The Positives of Campaigning: City of Toronto and Freedom of Expression at the Supreme Court

by Bailey Fox

Introduction

On October 1, 2021, the Supreme Court of Canada (SCC) released its decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 [City of Toronto]. In the 5-4 decision, the Supreme Court held that the legislation that reduced the size of Toronto City Council during an ongoing municipal election did not violate the Constitution’s guarantee of freedom of expression. The Court also held that unwritten constitutional principles cannot, on their own, invalidate legislation.

The Asper Centre intervened in the case, specifically on the issue of the scope of freedom of expression in the context of municipal elections. The decision, while resolving the immediate dispute, raises many new questions about the future of the Charter of Rights and Freedoms’ s.2(b) guarantee of freedom of expression. The divide between the majority and dissenting opinion on the role of unwritten constitutional principles also highlights the existing divide between the Supreme Court’s judges regarding Charter interpretation.

Background

On July 27, 2018, shortly after being elected, the Ontario government tabled the Better Local Government Act, SO 2018, c 11 [BLGA]. The BLGA reduced the number of wards in the City of Toronto from 47 to 25 during the City’s ongoing election. The BLGA upended the election, eliminating 22 wards and requiring candidates to pivot their campaigns to new or unfamiliar districts.

Shortly after being enacted on August 14, 2018, a number of parties, including affected candidates and the City of Toronto brought an application seeking to invalidate the BLGA. The parties advanced a few constitutional arguments, including that the BLGA violated ss.2(b) and s.15(1) (equality rights) of the Charter, as well as the unwritten constitutional principles of democracy and the rule of law. The application was heard on an expedited basis on September 9, 2018. In City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151, the application judge held that the BLGA violated both candidates’ and electors’ s.2(b) rights and could not be justified under s.1 of the Charter. Given the s.2(b) violation, the application judge held that it was not necessary to consider the role of unwritten constitutional principles. The application judge invalidated the legislation and restored the 47-ward format for the election.

The government sought an appeal, and an urgent stay, of the application judge’s decision at the Ontario Court of Appeal (OCA). In its stay decision, the OCA found that candidates were seeking a positive right to a particular platform, and held that the BLGA did not substantially interfere with expressive freedom. Based on the stay decision, the BLGA remained in force and Toronto’s election proceeded on a 25-ward basis.

A little over a year later, the appeal was heard and decided on its merits. The Asper Centre intervened in the appeal. In Toronto (City) v Ontario (Attorney General), 2019 ONCA 732, the OCA reversed the application judge’s decision and affirmed the constitutionality of the BLGA. Justice Miller, writing for the majority, characterized the claim as a positive one – that the claimants were seeking access to a statutory platform as opposed to freedom from government interference in electoral expression. Applying the case of Baier v Alberta, 2007 SCC 31 [Baier], the Court held that the claimants must demonstrate a substantial interference with freedom of expression but have failed to do so since the government is not required to ensure the effectiveness of expression.

In dissent, Justices Nordheimer and MacPherson would have denied the appeal on a finding that the BLGA violated all electoral participants’ s.2(b) rights. The dissenting justices largely adopted the submissions of the Asper Centre on this point.

The City of Toronto appealed the OCA’s decision.

The Supreme Court’s Decision

Majority

Chief Justice Wagner and Justice Brown wrote the 5-judge majority decision. Like the OCA, the SCC characterized the claim as a positive one, that is that the claimants were seeking access to a particular statutory platform (a 47-ward council). Noting that this appeal was an opportunity to ‘affirm and clarify’ the Baier framework, the Court held that when claimants are seeking to impose an obligation on the government to provide access to a statutory platform for expression, the s.2(b) claim is a positive one (para 24). In such cases, the claimant must demonstrate that lack of access to a statutory platform has substantially interfered with, or “radically frustrated”, expression to such an extent that expression is “effectively precluded” (para 26).

Applying the Baier framework, the Court held that the claim was a positive one, however the City had not demonstrated substantial interference with expression. The Court noted that the Act did not prevent candidates from engaging in political speech or impose conditions on the content or meaning of speech. The Court rejected submissions that the BLGA rendered prior campaigning meaningless, noting that government action that makes prior speech less effective is not a substantial interference with s.2(b). The Court concluded that candidates’ freedom of expression was not radically frustrated and therefore the BLGA did not violate s.2(b).

On the question of the role of unwritten constitutional principles in Charter interpretation, the Court held that these principles – like democracy and the rule of law – could be used for exactly that, and nothing more. Adopting a textual approach to constitutional interpretation, the Court held that unwritten constitutional principles represent general principles underlying the constitutional order, and while they may assist the Court as interpretative tools or to develop structural doctrine, these principles do not have independent legal force.

Dissent

Justice Abella penned the reasons on behalf of the four dissenting judges. They would have allowed the appeal based on a finding that the BLGA violated s.2(b) of the Charter.

The dissent rejected the Baier framework and would have applied the test for a s.2(b) violation from Irwin Toy Ltd v Quebec, [1989] 1 SCR 927 [Irwin Toy]. Justice Abella noted that Baier only applies to circumstances where an existing statutory platform is underinclusive, and characterized the claim in this case as government interference with expressive rights attached to an electoral process (para 151). Applying the Irwin Toy framework, Justice Abella held that the BLGA’s timing “interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse” (para 157). Justice Abella held that since the government had not provided any justification for the legislation’s timing, it could not be saved under s.1.

Justice Abella also commented on the role of unwritten constitutional principles, holding that they are independent of, and form the backdrop to, the written text of the constitution. These principles represent society’s normative commitments and therefore have independent legal force. Per the dissent, in rare cases, unwritten constitutional principles may invalidate legislation that has otherwise escaped the reach of an express constitutional provision.

Where do we go from here?

The majority’s critique of Irwin Toy and affirmation of Baier is notable and perhaps concerning. The majority notes at para 14 that Irwin Toy “has been criticized for setting too low a bar for establishing a s. 2(b) limitation…”. The analysis then continues with a discussion of s.2(b)’s internal limits, the distinction between positive and negative claims, and an affirmation of Baier. While this is a legitimate and existing critique of Irwin Toy, the Court does not expand on why such a broad test is at odds with the text of s.2(b), is normatively problematic, or why or whether it should be changed. However, the Court’s decision has the effect of limiting the applicability of the Irwin Toy framework, and potentially narrowing the scope of s.2(b), and thus adding complexity to s.2(b) litigation. As noted in the dissent at para 155, claimants must now meet a preliminary burden of demonstrating that their s.2(b) claim is a negative entitlement. Adding this inquiry to the s.2(b) analysis is especially concerning given that the distinction between positive and negative entitlement is easily malleable (again, a critique noted by the dissent at para 152 and previous SCC jurisprudence).

Also of note is the very high bar the Court states is required to establish a s.2(b) violation under Baier/City of Toronto. To succeed under this framework a claimant must show that lack of access to a statutory platform has radically frustrated expression to the extent that it is effectively precluded. The substantial interference standard (which was imported from the freedom of association jurisprudence and has since been impugned in that context; see City of Toronto at para 21) thereby recognizes that some interference with expressive freedom is constitutionally permissible. City of Toronto ignites a latent question about s.2(b)’s internal limits and elevates the bar that claimants must meet if a Court considers the claim a positive one.

The decision’s discussion of unwritten constitutional principles also reflects an ongoing divide among SCC judges between a textual and liberal/purposive interpretation of the Charter. While both opinions resolved the dispute on s.2(b) grounds, they nevertheless included a sustained discussion in obiter on unwritten constitutional principles. The majority subscribes a limited role for purposive interpretation, and later notes that notes that unwritten constitutional principles may assist with constitutional interpretation, but only where the test is not sufficiently definitive (para 65). But what is notably absent is any engagement by the majority with the purpose of s.2(b), or the impact of the principle of democracy on the analysis of a case where the scope of s.2(b) is at issue. While Justice Abella recognizes that freedom of expression includes the right to engage in political discourse (paras 114 – 122), the relevance of political discourse or the election context takes a backseat in the majority’s decision. This, in addition to emphasizing the distinction between a positive and a negative claim, is a marked departure from earlier jurisprudence like Irwin Toy that emphasized the purpose of freedom of expression, and  its connection to political discourse, and a broad scope for s.2(b).

In conclusion, the case that came to the Supreme Court was concerned with mid-election reform to Toronto City Council’s structure. However, in destabilizing the s.2(b) framework and narrowing the applicability of unwritten constitutional principles, the SCC’s decision leaves constitutional litigators, scholars, and students with many questions about the future of s.2(b) and constitutional interpretation.

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)

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

Ontario Court of Appeal Rules G20 Protester’s Rights Violated by Police

 

Ten years after Toronto hosted the G20 summit, a civil suit launched against the Toronto police has finally been resolved by the Ontario Court of Appeal. The decision—Stewart v. Toronto (Police Services Board)—represents a strong affirmation of the constitutional right to protest, especially in public spaces like parks.

The case arose out of the G20 summit held in Toronto in 2010. A group of activists had organized a public rally in Allan Gardens, a public park in downtown Toronto. Based on vague reports of potential violence by “Black Bloc” protesters, the police set up an indiscriminate perimeter around the park the day before the rally and required all those wishing to participate in the protest to submit to a search of their personal belongings. The police also seized items that they believed could be used to defeat the effects of tear gas and pepper spray, such as goggles, bandanas, and vinegar.

The police stopped the appellant, Luke Stewart, and told him they were searching all protesters under the authority of the Trespass to Property Act. Mr. Stewart refused to consent to the search, believing it to be unconstitutional. When he attempted to move past the police perimeter, he was forcibly detained. The police then searched his bag and confiscated a pair of swimming goggles.

Mr. Stewart brought a lawsuit against the police in 2011, seeking Charter damages for violation of his freedom of expression, right not to be arbitrarily detained, and right to be secure against unreasonable search or seizure. The Superior Court dismissed his claim in 2018, ruling that the police had the requisite search powers and did not infringe any of his constitutional rights.

The Canadian Civil Liberties Association (CCLA) intervened in this case at both the trial level and at the appeal, arguing for limits on the power of police to interfere with the rights of protesters.

Winston Gee headshot

Winston Gee

Winston Gee, an associate at Torys LLP and former Asper Centre Clinic student, presented the CCLA’s submissions at the hearing of the appeal.

In reasons written by Justice Brown, the Court of Appeal agreed with the CCLA that the police had no legal authority for their actions. It overturned each of the trial judge’s rulings and awarded Mr. Stewart $500 in Charter damages. The Court also affirmed the fundamental importance of free political expression, especially in public parks:

“Our civil liberties tradition recognizes that public parks, such as Allan Gardens, are civic spaces naturally compatible with the public expression of views, whether the content of those views support or dissent from the popular sentiments of the day… The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection.”

Despite the low damages award, Gee was pleased that “the Court accepted one of our central submissions at the hearing—that the Trespass to Property Act does not create any substantive property rights but is merely a mechanism to enforce existing rights that come from other sources, such as the common law.” As a result, the Act could not be used by the police to impose “conditions of entry” of their choosing. That power properly belonged to the City as the common law owner and occupier of the park—and it is subject always to the Charter.

Gee said that his work on this case “benefitted immensely from my time at the Asper Centre. That’s where I first gained experience with appellate advocacy, including by learning from leading constitutional litigators like Mary Eberts and Marlys Edwardh. I also had the opportunity to assist with the Asper Centre’s intervention in Henry v. British Columbia (Attorney General), one of the Supreme Court’s leading cases on Charter damages. That experience was particularly relevant to this case.”

Gee also thanked his colleagues at Torys for providing excellent mentorship and for giving him the opportunity to argue such an important case.

by T. Schreier, with Winston Gee (JD/MPP UTLaw 2017)

Freedom of expression in an election context: A purposive approach

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.

The Constitutionality of the Proposed Federal Conversion Therapy Ban  

by Jeffrey Wang

On June 21, 2019, the Federal government announced its intentions to criminalize conversion therapy in a letter to provincial premiers. While this is undoubtedly a positive step for LGBT+ rights, the constitutionality of this ban has been questioned 

Conversion Therapy  

Conversion therapy can be defined as any practice that claims to change a person’s sexual orientation or gender identity/expression. The practice can take the form of psychological, medical, religious, or other type of intervention. Every major health organization has denounced conversion therapy. The Canadian Psychological Association (CPA), for example, released a policy statement in 2015 discrediting the efficacy of conversion therapy and recognizing its negative outcomes such as distress, anxiety, depression, negative self-image, difficult sustaining relationship, and sexual dysfunction.

History of Conversion Therapy Bans 

In late 2018, Alberta activist Devon Hargreaves began a petition to have Parliament ban conversion therapy for minors. While Parliament agreed that the practice is immoral, the petition was rejected on the basis that the provinces have the primary jurisdiction to regulate health professions. On April 9th, 2019, Senator Serge Joyal proposed Bill S-260, which amends the Criminal Code to ban the advertising of and material benefit from conversion therapy. This follows a similar strategy of banning the ancillary activities surrounding a practice, most notably employed within the new prostitution laws. This bill died on the Senate floor and given the upcoming federal elections, it is unclear if government will draft a new, similar bill.  

Within Canada, Ontario, Nova Scotia, and Manitoba have banned the medical practice of conversion therapy for minors. The cities of Vancouver and St Albert (Alberta) have passed bylaws that prohibit businesses from providing conversion therapy to minors. 

Potential Constitutionality 

Federalism  

Although conversion therapy is a health issue, in Canada v PHS the court clarifies that “Parliamenthas historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as socially undesirable behaviour.” It has been agreed upon by professionals that conversion therapy is dangerous and socially undesirable.  

Freedom of Expression  

Banning conversion therapy may be seen as a s.2(b) Charter violation for professionals who perform conversion therapies. However, it is very likely that the ban would be justified under s.1, especially in light of the scientific consensus that it is dangerous and harmful. The s.1 analysis will likely follow the same path as R v Keegstrawhere the expression stemming from conversion therapy will been seen as holding low constitutional status. Although it may not be hate speech, conversion therapy certainly damages the psychological integrity of individuals, as well as harms the broader LGBT+ community.  

Freedom of Religion  

Some have argued that banning conversion therapy may constitute a s.2(a) Charter violation for those who genuinely believe that their religion mandates them to be heterosexual and for practitioners who perform the therapy as a religious obligation. This argument is unlikely to succeed since there is consensus that conversion therapy is not effective at changing an individual’s sexuality. While some religions may enforce strict heterosexuality, conversion therapy does not make people heterosexual and thus cannot be protected under freedom of religion protections. Even if it is considered a religious right, the conversion therapy ban will likely be justified under s.1 as discussed above.  

Life, Liberty and Security   

It may be argued that the conversion therapy ban violates a person’s liberty or security interest in seeking psychological treatment, reminiscent of the Morgentaler decision. However, conversion therapy has been medically denounced and indeed creates many negative psychological reactions. Thus, it is unlikely that seeking this dangerous “treatment” will engage liberty or security under s.7 

Alternatively, if Parliament criminalizes ancillary activities around conversion therapy but not conversion therapy itself, this may raise issues relating to the principles of fundamental justice, such as in the Bedford case. However, the ban on conversion therapy clearly does not place those who perform it in danger like with the prostitution laws, so it is unlikely to be overbroad or grossly disproportionate.  

International Law  

Canada’s international law obligations also support a ban on conversion therapy. Principle 18 of the Yogykarta Principles, a set of principles on the application of international human rights law to sexual minorities, declares that sexual orientation is not to be considered a medical condition. Furthermore, more severe practices of conversion therapy may meet the requirements of torture under the Convention against Torture and International Covenant on Civil and Political Rights. 

Conclusion  

Overall, the constitutionality of the federal conversion therapy ban will depend on the precise form of the ban. However, medical professionals have reached a consensus on the harms of conversion therapy, a fact that constitutionally justifies its criminalization. It must be recognized that this ban is a huge step in Canada’s protection of LGBT+ identities.  

Jeffery Wang is a 2L JD Candidate at the Faculty of Law and is the co-leader of the Asper Centre’s current Refugee and Immigration Law student working group.