Some constitutional law experts are scratching their heads after an Ontario judge declared that the new Progressive Conservative government鈥檚 mid-election cuts to the size of Toronto鈥檚 city council are unconstitutional because they violate freedom of expression rights.
Justice Edward P. Belobaba struck down most of the province鈥檚 Better Local Government Act after finding that it interfered 鈥渨ith both the candidate鈥檚 and the voters鈥� right to freedom of expression as guaranteed under Section 2(b) of the Canadian Charter of Rights and Freedoms.鈥�
Belobaba wrote that redrawing Toronto鈥檚 ward map to match the boundaries of federal and provincial ridings, which would leave one councillor for every 111,000 residents instead of one for every 61,000, 鈥渟ubstantially interfered with the municipal voter鈥檚 freedom of expression 鈥� and in particular her right to cast a vote that can result in effective representation.鈥�
states that 鈥渆veryone has鈥� the 鈥渇undamental freedom鈥� to 鈥渇reedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.鈥�
Carissima Mathen, a vice-dean at the University of Ottawa鈥檚 Faculty of Law, told CTV鈥檚 Power Play that the judge鈥檚 assertion that the bill violates freedom of expression was 鈥渁 little eyebrow raising.鈥�
鈥淭he issue here is whether he was really drawing in elements from another Charter right, which is the Section 3 right to vote,鈥� she wrote.
鈥淢y read is that he was really concerned by how arbitrary the government鈥檚 decision was,鈥� Mathen added.
University of Toronto constitutional law professor just after the ruling came down Monday to question whether Belobaba鈥檚 use of 2(b) 鈥渃omports with past use鈥� of the section by the Supreme Court of Canada (SCC) in a similar context.
鈥淲hile the SCC has used s 2(b) to protect electoral fairness especially with respect to political financing ... it鈥檚 a novel argument to say that it protects the 鈥榬ight to cast a ballot that can result in effective representation,鈥欌�� Dawood wrote.
Howard Anglin, director of the Canadian Construction Foundation and former deputy chief of staff to then-prime minister Stephen Harper, and said that it was poorly reasoned and 鈥渄efinitely a candidate鈥� for invoking the notwithstanding clause 鈥� a legal override of the Charter that Ontario Premier Doug Ford said he plans to use for the first time in the province鈥檚 history.
鈥淧eople often make the mistake of calling judicial decisions they disagree with activist. This is not one of those cases,鈥� Anglin writes. 鈥淏ecause the judge couldn鈥檛 invoke Section 3 of the Charter (which doesn鈥檛 apply to municipalities), he wrote himself a new Charter in which Section 2 does the work of Section 3.鈥�
Anglin said that the judge鈥檚 argument concerning political rights under Section 3 of the Charter 鈥渄oesn't apply to municipal elections鈥� and that the argument Belobaba made rests on 鈥渢wo inapplicable鈥� Supreme Court of Canada (SCC) precedents.
who focuses specially on freedom of expression rights, said on Twitter that 鈥渢he court's reliance on the free expression rights of voters and candidates is problematic for several reasons. It distorts the idea of free expression - and runs contrary to existing SCC decisions.鈥�
鈥淔ree (expression) does not protect the right to run for office -- and in any event no one is prevented from running for office in this case. They may do so but in a larger riding,鈥� Moon added.
鈥淭here is a plausible argument that free (expression) may sometimes protect a right to vote -- although several things complicate this (i) it is a so-called platform -- that is better seen as based on a right to vote in a democratic system (ii) the private nature of voting is a reminder that this is really about representation rather than expression (iii) voters have other ways to express themselves (iv) voters for council still have a right to vote - just in larger ridings,鈥� Moon went on.
鈥淔inally, it is difficult to contain the claim that voter free expression is compromised by diluting their vote,鈥� Moon concluded. 鈥淲hy is that not always a problem? Or more to the point how do we determine when dilution is a problem?鈥�
University of Ottawa law professor Michael Pal told 麻豆影视 Channel that 鈥渕ost legal experts thought the province was going to win the court case today.鈥�
鈥淏ut,鈥� he added, 鈥渢his was an unprecedented situation because the change in the number of wards was happening in the middle of an election.鈥�
Municipal lawyer John Mascarin said he was 鈥渧ery surprised鈥� by the decision but emphasized that it appears the judge found that the 鈥渢iming that was the problem.鈥�
鈥�(Belobaba) indicated that it would be a huge disruption to the electorate if the change was made at the end of the election period,鈥� Mascarin told 麻豆影视 Channel.
鈥淗e said this judgement doesn鈥檛 preclude the province from enacting something in the future with due notice and due consultation and due study,鈥� Mascarin added.
Craig Scott, a former NDP MP who now teaches law at York University鈥檚 Osgoode Hall, has argued for weeks that the Better Local Government Act was unconstitutional.
