Breaking: Justice Belobaba finds #bill5 breaches s.2(b) of the Charter, and has not been justified under s.1. Declared of no force and effect effective immediately. October 22nd election will proceed as scheduled but with 47 wards, not 25.
"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.... changing the rules in the middle of the game is profoundly unfair." (paras 6-7).
Judges should generally show restraint and deference to legislatures. Judicial "umpire" should intervene only when government "has clearly crossed the line." (para 8). "The Province has clearly crossed the line." (para 9)
Bill 5 substantially interfered with candidates' and voters' freedom of political expression protected by s.2(b) of Charter. Evidence presented to court by the government did not amount to a justification under s.1. The city has 47 wards until a valid law says otherwise.
While the province has broad jurisdiction to enact laws in relation to municipalities, two constitutional deficiencies of Bill 5 stand out: "The first relates to the timing of the law and its impact on candidates; the second to its content and its impact on voters." (para 19)
Bill 5 breaches s.2(b) in two ways: (i) because it 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.
Issue: does changing ward boundaries in mid-campaign substantially interfere with candidates' freedom of expression? "Perhaps the better question is 'How could it not?'". (para 28)
"There can be no doubt on the evidence before the court that Bill 5 substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters." (para 32)
Not only that, #bill5 also "undermined an otherwise fair and equitable election process." (para 34) Electoral fairness is a fundamental value of democracy, connected to political equality of citizens. Requires that candidates have fair opportunity to present their positions. (35)
Because #bill5 took effect in mid-election, candidates deprived of a reasonable opportunity to present their positions. By radically redrawing electoral districts in the middle of the electoral process, Bill 5 "undermined the very notion of a 'fair and equitable' election." (36)
Justice Belobaba had no difficulty concluding that candidates' freedom of expression infringed by #bill5. (para 38) He then moved on to consider infringement of municipal voters' freedom of expression.
Belobaba J emphasized the importance of the right to vote in our democracy. Voting is an expressive activity. The essence of the right to vote is "effective representation". Can this idea, developed in case law under s.3 of the Charter, apply to municipalities through s.2(b)?
Justice Belobaba says yes, the importance of effective representation transcends s.3 of the Charter (which does not apply to municipal elections). It should also inform the interpretation of s.2(b), in light of the close affinity between political expression and the right to vote
No guarantee of the existence of municipal government. No guarantee of a right to vote in municipal elections. But once municipal vote has been extended, it must be provided in a manner that is consistent with and not in breach of the Constitution. (paras 48-51)
The judge distinguished the East York 1997 ruling (rejecting a challenge to amalgamation imposed on six boroughs by the province) canlii.ca/t/6hhm on the grounds that then there was no evidence of an infringement of the right to vote or effective representation. (para 52)
In this case, "extensive evidence" was before the court: the findings and conclusions of the Toronto Ward Boundary Review. The TWBR rejected 25 wards because city councillors were already having difficulty providing effective representation (para 55) drawthelines.ca
"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 respond to thousands of complaints annually on a wide range of issues. (para 56)
"The evidence before this court supports the conclusion that if the 25 FEDs (federal election districts) option was adopted, City councillors would not have the capacity to respond in a timely fashion to the 'grievances and concerns' of their constituents." (para 58)
By imposing a 25-ward structure with average population of 111,000, #bill5 infringes municipal voters' rights under s. 2(b) of the Charter to cast a vote that can result in meaningful and effective representation. (para 59)
In sum, Justice Belobaba says he has found two distinct breaches of s.2(b) by #bill5: 1) an infringement of "the candidate’s right to freedom of expression when it changed the City’s electoral districts in the middle of the election campaign"; and...
... 2) an infringement of voters' "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 first breach is related to the timing of #bill5. It wouldn't prevent the legislature from enacting a similar bill in the future as long as it did so outside of an election campaign. The second breach, on the other hand, is related to the size of the wards created by the Bill.
On this second line of reasoning, the legislature would breach s.2(b) of the Charter if it sought to impose a 25 ward-structure on Toronto at any time in the future, during or outside of an election campaign.
After finding these two breaches of s.2(b), the judge went on to discuss whether the government had established that the infringements of freedom of expression were "reasonable" and "demonstrably justified" pursuant to s.1 of the Charter.
The government's first task under s.1 is to demonstrate that the rights-infringing law is pursuing a "pressing and substantial objective". Governments rarely fail to meet this low-threshold requirement of the s.1 analysis. But the Ontario government failed spectacularly here.
"It appears that Bill 5 was hurriedly enacted to take effect in the middle of the City’s election without much thought at all, more out of pique than principle." (para 70)
Government faces two problems under s.1: (i) no evidence that a 47 ward council is dysfunctional or that more effective representation can be achieved by 25 councillors; and (ii) no evidence of any urgency that required Bill 5 to take effect in the middle of the City’s election.
Therefore, the province’s attempt to justify #bill5 "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."
Even if there were pressing objectives, the government could have pursued them in ways that were less restrictive of expression. Why promote voter parity by increasing all ward sizes so dramatically? Why do so in mid-election campaign? "Crickets", the judge wrote (para 77)
Kudos to Belobaba J for calling out the government so clearly on the frailties of the arguments they offered in support of this legislation. Populist bluster unsupported by evidence won't serve in court to justify infringements of Charter rights and freedoms.
