(1) Breach of the candidate’s freedom of expression 

[22] Section 2(b) of the Charter guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Although set out in the Charter, the Supreme Court has made clear that freedom of expression did not originate in the Charter but was entrenched in the Constitution in 1982 as “one of the most fundamental values of our society.”10 

8 The obligation of procedural fairness materializes at the level of subordinate legislation and in the judicial review of the administrative actions of agencies and tribunals – not at the level of primary legislation such as Bill 5 herein. 

9 Old St Boniface Residents Assn Inc v Winnipeg (City), [1990] 3 S.C.R. 1170 at para 74; Canada (A.G.) v Mavi, [2011] 2 S.C.R. 504 at paras 44, 68-69; and Reference re Canada Assistance Plan, supra, note 4, at paras 58-61. 

10 Libman v Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 28. 

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[23] The Supreme Court has frequently and consistently held that freedom of expression is of crucial importance in a democratic society.11 All the more so when freedom of expression is engaged in the political realm. Political expression is at the very heart of the values sought to be protected by the freedom of expression guaranteed by s. 2(b) of the Charter.12 Here is how the Court put it in Keegstra:

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.13 

[24] The Supreme Court has encouraged a broad interpretation of freedom of expression that extends the guarantee to as many expressive activities as possible. The Court has made clear that any activity or communication that conveys or attempts to convey meaning (and does not involve violence) is covered by the guarantee in s. 2(b) of the Charter.14 

[25] It follows from this that the freedom of expression guarantee extends not only to candidates but to every participant in a political election campaign, including volunteers, financial supporters and voters.15 Each of them would have a genuine s. 2(b) issue with Bill 5. However, for ease of understanding, I will focus only on the candidates. 

[26] In a section 2(b) claim, the Court asks two questions: first, whether the activity in question falls within the scope of freedom of expression, and secondly, whether the purpose or effect of the legislation is to interfere with that expression.16 

11 Ibid. 

12 Ibid at para. 29. 

13 R. v. Keegstra, [1990] 3 S.C.R. 697 at 763-64. 

14 Libman, supra, note 10, at para. 29. 

15 Harper v Canada (Attorney General), 2004 SCC 33 at paras 15 and 20; Vancouver Sun (Re), 2004 SCC 43 at para. 26; Taman v Canada (Attorney General), 2015 FC 1155 at para 41. 

16 Irwin Toy Ltd. V. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 978. 

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[27] The expressive activity of candidates competing in the City’s ongoing election obviously falls within the scope of s. 2(b). The more pertinent question is whether their freedom of expression has been infringed by the enactment of Bill 5. That is, whether the enactment of Bill 5 changing the electoral districts in the middle of the City’s election campaign substantially interfered with the candidate’s right to freedom of expression.17 

[28] Perhaps the better question is “How could it not?” 

[29] The evidence is that the candidates began the election campaign on or about May 1, 2018 on the basis of a 47-ward structure and on the reasonable assumption that the 47- ward structure would not be changed mid-stream. The 47-ward structure informed their decision about where to run, what to say, how to raise money and how to publicize their views. When Bill 5 took effect on August 14, mid-way through the election campaign, most of the candidates had already produced campaign material such as websites and pamphlets that were expressly tied to the ward in which they were running. A great deal of the candidate’s time and money had been invested within the boundaries of a particular ward when the ward numbers and sizes were suddenly changed. 

[30] Bill 5 radically altered the City’s electoral districts, in most cases doubling both their physical size and the number of potential voters. The immediate impact of Bill 5 was wide-spread confusion and uncertainty. There was confusion about where to run, how to best refashion one’s political message and reorganize one’s campaign, how to attract additional financial support, and what to do about all the wasted campaign literature and other material. There was uncertainty flowing from the court challenge, the possibility that the court challenge might succeed and the consequences for all concerned if this were to happen. 

[31] The evidence is that the candidates spent more time on doorsteps addressing the confusing state of affairs with potential voters than discussing relevant political issues. The candidates’ efforts to convey their political message about the issues in their particular ward were severely frustrated and disrupted. Some candidates persevered; others dropped out of the race entirely. 

17 The case law is clear that the Charter cannot be subdivided into two kinds of guarantees - freedoms and rights. The freedom to do a thing, when guaranteed by the Constitution and interpreted purposively, implies a right to do it. Hence, I say “the right to freedom of expression”. See Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 67. 

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[32] There can be no doubt on the evidence before the court that Bill 5 substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters. 

[33] This is not a situation where a provincial law changing the number and size of the City’s electoral districts was enacted say six months before the start of the City’s election period. Had this happened, the law would not have interfered with any candidate’s freedom of expression and no candidate could have alleged otherwise. The Province is right to say that s. 2(b) of the Charter does not guarantee a 47-ward election platform. 

[34] Here, the law changing the City’s electoral districts was enacted in the middle of the City’s election. This mid-stream legislative intervention not only interfered with the candidate’s freedom of expression, it undermined an otherwise fair and equitable election process. 

[35] Electoral fairness is a fundamental value of democracy.18 As the Court noted in Libman,19 the principle of electoral fairness flows directly from a principle entrenched in the Constitution: the political equality of citizens. Elections are fair and equitable only if candidates are given a reasonable opportunity to present their positions.20 

[36] Here, as already noted, because Bill 5 took effect in the middle of the City’s election, candidates were not given a reasonable opportunity to present their positions. The enactment and imposition of Bill 5, radically redrawing the electoral districts in the middle of the electoral process undermined the very notion of a “fair and equitable” election. 

[37] Once the Province has entered the field and provided an electoral process, it may not suddenly and in the middle of this electoral process impose new rules that undermine an otherwise fair election and substantially interfere with the candidates’ freedom of expression. Indeed, as the Supreme Court’s decision in Libman21 makes clear, where a democratic platform is provided (in that case a referendum, here a 47-ward election structure), and the election has begun, expressive activity in connection with that 

18 Figueroa v. Canada (Attorney General), 2003 SCC 37, at para. 50. 19 Libman, supra, note 10.
20 Ibid at para 47; Figueroa,supra, note 18, at para 51.
21 Libman, supra, note 10. 

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platform is protected against legislative interference under the traditional Irwin Toy analysis which focuses on substantial interference.22 

[38] I have no difficulty finding on the evidence before me that the enactment of Bill 5 changing the number and size of the electoral districts in the middle of the election campaign substantially interfered with the candidate’s freedom of expression. A breach of the municipal candidate’s right to freedom of expression under s. 2(b) of the Charter has been established. 

[39] I now turn to the municipal voter’s right under the same provision of the Charter.