(2) Breach of the municipal voter’s right to freedom of expression
[40] I begin with three propositions that are not in dispute. First, the most fundamental of our rights in a democratic society is the right to vote.23 Absent a right to vote, democracy cannot exist.24 Second, voting is an expressive activity, indeed the “most important expressive activity” 25 and is fully protected under s. 2(b) of the Charter. Third, the right to vote is, in essence, the right to “effective representation” and not just voter parity.
[41] As the Supreme Court concluded in the Saskatchewan Reference:26
[T]he purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". Ours is a representative democracy. Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one's grievances and concerns to the attention of one's government representative ... elected representatives function in two roles - legislative and what has been termed the "ombudsman role".
22 Ibid at paras. 28 to 37. Also see Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, [2010] 1 S.C.R. 815 and Fraser, supra, note 17, at paras 46 and 69-70.
23 Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 at para. 1. 24 Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, at para. 104.
25 Ibid at para. 158.
26 Saskatchewan Reference, supra, note 23, at para. 49.
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[42] City councillors obviously function in both roles, legislative and ombudsman – in the former role when debating and passing bylaws or other resolutions; and in the latter role when handling the myriad of constituents’ grievances and concerns that find their way to their desks.
[43] The important legal issue is whether the comments by the Supreme Court about effective representation, made in the context of s. 3 of the Charter (which guarantees every citizen’s right to vote in a federal or provincial election, but not a municipal election), can also apply in the context of a municipal election. Can the concept of effective representation inform this court’s analysis of the municipal voter’s rights under s. 2(b) of the Charter?
[44] In my view it can, for the following reasons.
[45] The concept of effective representation is not rooted in s. 3 of the Charter. Its origins can be traced back to Canada’s founding fathers and the early debates about the appropriate design of electoral districts. As the Supreme Court explained in the Saskatchewan Reference:
[P]arity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation. Sir John A. Macdonald in introducing the Act to re-adjust the Representation in the House of Commons, S.C. l872, c. 13, recognized this fundamental fact (House of Commons Debates, Vol. III, 4th Sess., p. 926 (June 1, 1872)):
[I]t will be found that ... while the principle of population was considered to a very great extent, other considerations were also held to have weight; so that different interests, classes and localities should be fairly represented, that the principle of numbers should not be the only one. 27
[46] Even if the concept of effective representation is found to have its origins in s. 3 of the Charter, there is no principled reason why in an appropriate case the “effective representation” value cannot inform other related Charter provisions such as the voter’s right to freedom of expression under s. 2(b). The Charter of Rights is not comprised of watertight compartments. As the Supreme Court noted in Baier v. Alberta,28 “Charter
27 Ibid at para. 51.
28 Baier v Alberta, [2007] 2 S.C.R. 673
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rights overlap and cannot be pigeonholed.”29 And, as this court noted in DeJong,30 the rights enshrined in s. 3 “have a close relationship to freedom of expression and to the communication of ideas ... there is an affinity between ss. 3 and 2(b) (freedom of expression) of the Charter.”31
[47] If voting is indeed one of the most important expressive activities in a free and democratic society, then it follows that any judicial analysis of its scope and content under the freedom of expression guarantee should acknowledge and accommodate voting’s core purpose, namely effective representation. That is, the voter’s freedom of expression must include her right to cast a vote that can result in meaningful and effective representation.
[48] The following caution from the Supreme Court in Haig32 has direct application on the facts herein:
While s. 2(b) of the Charter does not include any right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution.33
[49] In other words, even though s. 2(b) does not guarantee a right to vote in municipal elections, if such an expressive right has been provided by the provincial government, then the right so provided must be consistent with and not in breach of the Constitution.
[50] Here, the Province has statutorily provided for a resident’s right to vote in municipal elections, including the upcoming election in the City of Toronto.34 This right, having been provided, must be provided “in a fashion that is consistent with the Constitution.”35 And where it is not, a municipal voter is entitled to allege constitutional infringement, including an infringement of s. 2(b) based on the denial of her right to cast a vote that can result in effective representation.
29 Ibid at para. 58.
30 De Jong v. The Attorney General of Ontario, (2007) 88 O.R. (3d) 335 (S.C.J.)
31 Ibid at para. 25. Also see Baier, supra, note 28, at para. 57.
32 Haig, supra, note 24.
33 Ibid at para 84.
34 City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, s. 135(2) and Municipal Elections Act, 1996, S.O. 1996, c. 32, s. 17(2).
35 Haig, supra, note 24, at para. 84.
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[51] A finding that Bill 5 has infringed the municipal voter’s freedom of expression by abridging her right to cast a vote that can result in effective representation does not constitutionalize a third level of government. Nor does it constitutionalize a right to vote at the municipal level. The finding of Charter infringement flows from the application of the Supreme Court’s caution in Haig36 to the facts of this case – once provided, a right to vote in a municipal must comply with the Charter, and in particular s. 2(b).
[52] This very approach was taken by the Court of Appeal in the “mega-city” amalgamation case.37 The amalgamation legislation was challenged on the ground that the resulting voter/councillor ratios were too high and denied meaningful access to one’s elected representative. The applicants’ challenge was based in part on s. 2(b) of the Charter. The Court of Appeal noted that it was “mindful”38 of the caution in Haig39 and proceeded to consider the s. 2(b) argument. The Court of Appeal found no breach of s. 2(b) because in that case there was no suggestion of “any curtailment of the right to vote” and no “evidence” that the size of the electoral districts post-amalgamation infringed the concept of effective representation.40
[53] Here, however, the applicants before this court allege a clear curtailment of the right to vote and have filed extensive evidence about effective representation. I refer, of course, to the findings and conclusions of the Toronto Ward Boundary Review.
[54] The TWBR began in 2013 and concluded in 2017. Over the course of the almost four-year review, the TWBR conducted research, held public hearings, and consulted widely. The TWBR considered the “effective representation” requirement and the ward size that would best accomplish this objective. The option of reducing and redesigning the number of wards to mirror the 25 Federal Election Districts was squarely addressed and rejected by the TWBR. City Council’s decision in 2017 to increase the number of wards from 44 to 47 was directly based on the findings and conclusions of the TWBR,
36 Ibid.
37 East York, supra, note 5.
38 Ibid at para. 2.
39 Haig, supra, note 24, at para. 84.
40 East York, supra, note 5. at paras. 4 and 8.
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which in turn were affirmed on appeal to the Ontario Municipal Board and the Divisional Court.41
[55] Put simply, the 25 FEDs option was considered by the TWBR and rejected because, at the current 61,000 average ward size,42 city councillors were already having difficulty providing effective representation.
[56] Local government is the level of government that is closest to its residents. It is the level of government that most affects them on a daily basis. City councillors receive and respond to literally thousands of individual complaints on an annual basis across a wide range of topics - from public transit, high rise developments and policing to neighbourhood zoning issues, building permits and speed bumps.
[57] Recall what the Supreme Court said in Saskatchewan Reference about how effective representation includes “the right to bring one's grievances and concerns to the attention of one's government representative.”43 This right must obviously be a meaningful right. This is particularly relevant in the context of the councillor’s role in a mega-city like Toronto.
[58] The evidence before this court supports the conclusion that if the 25 FEDs option was adopted, City councillors would not have the capacity to respond in a timely fashion to the “grievances and concerns” of their constituents. Professor Davidson, who filed an affidavit in this proceeding, and also participated in the TWBR as a consultant, provided the following expert evidence:
It is the unique role of municipal councillors that distinguishes municipal wards from provincial and federal ridings. Boundaries that create electoral districts of 110,000 may be appropriate for higher orders of government, but because councillors have a more involved legislative role, interact more intimately with their constituents and are more involved in resolving local issues, municipal wards of such a large size would impede individual councillor’s capacity to represent their constituents.
41 With the exception of a minor change in one ward boundary. Leave to appeal the decision of the OMB, (now known as the Local Planning Appeal Tribunal) in Di Ciano v Toronto (City), 2017 CanLII 85757 (ON LPAT), was denied by the Divisional Court: Natale v City of Toronto, 2018 ONSC 1475.
42 The average ward size in other Ontario cities is 32,600. 43 Saskatchewan Reference, supra, note 23, at para. 49.
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It is my professional opinion that the unique role of councillors, as well as the public feedback received by the TWBR, and comparison with ward-size in other municipalities, demonstrates that a ward size of approximately 61,000 people provides councillors with capacity to provide their constituents with effective representation and that ward sizes of approximately 110,000 do not.
[59] On the basis of the evidence before me, I find that the Impugned Provisions (that impose a 25-ward structure with an average population size of 111,000) infringe the municipal voter’s right under s. 2(b) of the Charter to cast a vote that can result in meaningful and effective representation. Once the Province has provided for a right to vote in a municipal election, that right must comply with the Charter.
[60] In sum, I have found two distinct breaches of s. 2(b) – the first, that the Impugned Provisions substantially interfered with the candidate’s right to freedom of expression when it changed the City’s electoral districts in the middle of the election campaign; the second, that the Impugned Provisions substantially interfered with the voter’s right to freedom of expression when it doubled the ward population size from a 61,000 average to a 111,000 average, effectively denying the voter’s right to cast a vote that can result in effective representation.
[61] I further find, for the reasons that follow, that neither of these breaches can be justified or “saved” under s. 1 of the Charter.
Breaches of s. 2(b) not saved under s. 1
[62] Section 1 of the Charter provides that the rights and freedoms guaranteed therein are subject to “such reasonable limits ... as can be demonstrably justified in a free and democratic society.”
[63] The analytic approach that a court must take under s. 1 has been repeated and refined in numerous Supreme Court decisions since it was first set out in Oakes.44 Here is the prevailing articulation:
[T]he Court must first ask whether the objective the statutory restrictions seek to promote responds to pressing and substantial concerns in a democratic society, and then determine whether the means chosen by the government are proportional to that objective. The proportionality test involves three steps: the restrictive measures chosen must be rationally connected to the objective, they must constitute a minimal impairment of
44 R. v. Oakes, [1986] 1 S.C.R. 103.
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the violated right or freedom and there must be proportionality both between the objective and the deleterious effects of the statutory restrictions and between the deleterious and salutary effects of those restrictions.45
[64] The onus of justification under s. 1 is on the government. The standard of proof is the civil standard, namely proof on a balance of probabilities.46 Normally, the defending government files extensive evidence attempting to provide a justification for the breach under s. 1 of the Charter. Here, either because of time constraints or because there was little in the way of supporting evidence, the Province only filed one news release and some excerpts from Hansard setting out what was said by the Premier and others when Bill 5 was debated in the legislature.
[65] The news release that was issued by the Premier's office on July 27, 2018 provided two rationales for Bill 5, improved efficiency and overall cost savings. The Premier observed that Toronto City Council "has become increasingly dysfunctional and inefficient through a combination of entrenched incumbency and established special interests" and that Bill 5 would create an effective municipal government that saves taxpayers money.
[66] On August 2, 2018 at the second reading of Bill 5, the Minister of Municipal Affairs and Housing set out three objectives for the legislation:
First, they [councillors in support of a 25-ward model] agree that a smaller council will lead to better decision-making at Toronto city hall, which would benefit Torontonians as a whole. They gave an example of the current 44-member council having 10-hour debates on issues that would end with the vast majority of councillors voting the same as they would have at the beginning of the debate. ...
Second, they point out that it will save money ...
Third, it would result in a fair vote for residents, which was the very reason Toronto itself undertook a review of its ward boundaries. The Toronto councillors I referred to earlier reminded everyone that the Supreme Court of Canada said that voter parity is a prime condition of effective representation. They gave examples of the current ward system, where there are more than 80,000 residents in one ward and 35,000 in another. They acknowledge that this voter disparity is the result of self-
45 Libman, supra, note 10, at para. 38. 46 Ibid at para. 39.
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interest, and that the federal and provincial electoral district process is better because it is an independent process which should apply to Toronto as well. ... The wards we are proposing are arrived at through an independent process.
[67] It is important to note that, in the debate that followed, the Premier and the MPPs who spoke in support focused on two rationales for Bill 5: improved efficiency and cost savings, and did not refer to voter parity. The Premier added some anecdotal evidence from his days as a City councillor:
I can tell you that I was there numerous times for a 10-hour debate on getting Mrs. Jones’ cat out of the tree. We would sit there and debate about anything for 10 hours. After 10 hours and thousands of pieces of paper going around, nothing got done. Nothing got done. And guess what. At the end of 10 hours, we all agreed to go get Mrs. Jones’s cat out of the tree. That’s a waste of time ... That is why it is time to reduce the size and cost of municipal government.
[68] During the debate on second reading, the MPPs who spoke in support of Bill 5 focused on two objectives – improved efficiency and saving taxpayers money. Other than the brief reference by the Minister (in the excerpt set out above) nothing more was said about voter parity. The Province has indicated to the court that it does not rely on the costs saving objective for the s. 1 analysis. This leaves two objectives: improved efficiency (“better decision-making”, a “more streamlined” City Council) and voter parity (barely mentioned).
[69] The Supreme Court noted in Health Services47 that it can be useful in the context of the s. 1 analysis to ask whether the government considered other options or engaged in consultation with the affected parties before enacting the challenged legislation:
Legislators are not bound to consult with affected parties before passing legislation. On the other hand, it may be useful to consider, in the course of the s. 1 justification analysis, whether the government considered other options or engaged in consultation with the affected parties, in choosing to adopt its preferred approach. The Court has looked at pre- legislative considerations in the past in the context of minimal impairment. This is simply evidence going to whether other options, in a range of possible options, were explored.48
47 Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27. 48 Ibid at para. 157.
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[70] Here, there is no evidence that any other options or approaches were considered or that any consultation ever took place. It appears that Bill 5 was hurriedly enacted to take effect in the middle of the City’s election without much thought at all, more out of pique than principle.
[71] In any event, the constitutional problem here is two-fold: (i) there is no evidence (other than anecdotal evidence) that a 47-seat City Council is in fact “dysfunctional” or that more effective representation can be achieved by moving from a 47-ward to a 25- ward structure; and (ii) even if there was such evidence, there is no evidence of any urgency that required Bill 5 to take effect in the middle of the City’s election.
[72] In my view, the Province’s justification of the Impugned Provisions in Bill 5 fails at the first step of the s. 1 analysis. There is simply no evidence that the two objectives in question were so pressing and substantial that Bill 5 had to take effect in the middle of the City’s election.
[73] The Supreme Court has stated time and again that “preserving the integrity of the election process is a pressing and substantial concern in a free and democratic society.”49 Passing a law that changes the City’s electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy.
[74] Even if the Province could establish that the two rationales that were provided to explain Bill 5 were so pressing and substantial as to justify its enactment in the middle of the City’s election, the Province could not establish proportionality, and in particular minimal impairment. As the Supreme Court noted in RJR-MacDonald,50 “[I]f the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.”51
[75] Dealing with the first objective, improved efficiency in City Council debates, the Province has not shown why a significantly less intrusive and equally effective measure was not chosen, such for example, imposing time limits on debate, or more to the point, delaying the coming into force of the City Council restructuring law until after the City’s election.
49 Figueroa, supra, note 18, at para. 72.
50 RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 S.C.R. 199. 51 Ibidat para. 160.
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[76] Dealing with the second objective, voter parity, and giving the Minister the benefit of the doubt that he understood that the primary concern is not voter parity but effective representation, there is no evidence of minimal impairment. The Province’s rationale for moving to a 25-ward structure had been carefully considered and rejected by the TWBR and by City Council just over a year ago. If there was a concern about the large size of some of the City’s wards (by my count, six wards had populations ranging from 70,000 to 97,000) why not deal with these six wards specifically? Why impose a solution (increasing all ward sizes to 111,000) that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the City’s election?
[77] Crickets.
[78] I am therefore obliged to find on the evidence before me that the breaches of s. 2(b) of the Charter as found above cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1.
Is it too late to return to the 47-ward structure?
[79] The Province’s final submission is that it’s too late to return to the 47-ward structure. The Province points to the City Clerk’s candid admission at the August 20, 2018 council meeting that she is not “confident” that the City could now return to the 47- ward structure.
[80] The City Clerk may not feel confident about a 47-ward election but she is not saying that the hurdles are insurmountable. In any event, the City itself is asking explicitly for a return to the 47-ward structure and it is entitled to do so. I must assume that the City has considered the attendant logistical challenges and has concluded that an October 22 election based on the 47-ward structure can indeed be achieved in the short time that remains.
Conclusions
[81] I find that the Province’s enactment of Bill 5 in the middle of the City’s election substantially interfered with the municipal candidate’s freedom of expression that is guaranteed under s. 2(b) of the Charter of Rights.
[82] I find that the reduction from 47 to 25 in the number of City wards and the corresponding increase in ward-size population from an average of about 61,000 to 111, 000 substantially interfered with the municipal voter’s freedom of expression under s. 2(b) of the Charter of Rights, and in particular her right to cast a vote that can result in effective representation.
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[83] I further find on the evidence filed by the parties that these breaches of s. 2(b) cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1 of the Charter of Rights.
Disposition
[84] The applications filed by the City of Toronto, Rocco Achampong, Chris Moise, Ish Aderonmu and Prabha Khosla (on her own behalf and on behalf of Women Win TO) asking this Court to set aside the Impugned Provisions in Bill 5 that purport to reduce the number of wards from 47 to 25 are granted.
[85] The Impugned Provisions have no force and effect and are set aside immediately.
[86] It follows from this decision that the City’s election on October 22, 2018 shall proceed as scheduled but on the basis of 47 wards and not 25 wards. If the provincial government 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.
[87] I shall remain seized of this matter to fashion the appropriate draft Order, including any related remedies being sought by the Toronto District School Board with regard to TDSB school board elections and recently enacted provincial regulations.
[88] If the parties cannot agree on costs, they may forward brief submissions to my attention. The applicants shall file their costs submissions within 21 days and the Province within 21 days thereafter.
[89] I am very much obliged to all counsel for their co-operation and assistance.
(Signed) Justice Belobaba Justice Edward P. Belobaba
Date: September 10, 2018
