CITATION: City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 COURT FILES NO.: CV-18-603797 CV-18-602494 CV-18-603633
BETWEEN:
ONTARIO
SUPERIOR COURT OF JUSTICE
CITY OF TORONTO
and
ATTORNEY GENERAL OF ONTARIO
ROCCO ACHAMPONG
and
AND BETWEEN:
Applicant
Respondent
Applicant
ONTARIO (HON. DOUG FORD, PREMIER OF ONTARIO), ONTARIO (ATTORNEY GENERAL) and CITY OF TORONTO
Respondents ______________________________________________________________________
AND BETWEEN:
CHRIS MOISE, ISH ADERONMU, and PRABHA KHOSLA, on her own behalf and on behalf of all members of Women Win TO
and
DATE: 20180910
Applicants
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ATTORNEY GENERAL OF ONTARIO
Respondent ________________________________________________________________________
INTERVENORS
Jennifer Hollett, Lily Cheng, Susan Dexter, Geoffrey Kettel and Dyanoosh Youssefi, supporting the Applicants
- Toronto District School Board, supporting the Applicants
- Canadian Taxpayers Federation, supporting the Province ________________________________________________________________________
BEFORE: Justice Edward P. Belobaba
COUNSEL: Diana W. Dimmer, Glen K.L. Chu and Philip Chan for the City of Toronto
Gavin McGrath, Rocco K. Achampong, and Selwyn Pieters for Applicant Rocco Achampong
Howard Goldblatt, Steven M. Barrett, Christina Davies, Heather Ann McConnell and Geetha Philipupillai for Applicants Chris Moise, Ish Aderonmu and Prabha Khosla on her own behalf and on behalf of Women Win TO
Robin Basu, Yashoda Ranganathan and Audra Ranalli for the Respondent Attorney General of Ontario
Donald K. Eady. Caroline V. (Nini) Jones and Jodi Martin for Intervenors Jennifer Hollett, Lily Cheng, Susan Dexter, Geoffrey Kettel and Dyanoosh Y oussefi
Derek Bell and Ashley Boyes for Intervenor Canadian Taxpayer Federation
Patrick Cotter for Intervenor Toronto District School Board HEARD: August 31, 2018
Challenge to Provincial Bill 5 - Better Local Government Act, 2018 Reasons for Decision
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Justice Edward P. Belobaba:
[1] These applications, brought on an urgent basis, challenge the constitutional validity of Bill 5, also known as the Better Local Government Act, 2018.1 For ease of reference, I will refer to the impugned provincial enactment as Bill 5 and I will refer to the provisions that are being challenged - that is, the provisions that change the number of wards and councillors from 47 to 25 - as the Impugned Provisions.
[2] Given the pressing need for a timely decision, I will forego a detailed analysis of every legal issue raised in this proceeding or the case law that pertains to these issues. I will focus primarily on the issues and authorities that, in my view, are the most determinative.
The unprecedented nature of the case before me
[3] The matter before me is unprecedented. The provincial legislature enacted Bill 5, radically redrawing the City of Toronto’s electoral districts, in the middle of the City’s election.
[4] The election period for Toronto City Council began on May 1, 2018 and was based on a 47-ward structure. Election day is October 22, 2018. At the end of July, shortly after taking power, the newly elected Ontario government announced that it would enact legislation directed primarily at the City of Toronto, reducing the number of City wards and councillors from 47 to 25 and de facto doubling the ward populations from an average of 61,000 to 111,000.
[5] Bill 5 received first reading on July 30, second reading on August 2, 7 and 8 and Royal Assent on August 14, 2018. Bill 5 took immediate effect in the middle of August, by which point some 509 candidates for the October 22 election had been certified, the candidates were in the midst of their campaigns and the City Clerk's preparations for a 47-ward election were well underway.
[6] The enactment of provincial legislation radically changing the number and size of a city’s electoral districts in the middle of the city’s election is without parallel in Canadian history. Here is how the City of Toronto put it in the opening line of its factum:
Never before has a Canadian government meddled with democracy like the Province of Ontario did when, without notice, it fundamentally altered the City of Toronto's governance structure in the middle of the City's election.
1 S.O. 2018, c. 11.
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[7] Most people would agree that changing the rules in the middle of the game is profoundly unfair. The question for the court, however, is not whether Bill 5 is unfair. The question is whether the enactment of Bill 5 is unconstitutional.
Decision
[8] 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. It is only when a democratically elected government has clearly crossed the line that the “judicial umpire” should intervene.
[9] The Province has clearly crossed the line.
[10] For the reasons set out below, I find that the Impugned Provisions of Bill 5 substantially interfered with both the candidate’s and the voter’s right to freedom of expression as guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms. I further find, on the evidence before me, that these breaches cannot be saved or justified under section 1.2
[11] The Impugned Provisions are unconstitutional and are set aside under s. 52 of the Constitution Act, 1982. The October 22 election shall proceed as scheduled but on the basis of 47 wards, not 25. If the Province wishes to enact another Bill 5-type law at some future date to affect future City elections, it may certainly attempt to do so. As things now stand – and until a constitutionally valid provincial law says otherwise - the City has 47 wards.
Arguments other than s. 2(b) of the Charter
[12] The applicants and intervenors advanced a number of Charter and non-Charter arguments in addition to s. 2(b), namely that the Impugned Provisions breached association and equality rights under ss. 2(d) and 15(1) of the Charter, and the unwritten constitutional principles of the rule of law and democracy.
2 I make no ruling in relation to the provisions in Bill 5 that change the selection process for the regional chairs in York, Peel, Niagara and Muskoka from election to appointment. I recognize that Mr. Achampong included a challenge to these provisions in his application and filed a supporting affidavit from the campaign manager of a candidate in York Region. However, the Achampong application asks that Bill 5 be “stayed”, a remedy that was not requested by any other applicant and is not being granted here because it requires a very different legal analysis: see Manitoba (A.G.) v. Metropolitan Stores Ltd. [1987] 1 S.C.R. 110. A more complete legal and evidentiary basis would be needed before this court could comfortably consider a challenge to the provisions in Bill 5 that deal with the appointment of the four regional chairs.
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[13] I am inclined to agree with the Province that none of these additional submissions can prevail on the facts herein. However, I make no actual finding in this regard. The ss. 2(d) and 15(1) submissions, together with the rule of law and democracy submissions, may live another day, perhaps to be litigated in another court. It is sufficient for my decision today to focus only on s. 2(b) of the Charter and the guarantee of freedom of expression.
