Analysis
[14] Several preliminary points should be made clear before I explain why the Impugned Provisions infringe s. 2(b) of the Charter.
[15] First, there is no dispute that the Province has plenary authority under s. 92(8) of the Constitution Act, 1867 to pass laws in relation to “Municipal Institutions in the Province”. Assuming the law falls under s. 92(8), or indeed any other provincial head of power, the Province can pass a law that is wrong-headed, unfair or even “draconian.”3
[16] The only proviso, and it is an important one, is that any such legislation must comply with the Charter (and, arguably, any applicable unwritten constitutional norms and principles). As long as a statute is “neither ultra vires nor contrary to the [Charter], courts have no role to supervise the exercise of legislative power.”4 The remedy for bad laws that are otherwise intra vires and Charter-compliant is the ballot box, not judicial review.5
[17] Second, a federal or provincial legislature is sovereign and cannot bind itself. The provincial legislature can over-rule or contradict a previously enacted law. A subsequent enactment that is inconsistent with an earlier enactment is deemed to impliedly repeal the earlier enactment to the extent of the inconsistency.6 Thus, the argument that the City of Toronto Act7 somehow imposed an immutable obligation to consult cannot succeed. The
3 Babcock v Canada (Attorney General), [2002] 3 S.C.R. 3, at para. 57.
4 Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at para. 85.
5 British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473 at para. 66. Also see East York v. Ontario (Attorney General), [1997] O.J. No. 4100 at para. 12: “[C]ourts can only provide remedies for the public grievances if those grievances violate legal as opposed to political proprieties. What is politically controversial is not necessarily constitutionally impermissible.”
6 Sullivan, Sullivan on the Construction of Statutes, (6th ed.) at para 11.64.
7 S.O. 2006, c. 11, Sch. A., ss. 6(1) and (2). Also see s. 6 of the Toronto-Ontario Cooperation and Consultation Agreement which provides that Ontario shall consult with the City on, among other things, "[a]ny proposed change in legislation or regulation that, in Ontario’s opinion, will have a significant ... impact on the City". However, s. 14 of the same Agreement provides that a failure to abide by any of its terms does not give rise to any legal remedy.
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Province was entitled to enact Bill 5 and ignore completely the promise to consult that was set out in the previous law.
[18] Third, speaking broadly and again absent a constitutional issue, the provincial legislature has no obligation to consult and no obligation of procedural fairness.8 The doctrine of legitimate expectations, an aspect of procedural fairness, does not apply to legislative enactments.9
[19] At first glance, Bill 5 although controversial in content appears to fall squarely within the province’s legislative competence. Upon closer examination of the surrounding circumstances, however, one discovers at least two constitutional deficiencies that cannot be justified in a free and democratic society. The first relates to the timing of the law and its impact on candidates; the second to its content and its impact on voters.
[20] As I explain in more detail below, the Impugned Provisions breach s. 2(b) of the Charter in two ways: (i) because the Bill was enacted in the middle of an ongoing election campaign, it breached the municipal candidate’s freedom of expression and (ii) because Bill 5 almost doubled the population size of City wards from an average of 61,000 to an average of 111,000, it breached the municipal voter’s right to cast a vote that can result in effective representation.
[21] Either breach by itself is sufficient to support a court order declaring that the Impugned Provisions are of no force or effect.
