The only thing surprising about the Supreme Court’s decision is how narrow it was: five of nine justices, including Chief Justice Richard Wagner, found that the Doug Ford government’s 2018 decision to cut Toronto city council in half — along with a number of other zero-notice changes it made to municipal elections that were already underway — was constitutional and not barred by sections 2 or 3 of the Charter of Rights and Freedoms.
The City of Toronto and other critics of Ford’s decision had appealed the law, arguing that it interfered with the rights to free expression and to free and fair elections. The first judge to hear the case, Justice Edward Belobaba of the Ontario Superior Court, agreed and suspended the law. This prompted Ford and his government to use the notwithstanding clause to overrule Belobaba’s decision, but they ended up not needing it: the Ontario Court of Appeal suspended the decision and later overturned it entirely, on the grounds that the Constitution gives provincial legislatures unfettered authority to make policy for municipalities, including policy concerning municipal elections. The Charter right to free and fair elections applies only to federal and provincial legislatures, not to municipalities.
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On Friday, the Supreme Court agreed with the Court of Appeal, stating that “unwritten constitutional principles” such as the value of democracy cannot be used to overrule the clear text of the Constitution. It’s not a surprising finding, though it’s interesting that four justices agreed with the trial judge and would’ve found that the province’s law violated Section 2’s guarantee of free expression.
But this means less than you might think, because the rights guaranteed by Section 2 can be overridden by Section 33, the notwithstanding clause — the same one Ford invoked earlier this year to reassert campaign finance laws that had been invalidated by an Ontario court. So even if the minority had prevailed, Ontario cities would’ve been back to where they were in early September 2018: with a provincial government that had the means, the motive, and the opportunity to do what it wanted. Section 3, on the other hand, can’t be overridden by the notwithstanding clause, but the majority of justices found that it didn’t apply here (the minority was silent on this section).
The long and short of it is that municipalities and their elections didn’t have any constitutionally protected status yesterday, and they don’t have any today. As the majority decision states: “The absence of municipalities in the constitutional text is not a gap to be addressed judicially; rather, it is a deliberate omission … municipalities (or at least chartered towns) predate the Magna Carta (1215). Their existence and importance would have been known to the framers in 1867. The constitutional status of municipalities, and whether they ought to enjoy greater independence from the provinces, was a topic of debate during patriation [in 1981].”
In a century and a half of Canadian constitutional order, our highest laws have never granted any kind of protection to municipalities. On Friday, the majority of the Supreme Court decided — reasonably enough — that it could not and should not rewrite those laws.
Which need not be where the discussion ends. There is a way to amend the Constitution, and the threshold for doing so in a single province is not a difficult one to clear: in Ontario, Queen’s Park could pass a law and have it ratified by the House of Commons and the Senate. As long as the province doesn’t seek to make nationwide changes to the Constitution, it doesn’t need to clear any bar higher than that.
So if Ontarians find Friday’s decision disappointing and want to prevent a future government from doing what Ford’s has done — and could do again — this would be a fine topic for the opposition parties to raise in the months preceding the 2022 provincial election. We’ve already heard some rumblings: in 2019, then-MPP Michael Coteau proposed legislation that would have given cities new powers but would not have amended the Constitution. Had it come to pass, it would’ve meant that no future legislature would be bound by it: any law MPPs make, they can unmake. Coteau is no longer an MPP, but perhaps his former Liberal colleagues will pick up the ideas he left behind.
The alternative, as always, is to do nothing. But the language of the Supreme Court decision — that the constitutional status of municipalities “is not a gap to be addressed judicially” — reads like an invitation to take the text of the Constitution as something that’s within our powers to change, if we want it badly enough.