Charter section 2(b)

Constitutional Roundtable on City of Toronto et al v Ontario

Posted on by Tal Schreier

by: Bailey Fox

On Tuesday November 9, 2021 the Asper Centre hosted a constitutional roundtable panel on the Supreme Court’s recent decision in City of Toronto et al v Ontario, 2021 SCC 34. The Asper Centre intervened in the appeal at both the Ontario Court of Appeal (OCA) and the Supreme Court of Canada (SCC). The panelists for the constitutional roundtable included lawyers and academics who had participated in the appeal: Geetha Philipupillai, lawyer at Goldblatt Partners LLP and counsel for the intervener Canadian Civil Liberties Association in the SCC appeal; Professor Lorraine Weinrib, Professor Emerita at the University of Toronto Faculty of Law and a specialist in constitutional law and litigation; and Alexi Wood, of St. Lawrence Barristers LLP, counsel for the Asper Centre in its intervention at the OCA and the SCC. The panel was moderated by Lillianne Cadieux-Shaw, of St. Lawrence Barristers LLP, co-counsel for the Asper Centre in its intervention at the SCC.

Lillianne Cadieux-Shaw began the discussion with a summary of the facts and issues in the case. In short, the Supreme Court considered whether the Better Local Government Act, SO 2018, c 11 (the Act) – enacted by Ontario’s provincial government during the City of Toronto’s municipal election – which cut the number of city wards violated freedom of expression. The Court also discussed the role of unwritten constitutional principles in constitutional interpretation. In a 5-4 split decision, the SCC held that the Act did not violate candidates’ freedom of expression. A fuller discussion of the case be found on the Asper Centre’s blog here.

The panelists discussed the many important ramifications of the case for constitutional interpretation and litigation. Professor Weinrib noted that the case may revolutionize the freedom of expression guarantee because the Court de-emphasized the purposive approach to Charter interpretation. Instead, the Court underscored the Baier framework and its more technical positive/negative rights analysis. Alexi Wood noted that it would likely be more difficult to prove a breach of s2.(b) going forward, noting that in the context of preparing for freedom of expression litigation, lawyers will have to carefully frame the claim based on a positive/negative rights distinction. Geetha Philipupillai added the insight that this may lead to more claims based on the Charter’s s.15 guarantee of equality or s.2(d) right to freedom of association given that the current legal test for breach of these provisions does not distinguish between positive and negative claims.

A recurring thread throughout the Roundtable was a comparison between the majority and dissent in the decision. The dissenting opinion, penned by Justice Abella, would have applied the framework for proving a breach of s.2(b) from Irwin Toy v Quebec, [1989] 1 SCR 927 and found that the Act violated freedom of expression. As Professor Weinrib noted, the strong dissent also highlighted the radical change in the majority’s approach to the scope of s.2(b). Professor Weinrib was referring to a broader recent shift in the Courts jurisprudence that narrows the scope of Charter guarantees, based on the SCC’s concern that the existing legal tests are too broad and the test for justifying a breach under s.1 too difficult for governments to meet. During the discussion on the role of evidence in the case, Alexi Wood noted that the Majority’s choice to advance the positive/negative rights framework was facilitated by the majority’s move away from the facts of the case. Conversely, the dissenting opinion was much more fact-specific, partially because the Irwin Toy framework requires an analysis of the facts. In comparing the two sets of reasons throughout the discussion, the Panelists usefully highlighted the extent of the ideological cleavage on the Court as well as the implications of the majority’s departure from the Irwin Toy test.

The Panel also touched on the role unwritten constitutional principles and the place of municipalities in Canada’s constitutional framework. Overall, the discussion between scholars and practitioners, all involved in the case, highlighted some important implications about the case from both an academic and practical perspective. It both put the decision in broader context while helping attendees understand the implications of the case for both freedom of expression specifically and constitutional litigation more broadly going forward.

View the webcast of this Constitutional Roundtable HERE.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law. 

News Statement: Toronto (City) v Ontario (Attorney General)

Posted on by Tal Schreier

In a deeply divided 5 to 4 decision released today, the Supreme Court of Canada upheld the Better Local Government Act, 2018 as constitutional. This legislation was enacted by the newly elected Ford government in 2018, midway through an ongoing municipal election. The legislation reduced the number of wards of Toronto City Council from 47 wards to 25 wards.

A number of individuals, including candidates in the 47-ward election, challenged the legislation, as did the City of Toronto. It was argued that cancelling a democratic election more than halfway through the election period breached the Charter’s guarantee of freedom of expression, without justification. The challenge was successful at Divisional Court but failed at the Court of Appeal. The individual litigants dropped out of the litigation at this point and the City of Toronto appealed to the SCC.

The David Asper Centre for Constitutional Rights, represented by Alexi Wood of St. Lawrence Barristers LLP, intervened on the issue of freedom of expression under s. 2(b) of the Charter.

The Asper Centre is disappointed in the majority ruling in the SCC. According to Alexi Wood, “The majority decision fails to recognize the importance of electoral expression and has the potential to destabilize other types of expression in the future.”

The Asper Centre prefers the analysis set out in Justice Abella’s dissent, which held that the Act unconstitutionally interfered with the political dialogue between candidates and voters. The legislation was an unprecedented intervention midway through the election period, “destabilizing the foundations of the electoral process and interfering with the ability of candidates and voters to engage in meaningful political discourse during the period leading up to voting day,” according to the dissenting opinion. Justice Abella, quoting from the Asper Centre’s legal arguments, specifically noted how different aspects of the election period require protection: “All exercises of expression, at each and every stage of the electoral process – not only the final act of voting – must receive consistent and robust Charter protection” (paragraph 130).

Cheryl Milne, Executive Director of the Asper Centre, notes, “The majority and dissenting opinions represent very different views of our constitution with the majority taking a much narrower interpretation of freedom of expression, characterising the claim as a positive rights claim for an expressive platform and thus not protected by the Charter.”

Lorraine Weinrib, professor emerita at the University of Toronto Faculty of Law and a specialist in constitutional law and litigation, notes that the majority judgment embodies some novel features: “It does not emphasize the importance of the guarantee of the fundamental freedom of expression in protecting the full range of public participation in the vital context of the actual election period. It does not emphasize the importance of democratic deliberation and representation at the municipal level where, as has been so clear during the covid pandemic, local government carries out a distinctive and crucial role in making policy decisions, setting priorities, and providing services in a densely populated, exceptionally diverse context.”

In stressing the importance of the text of the Charter, the majority undermined the well-established understanding that constitutional principles provide fidelity to the Charter’s basic value structure in a changing world. The contrasting factual summaries in the reasoning in this case also makes clear that we need new rules for Charter litigation so that the litigants, whose personal accounts of the actual impact of complicated government legislation on their lives and the lives of their communities, can fully participate in the adjudication of their claims through the full litigation process.

For further information:

Alexi Wood, Counsel
St. Lawrence Barristers LLP
Direct: 647 245 8283 / alexi.wood@stlbarristers.ca

Lillianne Cadieux-Shaw, Co-Counsel
St. Lawrence Barristers LLP
Direct: 647 245 3122 / lil.cadieux.shaw@stlbarristers.ca

Professor Lorraine Weinrib, Professor Emerita
University of Toronto, Faculty of Law
l.weinrib@utoronto.ca

Cheryl Milne, Executive Director
David Asper Centre for Constitutional Rights
cheryl.milne@utoronto.ca

Freedom of expression in an election context: A purposive approach

Posted on by Tal Schreier

by Keely Kinley

On September 19, 2019, the Ontario Court of Appeal dismissed the City of Toronto’s legal challenge against the Province of Ontario for making unilateral changes to the size and structure of Toronto’s city council midway through last year’s municipal election period (Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732). In a 3-2 decision, the Court of Appeal held that the province had the “legitimate authority” to reduce council from 47 to 25 seats, and that doing so was constitutional even in the middle of an active election (para 6).

At trial, the Ontario Superior Court ruled that Bill 5 – the legislation that changed Toronto’s ward structure – “substantially interfered” with both candidates’ and voters’ freedom of expression contrary to s. 2(b) of the Charter (Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151). Specifically, the court found that Bill 5 interfered with candidates’ freedom to effectively communicate their political messages to voters and, by doubling the population size of City wards, also interfered with electors’ ability to express political views through voting. Nine days after the ONSC decision was released, the province won a stay of the ruling and the election proceeded with 25 wards on October 22, 2018.

On appeal, the court found that Bill 5 did not infringe the s. 2(b) rights of either candidates or voters. Justice Miller, writing for the majority, emphasized that s. 2(b) of the Charter protects against interference with expressive activity, not interference with expressive activity’s intended result; consequently, “legislation that changes some state of affairs (such as the number of electoral wards) such that a person’s 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 anyone’s rights under s. 2(b)” (para 41).

All five judges agreed that the Province had the constitutional authority to alter the structure of Toronto’s City Council, that legislation cannot be stuck down solely on the basis of unwritten constitutional principles, and that Bill 5 did not infringe voters’ 2(b) rights. However, MacPherson and Justice Nordheimer decried Miller’s characterization of the expressive activity affected by the ward changes as “a person’s past communications” as overly narrow and found that candidates’ 2(b) rights were infringed by the mid-election enactment of Bill 5.

MacPherson’s fiery dissent called for a purposive approach to freedom of expression in the election context and identified the 2(b) right implicated in this case as the “right of all electoral participants to freely express themselves within the terms of the election after it had begun” (para 128). Justice MacPherson cited para 1 of the Asper Centre’s factum to support this view: “The Charter’s 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.”

The dissenting judgment suggests that free expression in the election context requires that an election’s basic terms not be “upended mid-stream” (para 123). Reducing the size of city council during an active election made it difficult for volunteers, voters, donors, and commentators to carry on expressing themselves “within the established terms of [the] election then in progress” (para 128), and this is why Justice MacPherson’s finding that candidates’ 2(b) rights were infringed turned on the timing of the Bill; even though the province never directly curtailed expressive activity, it effectively “blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates” when it altered the ward structure in the middle of the election period (para 136).

While the majority did not adopt the Asper Centre’s broad, purposive view of freedom of expression in the election context, this was a successful intervention for the Centre. Its arguments were cited with approval in both judgments and provided important international context to this difficult case of first instance.

As of January 2019, Toronto City Council has instructed staff “to pursue a leave to appeal application to the Supreme Court of Canada in the event the Province is successful on its appeal at the Court of Appeal” (see the City’s public statement here: http://wx.toronto.ca/inter/it/newsrel.nsf/11476e3d3711f56e85256616006b891f/d354c2f99405923b8525847a0056fff8?OpenDocument); staff are now in the process of reviewing the court’s decision in detail. If the City appeals, the 3-2 split at the Court of Appeal and the national significance of the issues raised in this case might improve the odds of the Supreme Court of Canada granting them leave.

Keely Kinley is a 2L JD Student at the Faculty of Law. She was the 2019 Asper Centre summer research assistant and is currently leading the Asper Centre’s Climate Justice student working group.

What they don’t know will hurt them: no consent, gender identity or social media in the Ontario sex ed curriculum

Posted on by Tal Schreier

By Leslie Anne St. Amour

In my opinion, to call the court’s decision dismissing the case against the Ontario government in respect to the repeal and replacement of the sex ed curriculum disappointing would be an understatement. I would consider instead: disheartening, or infuriating.

In 2018 the Ontario government issued a directive to repeal the 2015 sexual education curriculum and replace it with the 2010 curriculum, which had the same sexual education content as the 1998 curriculum. The previous curriculum did not include among other things consent, gender identity and expression, cyberbully or sexting. The Elementary Teachers’ Federation of Ontario (ETFO), the Canadian Civil Liberties Association (CCLA), and a parent of a child affected brought two applications to judicially review this directive, which essentially required the determination of one question: whether the directive and the events surrounding the decision infringed the Charter rights of teachers, students, and/or parents.

Arguments were made regarding sections 2(b), 7 and 15(1) of the Charter of Rights and Freedoms in this case by the ETFO and the CCLA. Several interveners also took part to provide other perspectives including: Grand Council of Treaty 3, Justice for Children and Youth and Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario.  This article provides my opinion on the Charter analysis provided by the court, but I will note there was also a discussion of jurisdiction and standing.

I understand how the court came to dismiss the applications, but I still believe it was incredibly important that the case was brought. We need queer youth, young women and girls and survivors of sexual violence to know we stand with them. The court did clarify that teachers can teach from the 2015 curriculum with no fear of professional repercussions and in many ways, that is a win for students with willing teachers. But the concern remains for students of teachers unwilling to teach this content for personal reasons or because of the opinions of those around them.

2(b) – Freedom of Expression

In addressing the section 2(b) freedom of expression analysis, the court examined the combination of the removal of topics from the curriculum along with statements made by members of the government and the creation of a website which allowed for the submission of information on teachers and classrooms. The complainants alleged that this constellation of factors established a violation of teachers’ freedom of expression by preventing them from teaching facets of the 2015 curriculum which were removed by the replacement with the 2010 curriculum.

In finding that there was no 2(b) violation, the judge appears to rely on the fact that counsel clarified the positions of the Minister in respect to what was fair game for teachers to teach under the new curriculum. I am frustrated by this result as this clarification would not have come had this not been brought to court and runs counter to the common understanding of the statements made by the government, which the court itself called “Ill-considered”. However, I expect some teachers will find solace in this decision as it confirms their ability to provide necessary information on consent, gender identity, sexual orientation, sexting and cyberbullying to their students without fear of professional sanctions.

7 – Guarantee to Life, Liberty and Security of the Person

While working with the Asper Centre, within our working group, I focused on the s. 7 arguments and I knew this would be a difficult argument to make but I hadn’t expected the court’s focus on a lack of evidence of harm stemming from the 2010 curriculum. Jurisprudence on s. 7 does not require direct scientific evidence, but rather a sufficient casual connection is enough to draw a reasonable inference on a balance of probabilities.

In my mind, every sexual assault which was committed by a person who had been taught sex ed in Ontario during the time period the 2010 curriculum was in use or was perpetrated against someone had been taught sex ed in Ontario during that time arguably had a link to the curriculum. This is due to a lack of education around the requirement of consent to engage in sexual activity. I thought of the young men and women who didn’t know they needed to say yes, didn’t know how to say no or didn’t know what to do when their no or lack of yes meant nothing to someone else. I think of the young men and women now having to face the reality of having engaged in sexual misconduct or assault because no one taught them any better in a world which rewards toxic masculinity and rape culture and encourages women to bite their tongue and let it go.

And so, I knew this argument would be hard to make because a government does not have a positive burden to ensure life, liberty and security of the person and because a policy of one government does not bind the next, but I hadn’t expected part of the issue to be a conceived lack of harm.

15(1) – Equality

In addressing the s 15(1) arguments the court references the characterization of the curriculum as a benefit which is not available to certain groups however, does not address this point specifically in its reasons. The court reiterates the jurisprudence surrounding the fact that the repeal of a policy does not constitute a Charter violation if it removes a benefit that previously existed. However, my understanding of the framing of the issue as a benefit which is not available to certain groups such as LGBTQ students is a desire to see the current curriculum, separate from the repeal itself, as a violation.

By providing a sexual education curriculum which does not teach content relevant to diverse gender identities or sexual orientations, cis and straight students are receiving a benefit from the government that other students cannot receive. That benefit is a sexual education curriculum which is relevant to them. The court does not address the s. 15 claim from this angle, addressing only the lack of requirement to continue to provide a benefit that had previously been received.

I want to end this article by saying that I and many others will continue to stand with the students impacted by the repeal and this decision and continue to do what we can to support them and their access to the necessary information they are no longer guaranteed in the classroom. Therefore, I’ve provided a list of links below to resources that are working to fill this gap:

My Sex Ed – Resources

Youthline

Planned Parenthood- Factsheet

Teen Health Source

Leslie Anne St. Amour is 2L JD Candidate at the Faculty of Law and a former Asper Centre clinic student. [read Leslie Anne’s previous blog post reflecting on her work on this case as an Asper Centre Clinic student.]

 

 

Above the Law? Understanding the Notwithstanding Clause

Posted on by Tal Schreier

By Catherine Ma

On September 20, 2018 the David Asper Centre for Constitutional Rights convened a panel with U of T Law Professors Yasmin Dawood and Lorraine Weinrib, and Goldblatt Partners’ Steven Barrett to discuss the constitutional challenge to the Better Local Government Act. The proposed legislation would have reduced the size of Toronto’s city council in the midst of its municipal election, as well as ending mandatory election of regional councillors across all regional municipalities. Superior Court Justice Edward Belobaba struck down the legislation, finding that it was an unjustified infringement to s.2(b) of the Charter. The Court of Appeal of Ontario ultimately granted a stay of the Superior Court’s decision until a full appeal could be heard after the election. Its effect was allowing the Better Local Government Act to govern the 2018 municipal elections in Ontario.

Before the Court of Appeal rendered its decision, Ontario’s Premier Doug Ford had threatened to invoke the notwithstanding clause if a stay was not granted. The notwithstanding clause allows the federal government or a provincial government to enact legislation that overrides certain fundamental freedoms, legal rights, and equality rights guaranteed in the Charter. Premier Ford further warned that he would not hesitate to use the notwithstanding clause in the future, without providing specific details.

The Panel Discussion

The panelists all provided unique perspectives regarding the constitutional challenge to the Better Local Government Act and the notwithstanding clause itself.

Above the Law panelists: Prof Yasmin Dawood, Prof Lorraine Weinrib, Steven Barrett [click on photo for link to webcast of panel]

Professor Dawood summarized the Superior Court and Court of Appeal decisions. She noted the that it was “novel” to argue that the Better Local Government Act infringed s.2(b) by depriving voters of their right to cast a vote that would enable effective representation. She questioned whether the legislation also infringed the s.2(b) rights of political donors.  Professor Dawood ultimately concluded, “Interrupting an election midstream is inappropriate and completely inconsistent with notions of democratic and electoral fairness, even if it is the case that the provincial government has the power to do so.” Democratic legitimacy and electoral fairness requires that the provincial government consult all stakeholders before changing election laws.

Professor Weinrib focused on the principles that govern use of the notwithstanding clause. She emphasized that the drafters envisioned the notwithstanding clause as a narrow exception, used only when a Charter right would “fundamentally damage society’s stability and well-being.” She added that the notwithstanding clause cannot be applied retroactively; in this case, the provincial government cannot invoke the clause since candidates already spent resources, social capital, volunteers, and energy; and interacted with their constituents. Professor Weinrib further criticized Premier Ford for threatening to invoke the notwithstanding clause whenever the courts strike down provincial legislation as unconstitutional. She recommended asking the Supreme Court of Canada to clarify the constitutional principles that govern the use of the notwithstanding clause.

Mr. Barrett discussed specific Charter arguments made in the case, as well as the Court of Appeal’s decision. He commented that for the stay application, it was “unusual” for the Court of Appeal to examine the substantive merits of the s.2(b) argument rather than the usual factors for a stay application. He criticized the Court of Appeal for ignoring how the Better Local Government Act undermines the effectiveness of candidates’ political speech. Mr. Barrett criticized Premier Ford for threatening to routinely use the notwithstanding clause in the future as well. He warned this threat has a “corrosive effect” on judicial legitimacy and potentially judicial independence. Individuals must make it clear that using the notwithstanding clause is only appropriate in exceptional circumstances.

Other Uses of the Notwithstanding Clause

Provincial governments have rarely used the notwithstanding clause, particularly for its intended legal function. From 1982 to 1985, the Parti Québécois placed a notwithstanding clause in all of its new legislation and retroactively amended all existing laws to include such a clause in order to protest the enactment of the Constitution Act, 1982, which it had not signed. Its actions were a political protest, rather than aimed at protecting a specific law from a Charter challenge.

In 1988, Quebec’s provincial government invoked the notwithstanding clause in response to the companion cases, Ford v Quebec (AG) and Devine v Quebec (AG), which struck down provincial legislation that prohibited the public use of all languages other than French. The legislation already had a notwithstanding clause to override s.2(b) of the Charter; however, the Supreme Court of Canada held that the legislation unjustifiably infringed a similar guarantee in Quebec’s Charter of Rights and Freedoms. The provincial government then introduced a virtually identical bill, except with clauses to override the Charter and the Quebec Charter for a five-year period. Following the expiration of this period, the provincial government amended the law. The amended law did not include a notwithstanding clause.

In 2017, Saskatchewan’s provincial government used the notwithstanding clause in the School Choice Protection Act. Its use responded to Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, which held that funding non-Catholic students who attended Catholic schools was an unjustified infringement of s.2(a) and s.15(1) of the Charter. Saskatchewan Premier Brad Wall justified its use on the basis that the legislation would protect school choice for parents and students, including faith-based options. There was no political opposition to its use.

Most recently, Québec Premier François Legault threatened to use the notwithstanding clause in order to pass a controversial “secularism law.” This proposed legislation would prevent public servants – including teachers, police officers, and judges – from wearing religious garments while performing public functions. The law is widely interpreted as targeting Muslim women who wear a niqab.

It is hoped that Ford and Legault’s recent threats will not embolden others to invoke the notwithstanding clause inappropriately. In light of these threats, the appropriate use of the Constitution’s notwithstanding clause must continue to be scrutinized, perhaps as Professor Weinrib suggested by the Supreme Court of Canada itself.

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018.