Here is how the City of Toronto put it in the opening line of its factum:
6. Never before has a Canadian government meddled with democracy like the Province of Ontario did when, without notice, it fundamentally altered the City of Toronto’s governance structure in the middle of the City’s election.
7. Most people would agree that changing the rules in the middle of the game is profoundly unfair. The question for the court, however, is not whether Bill 5 is unfair. The question is whether the enactment of Bill 5 is unconstitutional.
Belobaba acknowledged the Court’s responsibility to exercise ‘judicial deferrence and restraint’ over ruling on laws passed by provincial and federal legislatures, and quickly indicated the direction his decision was headed.
8. … it is only when a democratically elected government has clearly crossed the line that the “judicial umpire” should intervene.
The Province has clearly crossed the line.
Much of Justice Belobaba’s ruling centred around the immediate anti-democratic effects stemming from the mid-election timing of the bill’s introduction, rather than the constitutionality of the bill itself.
11. If the Province wishes to enact another Bill 5-type law at some future date to affect future City elections, it may certainly attempt to do so. As things now stand – and until a constitutionally valid provincial law says otherwise – the City has 47 wards.
12. The applicants and intervenors advanced a number of Charter and non-Charter arguments in addition to s. 2(b), namely that the Impugned Provisions breached association and equality rights under ss. 2(d) and 15(1) of the Charter, and the unwritten constitutional principles of the rule of law and democracy.
13. I am inclined to agree with the Province that none of these additional submissions can prevail on the facts herein. However, I make no actual finding in this regard. The ss. 2(d) and 15(1) submissions, together with the rule of law and democracy submissions, may live another day, perhaps to be litigated in another court. It is sufficient for my decision today to focus only on s. 2(b) of the Charter and the guarantee of freedom of expression.
Justice Belobaba writes that Bill 5 infringes on the rights laid out for citizens in s. 2(b) and s. 3 of the Charter. While there have been many rulings around how these apply to provincial and federal election law, smart people tell me that the Belobaba’s application of these sections in this ruling on a law affecting municipal elections is new ground. But the extension is a limited one:
15. First, there is no dispute that the Province has plenary authority under s. 92(8) of the Constitution Act, 1867 to pass laws in relation to “Municipal Institutions in the Province”. Assuming the law falls under s. 92(8), or indeed any other provincial head of power, the Province can pass a law that is wrong-headed, unfair or even “draconian.”
16. The only proviso, and it is an important one, is that any such legislation must comply with the Charter (and, arguably, any applicable unwritten constitutional norms and principles). As long as a statute is “neither ultra vires nor contrary to the [Charter], courts have no role to supervise the exercise of legislative power.” The remedy for bad laws that are otherwise intra vires and Charter-compliant is the ballot box, not judicial review
Ultra vires = beyond one’s legal power or authority.
I’ll skip over a few of what I’ll call the ‘nerd-deep’ sections, and jump right to the Justice’s analysis of how the timing of the law’s introduction affected his decision.
19. At first glance, Bill 5 although controversial in content appears to fall squarely within the province’s legislative competence. Upon closer examination of the surrounding circumstances, however, one discovers at least two constitutional deficiencies that cannot be justified in a free and democratic society. The first relates to the timing of the law and its impact on candidates; the second to its content and its impact on voters.
20. As I explain in more detail below, the Impugned Provisions breach s. 2(b) of the Charter in two ways: (i) because the Bill was enacted in the middle of an ongoing election campaign, it breached the municipal candidate’s freedom of expression and (ii) 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.
Breach of the candidate’s freedom of expression
24. The Supreme Court has encouraged a broad interpretation of freedom of expression that extends the guarantee to as many expressive activities as possible. The Court has made clear that any activity or communication that conveys or attempts to convey meaning (and does not involve violence) is covered by the guarantee in s. 2(b) of the Charter.
25. It follows from this that the freedom of expression guarantee extends not only to candidates but to every participant in a political election campaign, including volunteers, financial supporters and voters. Each of them would have a genuine s. 2(b) issue with Bill 5. However, for ease of understanding, I will focus only on the candidates.
26. In a section 2(b) claim, the Court asks two questions: first, whether the activity in question falls within the scope of freedom of expression, and secondly, whether the purpose or effect of the legislation is to interfere with that expression.
27. The expressive activity of candidates competing in the City’s ongoing election obviously falls within the scope of s. 2(b). The more pertinent question is whether their freedom of expression has been infringed by the enactment of Bill 5. That is, whether the enactment of Bill 5 changing the electoral districts in the middle of the City’s election campaign substantially interfered with the candidate’s right to freedom of expression.
28. Perhaps the better question is “How could it not?”
29. The evidence is that the candidates began the election campaign on or about May 1, 2018 on the basis of a 47-ward structure and on the reasonable assumption that the 47-ward structure would not be changed mid-stream. The 47-ward structure informed their decision about where to run, what to say, how to raise money and how to publicize their views. When Bill 5 took effect on August 14, mid-way through the election campaign, most of the candidates had already produced campaign material such as websites and pamphlets that were expressly tied to the ward in which they were running. A great deal of the candidate’s time and money had been invested within the boundaries of a particular ward when the ward numbers and sizes were suddenly changed.
30. Bill 5 radically altered the City’s electoral districts, in most cases doubling both their physical size and the number of potential voters. The immediate impact of Bill 5 was wide-spread confusion and uncertainty. 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.
31. 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.
Justice Belobaba provides more clarification that such a redistricting law would not have violated a candidate’s right to free expression had it been introduced before the beginning of the campaign period.
34. Here, the law changing the City’s electoral districts was enacted in the middle of the City’s election. This mid-stream legislative intervention not only interfered with the candidate’s freedom of expression, it undermined an otherwise fair and equitable election process.
35. Electoral fairness is a fundamental value of democracy. As the Court noted in Libman, the principle of electoral fairness flows directly from a principle entrenched in the Constitution: the political equality of citizens. Elections are fair and equitable only if candidates are given a reasonable opportunity to present their positions.
37. 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. Indeed, as the Supreme Court’s decision in Libman makes clear, where a democratic platform is provided (in that case a referendum, here a 47-ward election structure), and the election has begun, expressive activity in connection with that platform is protected against legislative interference under the traditional Irwin Toy analysis which focuses on substantial interference.
38. 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.
39. I now turn to the municipal voter’s right under the same provision of the Charter.
40. I begin with three propositions that are not in dispute. First, the most fundamental of our rights in a democratic society is the right to vote. Absent a right to vote, democracy cannot exist. Second, voting is an expressive activity, indeed the “most important expressive activity” and is fully protected under s. 2(b) of the Charter. Third, the right to vote is, in essence, the right to “effective representation” and not just voter parity.
43. The important legal issue is whether the comments by the Supreme Court about effective representation, made in the context of s. 3 of the Charter (which guarantees every citizen’s right to vote in a federal or provincial election, but not a municipal election), can also apply in the context of a municipal election. Can the concept of effective representation inform this court’s analysis of the municipal voter’s rights under s. 2(b) of the Charter?
44. In my view it can, for the following reasons.
45. The concept of effective representation is not rooted in s. 3 of the Charter. Its origins can be traced back to Canada’s founding fathers and the early debates about the appropriate design of electoral districts. As the Supreme Court explained in the Saskatchewan Reference:
‘[P]arity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation.’
Back to Justice Belobaba’s voice now:
46. b. If voting is indeed one of the most important expressive activities in a free and democratic society, then it follows that any judicial analysis of its scope and content under the freedom of expression guarantee should acknowledge and accommodate voting’s core purpose, namely effective representation. That is, the voter’s freedom of expression must include her right to cast a vote that can result in meaningful and effective representation.
48. … even though s. 2(b) does not guarantee a right to vote in municipal elections, if such an expressive right has been provided by the provincial government, then the right so provided must be consistent with and not in breach of the Constitution.
49. Here, the Province has statutorily provided for a resident’s right to vote in municipal elections, including the upcoming election in the City of Toronto. This right, having been provided, must be provided “in a fashion that is consistent with the Constitution.” And where it is not, a municipal voter is entitled to allege constitutional infringement, including an infringement of s. 2(b) based on the denial of her right to cast a vote that can result in effective representation.
50. A finding that Bill 5 has infringed the municipal voter’s freedom of expression by abridging her right to cast a vote that can result in effective representation does not constitutionalize a third level of government. Nor does it constitutionalize a right to vote at the municipal level…
Justice Belobaba summarizes the evidence brought by the applicants supporting the allegations that Bill 5 constitutes a ‘clear curtailment of the right to vote’ by reducing voters’ ‘effective representation’.
53. The [Toronto Ward Boundary Review] began in 2013 and concluded in 2017. Over the course of the almost four-year review, the TWBR conducted research, held public hearings, and consulted widely. The TWBR considered the “effective representation” requirement and the ward size that would best accomplish this objective. The option of reducing and redesigning the number of wards to mirror the 25 Federal Election Districts was squarely addressed and rejected by the TWBR. City Council’s decision in 2017 to increase the number of wards from 44 to 47 was directly based on the findings and conclusions of the TWBR, which in turn were affirmed on appeal to the Ontario Municipal Board and the Divisional Court
54. Put simply, the 25 FEDs option was considered by the TWBR and rejected because, at the current 61,000 average ward size, city councillors were already having difficulty providing effective representation.
55. Local government is the level of government that is closest to its residents. It is the level of government that most affects them on a daily basis. City councillors receive and respond to literally thousands of individual complaints on an annual basis across a wide range of topics – from public transit, high rise developments and policing to neighbourhood zoning issues, building permits and speed bumps.
56. Recall what the Supreme Court said in Saskatchewan Reference about how effective representation includes “the right to bring one’s grievances and concerns to the attention of one’s government representative.” This right must obviously be a meaningful right. This is particularly relevant in the context of the councillor’s role in a mega-city like Toronto.
57. The evidence before this court supports the conclusion that if the 25 FEDs option was adopted, City councillors would not have the capacity to respond in a timely fashion to the “grievances and concerns” of their constituents. Professor Davidson, who filed an affidavit in this proceeding, and also participated in the TWBR as a consultant, provided the following expert evidence:
‘It is the unique role of municipal councillors that distinguishes municipal wards from provincial and federal ridings. Boundaries that create electoral districts of 110,000 may be appropriate for higher orders of government, but because councillors have a more involved legislative role, interact more intimately with their constituents and are more involved in resolving local issues, municipal wards of such a large size would impede individual councillor’s capacity to represent their constituents.
It is my professional opinion that the unique role of councillors, as well as the public feedback received by the TWBR, and comparison with ward-size in other municipalities, demonstrates that a ward size of approximately 61,000 people provides councillors with capacity to provide their constituents with effective representation and that ward sizes of approximately 110,000 do not.’
58. 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.
59. In sum, I have found two distinct breaches of s. 2(b) – the first, that the Impugned Provisions substantially interfered with the candidate’s right to freedom of expression when it changed the City’s electoral districts in the middle of the election campaign; the second, that the Impugned Provisions substantially interfered with the voter’s right to freedom of expression when it doubled the ward population size from a 61,000 average to a 111,000 average, effectively denying the voter’s right to cast a vote that can result in effective representation.
The remainder of the decision outlines the Belobaba’s reasoning for why the the violation of the rights outlined so far in his decision do not constitute a reasonable limit to the exercise of those rights.
In other words, in order to respond to ‘pressing and substantial concerns in a democratic society’, s.1 of the C
harter allows that a government may introduce a law that limits citizens’ rights and freedoms, but only under certain conditions. Those conditions are outlined by the proportionality test.
62. The proportionality test involves three steps: the restrictive measures chosen must be rationally connected to the objective, they must constitute a minimal impairment of the violated right or freedom and there must be proportionality both between the objective and the deleterious effects of the statutory restrictions and between the deleterious and salutary effects of those restrictions.
64. The news release that was issued by the Premier’s office on July 27, 2018 provided two rationales for Bill 5, improved efficiency and overall cost savings. The Premier observed that Toronto City Council “has become increasingly dysfunctional and inefficient through a combination of entrenched incumbency and established special interests” and that Bill 5 would create an effective municipal government that saves taxpayers money.
65: On August 2, 2018 at the second reading of Bill 5, the Minister of Municipal Affairs and Housing set out three objectives for the legislation:
‘First, they [councillors in support of a 25-ward model] agree that a smaller council will lead to better decision-making at Toronto city hall, which would benefit Torontonians as a whole. They gave an example of the current 44-member council having 10-hour debates on issues that would end with the vast majority of councillors voting the same as they would have at the beginning of the debate. …
‘ Second, they point out that it will save money …
Third, it would result in a fair vote for residents, which was the very reason Toronto itself undertook a review of its ward boundaries. The Toronto councillors I referred to earlier reminded everyone that the Supreme Court of Canada said that voter parity is a prime condition of effective representation. They gave examples of the current ward system, where there are more than 80,000 residents in one ward and 35,000 in another. They acknowledge that this voter disparity is the result of self-interest, and that the federal and provincial electoral district process is better because it is an independent process which should apply to Toronto as well. … The wards we are proposing are arrived at through an independent process.’
Back to Belobaba’s voice:
67. During the debate on second reading, the MPPs who spoke in support of Bill 5 focused on two objectives – improved efficiency and saving taxpayers money. Other than the brief reference by the Minister (in the excerpt set out above) nothing more was said about voter parity. The Province has indicated to the court that it does not rely on the costs saving objective for the s. 1 analysis. This leaves two objectives: improved efficiency (“better decision-making”, a “more streamlined” City Council) and voter parity (barely mentioned).
70. 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.
71. In my view, the Province’s justification of the Impugned Provisions in Bill 5 fails at the first step of the s. 1 analysis. There is simply no evidence that the two objectives in question were so pressing and substantial that Bill 5 had to take effect in the middle of the City’s election.
72. The Supreme Court has stated time and again that “preserving the integrity of the election process is a pressing and substantial concern in a free and democratic society.” Passing a law that changes trhe City’s electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy.
73. Even if the Province could establish that the two rationales that were provided to explain Bill 5 were so pressing and substantial as to justify its enactment in the middle of the City’s election, the Province could not establish proportionality, and in particular minimal impairment. As the Supreme Court noted in RJR-MacDonald, “[I]f the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.”
74. Dealing with the first objective, improved efficiency in City Council debates, the Province has not shown why a significantly less intrusive and equally effective measure was not chosen, such for example, imposing time limits on debate, or more to the point, delaying the coming into force of the City Council restructuring law until after the City’s election.
75. Dealing with the second objective, voter parity, and giving the Minister the benefit of the doubt that he understood that the primary concern is not voter parity but effective representation, there is no evidence of minimal impairment. The Province’s rationale for moving to a 25-ward structure had been carefully considered and rejected by the TWBR and by City Council just over a year ago. If there was a concern about the large size of some of the City’s wards (by my count, six wards had populations ranging from 70,000 to 97,000) why not deal with these six wards specifically? Why impose a solution (increasing all ward sizes to 111,000) that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the City’s election?
77. I am therefore obliged to find on the evidence before me that the breaches of s. 2(b) of the Charter as found above cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1.
The final claim addressed by Justice Belobaba’s decision is whether it was too late to return to a 47-ward structure for the fall 2018 elections.
79. The City Clerk may not feel confident about a 47-ward election but she is not saying that the hurdles are insurmountable. In any event, the City itself is asking explicitly for a return to the 47-ward structure and it is entitled to do so. I must assume that the City has considered the attendant logistical challenges and has concluded that an October 22 election based on the 47-ward structure can indeed be achieved in the short time that remains.
80. I find that the Province’s enactment of Bill 5 in the middle of the City’s election substantially interfered with the municipal candidate’s freedom of expression that is guaranteed under s. 2(b) of the Charter of Rights.
81. I find that the reduction from 47 to 25 in the number of City wards and the corresponding increase in ward-size population from an average of about 61,000 to 111, 000 substantially interfered with the municipal voter’s freedom of expression under s. 2(b) of the Charter of Rights, and in particular her right to cast a vote that can result in effective representation.
82. I further find on the evidence filed by the parties that these breaches of s. 2(b) cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1 of the Charter of Rights.
Find the full decision here.
If you’ve read this far, you may also be interested in the Charter Challenge for Fair Voting.