City of Toronto Appellant v. Attorney General, 2021 SCC 34

SUPREME COURT OF CANADA Citation: Toronto (City) v.

Ontario (Attorney General), 2021 SCC 34 Appeal Heard: March 16, 2021 Judgment Rendered: October 1, 2021 Docket: 38921 Between: City of Toronto Appellant and Attorney General of Ontario Respondent - and - Attorney General of Canada, Attorney General of British Columbia, Toronto District School Board, Cityplace Residents’ Association, Canadian Constitution Foundation, International Commission of Jurists (Canada), Federation of Canadian Municipalities, Durham Community Legal Clinic, Centre for Free Expression at Ryerson University, Canadian Civil Liberties Association, Art Eggleton, Barbara Hall, David Miller, John Sewell, David Asper Centre for Constitutional Rights, Progress Toronto, Métis Nation of Ontario, Métis Nation of Alberta and Fair Voting British Columbia Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Joint Reasons for Judgment : (paras. 1 to 85) Wagner C.J. and Brown J. (Moldaver, Côté and Rowe JJ. concurring) Dissenting Reasons : (paras. 86 to 186) Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

City of Toronto Appellant v.

Attorney General of Ontario Respondent and Attorney General of Canada, Attorney General of British Columbia, Toronto District School Board, Cityplace Residents’ Association, Canadian Constitution Foundation, International Commission of Jurists (Canada), Federation of Canadian Municipalities, Durham Community Legal Clinic, Centre for Free Expression at Ryerson University, Canadian Civil Liberties Association, Art Eggleton, Barbara Hall, David Miller, John Sewell, David Asper Centre for Constitutional Rights, Progress Toronto, Métis Nation of Ontario, Métis Nation of Alberta and Fair Voting British Columbia Interveners Indexed as: Toronto (City) v.

Ontario (Attorney General) 2021 SCC 34 File No.: 38921. 2021: March 16; 2021: October 1.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Freedom of expression —Municipal elections — Province enacting legislation redrawing municipality’s electoral ward boundaries and reducing number of wards during election campaign — Whether legislation limits electoral participants’ right to freedom of expression and, if so, whether limitation justified — Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) — Better Local Government Act, 2018, S.O. 2018, c. 11.

Constitutional law — Unwritten constitutional principles — Democracy — Province enacting legislation redrawing municipality’s electoral ward boundaries and reducing number of wards during election campaign — Whether legislation unconstitutional for violating unwritten constitutional principle of democracy. On May 1, 2018, the City of Toronto municipal election campaign commenced and nominations opened in preparation for an election day on October 22, 2018. On July 27, 2018, the closing day for nominations, Ontario announced its intention to introduce legislation reducing the size of Toronto City Council.

On August 14, 2018, the Better Local Government Act, 2018 , came into force, reducing the number of wards from 47 to 25. The City and two groups of private individuals challenged the constitutionality of the Act and applied for orders restoring the 47-ward structure. The application judge found that the Act limited the municipal candidates’ right to freedom of expression under s. 2(

b) of the Charter and municipal voters’ s. 2(

b) right to effective representation. He held that these limits could not be justified under s. 1 of the Charter and set aside the impugned provisions of the Act . Ontario appealed and moved to stay the judgment pending appeal. The Court of Appeal granted the stay and, on October 22, 2018, the municipal election proceeded on the basis of the 25-ward structure created by the Act . The Court of Appeal later allowed the appeal, finding no limit on freedom of expression. The majority held that the City had advanced a positive rights claim, which was not properly grounded in s. 2(

b) of the Charter , and concluded that the application judge had erred in finding that the Act substantially interfered with the candidates’ freedom of expression and in finding that the right to effective representation applies to municipal elections and bears any influence over the s. 2(

b) analysis. The majority also held that unwritten constitutional principles do not confer upon the judiciary power to invalidate legislation that does not otherwise infringe the Charter , nor do they limit provincial legislative authority over municipal institutions.

Held (Abella, Karakatsanis, Martin and Kasirer JJ. dissenting): The appeal should be dismissed. Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: Ontario acted constitutionally. The Act imposed no limit on freedom ofexpression. Further, unwritten constitutional principles cannot be used as bases for invalidating legislation, nor can the unwritten constitutional principleof democracy be used to narrow provincial authority under s. 92(8) of the Constitution Act, 1867, or to read municipalities into s. 3 of the Charter. A purposive

interpretation of Charter rights must begin with, and be rooted in, the text and not overshoot the purpose of the right but placeit in its appropriate linguistic, philosophic and historical contexts.

Section 2(

b) of the Charter, which provides that everyone has the fundamentalfreedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication, has been interpreted as generallyimposing a negative obligation rather than a positive obligation of protection or assistance. A claim is properly characterized as negative where theclaimant seeks freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage.Such claims of right under s. 2(

b) are considered under the framework established in Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927. However, as explained in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, s. 2(

b) may, in certain circumstances, impose positiveobligations on the government to facilitate expression. Many constitutional rights have both positive and negative dimensions and this is so for s. 2(b).Central to whether s. 2(

b) has been limited is, therefore, the appropriate characterization of the claim as between a negative and positive claim of right. In the context of positive claims under s. 2(b), where a claimant seeks to impose an obligation on the government (or legislature) to provideaccess to a particular statutory or regulatory platform for expression, the applicable framework is that of Baier. As held in Baier, to succeed, a positiveclaim must satisfy the following three factors first set forth in Dunmore v.

Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016: (1) theclaim should be grounded in freedom of expression, rather than in access to a particular statutory regime; (2) the claimant must demonstrate that lack ofaccess to a statutory regime has the effect of a substantial interference with freedom of expression, or has the purpose of infringing freedom ofexpression; and (3) the government must be responsible for the inability to exercise the fundamental freedom.

These factors set an elevated thresholdfor positive claims and can usefully be distilled to a single core question: is the claim grounded in the fundamental Charter freedom of expression, suchthat, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom ofexpression, or had the purpose of interfering with freedom of expression? This single question, a salutary clarification of the Baier test, emphasizes theelevated threshold in the second Dunmore factor while encompassing the considerations of the first and third factors.

Substantial interference withfreedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent thatmeaningful expression is effectively precluded. While meaningful expression need not be rendered absolutely impossible, effective preclusionrepresents an exceedingly high bar that would be met only in extreme and rare cases. In the present case, the City has not established a limit on s. 2(b). The City’s claim is a claim for access to a particular statutory platform,and is thus, in substance, a positive claim.

The Baier framework therefore applies, and the City had to show that the Act radically frustrated theexpression of election participants such that meaningful expression was effectively precluded. The candidates and their supporters had 69 days tore-orient their messages and freely express themselves according to the new ward structure. The Act imposed no restrictions on the content or meaningof the messages that participants could convey. Many of the challengers who continued to campaign ultimately had successful campaigns, raisingsignificant amounts of money and receiving significant numbers of votes.

This would not have been possible had their s. 2(

b) rights been so radicallyfrustrated so as to effectively preclude meaningful expression. Some of the candidates’ prior expression may have lost its relevance, but something morethan diminished effectiveness is required under the Baier framework. In the context of a positive claim, only extreme government action thatextinguishes the effectiveness of expression may rise to the level of a substantial interference with freedom of expression.

Section 2(

b) is not a guaranteeof the effectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign. Furthermore, the unwritten constitutional principle of democracy cannot be used as a device for invalidating otherwise valid provinciallegislation such as the impugned provisions of the Act. Unwritten principles are part of the law of the Constitution, in the sense that they form part ofthe context and backdrop to the Constitution’s written terms.

Their legal force lies in their representation of general principles within which theconstitutional order operates and, therefore, by which the Constitution’s written terms — its provisions — are to be given effect. In practical terms,unwritten constitutional principles may assist courts in only two distinct but related ways. First, they may be used in the

interpretation of constitutional provisions. Where the constitutional text is not itself sufficiently definitive orcomprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids. When appliedto Charter rights, unwritten principles assist with purposive

interpretation, informing the character and the larger objects of the Charter itself, thelanguage chosen to articulate the specific right or freedom, and the historical origins of the concepts enshrined. Where unwritten constitutionalprinciples are used as interpretive aids, their substantive legal force must arise by necessary implication from the Constitution’s text. Secondly, andrelatedly, unwritten principles can be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of,and flowing by implication from, its architecture.

Structural doctrines can fill gaps and address important questions on which the text of the Constitutionis silent. Neither of these functions support the application of unwritten constitutional principles as an independent basis for invalidating legislation.On the contrary, unwritten constitutional principles, such as democracy, a principle by which the Constitution is to be understood and interpreted,strongly favour upholding the validity of legislation that conforms to the text of the Constitution.

Subject to the Charter, a province, under s. 92(8) ofthe Constitution Act, 1867, has absolute and unfettered legal power to legislate with respect to municipalities. This plenary jurisdiction is unrestricted byany constitutional principle. As for s. 3 of the Charter, it guarantees citizens the right to vote and run for office in provincial and federal elections, and includes a right toeffective representation. The text of s. 3 makes clear, however, that it does not extend to municipal elections. Effective representation is not a principleof s. 2(

b) of the Charter, nor can the concept be imported wholesale into s. 2(b).

Section 3 and its requirement of effective representation also cannot bemade relevant to the current case by using the democratic principle.

Section 3 democratic rights were not extended to candidates or electors to municipalcouncils. The absence of municipalities in the constitutional text is not a gap to be addressed judicially; rather, it is a deliberate omission. The text of theConstitution makes clear that municipal institutions lack constitutional status, leaving no open question of constitutional

interpretation to be addressedand, accordingly, no role to be played by the unwritten principles. Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be allowed and the application judge’s declaration that thetiming of the Act unjustifiably infringed s. 2(

b) of the Charter restored. Changing the municipal wards in the middle of an ongoing municipal electionwas unconstitutional. When a democratic election takes place in Canada, including a municipal election, freedom of expression protects the rights of candidatesand voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day. That is at the core of politicalexpression, which in turn is at the core of what is protected by s. 2(

b) of the Charter. The right to disseminate and receive information connected withelections has long been recognized as integral to the democratic principles underlying freedom of expression, and as a result, has attracted robustprotection.

A stable election period is crucial to electoral fairness and meaningful political discourse. As such, state interference with individual andcollective political expression in the context of an election strikes at the heart of the democratic values that freedom of expression seeks to protect,including participation in social and political decision-making. A two-part test for adjudicating freedom of expression claims was established in Irwin Toy. The first asks whether the activity is within thesphere of conduct protected by freedom of expression.

If the activity conveys or attempts to convey a meaning, it has expressive content and prima faciefalls within the scope of the guarantee. The second asks whether the government action, in purpose or effect, interfered with freedom of expression. The legal framework set out in Baier, which was designed to address under inclusive statutory regimes, only applies to claims placing anobligation on government to provide individuals with a particular platform for expression.

Claims of government interference with expressive rights thatattach to an electoral process are the kind of claims governed by the Irwin Toy framework. The distinction between positive and negative rights is an unhelpful lens for adjudicating Charter claims. All rights have positivedimensions since they exist within, and are enforced by, a positive state apparatus. They also have negative dimensions because they sometimes requirethe state not to intervene.

A unified purposive approach has been adopted to rights claims, whether the claim is about freedom from governmentinterference in order to exercise a right, or the right to governmental action in order to get access to it. The threshold does not vary with the nature of theclaim to a right. Each right has its own definitional scope and is subject to the proportionality analysis under s. 1 of the Charter. There is therefore noreason to superimpose onto the constitutional structure the additional hurdle of dividing rights into positive and negative ones for analytic purposes. In the present case, the s. 2(

b) claim is about government interference with the expressive rights that attach to the electoral process and it isprecisely the kind of claim that is governed by the Irwin Toy framework. Applying that framework, it is clear that the timing of the legislation, byinterfering with political discourse in the middle of an election, violated s. 2(

b) of the Charter. By radically redrawing electoral boundaries during anactive election that was almost two-thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage inmeaningful reciprocal political discourse. The Act eradicated nearly half of the active election campaigns, and required candidates to file a change ofward notification form to continue in the race.

The redrawing of ward boundaries meant that candidates needed to reach new voters with new priorities.Voters who had received campaign information, learned about candidates’ mandates and engaged with them based on the 47-ward structure had theirdemocratic participation put into abeyance. The timing of the Act breathed instability into the election, undermining the ability of candidates and votersin their wards to meaningfully discuss and inform one another of their views on matters of local concern. The limitation on s. 2(

b) rights in this case was the timing of the legislative changes. Ontario offered no explanation, let alone a pressingand substantial one, for why the changes were made in the middle of an ongoing election. In the absence of any evidence or explanation for the timingof the Act, no pressing and substantial objective exists for this limitation and it cannot, therefore, be justified in a free and democratic society.

As for the role of unwritten constitutional principles, there is disagreement with the majority’s observations circumscribing their scope andpower in a way that reads down the Court’s binding jurisprudence. Unwritten constitutional principles may be used to invalidate legislation. Theprecedential Constitution of the United Kingdom is not a written document, but is comprised of unwritten norms, Acts of Parliament, Crownprerogative, conventions, custom of Parliament, and judicial decisions, among other sources. Canada’s Constitution, as a result, embraces unwritten aswell as written rules.

Unwritten constitutional principles have been held to be the lifeblood of the Constitution and the vital unstated assumptions uponwhich the text is based. They are not merely “context” or “backdrop” to the text. On the contrary, they are the Constitution’s most basic normativecommitments from which specific textual provisions derive. The specific written provisions are elaborations of the underlying, unwritten, andorganizing principles found in the

preamble to the Constitution Act, 1867. Constitutional text emanates from underlying principles, but it will not alwaysbe exhaustive of those principles. Apart from written provisions of the Constitution, principles deriving from the Constitution’s basic structure may constrain governmentaction. Those principles exist independently of and, as in the case of implied fundamental rights before the promulgation of the Charter, prior to theenactment of express constitutional provisions. The legislative bodies in Canada must conform to these basic structural imperatives and can in no wayoverride them.

Accordingly, unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any expressconstitutional provision but is fundamentally at odds with the Constitution’s internal architecture or basic constitutional structure. This wouldundoubtedly be a rare case; however, to foreclose the possibility that unwritten principles can be used to invalidate legislation in all circumstances isimprudent.

It not only contradicts the Court’s jurisprudence, it is fundamentally inconsistent with the case law confirming that unwritten constitutionalprinciples can be used to review legislation for constitutional compliance. Reviewing legislation for constitutional compliance means upholding,revising or rejecting it. Unwritten constitutional principles are the foundational organizing principles of the Constitution and have full legal force.

They serve togive effect to the structure of the Constitution and function as independent bases upon which to attack the validity of legislation since they have thesame legal status as the text. Unwritten constitutional principles not only give meaning and effect to constitutional text and inform the language chosento articulate the specific right or freedom, they assist in developing an evolutionary understanding of the rights and freedoms guaranteed in theConstitution, which have long been described as a living tree capable of growth and expansion.

Unwritten constitutional principles are a key part of whatmakes the tree grow. They are also substantive legal rules in their own right. In appropriate cases, they may well continue to serve, as they have done inthe past, as the basis for declaring legislation unconstitutional. Cases Cited By Wagner C.J. and Brown J. Applied: Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; distinguished: Irwin Toy Ltd. v.

Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927; considered: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; British Columbia v. Imperial TobaccoCanada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59,[2014] 3 S.C.R. 31; Babcock v.

Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; referred to: Public School Boards’ Assn. of Alberta v.Alberta (Attorney General), 2000 SCC 45, [2000] 2 S.C.R. 409; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15,[2001] 1 S.C.R. 470; Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), (ON SC), 151 D.L.R. (4th) 346;East York (Borough) v. Ontario (1997), (ON CA), 36 O.R. (3d) 733; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001]3 S.C.R. 1016; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32; R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1S.C.R. 295; Ford v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62,[2005] 3 S.C.R. 141; Haig v. Canada, (SCC), [1993] 2 S.C.R. 995; Greater Vancouver Transportation Authority v. CanadianFederation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Ontario (Attorney General) v. Fraser, 2011 SCC 20,[2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Ontario (Public Safety andSecurity) v.

Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R.827; Libman v. Quebec (Attorney General), (SCC), [1997] 3 S.C.R. 569; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; Reference re Prov. Electoral Boundaries (Sask.), (SCC), [1991] 2 S.C.R. 158; Reference

re Resolution to Amend the Constitution, (SCC), [1981] 1 S.C.R. 753; MacMillan Bloedel Ltd. v. Simpson, (SCC),[1995] 4 S.C.R. 725; R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2; R. v. Poulin, 2019 SCC 47; Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3S.C.R. 1077; Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289; Huson v. The Township of South Norwich (1895), 1895 CanLII 1 (SCC), 24S.C.R. 145; Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; Haida Nation v.

British Columbia (Minister ofForests), 2004 SCC 73, [2004] 3 S.C.R. 511; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; Reference re Public Service EmployeeRelations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; B.C.G.E.U. v. British Columbia (Attorney General), (SCC), [1988] 2S.C.R. 214; Reference re Alberta Statutes, (SCC), [1938] S.C.R. 100; Switzman v. Elbling, (SCC), [1957] S.C.R. 285. By Abella J. (dissenting) Di Ciano v. Toronto (City), ; Natale v. City of Toronto, 2018 ONSC 1475, 1 O.M.T.R. 349; Godbout v. Longueuil(City), (SCC), [1997] 3 S.C.R. 844; Catalyst Paper Corp. v.

North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; United TaxiDrivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; 114957 Canada Ltée (Spraytech, Société d’arrosage) v.Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342; Shell CanadaProducts Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231; Reference re Alberta Statutes, (SCC), [1938] S.C.R.100; Switzman v. Elbling, (SCC), [1957] S.C.R. 285; RWDSU v.

Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573; R. v.Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Ford v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec(Attorney General), (SCC), [1989] 1 S.C.R. 927; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; Edmonton Journal v.Alberta (Attorney General), (SCC), [1989] 2 S.C.R. 1326; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; R. v. Bryan, 2007 SCC 12, [2007]1 S.C.R. 527; R. v.

Butler, (SCC), [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000SCC 69, [2000] 2 S.C.R. 1120; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009SCC 31, [2009] 2 S.C.R. 295; Devine v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 790; Committee for the Commonwealth ofCanada v. Canada, (SCC), [1991] 1 S.C.R. 139; Ramsden v. Peterborough (City), (SCC), [1993] 2 S.C.R. 1084;Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Haig v.

Canada, (SCC), [1993] 2 S.C.R. 995; NativeWomen’s Assn. of Canada v. Canada, (SCC), [1994] 3 S.C.R. 627; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; SlaightCommunications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Libman v. Quebec (AttorneyGeneral), (SCC), [1997] 3 S.C.R. 569; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; CanadianBroadcasting Corp. v.

New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480; Vancouver Sun (Re), 2004 SCC 43, [2004] 2S.C.R. 332; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Kleindienst v. Mandel, 408 U.S.753 (1972); B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, [2017] 1 S.C.R. 93; Delisle v.Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R. 989; Mounted Police Association of Ontario v. Canada (AttorneyGeneral), 2015 SCC 1, [2015] 1 S.C.R. 3; Dunmore v.

Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Health Services and Support— Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20,[2011] 2 S.C.R. 3; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Morgentaler, (SCC), [1988] 1 S.C.R.30; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Eldridge v. British Columbia (AttorneyGeneral), (SCC), [1997] 3 S.C.R. 624; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Fraser v.

Canada (AttorneyGeneral), 2020 SCC 28; Reference re Prov. Electoral Boundaries (Sask.), (SCC), [1991] 2 S.C.R. 158; Reference re Secession ofQuebec, (SCC), [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373; R. (on the application ofJackson) v. Attorney General, [2005] UKHL 56, [2006] 1 A.C. 262; R. (Privacy International) v. Investigatory Powers Tribunal, [2019] UKSC 22,[2020] A.C. 491; AXA General Insurance Ltd. v.

HM Advocate, [2011] UKSC 46, [2012] 1 A.C. 868; Brandy v. Human Rights and Equal OpportunityCommission (1995), 183 C.L.R. 245; Kable v. Director of Public Prosecutions (NSW) (1996), 189 C.L.R. 51; Re Residential Tenancies Tribunal (NSW);Ex parte Defence Housing Authority (1997), 190 C.L.R. 410; Lange v. Australian Broadcasting Corporation (1997), 189 C.L.R. 520; Roach v. ElectoralCommissioner, [2007] HCA 43, 233 C.L.R. 162; South African Association of Personal Injury Lawyers v. Heath, [2000] ZACC 22, 2001

(1) S.A. 883;Fedsure Life Assurance Ltd. v. Greater Johannesburg Transitional Metropolitan Council, [1998] ZACC 17, 1999

(1) S.A. 374; Elfes Case, BVerfG, 1BvR 253/56, Decision of January 16, 1957 (Germany); Kesavananda v. State of Kerala, A.I.R. 1973 S.C. 1461; New Brunswick Broadcasting Co. v.Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2; Reference re Resolution to Amend the Constitution, (SCC), [1981] 1 S.C.R. 753; Babcock v. Canada(Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Attorney-General for Canada v. Attorney-General for Ontario, (UK JCPC),[1937] A.C. 326; Attorney General of Nova Scotia v.

Attorney General of Canada, (SCC), [1951] S.C.R. 31; Reference re Authority ofParliament in relation to the Upper House, (SCC), [1980] 1 S.C.R. 54; Roncarelli v. Duplessis, (SCC), [1959] S.C.R.121; B.C.G.E.U. v. British Columbia (Attorney General), (SCC), [1988] 2 S.C.R. 214; Canada (Minister of Citizenship and Immigration)v. Vavilov, 2019 SCC 65; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; Beckman v. Little Salmon/Carmacks First Nation, 2010SCC 53, [2010] 3 S.C.R. 103; Haida Nation v.

British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Reference re ManitobaLanguage Rights, (SCC), [1985] 1 S.C.R. 721; Ontario (Attorney General) v. G, 2020 SCC 38; MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4 S.C.R. 725; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59,[2014] 3 S.C.R. 31; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; Edwards v. Attorney-General for Canada, (UK JCPC), [1930] A.C. 124; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473.

Statutes and Regulations Cited Better Local Government Act, 2018, S.O. 2018, c. 11, Sch. 3, s. 1. By-law to amend By-law 267-2017, being a by-law to re-divide the City of Toronto’s Ward Boundaries, to correct certain minor errors, City of TorontoBy-law No. 464-2017, April 28, 2017. By-law to re-divide the City of Toronto’s Ward Boundaries, City of Toronto By-law No. 267-2017, March 29, 2017. Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 3, 7, 15, 33. City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, s. 128(1). Constitution Act, 1867,

preamble, ss. 91, 92. Constitution Act, 1982,

preamble, s. 52. Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4.

Magna Carta (1215). Municipal Elections Act, 1996 , S.O. 1996, c. 32, Sch ., s. 10.1(8) . Treaties and Other International Instruments Convention for the Protection of Human Rights and Fundamental Freedoms , 213 U.N.T.S. 221 [the European Convention on Human Rights ] . Authors Cited Bhagwat, Ashutosh, and James Weinstein. “Freedom of Expression and Democracy”, in Adrienne Stone and Frederick Schauer, eds., The Oxford Handbook of Freedom of Speech . Oxford: Oxford University Press, 2021, 82. Bobbitt, Philip. Constitutional Fate: Theory of the Constitution . New York: Oxford University Press, 1982. Canada.

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No. 4741 (QL), 2019 CarswellOnt 14847 (WL Can.), setting aside a decision of Belobaba J., 2018 ONSC 5151 , 142 O.R. (3d) 336, 416 C.R.R. (2d) 132, 80 M.P.L.R. (5th) 1, [2018] O.J. No. 4596 (QL), 2018 CarswellOnt 14928 (WL Can.). Appeal dismissed, Abella, Karakatsanis, Martin and Kasirer JJ. dissenting. Glenn K. L. Chu and Diana W. Dimmer , for the appellant. Robin K. Basu and Yashoda Ranganathan , for the respondent. Michael H. Morris , for the intervener the Attorney General of Canada. Mark Witten , for the intervener the Attorney General of British Columbia.

Paul Koven , for the intervener the Toronto District School Board. Selwyn A. Pieters , for the intervener the Cityplace Residents’ Association. Adam Goldenberg , for the intervener the Canadian Constitution Foundation. Guy Régimbald , for the intervener the International Commission of Jurists (Canada). Stéphane Émard-Chabot , for the intervener the Federation of Canadian Municipalities. Omar Ha-Redeye , for the intervener the Durham Community Legal Clinic. Jamie Cameron , for the intervener the Centre for Free Expression at Ryerson University.

Geetha Philipupillai , for the intervener the Canadian Civil Liberties Association. Christine Davies , for the interveners Art Eggleton, Barbara Hall, David Miller and John Sewell. Alexi N. Wood , for the intervener the David Asper Centre for Constitutional Rights. Donald K. Eady , for the intervener Progress Toronto. Jason Madden , for the interveners the Métis Nation of Ontario and the Métis Nation of Alberta. Nicolas M. Rouleau , for the intervener Fair Voting British Columbia.

The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by The Chief Justice and Brown J. — TABLE OF CONTENTS Paragraph I. Introduction 1 II. Background 6 III. Issues 13 IV. Analysis 14 A. Freedom of Expression 14

(1) Principles of Charter

Interpretation in the Context of

Section 2(b) 14

(2) The Baier Framework 22

(3) Application 29 (

a) Nature of the Claim 29 (

b) Application of Baier 36 (

c) Effective Representation 44 B. Democracy 48

(1) Interpretive and Gap-Filling Roles of Unwritten Constitutional Principles 49 (

a) The Provincial Court Judges Reference 64 (

b) The Secession Reference 67 (

c) Babcock and Imperial Tobacco 70

(

d) Trial Lawyers Association of British Columbia 74(2) Relevance of the Democratic Principle to Municipal Elections 76(a) Section 92(8) of the Constitution Act, 1867 79(

b) Section 3 of the Charter 81(3) Conclusion on the Democratic Principle 83V. Conclusion 85 I. Introduction [1] While cast as a claim of right under s. 2(

b) of the Canadian Charter of Rights and Freedoms, this appeal, fundamentally, concernsthe exercise of provincial legislative authority over municipalities. The issue, simply put, is whether and how the Constitution of Canada restrains aprovincial legislature from changing the conditions by and under which campaigns for elected municipal councils are conducted. [2] Section 92(8) of the Constitution Act, 1867 assigns to provinces exclusive legislative authority regarding “Municipal Institutions inthe Province”.

Municipalities incorporated under this authority therefore hold delegated provincial powers; like school boards or other creatures ofprovincial statute, they do not have independent constitutional status (Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC45, [2000] 2 S.C.R. 409, at paras. 33-34). The province has “absolute and unfettered legal power to do with them as it wills” (Ontario English CatholicTeachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470, at para. 58, quoting with approval Campbell J. in Ontario PublicSchool Boards’ Assn. v.

Ontario (Attorney General) (1997), (ON SC), 151 D.L.R. (4th) 346 (Ont. C.J. (Gen. Div.)), at p. 361). Noconstitutional norms or conventions prevent a province from making changes to municipal institutions without municipal consent (East York (Borough)v. Ontario (1997), (ON CA), 36 O.R. (3d) 733 (C.A.), at pp. 737-38, per Abella J.A.). And “it is not for this Court to createconstitutional rights in respect of a third order of government where the words of the Constitution read in context do not do so” (Baier v.

Alberta, 2007SCC 31, [2007] 2 S.C.R. 673, at para. 39). [3] Aside from one reference to s. 92(8) — and an acknowledgement that the Province of Ontario had constitutional authority to act asit did in this case — our colleague Abella J. all but ignores this decisive constitutional context (para. 112). And yet, these considerations loom largehere. After the closing of a nomination period for elections to the Toronto City Council, the Province legislated a new, reduced ward structure for theCity of Toronto and a correspondingly reduced Council.

The City says that doing so was unconstitutional, because it limited the s. 2(

b) Charter rightsof electoral participants and violated the unwritten constitutional principle of democracy. It also, says the City, ran afoul of the constitutionalrequirements of effective representation, which it says flow from s. 2(

b) of the Charter and s. 92(8) of the Constitution Act, 1867 by virtue of that sameunwritten constitutional principle of democracy. [4] None of these arguments have merit, and we would dismiss the City’s appeal. In our view, the Province acted constitutionally. Asto the s. 2(

b) claim, the City seeks access to a statutory platform which must be considered under the framework stated in Baier. The change to the wardstructure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69days between the Act coming into force and the election day. There was no substantial interference with the claimants’ freedom of expression and thusno limitation of s. 2(b). [5] Nor did the Act otherwise violate the Constitution.

Unwritten constitutional principles cannot in themselves ground a declarationof invalidity under s. 52(1) of the Constitution Act, 1982, and there is no freestanding right to effective representation outside s. 3 of the Charter.Further, the unwritten constitutional principle of democracy cannot be used to narrow provincial authority under s. 92(8), or to read municipalities intos. 3. II. Background [6] In 2013, the City of Toronto engaged consultants to conduct the Toronto Ward Boundary Review of Toronto’s then 44-wardstructure.

They recommended an expanded 47-ward structure, which the City adopted in 2016. [7] On May 1, 2018, the City of Toronto campaign commenced and nominations opened in preparation for an election day on October22, 2018. By the close of nominations on July 27, 2018, just over 500 candidates had registered to run in the 47 wards. That same day, the Governmentof Ontario announced its intention to introduce legislation reducing the size of Toronto City Council to 25 wards.

On August 14, 2018, the Better LocalGovernment Act, 2018, S.O. 2018, c. 11 (“Act”), came into force, reducing the number of wards from 47 to 25 (based on the boundaries of the federalelectoral districts), and extending the nomination period to September 14. [8] The City and two groups of private individuals applied on an urgent basis to the Ontario Superior Court of Justice challenging theconstitutionality of these measures and seeking orders restoring the 47-ward structure.

They argued that the Act breached Charter guarantees of freedomof expression, freedom of association, and equality, and that it violated the unwritten constitutional principles of democracy and the rule of law. [9] The application judge agreed, finding two limits on s. 2(

b) of the Charter (2018 ONSC 5151, 142 O.R. (3d) 336). First, he foundthat the Act limited the municipal candidates’ s. 2(

b) right to freedom of expression, a conclusion largely tied to the timing of the Act, enacted as it wasduring the election campaign. Secondly, he found that the Act limited municipal voters’ s. 2(

b) right to effective representation — despite the fact thateffective representation is a principle of s. 3 (and not s. 2(b)) of the Charter — due to his conclusion that the ward population sizes brought about by theAct were too large to allow councillors to effectively represent their constituents. Neither of these limits could, he further held, be justified under s. 1 andhe set aside the impugned provisions of the Act. As a result, the election was to proceed on the basis of the 47-ward system. [10] The Province appealed and moved to stay the judgment pending appeal.

The Court of Appeal for Ontario granted the stay onSeptember 19, 2018, concluding that there was a strong likelihood that the Province’s appeal would be successful and, on October 22, 2018, theToronto municipal election proceeded on the basis of the 25-ward structure created by the Act (2018 ONCA 761, 142 O.R. (3d) 481). No issue is takenwith the integrity of the election or the results thereof. [11] When the Court of Appeal decided the Province’s appeal on its merits, it divided.

While the dissenters would have invalidated theAct as unjustifiably limiting freedom of expression, the majority allowed the appeal, finding no such limit (2019 ONCA 732, 146 O.R. (3d) 705). TheCity had advanced a positive rights claim — that is, a claim for a particular platform and not protection from state interference with the conveyance of amessage. Consistent with the Baier framework governing such claims, the majority applied the factors stated in Dunmore v. Ontario (AttorneyGeneral), 2001 SCC 94, [2001] 3 S.C.R. 1016, to conclude that the claim was not properly grounded in s. 2(

b) of the Charter, and that the applicationjudge had erred in finding that the Act substantially interfered with the candidates’ freedom of expression. Further, he had erred in finding that the rightto effective representation — guaranteed by s. 3 — applies to municipal elections and bears any influence over the s. 2(

b) analysis. Finally, the majorityheld that unwritten constitutional principles do not confer upon the judiciary power to invalidate legislation that does not otherwise infringe the Charter;nor do they limit provincial legislative authority over municipal institutions. Though unwritten constitutional principles are sometimes used to fill gapsin the Constitution, no such gap exists here.

[12] The Court of Appeal appears to have granted the City public interest standing to argue the appeal (para. 28). The City’s standingwas not challenged before this Court. III. Issues [13] Two issues arise from the foregoing. First, did the Act limit (unjustifiably or at all) the freedom of expression of candidates and/orvoters participating in the 2018 Toronto municipal election? And secondly, can the unwritten constitutional principle of democracy be applied, either tonarrow provincial legislative authority over municipal institutions or to require effective representation in those institutions, so as to invalidate the Act? IV. Analysis A. Freedom of Expression

(1) Principles of Charter

Interpretation in the Context of

Section 2(b) [14] This appeal hinges on the scope of s. 2(

b) of the Charter, which provides that everyone has the fundamental freedoms “of thought,belief, opinion and expression, including freedom of the press and other media of communication”. A purposive

interpretation of Charter rights mustbegin with, and be rooted in, the text (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, at paras. 8-10) and not overshoot thepurpose of the right but place it in its appropriate linguistic, philosophic and historical contexts (R. v. Big M Drug Mart Ltd., (SCC),[1985] 1 S.C.R. 295, at p. 344). Yet, it is undeniable that s. 2(

b) has traditionally been interpreted expansively (Irwin Toy Ltd. v. Quebec (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 927, at p. 976; Ford v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712, atpp. 765-67). Indeed, s. 2(

b) has been interpreted so broadly that the framework has been criticized for setting too low a bar for establishing a s. 2(b)limitation, such that any consideration of its substantive reach and bounds is generally consigned to the limitations analysis under s. 1 (K. Chan,“Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty” (2020), 6 C.J.C.C.L. 151, at p. 174, citing M. Plaxton andC. Mathen, “Developments in Constitutional Law: The 2009-2010 Term” (2010), 52 S.C.L.R. (2d) 65).

Following Irwin Toy, then, if an activity conveysor attempts to convey a meaning, it has expressive content and prima facie falls within the scope of “expression” (p. 969). Further, if the purpose oreffect of the impugned governmental action is to control attempts to convey meaning through that activity, a limit on expressive freedom will be shown(p. 972). [15] Freedom of expression is not, however, presently recognized as being without internal limits. Activities may fall outside the scopeof s. 2(

b) where the method of the activity itself — such as violence — or the location of that activity is not consonant with Charter protection(Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 60 and 62). [16] Further, and of particular significance to this appeal, s. 2(

b) has been interpreted as “generally impos[ing] a negative obligation . . .rather than a positive obligation of protection or assistance” (Baier, at para. 20 (emphasis added), citing Haig v. Canada, (SCC), [1993]2 S.C.R. 995, at p. 1035). A claim is properly characterized as negative where the claimant seeks “freedom from government legislation or actionsuppressing an expressive activity in which people would otherwise be free to engage” (Baier, at para. 35 (emphasis added)). Such claims of right unders. 2(

b) are considered under this Court’s Irwin Toy framework. [17] In Baier, however, this Court explained that s. 2(

b) may, in certain circumstances, impose positive obligations on the government tofacilitate expression. Put differently, while s. 2(

b) typically “prohibits gags”, it can also, in rare and narrowly circumscribed cases, “compel thedistribution of megaphones” (para. 21, quoting Haig, at p. 1035). Hence the Court of Appeal’s statement in this case that “[f]reedom of expression isrespected, in the main, if governments simply refrain from actions that would be an unjustified interference with it”, and that positive claims unders. 2(

b) may be recognized in only “exceptional and narrow” circumstances (paras. 42 and 48 (emphasis in original)). [18] Central to whether s. 2(

b) was limited by the Province here is, therefore, the appropriate characterization of the claim as between anegative and positive claim of right. In Baier, this Court shielded positive claims from the Irwin Toy framework and subjected them to an elevatedthreshold. This is necessary, given the ease with which claimants can typically show a limit to free expression under the Irwin Toy test. An elevatedthreshold for positive claims narrows the circumstances in which a government or legislature must legislate or otherwise act to support freedom ofexpression.

To consider positive claims under Irwin Toy would be to force the government to justify, under s. 1, any decisions not to provide particularstatutory platforms for expression. [19] The Baier framework is therefore not confined, as our colleague suggests, “to address[ing] underinclusive statutory regimes”(para. 148). This Court could not have been clearer in Baier that it applies “where a government defending a Charter challenge alleges, or the Charterclaimant concedes, that a positive rights claim is being made under s. 2(b)” (para. 30).

Were it otherwise — that is, were Baier’s application limited tocases of underinclusion — claims seeking the creation or extension of a statutory platform for expression would be considered under Baier while claimsseeking the preservation of that same platform would be considered under Irwin Toy. This is illogical. Baier’s reach extends beyond cases ofunderinclusion or exclusion, and categorically limits the “obligation[s] on government to provide individuals with a particular platform for expression”(Greater Vancouver Transportation Authority v.

Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295,at para. 35). This reflects the separation of powers; choices about whether and how to design a statutory or regulatory platform are best left to theelected orders of the state. [20] We should not be taken as suggesting that s. 2(

b) is to be understood as conferring a right that is wholly positive or wholly negative.Many constitutional rights have both positive and negative dimensions and the Baier framework explicitly recognizes that this is so for s. 2(b). But thedistinction between those positive and negative dimensions remains important when considering the nature of the obligation that the claim seeks toimpose upon the state: a “right’s positive dimensions require government to act in certain ways, whereas its negative dimensions require government torefrain from acting in other ways” (P.

Macklem, “Aboriginal Rights and State Obligations” (1997), 36 Alta. L. Rev. 97, at p. 101; see also A. Sen, TheIdea of Justice (2009), at p. 282). For instance, would the claim, if accepted, require government action, or is the claim concerned with restrictions onthe content or meaning of expression? And, were the claim rejected, would it deny the claimant access to a particular platform for expression on asubject, or would it preclude altogether the possibility of conveying expression on that subject?

While in Haig, L’Heureux-Dubé J. correctly noted thatthe distinction between positive and negative entitlements is “not always clearly made, nor . . . always helpful”, she nevertheless distinguished typicalnegative claims from those that might require “positive governmental action” (p. 1039). This is the distinction with which we concern ourselves here. [21] This appeal therefore presents an opportunity to affirm and clarify the application of Baier to positive claims under s. 2(b). Baierremains good law in the context of s. 2(b).

It adopts a framework for analysis first set forth in Dunmore, which itself decided a claim under s. 2(d)(freedom of association). We need not decide here whether Dunmore remains applicable to s. 2(

d) claims (an open question, given the decisions of thisCourt in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (AttorneyGeneral), 2015 SCC 1, [2015] 1 S.C.R. 3). It suffices here for us to affirm Baier as a useful and necessary framework in the context of positive s. 2(b)claims (although, as we will explain, we would simplify the framework).

(2) The Baier Framework

[ 22 ] The Baier framework applies if a claimant seeks to impose an obligation on the government (or legislature) to provide access to a particular statutory or regulatory platform for expression (para. 30; Greater Vancouver Transportation Authority , at para. 35 ). Here, therefore, if the City’s claim would require the government or legislature to enact legislation or promulgate regulations, or otherwise act to provide a particular statutory or regulatory platform, it is advancing a positive claim ( Baier , at para. 35 ). [ 23 ] In Baier , this Court held that, to succeed, a positive claim must satisfy the three Dunmore factors:

(1) Is the claim grounded in freedom of expression, rather than in access to a particular statutory regime?

(2) Has the claimant demonstrated that lack of access to a statutory regime has the effect of a substantial interference with freedom of expression, or has the purpose of infringing freedom of expression?

(3) Is the government responsible for the inability to exercise the fundamental freedom? [ 24 ] These factors set an elevated threshold for positive claims. The first factor asks what the claimant is really seeking — in other words, whether the claim is grounded in freedom of expression or whether it merely seeks access to a statutory regime.

Likewise, the second factor — which requires that the claimant establish a substantial interference with freedom of expression — sets a higher threshold than that stated in Irwin Toy , which asks only whether “the purpose or effect of the government action in question was to restrict freedom of expression” (p. 971; see also Baier , at paras. 27-28 and 45 ). [ 25 ] So understood, these factors can usefully be distilled to a single core question: is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?

This is, to be clear, a single question which emphasizes the elevated threshold in the second Dunmore factor while encompassing the considerations of the first and third factors. Given what we see as the significant overlap among the factors — particularly between the first and second — this is, in our view, a salutary clarification of the Baier test, entirely consistent with this Court’s approach in Baier and Greater Vancouver Transportation Authority . To be clear, s. 2(

b) does not remove the authority that a legislature has to create or modify statutory platforms, because it does not include the right to access any statutory platform in particular. However, when a legislature chooses to provide such a platform, then it must comply with the Charter ( Haig , at p. 1041). [ 26 ] If, therefore, a claimant can demonstrate that, by denying access to a statutory platform, the government has substantially interfered with freedom of expression or acted with the purpose of doing so, the claim may proceed. Despite being a positive claim, the claimant has demonstrated a limit to its s. 2(

b) right, and — subject to justification of such limit under s. 1 — government action or legislation may be required. [ 27 ] There is no suggestion here that the Province acted with the purpose of interfering with freedom of expression, and we therefore confine our observations here to the claim presented — that is, a claim that a law has had the effect of substantially interfering with freedom of expression.

In our view, a substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is “effectively preclude[d]” ( Ontario (Public Safety and Security) v. Criminal Lawyers’ Association , 2010 SCC 23 , [2010] 1 S.C.R. 815, at para. 33 ). While meaningful expression need not be rendered absolutely impossible, we stress that effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases ( Baier , at para. 27 ; Dunmore , at para. 25 ).

For example, a statutory reduction of the length of an election campaign to two days may well, as a practical matter, be shown to have the effect of constituting a substantial interference with freedom of expression. In such a case, meaningful expression may very well be found to be effectively precluded. [ 28 ] The height of this bar of effective preclusion is demonstrated by Baier .

There, legislation was amended to prohibit school employees from running for election as school trustees, and the Court — applying the Dunmore factors — concluded that no substantial interference with freedom of expression was demonstrated. The claim was grounded merely in access to a particular statutory platform governing school trusteeship, rather than a substantial interference with freedom of expression. And, in any event, there was no interference, substantial or otherwise, with the appellants’ ability to express views on matters relating to the education system.

Their exclusion from the statutory scheme deprived them only of one particular means of such expression (paras. 44 and 48).

(3) Application (

a) Nature of the Claim [ 29 ] The first question to answer in deciding this appeal is whether the City advances a positive claim. There are two ways in which the City’s claim can be understood. Each leads to the conclusion that the claim is, in substance, a positive claim that must, therefore, show a substantial interference with freedom of expression. [ 30 ] The first possible view of the City’s claim is that of restoring an earlier statutory platform , specifically the 47-ward structure.

That this is so is evident from the City’s requested disposition, which asks that the next municipal election be conducted under the previous framework (A.F., at para. 152). The City, then, would have the Province act (either by enacting new legislation or repealing the impugned provisions of the Act ) to restore the previous statutory platform. This reveals a straightforward positive claim. The fact that the City and the participants in the election had previously enjoyed access to the 47-ward structure is of no legal significance.

In Baier , this Court viewed a claim for restoring the status quo as a positive claim, equating it with a demand to legislate a framework for the first time. Such an approach is necessary to prevent fettering; “[t]o hold otherwise would mean that once a government had created a statutory platform, it could never change or repeal it without infringing s. 2( b )” (para. 36). [ 31 ] The second possible view of the City’s claim is that of maintaining an existing statutory platform .

The City frames its claim as asking the Province, once a municipal election period commences, to ensure access to whatever election platform existed at that time. In the City’s view, what is otherwise political expression becomes what it calls “electoral expression” during an election period (A.F., at para. 54). Protection of this “electoral expression”, it says, requires the maintenance of the particular electoral framework that was in place at the beginning of the electoral period. Framed thusly, the City’s claim that the impugned provisions of the Act limited s. 2(

b) turns squarely on the timing of the Act . Indeed, at the hearing of this appeal, the City conceded that barring any other potential issues, the Province was constitutionally permitted to enact this same legislation in the week following the election. Further, the City requested — in the event that this Court finds only that the timing of the Act was unconstitutional — a declaration to that effect, rather than a remedy that would restore the previous 47-ward structure. [ 32 ] The City’s focus on the timing of the Act cannot, however, convert its positive claim into a negative one.

While its claim is couched in language of non-interference — something that superficially resembles a negative claim to be considered under the Irwin Toy framework — the City does not seek protection of electoral participants’ expression from restrictions tied to content or meaning (as was the case, for example, in Greater Vancouver Transportation Authority ); rather, it seeks a particular platform (being whatever council structure existed at the outset of the campaign) by which to channel, and around which to structure, that expression. [ 33 ] So understood, the claim is akin to that rejected in Baier .

The only point of distinction is that Baier involved a request for a specific type of legislative regime (i.e., one that permitted school employees to run for and serve as school board trustees), while the claim in this case is for temporary protection — that is, for the duration of the campaign — of whatever particular type of election structure existed at the outset of the election period.

But, for the purposes of deciding constitutionality, there is no difference between the present case and a hypothetical scenario in which the Province were to scrap the ongoing election and replace it with a completely new platform with a different structure and a reasonable campaign period

altogether. Here, the City is able to frame its claim only in terms of non-interference because the Act modified the existing structure without scrappingit. But the ultimate result is the same. The City’s claim is still a claim for access to a particular statutory platform; the precise disposition requestedsimply depends on whatever electoral framework is in place at the outset of the election process. It is thus a positive claim.

Because municipal electionsare merely statutory platforms without a constitutional basis, provinces can — subject to the elevated threshold of a substantial interference — changethe rules as they wish. [34] To hold otherwise would be to contemplate an unprecedented statutory freeze on provincial jurisdiction under s. 92(8), temporarilyconstitutionalizing a particular statutory platform for the duration of an election. What would normally be considered a positive claim under s. 2(b)would effectively transform into a negative claim for that period of time.

This is constitutionally dubious, nonsensical, and even futile since the durationof such a freeze would depend entirely on the length of the election, over which the Province itself has ultimate authority. With respect, our colleagueAbella J. ignores these concerns in holding that Irwin Toy ought to apply to a claim such as this. Provincial authority to legislate a change to Toronto’sward structure is accepted, but on our colleague’s understanding this authority is operative only some of the time (para. 112).

Combined with her broadarticulation of the Irwin Toy threshold in this context — whether legislation “destabiliz[es] the opportunity for meaningful reciprocal discourse” — suchan understanding would effectively freeze legislative authority to even tangentially affect a municipal election for the duration of the campaign(para. 115). Such a freeze sits awkwardly with the plenary authority that provinces enjoy under s. 92(8) of the Constitution Act, 1867. [35] In sum, the City advances a positive claim and the Baier framework applies. (

b) Application of Baier [36] As explained above, the Baier framework asks whether the claimant demonstrated that, by denying access to a statutory regime, thegovernment has substantially interfered with freedom of expression. To repeat, this is a demanding threshold, requiring the City to show that the Actradically frustrated the expression of election participants such that meaningful expression was effectively precluded.

In our view, the City cannot do soand therefore has not established a limit on s. 2(b). [37] Here, the candidates and their supporters had 69 days — longer than most federal and provincial election campaigns — to re-orienttheir messages and freely express themselves according to the new ward structure. (Our colleague Abella J. is simply incorrect to suggest, at para. 104,that only one month of the campaign remained. It was twice that.) The Act did not prevent candidates from engaging in further political speech under thenew structure.

Candidates continued to campaign vigorously, canvassing and debating about issues unrelated to the impugned provisions, the size ofcouncil or the ward boundaries. And even had they not, nothing in the Act prevented them from doing so. It imposed no restrictions on the content ormeaning of the messages that participants could convey. Many of the challengers who continued to campaign ultimately had, by any measure,successful campaigns, raising significant amounts of money and receiving significant numbers of votes. This would not have been possible had theirs. 2(

b) rights been so radically frustrated so as to effectively preclude meaningful expression. [38] It is of course likely that some of the candidates’ prior expression may have lost its relevance; pamphlets or other campaignparaphernalia with an old ward designation on them, for instance, had to be revised or discarded.

But, with the new ward structure — and larger wardpopulations — came higher campaign expenditure limits, so candidates were able to raise more funds over the 69 days they had left in the campaign.This is, therefore, a complaint that the prior expression of the candidates was no longer meaningful or helpful in their project to secure election. It is, atits root, a complaint about diminished effectiveness. [39] While diminished effectiveness might be enough to amount to a limit of s. 2(

b) in its traditional negative orientation — see, forinstance, Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 15, per McLachlin C.J. and Major J., dissenting in part, butnot on this point, and Libman v. Quebec (Attorney General), (SCC), [1997] 3 S.C.R. 569 — more is required under the Baierframework. In the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression — for instance,instituting a two-day electoral campaign — may rise to the level of a substantial interference with freedom of expression; such

an act may effectivelypreclude meaningful expression in the context of the election. That is simply not what happened here.

Section 2(

b) is not a guarantee of theeffectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign. [40] Even accepting that the change in structure diminished the effectiveness of the electoral candidates’ prior political speech byrendering some of their 47-ward campaign communications less relevant, this does not rise to the level of substantial interference.

Again, the campaignthat took place over 69 days following the imposition of the 25-ward system was vigorously contested by candidates whose freedom of expression wasclearly not radically frustrated. We acknowledge that the application judge found a substantial interference with freedom of expression (para. 32). Thereare, however, three problems with his finding. First, this finding was made in the context of legal error, since he erroneously applied the Irwin Toyframework for a negative claim.

Secondly, and relatedly, the reasons of the judge make clear that this finding was tied to the diminished effectiveness ofthe candidates’ expression, something that, as explained, is simply insufficient to show a limit on freedom of expression under the Baier framework.Finally, given the truncated timelines of the matter at first instance, the judge was required to make this finding on a limited factual record.

With thebenefit of fresh evidence adduced by the Province and admitted at this Court, it is clear that the candidates were not effectively precluded fromexpressing themselves in the context of the campaign. They conducted vigorous, hard-fought campaigns about the issues that mattered to them. [41] The City says that the expression at issue here — again, what it calls “electoral expression” — is uniquely connected to, anddependent on, the framework of the election itself. Therefore, it says, the scope of s. 2(

b) encompasses not only the expression itself but also thestructure of the election. Put thusly, however, the claim is not dissimilar to the “unique role” of school trusteeship claimed by the appellants, andrejected by the Court, in Baier. Claiming a unique role or dependence on a statutory platform is not the same as claiming a fundamental freedom (Baier,at para. 44). Doing so is simply to seek access to that statutory platform. That is what the City seeks here. [42] In sum, the Baier threshold is not met here.

The Act imposed no limit on freedom of expression. [43] Having found no limit to s. 2(b), we need not consider s. 1. We note, however, that our colleague Abella J. decides s. 1 against theProvince on the basis that it “offered no explanation, let alone a pressing and substantial one, for why the changes were made in the middle of anongoing election” (para. 161).

This ignores the Province’s written and oral submissions that the newly elected government proceeded expeditiously so asto be able to implement these changes within the time constraints of its own elected mandate, rather than wait four years until the next municipalelection (R.F., at para. 149; transcript, at pp. 111-12). (

c) Effective Representation [44] The City also says that the impugned provisions of the Act infringe “effective representation”, an incident of the guaranteecontained in s. 3 of the Charter which, the City says, can be imported into s. 2(b). [45]

Section 3 guarantees citizens the right to vote and run for office in provincial and federal elections, and includes a right to effectiverepresentation. The text of s. 3 makes clear, however, that it guarantees “only the right to vote in elections of representatives of the federal and theprovincial legislative assemblies” (Haig, at p. 1031 (emphasis added)) and “does not extend to municipal elections” (p. 1031 (emphasis added), citingP. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 2, at p. 42-2). Simply put, ss. 2(

b) and 3 record distinct rights which must be given

independent meaning (Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877, at paras. 79-80; Harper,at para. 67). Effective representation is not a principle of s. 2(b), nor can the concept be imported wholesale from a different Charter right. [46] In any event, effective representation connotes voter parity which, while not exhaustive of the requirements of effectiverepresentation, is the overarching concern and the condition of “prime importance” (Reference re Prov. Electoral Boundaries (Sask.), (SCC), [1991] 2 S.C.R. 158, at p. 184).

What matters is the relative population of the wards, not their absolute size. To hold otherwise implies keepingthe population of wards relatively constant by increasing the number of councillors to keep pace with population growth, a notion unknown to Canadianlaw (in s. 3 or elsewhere) and which would not be without its own difficulties, including potentially unwieldly growth in the size of Toronto CityCouncil (M. Pal, “The Unwritten Principle of Democracy” (2019), 65 McGill L.J. 269, at pp. 298-99; J. C.

Courtney, Commissioned Ridings: DesigningCanada’s Electoral Districts (2001), at pp. 15 and 19). [47] And even were effective representation to apply as a consideration here, we would not find that the principle has been violated dueonly to the larger population sizes of the wards created by the Act. It is not disputed that the 25-ward structure of the Act enhanced voter parity, relativeto the 47-ward structure preferred by the City (which was not even designed to achieve voter parity until 2026) (A.F., at para. 150; R.F., at paras. 35, 38,133, 143 and 148).

Indeed, the Toronto Ward Boundary Review’s reasoning for having rejected the 25-ward structure was criticized on this very basis(R.R. (short), vol. II, at pp. 65, 69, 72-73 and 77-78). While the principle of effective representation encompasses more than simple voter parity, thosewho rely upon the principle of effective representation here fail to identify any other factors — geography, community history, community interests andminority representation — that could conceivably justify a departure from parity (see Reference re Prov. Electoral Boundaries (Sask.), at p. 184). B.

Democracy [48] The second issue on appeal is whether the impugned provisions of the Act are unconstitutional for violating the unwrittenconstitutional principle of democracy. Specifically, the City argues that the change in ward structure violated the unwritten principle of democracy bydenying voters effective representation and disrupting the election process (A.F., at para. 105). It therefore asks the Court to use the democraticprinciple as a basis for invalidating otherwise valid provincial legislation.

It says this is made possible by drawing from this Court’s s. 3 jurisprudenceand from the concept of effective representation, and by viewing the principle as limiting provincial competence under s. 92(8). Conversely, andechoing the Court of Appeal on this point, the Attorney General of Ontario says that the unwritten constitutional principle of democracy cannot be usedas a device for invalidating legislation, independently of written constitutional provisions and the law governing them. For the reasons that follow, theAttorney General is correct.

(1) Interpretive and Gap-Filling Roles of Unwritten Constitutional Principles [49] The Constitution of Canada embodies written and unwritten norms. This Court has recognized that our Constitution describes anarchitecture of the institutions of state and of their relationship to citizens that connotes certain underlying principles (Reference re Remuneration ofJudges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, at para. 93; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paras. 50-51).

These principles, such as democracy and the rule of law, “infuse our Constitution”(Secession Reference, at para. 50). Although not recorded outside of “oblique reference[s]” in the

preamble to the Constitution Act, 1867 and to theConstitution Act, 1982 (para. 51), these principles are “foundational” (para. 49), without which “it would be impossible to conceive of our constitutionalstructure” (para. 51). These principles have “full legal force” and may give rise to substantive legal obligations (para. 54, quoting Reference reResolution to Amend the Constitution, (SCC), [1981] 1 S.C.R. 753, at p. 845). “[L]ike all principles of political morality, [they] canguide and constrain the decision-making of the executive and legislative branches” (C.A. reasons, at para. 84, citing British Columbia v.

ImperialTobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 52). [50] Unwritten principles are therefore part of the law of our Constitution, in the sense that they form part of the context and backdrop tothe Constitution’s written terms. Our colleague Abella J. seizes upon a statement from a dissenting opinion in Reference re Resolu

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