Right to vote was wrongly subsumed into freedom of expression

Provincial legislature introduced bill that reduced number of city council seats from 47 to 25 during election. City and other applicants’ application to challenge constitutional validity of bill was granted. Trial judge found impugned provisions of bill substantially interfered with candidates’ and voters’ right to freedom of expression as guaranteed under s. 2(b) of Canadian Charter of Rights and Freedoms. Trial judge found as bill was enacted in middle of ongoing election campaign, it breached municipal candidates’ freedom of expression, and as it almost doubled population size of city wards, it breached municipal voter’s right to cast vote that could result in effective representation. Trial judge found electoral fairness is fundamental value of democracy and flows from political equality of citizens entrenched in constitution. Trial judge found elections are fair and equitable only if candidates are given reasonable opportunity to present their positions. Trial judge found bill prevented candidates from having reasonable opportunity to present their positions. Trial judge found once Province entered field and provided electoral process, it was not entitled to suddenly and in middle of electoral process impose new rules that undermined otherwise fair election and substantially interfere with candidates’ freedom of expression. Trial judge found comments in cases regarding effectual representation that were made in context of right to vote under s. 3 of Charter were applicable to consideration of right to freedom of expression. Trial judge found although s. 2(b) of Charter does not guarantee right to vote in municipal elections, if such expressive right has been provided by provincial government, then right must be consistent with and not in breach of Constitution. Province appealed. Appeal allowed. Freedom of expression was not violated. Trial judge’s analysis expanded purpose of s. 2(b) from guarantee of freedom from government interference with expression into guarantee that government action would not impact effectiveness of that expression in achieving its intended purpose. Trial judge also conflated concepts of positive and negative rights, and failed to consider framework for analysing positive rights claim . Claim that 47-ward election be preserved once election period began was positive claim and city did not meet required criteria. Subject of claim was not interference with expression, rather it was access to desired election platform. Right to vote was wrongly subsumed into freedom of expression.

Toronto (City) v. Ontario (Attorney General) (2019), 2019 CarswellOnt 14847, 2019 ONCA 732, J.C. MacPherson J.A., M. Tulloch J.A., B.W. Miller J.A., I.V.B. Nordheimer J.A., and A. Harvison Young J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 14928, 2018 ONSC 5151, Edward P. Belobaba J. (Ont. S.C.J.).

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