Legal scholars surprised by judge's reasoning in Toronto council cuts decision
Published Monday, September 10, 2018 7:52PM EDT
Some constitutional law experts are scratching their heads after an Ontario judge declared that the new Progressive Conservative government’s mid-election cuts to the size of Toronto’s city council are unconstitutional because they violate freedom of expression rights.
Justice Edward P. Belobaba struck down most of the province’s Better Local Government Act after finding that it interfered “with both the candidate’s and the voters’ right to freedom of expression as guaranteed under Section 2(b) of the Canadian Charter of Rights and Freedoms.”
Belobaba wrote that redrawing Toronto’s ward map to match the boundaries of federal and provincial ridings, which would leave one councillor for every 111,000 residents instead of one for every 61,000, “substantially interfered with the municipal voter’s freedom of expression … and in particular her right to cast a vote that can result in effective representation.”
Section 2(b) of the 1982 Charter states that “everyone has” the “fundamental freedom” to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
Carissima Mathen, a vice-dean at the University of Ottawa’s Faculty of Law, told CTV’s Power Play that the judge’s assertion that the bill violates freedom of expression was “a little eyebrow raising.”
“The issue here is whether he was really drawing in elements from another Charter right, which is the Section 3 right to vote,” she wrote.
“My read is that he was really concerned by how arbitrary the government’s decision was,” Mathen added.
University of Toronto constitutional law professor Yasmin Dawood took to Twitter just after the ruling came down Monday to question whether Belobaba’s use of 2(b) “comports with past use” of the section by the Supreme Court of Canada (SCC) in a similar context.
“While the SCC has used s 2(b) to protect electoral fairness especially with respect to political financing ... it’s a novel argument to say that it protects the ‘right to cast a ballot that can result in effective representation,’” Dawood wrote.
Howard Anglin, director of the Canadian Construction Foundation and former deputy chief of staff to then-prime minister Stephen Harper, called the decision “looney tunes” and said that it was poorly reasoned and “definitely a candidate” for invoking the notwithstanding clause – a legal override of the Charter that Ontario Premier Doug Ford said he plans to use for the first time in the province’s history.
“People often make the mistake of calling judicial decisions they disagree with activist. This is not one of those cases,” Anglin writes. “Because the judge couldn’t invoke Section 3 of the Charter (which doesn’t apply to municipalities), he wrote himself a new Charter in which Section 2 does the work of Section 3.”
Anglin said that the judge’s argument concerning political rights under Section 3 of the Charter “doesn't apply to municipal elections” and that the argument Belobaba made rests on “two inapplicable” Supreme Court of Canada (SCC) precedents.
Richard Moon, a University of Windsor law professor who focuses specially on freedom of expression rights, said on Twitter that “the court's reliance on the free expression rights of voters and candidates is problematic for several reasons. It distorts the idea of free expression - and runs contrary to existing SCC decisions.”
“Free (expression) does not protect the right to run for office -- and in any event no one is prevented from running for office in this case. They may do so but in a larger riding,” Moon added.
“There is a plausible argument that free (expression) may sometimes protect a right to vote -- although several things complicate this (i) it is a so-called platform -- that is better seen as based on a right to vote in a democratic system (ii) the private nature of voting is a reminder that this is really about representation rather than expression (iii) voters have other ways to express themselves (iv) voters for council still have a right to vote - just in larger ridings,” Moon went on.
“Finally, it is difficult to contain the claim that voter free expression is compromised by diluting their vote,” Moon concluded. “Why is that not always a problem? Or more to the point how do we determine when dilution is a problem?”
University of Ottawa law professor Michael Pal told CTV News Channel that “most legal experts thought the province was going to win the court case today.”
“But,” he added, “this was an unprecedented situation because the change in the number of wards was happening in the middle of an election.”
Municipal lawyer John Mascarin said he was “very surprised” by the decision but emphasized that it appears the judge found that the “timing that was the problem.”
“(Belobaba) indicated that it would be a huge disruption to the electorate if the change was made at the end of the election period,” Mascarin told CTV News Channel.
“He said this judgement doesn’t preclude the province from enacting something in the future with due notice and due consultation and due study,” Mascarin added.
Craig Scott, a former NDP MP who now teaches law at York University’s Osgoode Hall, has argued for weeks that the Better Local Government Act was unconstitutional. Scott called Belobaba’s reasoning "eloquently developed.”