Introduction
Recently, the Court of Appeal for Ontario was asked to determine the constitutionality of mid-election changes to the City of Toronto's municipal ward structure (City of Toronto v Ontario (AG), 2019 ONCA 732, rev'g 2018 ONSC 5151). While the election that sparked the litigation has long passed, the Court of Appeal's decision nonetheless offers insight on constitutional issues of fundamental and continuing importance. In this vein, the majority and dissenting reasons of the Court of Appeal lay bare two very different visions of the right to freedom of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms and the role of unwritten constitutional principles in the Canadian constitutional architecture.
Background
The City of Toronto's 2018 municipal elections began, unremarkably, on May 1, 2018, with candidates registering to campaign for city councillor in 47 city "wards." Shortly thereafter, the Ontario Legislature enacted Bill 5, Better Local Government Act, 2018, which changed the course of the election by imposing a 25-ward structure in the midst of active campaigning. Significant confusion ensued, as candidates that had registered and actively campaigned under the 47-ward structure found that their preferred wards had been eliminated and redrawn into much larger wards, with nearly twice as many constituents.
The Act was met with three applications challenging its constitutionality, including an application by the City of Toronto. Following an expedited hearing, Justice Belobaba of the Superior Court of Justice held that the Act was unconstitutional and thus of no force or effect under section 52(1) of the Constitution Act, 1982.
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