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Thread by @howardanglin: "Emmett has ably summarized and analyzed the decision. Spoiler: the constitutional reasoning is looney tunes. People often make the mistake o […]"

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Emmett has ably summarized and analyzed the decision. Spoiler: the constitutional reasoning is looney tunes.
People often make the mistake of calling judicial decisions they disagree with activist. This is not one of those cases. Because the judge couldn’t invoke s3 of the Charter (which doesn’t apply to municipalities), he wrote himself a new Charter in which s2 does the work of s3.
The judge even goes out of his way up front to invoke the idea of judicial restraint, like a talisman against accusation of activism. The Supreme Court of Canada likes to do this too ... and it is invariably a sign that the Court is about to overstep its constitutional bounds.
So the judge solemnly intones: "I am acutely aware of the appropriate role of the court in reviewing duly enacted federal or provincial legislation and the importance of judges exercising judicial deference and restraint." Then the rest of the opinion is one long "BUT ..."
Having conceded Bill 5 "appears to fall squarely within the province’s legislative competence," the Court nevertheless invalidates it on two grounds: (1) the freedom of expression of candidates and (2) voters' right to cast a ballot that results in "effective representation."
The first of these arguments never bothers to establish its underlying premise, viz., that a political candidates' freedom of expression is relevant because it relates to running in a specific election, the terms of which fall within the Province's authority to determine.
Instead, the judge inverts the logical order of his "argument," holding that because Bill 5 would impair the candidates' ability to talk about the election as it would have been contested with 47 wards, Bill 5 could not alter the terms of the election to cover only 25 wards.
This gets the constitutional argument backwards: if the Province has the power to alter the terms of the election by reducing the number of wards, as the court concedes it likely does (para.33), then candidates' expressive rights are limited to those new electoral conditions.
The court's second argument concerns political rights, which fall under s.3 of the Charter, which doesn't apply to municipal elections. This doesn't faze the judge, as he holds the underlying principles of s.3 can be transferred over to s.2's protection of freedom of expression.
Of course, this means that court's decision on this point rests on two inapplicable SCC precedents: a s.3 case (Sask. Ref.) that never once mentions s.2 and another (Haig) that explicitly rejected a s.2(b) argument, and an ONCA precedent (East York) that rejected a s.2 argument.
Finally, the court makes the gratuitous and unexpected finding that a ward with a population of 111,000 is too big to provide effective democratic representation. On this point, the court cites no relevant precedent; it's just tacked onto the end of the s.3 (ahem s.2) analysis.
This finding contradicts the court's earlier suggestion that Bill 5 would have been fine if it had been enacted well in advance of an election. The judge doesn't explain why 111,000-person wards are unconstitutional right now, but wouldn't be in six months, or six months ago.
But then there is a lot that isn't well thought out, consistent, or explained in the decision. It's almost as if, to borrow a phrase from para.70 of the ruling, the opinion was penned "more out of pique than principle." Definitely a candidate for invoking s.33.
Another option, that would be cheeky but would basically respect the court's ruling, would be for the province to pass a law delaying the election for six months and in the meantime imposing the same provisions as Bill 5.
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