



COURT OF APPEAL FOR ONTARIO

CITATION: Toronto (City) v. Ontario
    (Attorney General), 2019 ONCA 732

DATE: 20190919

DOCKET: C65861

MacPherson, Tulloch, Miller,
    Nordheimer and Harvison Young JJ.A.

BETWEEN

City of Toronto

Applicant (Respondent)

and

Attorney General of Ontario

Respondent
    (Appellant)

Robin K. Basu, Yashoda Ranganathan and
    Aud Ranalli, for the appellant

Diana W. Dimmer, Glenn K.L. Chu, Philip
    Chan and Fred Fischer, for the respondent

Adam Goldenberg and Amanda D. Iarusso,
    for the intervenor Canadian Constitution Foundation

Derek Bell, for the intervenor Canadian
    Taxpayers Federation

Alexi N. Wood, for the intervenor David
    Asper Centre for Constitutional Rights

Stéphane Émard-Chabot, Mary Eberts and
    William B. Henderson, for the intervenor Federation of Canadian Municipalities

Paul Koven, for the intervenor Toronto
    District School Board

Heard: June 10-11, 2019

On appeal from the order of Justice Edward
    P. Belobaba of the Superior Court of Justice dated September 10, 2018, with
    reasons reported at 2018 ONSC 5151.

Miller J.A.:

A.

Overview

[1]

The Toronto City Council is a creature of
    provincial legislation. Provincial legislation governs everything from its
    composition to the scope of its jurisdiction. Shortly before the 2018 municipal
    election, the Ontario Legislature enacted legislation that changed the
    composition of the City Council, reducing it from 47 to 25 councillors.

[2]

This was a substantial change, and there is no
    question that it disrupted campaigning and the candidates expectations. But
    the question before this court is not whether the legislation is good or bad
    policy, was fair or unfair; the question is whether it violates the
Charter
or is otherwise unconstitutional.

[3]

Three applications were brought challenging the
    constitutionality of the
Better Local Government Act
,
2018
,
    S.O. 2018, c. 11 (the 
Act
), and seeking to restore the
status
    quo

ante
of 47 wards in time for the October 22, 2018 election.
    The applications were successful at first instance, the application judge holding
    that the
Act
violated s. 2(b) of the
Canadian Charter of Rights
    and Freedoms
.

[4]

Ontario appealed and brought a motion to stay (or
    suspend) the judgment pending appeal. Given the timing of the election, it was
    apparent that the stay motion would be the final word on the most significant aspect
    of the litigation  whether the October election would proceed on the basis of
    47 or 25 wards. Because of the finality of the order, the test for granting the
    stay was heavily weighted towards an assessment of the merits of the appeal.
    The most important question was whether there was a strong likelihood that the
    application judge had erred and would be reversed on appeal. A three-judge
    panel of this court concluded there was a strong likelihood that the appeal
    would succeed. Accordingly, it granted the stay and the election proceeded on
    the basis of 25 wards.

[5]

This court has now had the benefit of a full
    hearing on the merits. We have not been asked to make any order concerning the
    election, which no party seeks to overturn, but simply to declare the
Act
unconstitutional.

[6]

As explained below, none of the arguments
    advanced by the City of Toronto can succeed. Although it is framed as a matter
    of protecting freedom of expression in the context of a municipal election, in
    reality the applicants complaint concerns the timing of the legislatures decision
    to change the composition of City Council  a change that is undeniably within
    the legitimate authority of the legislature. The applicants complaint has been
    clothed in the language of s. 2(b) of the
Charter
to invite judicial
    intervention in what is essentially a political matter. There is no legitimate
    basis for the court to accept this invitation.

[7]

The application judges interpretation of s.
    2(b) of the
Charter
, guaranteeing freedom of expression, exceeded the
    bounds of legitimate interpretation and amounted to a re-authoring of that
    provision. Additional arguments raised by the City of Toronto and supporting
    interveners  drawing on unwritten constitutional principles and jurisdictional
    limits inherent in the division of powers  are similarly erroneous and
    unsupported by constitutional jurisprudence.

[8]

In short, the
Act
is constitutional,
    and the appeal must be allowed.

[9]

In what follows, I will address the two
    arguments from freedom of expression accepted by the application judge, before
    turning to the arguments from unwritten constitutional principles and from jurisdictional
    limits said to be inherent in s. 92(8) of the
Constitution Act, 1867
. First,
    however, it will be helpful to canvass the background to the litigation, and
    address a preliminary question related to the Citys standing to argue the
    appeal in this court.

B.

Background

[10]

The
Constitution Act, 1867
assigns to
    the legislatures of each province exclusive jurisdiction over municipal
    institutions in the province. Unlike the federal Parliament and the Legislature
    for Ontario, municipal institutions such as city councils were not established
    by the
Constitution Act, 1867
and have no constitutional stature. They
    exercise powers granted to them by the provincial legislatures, and the
    legislation establishing their powers and composition can be amended from time
    to time, in the same manner as any other statute.

[11]

One such legislative change occurred in 1997,
    when provincial legislation amalgamated the constituent municipalities of
    Metropolitan Toronto. That legislation organized the new City of Toronto into
    28 wards and established a Council composed of one mayor and 56 councillors,
    two councillors per ward. In 2000, Ontario enacted the
Fewer Municipal
    Politicians Act
, S.O. 1999 c. 14, which reduced the Citys wards to 22,
    aligning them with the 22 Federal Electoral Districts in existence at the time.
    However, the legislation authorized the Council to split each ward into two,
    which it did to create a total of 44 wards. This model was kept in place for the
    next five elections.

[12]

By 2014, uneven population growth in the 44
    wards resulted in some wards approaching or exceeding twice the population of
    others, undermining voter parity. The Council retained consultants to conduct a
    ward boundary review. Based on the recommendations from that review, the
    Council passed two by-laws in November 2016 to increase the number of wards
    from 44 to 47, and redraw the boundaries for all but six of the previous wards.
    Those by-laws were upheld by the Ontario Municipal Board, the administrative
    tribunal then responsible for adjudicating appeals from the Citys electoral
    boundary by-laws.

[13]

The City planned the 2018 municipal election on
    the basis of the new 47-ward model. The nomination period opened on May 1, 2018
    and closed on July 27. The election was scheduled for October 22.

[14]

On July 27, the closing date for nominations,
    the Government of Ontario announced that it intended to introduce legislation
    that would reduce the size of Council from 47 to 25 councillors. Three days later,
    Bill 5 was introduced into the Ontario Legislature. It proposed to redraw ward
    boundaries in line with current Federal Electoral Districts, and extended the
    nomination period to September 14.

[15]

The Bill was passed and the
Act
came
    into force August 14, 2018. It provided for a municipal election based on 25
    wards, with ward boundaries identical to the existing boundaries for both federal
    and provincial elections.

[16]

The City and two groups of private individuals
    brought applications in Superior Court to challenge the constitutionality of
    the
Act
. They argued that it violated provisions of the
Charter of
    Rights and Freedoms
guaranteeing freedom of expression, freedom of
    association, and equality. They also argued that it was inconsistent with the
    unwritten constitutional principles of democracy and the rule of law.

[17]

The application judge found that the
Act
breached s. 2(b) of the
Charter
in two respects. First, he concluded
    that changing the number and size of the electoral wards after campaigning had
    begun interfered with the candidates ability to campaign. The application
    judge found this to be unfair to the candidates, who found themselves in a
    suddenly altered electoral landscape. In some cases, the redrawing of ward boundaries
    meant that some of their campaigning to date  involving significant financial
    resources  had been misdirected towards voters who could not now vote for
    them. Additionally, they now needed to reach a new set of voters, who may not
    have shared the same concerns as the original target voters.

[18]

Second, the application judge found that the
Act
limited the voters freedom of expression by increasing ward population size
    from an average of 61,000 to 111,000, effectively denying the voters right to
    cast a vote that can result in effective representation. The application judge
    held that the limits on freedom of expression he identified were not reasonable
    and could not be justified under s. 1 of the
Charter
. In particular,
    he found that the
Act
could not pass even the first branch of the
Oakes
test: there was no evidence that the objectives of the
Act
were
    sufficiently pressing and substantial to justify taking effect in the middle of
    an election campaign.

[19]

Having found a violation of the
Charter
,
    the application judge did not proceed to consider the other arguments advanced
    by the applicants.

[20]

The application judge declared the provisions in
    the
Act
reducing the number of City wards from 47 to 25 to be of no
    force and effect. He ordered the municipal election to proceed on the basis of
    the former 47-ward model.

[21]

On September 19, 2019, a three-judge panel of this
    court granted a stay of the application judges order:
Toronto (City) v.
    Ontario (Attorney General)
, 2018 ONCA 761, 142 O.R. (3d) 481. The stay
    motion effectively decided the immediate controversy and the election proceeded
    on October 22 on the basis of 25 wards. Aware that granting the stay would
    determine whether the election would proceed on the basis of 47 or 25 wards,
    the court noted that greater attention must be paid to the merits of the
    constitutional claim and that it was required to determine whether there is a
    strong likelihood that the  application judge erred in law and that the
    Attorney Generals appeal to this court will succeed. The court concluded that
    the application judges reasoning was unsupportable, and that there was a
    strong likelihood that the appeal would succeed.

[22]

The Attorney General of Ontario appeals from the
    application judges decision. For the reasons that follow, I would allow the
    appeal. The application judge erred in determining that the
Act
infringed s. 2(b) of the
Charter
, and the constitutionality of the
Act
cannot be impugned on any other basis advanced.

C.

Issues

[23]

The issues on this appeal are:

1)

Does the City have standing to assert a breach of
    s. 2(b)
Charter
rights?

2)

Did the application judge err by finding that
    the
Act
limited the respondents s. 2(b)
Charter
rights as a
    result of:

a)

mid-election change in the number and size of wards,
    and

b)

impairing voter parity and effective
    representation?

3)

Did the application judge err by concluding that
    limits imposed by the
Act
on the exercise of freedom of expression
    were not justified?

4)

Do unwritten constitutional principles provide
    courts with an independent basis to invalidate the
Act
?

5)

Does s. 92(8) of the
Constitution Act, 1867
contain inherent jurisdictional limits that render the
Act
unconstitutional?

D.

Analysis

(1)

Standing

[24]

All of the original applicants, except the City,
    have now settled with Ontario.

[25]

Those applicants had standing as either
    candidates or voters in Toronto, and in their absence, Ontario argues that the
    City has no standing to assert a breach of s. 2(b) of the
Charter
, on
    the grounds that the
Charter
does not confer rights on governments.

[26]

The City argues that it has standing on the
    basis that it represents its residents and has an interest in ensuring
    effective representation for its residents:
Charlottetown (City) v. Prince
    Edward Island
, [1998] PEIJ No. 88 (PE SCAD). In the alternative, it argues
    that it should be granted public interest standing in accordance with the
    discretionary test outlined in
Canada (AG) v. Downtown Eastside Sex Workers
    United Against Violence Society
, 2012 SCC 45, [2012] 2 S.C.R. 524, at
    para. 53: (1) whether the case raises a serious justiciable issue; (2) whether
    the party bringing the action has a real stake or genuine interest in its
    outcome; and (3) whether the proposed suit is a reasonable and effective means
    to bring the case to court.

[27]

It is important to note that the basis of the
    Citys participation in the application was not raised before the application
    judge or the stay panel. Neither was it raised in the Notice of Appeal. The individual
    applicants  candidates and electors  clearly had standing, and in the event
    the Citys standing appears to have been overlooked. We have not been told why the
    individual applicants have settled, but there are obvious practical realities:
    the appeal, as far as these applicants are concerned, is moot. As a result of
    the stay granted by this court, the election has taken place. No one now asks
    that it be invalidated and rerun, assuming that such an order could be made.

[28]

The City does not assert private interest
    standing on its own behalf. But the issues on appeal are serious, and given
    that the Citys role in the litigation prior to the appeal was never
    challenged, allowing the City to step into the shoes of the settling parties
    and argue the appeal in their stead is in my view a reasonable means of ensuring
    that the decision below is properly reviewed in this court.

[29]

I emphasize that this should not be taken as an
    expression of support for the Citys standing to have brought the application
    in the first place.

(2)

Freedom of Expression

[30]

This appeal raises important questions about how
    to interpret the Constitution, and in particular, how to interpret the
    fundamental freedoms guaranteed in s. 2 of the
Charter
.

Principles of Charter interpretation

[31]

To interpret the
Charter
it is
    necessary to have regard to its basic structure, and to respect the decisions that
    were made to constitutionally guarantee some, but not all, possible rights,
    using particular formulations rather than others. These constraints on constitutional
    interpretation have been emphasized by the Supreme Court since the earliest
    years of the
Charter
:

The interpretation of the
Charter
, as
    of all constitutional documents, is constrained by the language, structure, and
    history of the constitutional text, by constitutional tradition, and by the
    history, traditions, and underlying philosophies of our society:
Reference
    Re Public Service Employee Relations Act (Alta.)
, [1987] 1 S.C.R. 313,
    para. 151.

[32]

The Supreme Court has further explained that
    understanding the scope of a
Charter
right or freedom requires an
    understanding of its purpose, which is a matter of considering the human
    interests it is intended to protect:

[T]his analysis is to be undertaken, and the
    purpose of the right or freedom in question is to be sought by reference to the
    character and the larger objects of the
Charter
itself, to the
    language chosen to articulate the specific right or freedom, to the historical
    origins of the concepts enshrined, and where applicable, to the meaning and
    purpose of the other specific rights and freedoms with which it is associated
    within the text of the
Charter
. The interpretation should be  a
    generous rather than a legalistic one, aimed at fulfilling the purpose of the
    guarantee and securing for individuals the full benefit of the
Charter
's
    protection. At the same time
it is important not to
    overshoot the actual purpose of the right or freedom in question
, but to
    recall that the
Charter
was not enacted in a vacuum, and must
    therefore  be placed in its proper linguistic, philosophic and historical
    contexts:
R. v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295, at p. 344.
    [emphasis added.]

[33]

The text of s. 2(b) was drafted using
    intentionally vague and open-ended language, leaving much of its meaning to be shaped
    through future legislative choices and judicial decisions. But as
Big M
noted, it was enacted within particular linguistic, philosophic and historical
    contexts that provide boundaries on its construction. That is, the freedom of
    expression provision is the product of a particular context and history and is
    not so open ended as to be capable of supporting every conceivable rationale
    related to the exercise of expression. As with other
Charter
rights, and
    as the Supreme Court emphasized in
Big M
, it is necessary to identify
    the actual purpose underlying this particular specification of the right, and
    not to impose others. The underlying purpose constrains and guides
    interpretation of the text of the
Charter
; it cannot be used to set the
    text aside.

[34]

The application judge departed from the text and
    its underlying purpose and misconstrued the meaning of s. 2(b) in two ways: (1)
    extending s. 2(b) to guarantee that government action will not render anyones
    expression less effective; and (2) by subsuming a separate
Charter
right
     the right to vote (s.3)  within the freedom of expression. I will address
    each of these errors below.

Argument 1: Legislative timing and its impact on campaign
    effectiveness

[35]

The application judge characterized the impact
    of the
Act
on the candidates as follows. In the interval between the
    start of the campaign on May 1 and when the
Act
took effect on August
    14, most candidates had already produced campaign materials, such as websites
    and pamphlets, that were tied specifically to the particular wards in which
    they were running, based on the old 47-ward structure. Both time and money had
    been invested in campaigning within particular wards, addressing particular
    voters with ward-specific messaging. When the wards were effectively doubled in
    size, this created challenges for the candidates: [t]here was confusion about
    where to run, how to best refashion ones political message and reorganize
    ones campaign, how to attract additional financial support, and what to do
    about all the wasted campaign literature and other material. Going forward, [t]he
    candidates efforts to convey their political message about the issues in their
    particular ward were severely frustrated and disrupted as the candidates
    spent more time on doorsteps addressing the confusing state of affairs with
    potential voters than discussing relevant political issues.

[36]

Some of the candidates communication for the
    purpose of getting elected had been directed to voters who were now in other
    wards and could no longer vote for that candidate. In other cases, time and
    energy spent earning support from voters was lost when those voters allegiance
    shifted to new candidates who would previously have run in other wards. In the
    period after Ontario had announced its intention to change the legislation, the
    complaint was that voters priorities had changed. They were said to be no
    longer as receptive to substantive political messages; they were instead
    preoccupied with understanding the impact of the
Act
and the court
    challenges to it.

[37]

The application judge concluded that the effect
    of the
Act
was to substantially interfere with the candidates
    political expression.

[38]

There are two related legal errors in this
    branch of the application judges analysis, as I will explain below.

[39]

First, the application judges analysis expanded
    the purpose of s. 2(b) from a guarantee of freedom from government interference
    with expression to a guarantee that government action would not impact the
effectiveness
of that expression in achieving its intended purpose.

[40]

Second, the application judge conflated the
    concepts of positive and negative rights, failed to consider the framework for
    analysing a positive rights claim, and thereby impermissibly extended the scope
    s. 2(b).

(a)

Section 2(b) does not guarantee effective expression

[41]

The freedom to communicate with others is an
    important component of freedom of expression; it allows the dissemination of
    opinions and ideas. It is essential to any joint enterprise that requires
    individuals to coordinate their efforts with others. Section 2(b) of the
Charter
protects against government interference with most (but not all) such
    communication. But s. 2(b) protects against interference with the expressive
    activity itself, not its intended result. Put another way, freedom of expression
    does not guarantee that government action will not have the side-effect of reducing
    the likelihood of success of the projects or joint enterprises that any person
    is working to achieve. Accordingly, legislation that changes some state of
    affairs (such as the number of electoral wards), such that a persons past
    communications lose their relevance and no longer contribute to the desired project
    (election to public office), is not, on that basis, a limitation of anyones
    rights under s. 2(b):
Delisle v. Canada (Deputy Attorney General),
[1999]
    2 S.C.R. 989, at paras. 39-41;
Baier v. Alberta,
2007 SCC 31, [2007] 2
    S.C.R. 673.

[42]

Freedom of expression has an essentially
    negative orientation, an orientation that is especially important in the context
    of political expression. Freedom of expression is respected, in the main, if
    governments simply
refrain
from actions that would be an unjustified
    interference with it.

[43]

Not that this requires governments to remain
    silent and passive. As Ontario argued, governments may, for example, enter the
    marketplace of ideas to offer messages that counter expression: consumer health
    warnings on various products are an obvious example. Governments may also
    respond to criticism of their policies. These responses, to the extent they are
    persuasive and effectively conveyed, may undermine the messages conveyed by others
    and diminish their intended effects. It is not part of a governments
    constitutional duty to promote, enhance, or even preserve the effectiveness of anyones
    political expression:
Longley v. Canada (Attorney General),
2007 ONCA
    852, 88 O.R. (3d) 408, at para. 110.

[44]

The
Act
, however, did not counter
    anyones message. Rather, it altered the composition of the Toronto City
    Council, reducing the number of wards and councillors and changing electoral
    boundaries accordingly. It is clear that the legislature is free to add or
    subtract as many council seats as it considers appropriate. It can, for that
    matter, restructure the City of Toronto itself, making it bigger or breaking it
    up into smaller cities should it choose to do so. It is uncontested that it could
    do so after an election, even the very next day.

[45]

All that is in issue here is the
timing
of such legislative changes. But the alleged impact on freedom of expression itself
     as distinct from any other impact on a candidate  would be the same, regardless
    of whether the change was made during or after an election. If expression is
    wasted due to diminished campaign effectiveness when ward composition
    changes, it would be much more thoroughly wasted after campaigning is carried
    to fruition, an election took place, and Council were then restructured. All
    expressive efforts would not simply have been diminished in their effect, but would
    have been entirely for nought; after all, the purpose of campaigning is not
    just to secure election, but to govern.

[46]

Expression is one thing. Its impact is another.
    Section 2(b) does not guarantee that expression will retain its value.

(b)

Positive and negative rights

[47]

As I have noted, s. 2(b) case law emphasizes the
    negative dimension of the freedom of expression: that the purpose of s. 2(b) is
    to prevent interference by government with expression. Government is not
    required to take any positive steps to provide or maintain particular platforms
    to enable anyones expression.

[48]

To the extent that a positive dimension to s.
    2(b) has been recognized by the Supreme Court, it is exceptional and narrow,
    focussing on the central case of under-inclusion: where a platform is made
    available to some, but not all. In
Baier
, the Supreme Court
    articulated a set of criteria that need to be satisfied before such an
    exceptional claim can succeed. The application judge did not, however, refer to
    this framework or the cases applying it, and instead applied the
Irwin Toy
analysis intended for negative rights claims:
Irwin Toy Ltd. v. Quebec
    (Attorney General),
[1989] 1 S.C.R. 927. He erred in doing so. The
    appropriate framework for analysis is set out below.

The Baier framework

[49]

In
Baier
at para. 30
, the Supreme Court summarized the governing framework
    for resolving a positive rights claim, which it provided in the context of a
    claim of underinclusion:

In cases where a government defending a
Charter
challenge alleges, or the
Charter
claimant concedes, that a positive
    rights claim is being made under s. 2(b), a court must proceed in the following
    way. First it must consider whether the activity for which the claimant seeks s.
    2(
b
) protection is a form of expression. If so, then second, the court
    must determine if the claimant claims a positive entitlement to government
    action, or simply the right to be free from government interference. If it is a
    positive rights claim, then third, the three
Dunmore
factors must be
    considered. As indicated above, these three factors are (1) that the claim is
    grounded in a fundamental freedom of expression rather than in access to a
    particular statutory regime; (2) that the claimant has demonstrated that
    exclusion from a statutory regime has the effect of a substantial interference
    with s. 2(
b
) freedom of expression, or has the purpose of infringing
    freedom of expression under s. 2(
b
); and (3) that the government is
    responsible for the inability to exercise the fundamental freedom. If the
    claimant cannot satisfy these criteria then the s. 2(
b
) claim will
    fail.  If the three factors are satisfied then s. 2(
b
) has been
    infringed and the analysis will shift to s. 1.

The following analysis applies the
Baier
framework.


i.

Is the activity a form of expression?

[50]

What is the activity with which the
Act
is said to have interfered, and is that activity a form of expression? The
Act
changed the composition of the Toronto City Council by reducing the number of
    wards in the City of Toronto, reducing the number of councillors, and changing the
    ward boundaries. It did so in the midst of an election.

[51]

The claimants are not required at this stage to
    establish that there has been a limitation on their freedom of expression, but
    simply that the activity for which they claim the protection of the freedom is
    a form of expression. Electoral campaigning  presenting prospective voters
    with messages intended to convince them to vote for the candidate  is
    undeniably expression for the purposes of s. 2(b):
Harper v. Canada
    (Attorney General),
2004 SCC 33, [2004] 1 S.C.R. 827. The claimants
    satisfy the first stage of the test.


ii.

Positive entitlement to government action or
    the right to be free from interference

[52]

At the second stage, the question is whether restoring
    the
status quo

ante
of ward composition during an election
    campaign is a matter of protecting expression.

[53]

The City argues that this is not a positive
    rights case. It argues that the candidates did not seek the creation of a new
    platform, but rather sought freedom from government interference with their use
    of an existing platform  defined as the specifically 47-ward election. In
    response to LHeureux-Dubé J.s dictum in
Delisle
that s. 2(b) does
    not compel the distribution of megaphones, the City responds that Ontario
    already provided the candidates with a megaphone  an election for a 47-member
    Council  and then smashed it. The City argues that once Ontario had provided
    an electoral platform, and the election had begun, s. 2(b) prevents Ontario
    from changing that platform.

[54]

This is not a positive rights claim of the sort
    that the Court had in mind in
Baier
. It is, fundamentally, a claim to a
    particular platform and not a claim that government desist with interference in
    the conveyance of any message. A claim for the restoration of access to a specific
    platform is as much a positive rights claim as a demand for a new platform:
Baier
,
    para. 36. The only difference from
Baier
is that in
Baier
the
    applicants lost access to a platform that remained available to everyone else.
    In this case, the applicants lost access to a platform to which no one retained
    access, but gained access to another.

[55]

The claim to restore an old platform is a positive
    claim. It is irrelevant that the applicants were seeking to restore the
status
    quo
that was changed by the new legislation:
Dunmore v. Ontario
    (Attorney General),
2001 SCC 94,
    [2001] 3 SCR 1016
,
Baier
. The hallmark of a negative
    rights claim is that it is a matter of stopping government from interfering
    with expression that the claimant would otherwise be free to engage in. By
    contrast, the hallmark of a positive rights claim is that it requires
    government to take some step to facilitate expression. Here, there can be no
    participation in a municipal election  no electoral expression  without
    legislation establishing the platform of the election. A challenge to
    legislation that modifies a platform for expression is an assertion of a positive
    right, and must be assessed on the
Baier
framework.


iii.

Are the
Dunmore
factors met?

[56]

Having determined that the candidates advanced a
    positive claim that Ontario maintain a 47-ward election once the election
    period began, the question is whether the City can meet the exceptional
    criteria required to advance a positive rights claim. As set out below, I have
    concluded that the claim cannot meet any of the three criteria and it must therefore
    fail.

a.

Is the claim grounded in freedom of
    expression rather than access to a particular statutory regime?

[57]

First, the claimants must establish that the subject
    of their claim is interference with expression, rather than access to the desired
    election platform. As explained below, the claimants have framed their claim in
    terms of interference with expression.

[58]

The
Act
did not, and could not, erase
    the messages that had already been communicated. Nor did it prescribe or
    proscribe any future messaging. However, the City objects that the
meaning
of the candidates expression was effectively destroyed. The argument is that
    the changes to the composition of the City Council made during the election
    made prior messages irrelevant to the voters, and subsequent messages inaudible.

[59]

This is, as I explained above, not a claim that
    any candidate was prevented by government from saying anything he or she wished
    to say on any subject. It is a claim that prior expressive activity by the candidates
    would not in fact contribute to the project of securing their election, and
    that additional, different campaigning would now be required.

[60]

Again, the efficacy of expression  let alone
    prior expression  is not guaranteed by s. 2(b), and the claim is not grounded
    in s. 2(b).

[61]

The claim therefore fails to satisfy the first
Dunmore
factor. That is sufficient to dispose of the positive rights argument, however,
    I will briefly address the remaining
Dunmore
factors, which the claim
    also fails to satisfy.

b.

Does exclusion from the platform have the
    effect of a substantial interference with the activity protected under s. 2(b)?

[62]

The second
Dunmore
inquiry can be
    stated, on the facts of this case, as whether the
Act
s reduction of
    the size of the City Council had the effect of substantially interfering with
    the activity protected under s. 2(b). This is the same question that the application
    judge addressed under the
Irwin Toy
test. He concluded there was
    substantial interference. This was an error.

[63]

The frustration of candidates in facing altered
    electoral circumstances  unanticipated rivals, losing allies, and needing to
    reach new voters  did not prevent them from saying anything they wished to say
    about matters in issue in the election or in promoting their candidacies. The
    submissions of the City and some of the intervenors make the error of implausibly
    characterizing every negative impact on the candidates as an interference with expression.

[64]

The candidates remained free to seek election on
    such bases as they chose and to campaign as they saw fit. The application judge
    found that because the
Act
reduced the effectiveness of the
    candidates messages, it therefore limited their s. 2(b) rights. As stated
    above, this was in error and overlooked contrary binding authority
Baier
;
Delisle
;
Longley
, at para. 109.

[65]

The intervener the David Asper Centre for
    Constitutional Rights argues that s. 2(b) requires an electoral process to be
    fair. It requires a stable and protective framework and the rules around the
    campaign period must be highly regulated and constitutionally protected. It proposes
    a list of principles that, in its view, should be satisfied in order for a
    democratic process to be in good health, and asserts that the courts role is
    to ensure that these principles are met.

[66]

These proposed principles of political morality are
    sound and relevant to guiding legislative and executive decision-making
    concerning elections. They may also be relevant to claims adjudicated under s.
    3 of the
Charter
. But they are not grounded in s. 2(b) of the
Charter
and do not bear on the interpretation of s. 2(b). Freedom of expression and
    democracy are, of course, mutually supportive concepts. Freedom of expression
    enables democracy, and a healthy democratic political culture protects freedom
    of expression. They are, however, distinct concepts. It does not follow that
    every change to a governing institution that might bear scrutiny under s. 3 or
    some other part of the Constitution therefore also impacts freedom of
    expression.

[67]

The claim of substantial interference with expression
    is not established.

c.

Is the government responsible for the
    claimants inability to exercise freedom of expression?

[68]

Having concluded that the first two criteria have
    not been satisfied, the third must fail as well. The claimants were not prevented
    from exercising their freedom of expression.

[69]

Accordingly, the City has not established on
    this argument that s. 2(b) has been limited.

Argument 2: Subsuming the right to vote into freedom of
    expression

[70]

As outlined above, the application judge had two
    paths to finding that the
Act
limited freedom of expression. Having
    found that the first path was in error, it is necessary to consider the second
    argument: that s. 2(b) is informed by the right to vote guaranteed by s. 3 of
    the
Charter
. This argument extends the protections in s. 3 that apply
    to federal and provincial elections to municipal elections.

[71]

Section 3 of the
Charter
guarantees
    citizens the right to vote and run for office in provincial and federal
    elections. It has been interpreted as securing for electors a right to
    effective representation:
Reference re Provincial Electoral Boundaries
    (Sask),
[1991] 2 S.C.R. 158. Section 3, on its face, has no application to
    municipal elections. The application judge, however, created a workaround by
    concluding that because
Charter
rights are interrelated, the value
    of effective representation can be used to enlarge the scope of s. 2(b) to
    guarantee that municipal voters have a right to cast a vote that results in
    effective representation.

[72]

The concern from the standpoint of effective
    representation is that with wards significantly increased in size  albeit
    matching the federal and provincial electoral ridings  city councillors would be
    spread too thin and be unable to provide effective representation to constituents.

[73]

The argument begins with the sound propositions
    that: expressive activity is protected by s. 2(b), voting is expressive
    activity, and voting is therefore protected expression under s. 2(b). However,
    it proceeds to the erroneous conclusion that freedom of expression guarantees
    that a vote  in whatever context  must therefore satisfy the requirements for
    meaningful and effective representation guaranteed by s. 3 for voting in
    federal and provincial elections.

[74]

This argument must be rejected. Sections 2(b)
    and 3 guarantee distinct rights that must be given independent meaning:
Harper
,
    at para. 67,
Thomson Newspapers
, at paras. 79-80.

[75]

Rights protections often overlap in protecting a
    single activity, because persons, even in carrying out a single act, can
    simultaneously participate in multiple human goods. For example, because
    expression is often the means by which persons engage in other activities, such
    as associational activity, conscientious objection, or religious activity, a
    single act can be protected by s. 2(b) alone, or in conjunction with other
    rights such as ss. 2(a) or 2(d).
Baier
holds that where a claim can be
    advanced under more than one
Charter
right, the fact that a claim
    under one right fails does not foreclose the possibility of success under
    another right: each right must be assessed independently and given effect:
    para. 59.

[76]

But the basic structure of the
Charter
must be respected. Although the coverage of particular rights can overlap, the
    content of one right cannot be subsumed by another, or used to inflate its
    content. The application judges analysis wrongly imports the content of s. 3
    into s. 2(b) in order to circumvent the decision of the constitutional framers
    not to extend the protection of s. 3 to municipal elections.

[77]

Instead of working from the text of the
Charter
and giving effect to the constitutional settlement it established, the
    application judge worked from the premise that, if he concluded that the
Act
was unfair to candidates and voters, it must therefore be unconstitutional. The
    Constitution does not work that way. No constitution does.

[78]

In summary, neither of the bases upon which the
    application judge found an infringement of s. 2(b) can stand.

(3)

Section 1

[79]

As it was an error for the application judge to
    hold that the claimants had established that their exercise of freedom of
    expression had been limited by the
Act
, it is not necessary to consider
    the application judges analysis as to whether any limit was nevertheless
    justified under s.1. This should not be read as an endorsement of the
    application judges analysis.

[80]

Additionally, there is no need to consider fresh
    evidence tendered by Ontario on the issue of whether any limit on s. 2(b) could
    be justified under s.1. I would dismiss the motion to admit the fresh evidence.

(4)

Unwritten constitutional principles are not an
    independent basis to invalidate legislation

[81]

The City and the Federation of Canadian
    Municipalities both advance arguments that unwritten constitutional principles
     in particular, the principles of democracy and the rule of law  provide this
    court with authority to invalidate the
Act
. The first argument, which
    will be addressed in this section, is that unwritten constitutional principles
    provide the court with the authority to invalidate legislation on the basis
    that it is inconsistent with one or more of these principles, in the same
    manner as if there were an inconsistency with a provision of a written
    constitutional text. The second argument, which I will address in the next section,
    is that unwritten constitutional principles can be used to interpret the
    constitutional text, and that the
Act
is inconsistent with the text of
    s. 92(8),
Constitution Act, 1867
, so interpreted.

[82]

Both of these arguments must be rejected.

[83]

As the City rightly observes, the Constitution
    of Canada is partly written and partly unwritten. Constitutional texts, such as
    the
Constitution Act, 1867
and the
Constitution Act, 1982
, establish
    governing institutions, allocate executive, legislative, and judicial power,
    and establish limits on the scope of those powers. The unwritten parts of the Constitution
    include conventions and usages:
political

rules
that are
    accepted as binding on the government actors to whom they apply, but are
    enforceable only by the political branches of government and not the judiciary:
Reference re Secession of Quebec,
[1998] 2 S.C.R. 217.

[84]

The unwritten parts of the Constitution also
    include principles of political philosophy that have come to be known as
    unwritten constitutional principles. It is uncontroversial that unwritten
    constitutional principles, like all principles of political morality, can guide
    and constrain the decision-making of the executive and legislative branches of
    government:
British Columbia v. Imperial Tobacco,
2005 SCC 49, [2005]
    2 S.C.R. 473, at para. 52. But their role in adjudication by the courts is
    easily misunderstood and often overstated, because of the tendency to conflate
    legal and political unconstitutionality. There is thus significant debate both
    over the content of these principles and their relevance in adjudication: see
    for example, Mark Walters, Written Constitutions and Unwritten
    Constitutionalism and Jeffrey Goldsworthy, Unwritten Constitutional
    Principles in G. Huscroft, ed.,
Expounding the Constitution: essays in
    constitutional theory
(New York: Cambridge University Press, 2008) 245-312.

[85]

This appeal does not ask this court to identify
    any new constitutional principles. Regardless, the principles that the City
    relies on  democracy and the rule of law  are highly abstract and, in the
    language of
Imperial Tobacco
, at para. 66, amorphous. Unlike the
    rights enumerated in the
Charter
 rights whose textual formulations
    were debated, refined, and ultimately resolved by the committees and
    legislative assemblies entrusted with constitution-making authority­  the
    concepts of democracy and rule of law have no canonical formulations. These
    concepts, particularly the rule of law, are complex and multifaceted, and have sustained
    debate from Aristotles
Politics
to Aquinass
Summa Theologiae
and Lon L. Fullers
The

Morality of Law
: (Newhaven: Yale
    University Press, 1964). As Rothstein J. emphasized, their constituent elements
    are not absolute, can only be realized to a degree, and often work at
    cross-purposes with each other:
Trial Lawyers Association of British
    Columbia v. British Columbia (Attorney General)
, 2014 SCC 59, [2014] 3 S.C.R.
    31, at para. 100 (dissenting).

[86]

Even if this court were to conclude that the
Act
is in some way inconsistent with the principles of democracy or the rule of law
     something that, I emphasize, the respondents have not established  there
    would be no legitimate basis for this court to invalidate the
Act
based on this inconsistency.

[87]

There are, as the Supreme Court has said,
    compelling reasons to insist upon the primacy of our written constitution:
Reference
    re Secession of Quebec
, at para. 54. Unlike constitutional text (and even conventions)
    unwritten constitutional principles cannot supply judges with the relatively determinate
    guidance provided by rules set down by other institutions in advance. To use
    such indeterminate, open-ended, and contested concepts as grounds to invalidate
    legislation would be, as the Supreme Court has observed, to devolve into
    judicial governance:
Imperial Tobacco
, at para. 52-53. As La Forest
    J. wrote, [t]he ability to nullify the laws of democratically elected
    representatives derives its legitimacy from a super-legislative source: the
    text of the Constitution. He concluded that judicial review is politically
    legitimate only insofar as it involves the interpretation of an authoritative
    constitutional instrument and [t]his legitimacy is imperiled  when courts attempt
    to limit the power of legislatures without recourse to express textual
    authority:
Ref re Remuneration of Judges of the Prov. Court of P.E.I.
;
Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I.
,
    [1997] 3 S.C.R. 3, at paras. 314-16.

[88]

To these concerns, we can add this: were a court
    to invoke unwritten constitutional principles to invalidate legislation, the
    consequences of judicial error  always a possibility  would be virtually irremediable.
    Where a court invalidates legislation using s. 2(b) of the
Charter
, s.
    33 is available to enable the legislature to give effect to its disagreement
    with a courts interpretation or application of that right. Were a court instead
    to invoke unwritten constitutional principles, constitutional amendment  by
    design, something that is extremely difficult to achieve  would be the only
    option available.

[89]

In short, unwritten constitutional principles do
    not invest the judiciary with a free-standing power to invalidate legislation.
    They cannot be invoked to invalidate the
Act
.

(5)

Unwritten constitutional principles do not limit
    the grant of jurisdiction in S. 92(8) of the
Constitution
    Act, 1867

[90]

Although unwritten constitutional principles
    cannot be used to invalidate legislation, they have other functions in judicial
    and legal reasoning. They have powerful normative force, and are binding upon
    both courts and governments:
Reference re Secession of Quebec
, at
    para. 54. They serve to guide judicial reasoning as well as the deliberations
    of the executive and legislative branches of government.

[91]

In judicial reasoning, unwritten constitutional
    principles can be used as an aid to resolve genuinely open questions of constitutional
    and statutory interpretation. However, the argument that the unwritten
    constitutional principle of democracy  or any other unwritten principle  can
    be used to inject a proviso into s. 92(8) of the
Constitution Act, 1867
to prevent the legislature from enacting legislation altering the ward
    structure during an election must be rejected.

[92]

The argument, essentially, is that the right to
    democratic municipal elections has been inherent in s. 92(8) from the time of
    Confederation and that s. 92(8), which grants the provincial legislatures
    exclusive lawmaking authority over municipal institutions in the province,
    provides authority to courts to invalidate legislation that infringes the
    principle of fair and democratic elections of municipal councils said to be
    immanent in this grant of legislative power.

[93]

Section 92(8), it bears repeating, is simply a general
    grant of lawmaking authority to the provincial legislatures with respect to
    municipal institutions. It means that provincial legislatures, rather than the
    federal Parliament, has jurisdiction in relation to municipal institutions. Section
    92 is a source of lawmaking authority. Section 92(8) does not constitutionalize
    any particular form of municipal governance. It neither mandates nor precludes
    particular municipal institutions, nor does it regulate any acts of law making
    related to municipal government.

[94]

Courts have sometimes used unwritten
    constitutional principles to fill gaps in the Constitution  identifying requirements
    that flow by necessary implication from the other terms of the Constitution:
Trial
    Lawyers Association of British Columbia v. British Columbia (Attorney General)
,
    2014 SCC 59, [2014] 3 S.C.R. 31, at paras. 26 and 91;
Reference re Senate
    Reform
, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 26. Such gaps are rare.
    No such gap exists here. Nor is this a case in which legislative power must be
    assigned to a new subject matter that was unknown at the time of Confederation.
    The structure of neither the
Constitution Act, 1867
nor the
Constitution
    Act, 1982
, creates a necessary implication that provincial lawmaking authority
    in s. 92(8) must be restricted in the manner proposed. Furthermore, this is not
    a case of constitutional framers having not addressed a social or technical
    development  like aeronautics or nuclear energy  because they simply could
    not have seen it coming. Municipal institutions, including municipal governing
    bodies, long pre-dated 1867, not only in what is now Canada, but also in the
    United Kingdom. The decision was made not to constitutionalize these institutions,
    but rather to put them under the jurisdiction of provincial legislatures.

[95]

There is no open question of constitutional interpretation
    here. Municipal institutions lack constitutional status. Section 3 democratic
    rights were not extended to candidates or electors with respect to municipal
    councils. These are not gaps in the Constitution  oversights or slips by the
    framers of the
Constitution Act, 1867
and the
Constitution Act,
    1982
that can be addressed judicially. If the Constitution is to be
    amended, the
Constitution Act, 1982
provides the mechanism for amending
    it.

E.

DISPOSITION

[96]

I would allow the appeal and set aside the
    judgment of the application judge.

[97]

I would not award costs against any party.

B.W.
    Miller J.A.

I
    agree. M. Tulloch J.A.

I
    agree. A. Harvison Young J.A.


MacPherson J.A. (Dissenting):

A.      INTRODUCTION

[98]

I have had the
    advantage of reading the reasons in this appeal prepared by my colleague.

[99]

I agree with my
    colleague on the following issues:

·

The City of Toronto (the City) should be
    allowed to step into the shoes of the settling parties and argue the appeal in
    their stead  [as a] means of ensuring that the decision below is properly
    reviewed in this court.

·

The application judge erred by concluding that
    the
Better Local Government Act, 2018
, S.O. 2018, c. 11

(the 
Act
)
    substantially interfered with the voters 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 voters right to cast a vote that can result in
    effective representation.

·

The
Act
cannot be invalidated on the
    basis of unwritten constitutional principles  democracy and the rule of law 
    alone.

·

The
Act
cannot be invalidated by a
    combination of s. 92(8) of the
Constitution Act, 1867
and unwritten
    constitutional principles.

[100]

I disagree with my
    colleague on only one issue. In my view, the
Act
should be invalidated
    under the freedom of expression component of s. 2 of the
Canadian

Charter
    of Rights and Freedoms
because, by reducing the size of City Council from
    47 to 25 wards and changing the boundaries of all city wards mid-election, the
Act
interfered in an unwarranted fashion with the freedom of expression of
    candidates in a municipal election. I agree with the application judge on this
    issue.

[101]

In light of this
    conclusion, it is necessary for me to consider whether the
Act
can be
    saved by s. 1 of the
Charter
. In my view, it cannot. I also agree with
    the application judge on this issue.

[102]

Accordingly, I would
    dismiss the appeal.

B.      facts

[103]

I accept, at a general
    level, my colleagues summary of the relevant facts. However, I highlight four
    important facts.

[104]

First, the
Act
applied only to the City of Toronto; although enacted by the provincial
    legislature, it did not apply to the electoral boundaries in any other
    municipality.

[105]

Second, the
Act
was enacted in the middle of the Toronto municipal election. The election
    period for Toronto City Council began on May 1, 2018. The election took place
    on October 22. The
Act
was introduced into the legislature on July 30
    and received Royal Assent on August 14. Accordingly, the
Act
became law
    105 days after the election had started and 69 days before election day.

[106]

Third, the
City of
    Toronto Act, 2006
, S.O. 2006, c. 11, Sched. A (
COTA
), a provincial
    law, provides for close cooperation between Ontario and the City, at s. 1:

Relationship with the Province

(2) The Province
    of Ontario endorses the principle that it is in the best interests of the
    Province and the City to work together in a relationship based on mutual
    respect, consultation and co-operation.

Consultation

(3) For the
    purposes of maintaining such a relationship,
it is in the best interests of
    the Province and the City to engage in ongoing consultations with each other
    about matters of mutual interest and to do so in accordance with an agreement
    between the Province and the City
. [Emphasis added.]

[107]

The agreement
    referred to in s.1(3) of
COTA
is the
Toronto-Ontario Cooperation and
    Consultation Agreement
(
TOCCA
). The
TOCCA
is an agreement
    between the Province and the City that sets out their commitment to consult and
    cooperate on matters of mutual interest. Under the heading Scope, the
TOCCA
provides:

[T]he parties
    will cooperate in implementing this Agreement consistent with the above
    principles in the following matters:

6. The Province
    of Ontario
will consult
with the City on:

a.
Any proposed
    change in legislation or regulation that, in Ontarios opinion, will have a
    significant financial or policy impact on the City
. [Emphasis added.]

[108]

At the appeal hearing,
    Ontario conceded that there was no consultation with the City before the
Act
was introduced and enacted.

[109]

Fourth, at the appeal
    hearing, Ontario acknowledged that it was not aware of any similar law
    (changing the size of a municipal government and the boundaries of its
    electoral districts mid-election) enacted by any provincial legislature in
    Canadian history.

C.      analysis

(1)

Charter
s. 2(b)

[110]

The test to assess an
    alleged
Charter
s. 2(b) breach is well-established. The first step is to
    determine if the expressive activity in question falls within the scope of the
    s. 2(b) guarantee. If it does, the second step is to determine whether the
    purpose or effect of the impugned law is to restrict or substantially interfere
    with freedom of expression: see
Irwin Toy Ltd. v. Quebec (Attorney General)
,
    [1989] 1 S.C.R. 927, at p. 978;
Haig v. Canada (Chief Electoral Officer)
,
    [1993] 2 S.C.R. 995, at p. 1037.

[111]

There is no serious
    issue with respect to the first step in this test. Obviously, the speeches,
    election signs, flyers and television, radio and newspaper ads delivered by
    municipal candidates during an election  i.e., after May 1, 2018  are
    expressive activities that fall within the scope of the s. 2(b) guarantee.

[112]

My colleague rejects
    the Citys position at the second step of the test. He says:

The freedom to
    communicate with others is an important component of freedom of expression; it
    allows the dissemination of opinions and ideas. It is essential to any joint
    enterprise that requires individuals to coordinate their efforts with others.
    Section 2(b) of the
Charter
protects against government interference
    with most (but not all) such communication. But s. 2(b) protects against
    interference with the expressive activity itself, not its intended result. Put
    another way, freedom of expression does not guarantee that government action
    will not have the side-effect of reducing the likelihood of success of the
    projects or joint enterprises that any person is working to achieve.
    Accordingly, legislation that changes some state of affairs (such as the number
    of electoral wards) such that a persons past communications lose their
    relevance, and no longer contribute to the desired project (election to public
    office), is not, on that basis, a limitation of anyones rights under s. 2(b)
    .

[113]

With respect, I
    disagree with his analysis and conclusion for several reasons.

[114]

First, my colleagues
    reasons give insufficient weight to the crucial fact that the timing of the
Act
had a substantial impact on a municipal election that was well underway.
    Introducing the
Act
mid-election changed the entire landscape of that
    election. It drastically reduced the number of wards and also altered the
    boundaries of all the wards. It did this almost two-thirds of the way through
    the election.

[115]

In Canada, elections
    are the centerpiece of our democracy at all three levels of government 
    federal, provincial and municipal. Democracy is one of the four unwritten
    constitutional principles in Canadian constitutional law: see
Reference re
    Secession of Quebec
, [1998] 2 S.C.R. 217. The Supreme Court of Canada has
    elsewhere recognized elected municipal councils as a third level of government
    in Canada: see
114957 Canada Ltée (Spraytech, Société darrosage) v. Hudson
    (Town)
, 2001 SCC 40, at paras. 3-4. Further, as my colleague has noted,
    municipal institutions, including municipal governing bodies, long pre-dated
    Confederation.

[116]

Accordingly, it follows
    that the timing of the
Act
represented a substantial attack on the
    centrepiece of democracy in an established order of Canadian government  an
    active election in a major Canadian municipality.

[117]

Second, my colleagues
    description of the activity affected by the
Act
 a persons past
    communications is far too narrow. In my view, the activity that implicates s.
    2(b) protection on this appeal is better described by the David Asper Centre
    for Constitutional Rights at para. 1 of its factum:

The
Charters
guarantee of freedom of expression is a key individual right that exists within
    and is essential to the broader institutional framework of our democracy. In
    the election context, freedom of expression is not a soliloquy. It is not
    simply the right of candidates and the electorate to express views and cast
    ballots. It expands to encompass a framework for the full deliberative
    engagement of voters, incumbents, new candidates, volunteers, donors, campaign
    organizers and staff, and the media, throughout a pre-determined, stable
    election period. [Citations omitted.]

[118]

In my view, the timing
    of the
Act
s passage does not recognize and respect any of this
    thoughtful description of what is involved in a municipal election. While
    voting or candidacy rights in the context of municipal elections remain
    statutory in nature and therefore subject to repeal by the legislature,
    political expression during an active municipal election consists of far more
    than the pursuit or casting of a ballot on voting day:
Haig
at pp.
    1040-41. Adopting an interpretation of s. 2(b) that protects against mid-stream
    election interference would only be applicable when an election has commenced.
    In this respect, s. 2(b) safeguards the integrity and stability of the
    democratic foundation on which elections are based.

[119]

Third, my colleague
    says that the application judge erred by expand[ing] the purpose of s. 2(b)
    from a guarantee of freedom from government interference with expression to a
    guarantee that government action would not impact the
effectiveness
of
    that expression in achieving its intended purpose (emphasis in original).

[120]

In my view, the
    application judge is not guilty of this charge.

[121]

Upon the opening of nominations,
    the fundamental rules of a municipal election are fixed in place. Ward
    boundaries, spending and donation limits, nomination criteria, and other key
    terms are established and no longer in flux. Candidates make decisions
within these terms
about whether and where to run, what to say, how to
    raise money, and how to publicize their views. Many candidates also begin
    campaigning. That is precisely what occurred in this case.

[122]

As a corollary, voters, including
    potential volunteers and donors, learn about the candidates in their wards.
    They also receive information on ward-specific and city-wide issues, and begin
    to formulate questions, opinions and preferences. News media and other lay
    commentators report on election developments, including the entry of new
    candidates, thereby facilitating the free flow of information and creating the
    conditions for democratic deliberation. Crucially, all these expressive
    activities unfold and intersect within a legal framework that operates on the opening
    of the nomination period in a municipal election.

[123]

Free expression in this context
    would be meaningless if the terms of the election, as embodied in the legal
    framework, could be upended mid-stream. The instability and risk of meddling
    this would create is irreconcilable with genuine democratic deliberation. This,
    in my view, is where s. 2(b) comes into play. As the Supreme Court of Canada
    stated in
Haig
, al
though
    a government is generally not required to provide platforms for expression,
    where it chooses to provide one, it must do so in a manner that complies with
    the
Charter:
at p. 1041. This entails an obligation on governments
    to respect the s. 2(b) right of all persons to freely express themselves
within the terms

of a municipal election

once
    that election has commenced
. The
    intersection of s. 2(b) of the
Charter
and the unwritten
    constitutional principle of democracy requires nothing less.

[124]

Fourth, my colleague
    asserts that the application judge erred by conflat[ing] the concepts of
    positive and negative rights, failed to consider the framework for analysing a
    positive rights claim, and thereby impermissibly extended the scope of s.
    2(b). In this portion of his reasons, my colleague relies heavily on
Baier
    v. Alberta
, 2007 SCC 31, and concludes that the application judges
    decision was offside the
Baier
framework. With respect, I disagree.

[125]

Prior to the
Acts
enactment, the 2018 Toronto municipal election was scheduled to proceed on a
    47-ward basis. The City Clerk charged with administering the election began
    preparations with this understanding in mind as early as January 2018. No doubt
    many prospective candidates began preparations of their own.

[126]

On May 1, 2018, the
    official nomination period for the election opened. As of that date, candidates
    were entitled to register their candidacy and begin soliciting donations from
    supporters. They were also entitled to begin spending the money they received
    on campaigning, including developing, printing and distributing campaign
    literature. The evidence on the record is that many candidates proceeded to do
    so. The deliberative engagement of candidates, volunteers, voters, financial
    donors and the media was thus well underway.

[127]

By the close of the
    nomination period on July 27, 2018, a total of 509 candidates were registered
    to run in the election across the citys 47 wards. On this very day, the
    Government announced its intention to reduce the size of Toronto City Council
    from 47 to 25. Three days later, on July 30, the Government introduced the
Act
in the legislature. Upon being passed and proclaimed into force on August 14,
    the
Act
reconfigured the city into 25 wards, in most cases doubling both
    their physical size and the number of potential voters. It also required the
    2018 election to proceed on a 25-ward basis, cutting the number of available
    Council seats almost in half.

[128]

By altering the 2018
    ward structure in the middle of the election, the
Act
undermined
    expressive freedom in several ways. First, it diminished the value of all past
    expression that had been framed around a 47-ward election already underway.
    Candidates could no longer run in the wards where they had already spent
    considerable time, money and energy campaigning, which demoralized many and
    caused at least some to drop out of the race entirely. Second, the timing of
    the changes caused widespread confusion and uncertainty. It deflected attention
    away from important civic issues, triggered a flurry of foreseeable legal
    challenges, and jeopardized the viability of administering the election on schedule.
    Third, the
Act
restricted candidates, volunteers, voters, donors and
    commentators from continuing to express themselves within the established terms
    of an election then in progress. In my view, this effect in particular amounted
    to an infringement of s. 2(b) of the
Charter;
it substantially
    interfered with the right of all electoral participants to freely express
    themselves within the terms of the election after it had begun.

[129]

Unlike my colleague, I
    do not think that the above analysis, or the similar one conducted by the
    application judge, is inconsistent with
Baier
.

[130]

Baier
involved a challenge to legislation that
    blocked teachers from running in school board elections. The teachers argued
    that the legislation restricted their candidacy in violation of their s. 2(b)
    rights. Alberta responded that s. 2(b) did not guarantee candidacy rights in a
    school board election to any particular class of persons, and was therefore not
    infringed: at paras. 43-44, 47.

[131]

The majority of the
    Supreme Court of Canada agreed with Alberta. Rothstein J., writing for the
    majority, held that although the legislation deprived teachers of the right to
    run as candidates in the election, it did not prevent them from expressing
    themselves on education issues. The Court held that diminished effectiveness
    in the conveyance of a message does not mean that s. 2(b) is violated. 
    [Teachers] may express themselves in many ways other than through running for
    election as, and serving as, a school trustee: at para. 48. In the result, the
    Court found that although s. 2(b) was engaged, there was no violation.

[132]

In my view, this appeal
    is distinguishable from
Baier
in three major respects:

1)

Baier
addressed
    the constitutionality of excluding a class of people from running in an
    election. The issue in this case is not about exclusion from an electoral
    platform. Rather, it is about the mid-stream destruction of that platform, its
    replacement with something new, and the impact of that change on the free
    expression rights of all electoral participants.

2)

Baier
was
    adjudicated as a positive rights claim. In resisting legislation that blocked
    their candidacy, the teachers asserted a constitutional entitlement to run in
    school board elections. No such positive right is claimed here. The Citys plea
    is for non-interference in an election that had already begun. Accordingly, my
    conclusion that the
Act
infringed s. 2(b) turns on the timing of the
    changes it imposed, not on the changes themselves.

3)

In
Baier,
the legislation that blocked
    teachers from running in school board elections

was enacted in 2002:
School
    Trustee Statutes Amendment Act, 2002,
S.A. 2002, c. 23, s. 1(2)(a). The
    school board elections themselves were scheduled for the autumn of 2004. The
    legislation therefore did not interfere in any active elections. In this case,
    the
Act
was enacted midway through the Toronto municipal election,
    more than three months after the opening of the nomination period.

[133]

For all of these
    reasons, the application judges conclusion that the
Act
infringed s.
    2(b) of the
Charter
is consistent with the Supreme Court of Canadas
    decision in
Baier
. This conclusion is in fact mandated by a purposive
    interpretation of s. 2(b), as applied to a set of facts that engages the core
    ideal of open communication in a Canadian democratic election.

(2)

Charter
s. 1

[134]

Ontario submits that if
    this court determines that the
Act
infringes s. 2(b) of the
Charter
,
    then it should nevertheless be upheld under s.1 of the
Charter
.

[135]

Applying the framework
    in
R. v. Oakes
, [1986] 1 S.C.R. 103, I agree with the application judge
    that Ontarios argument fails at the first branch of the
Oakes
test.
    There was no pressing and substantial legislative objective to support the
Act
.
    Ontario was entitled to change the ward structure of municipal governments in
    the province, including the City of Toronto. However, in August 2018, there was
    no reason for Ontario to do this (1) for the City of Toronto only, (2) without
    any consultation as explicitly mandated by the
COTA
and the
TOCCA
,
    and (3) most importantly, after everybody in Toronto (candidates and voters
    alike) had completed almost two-thirds of a democratic municipal election.

D.      conclusion and disposition

[136]

The 2018 Toronto municipal
    election concluded on October 22, 2018 with the election of a 25-member City
    Council. Yet the actions taken by Ontario to secure that result left a trail of
    devastation of basic democratic principles in its wake. By extinguishing almost
    half of the citys existing wards midway through an active election, Ontario
    blew up the efforts, aspirations and campaign materials of hundreds of aspiring
    candidates, and the reciprocal engagement of many informed voters. This
    infringement of s. 2(b) was extensive, profound, and seemingly without
    precedent in Canadian history.

[137]

I would dismiss the
    appeal.

[138]

The City does not seek costs. Accordingly, I would make no costs
    order.

Released: JCM SEP 19 2019

J.C. MacPherson J.A.

I agree. I.V.B. Nordheimer J.A.


