The article you just read was brought to you by a few thousand dedicated readers. Will you join them?

Thanks for coming by The Tyee and reading one of many original articles we’ll post today. Our team works hard to publish in-depth stories on topics that matter on a daily basis. Our motto is: No junk. Just good journalism.

Just as we care about the quality of our reporting, we care about making our stories accessible to all who want to read them and provide a pleasant reading experience. No intrusive ads to distract you. No paywall locking you out of an article you want to read. No clickbait to trick you into reading a sensational article.

There’s a reason why our site is unique and why we don’t have to rely on those tactics — our Tyee Builders program. Tyee Builders are readers who chip in a bit of money each month (or one-time) to our editorial budget. This amazing program allows us to pay our writers fairly, keep our focus on quality over quantity of articles, and provide a pleasant reading experience for those who visit our site.

In the past year, we’ve been able to double our staff team and boost our reporting. We invest all of the revenue we receive into producing more and better journalism. We want to keep growing, but we need your support to do it.

Fewer than 1 in 100 of our average monthly readers are signed up to Tyee Builders. If we reach 1% of our readers signing up to be Tyee Builders, we could continue to grow and do even more.

If you appreciate what The Tyee publishes and want to help us do more, please sign up to be a Tyee Builder today. You pick the amount, and you can cancel any time.

Support our growing independent newsroom and join Tyee Builders today.
Canada needs more independent media. And independent media needs you.

Did you know that most news organizations in Canada are owned by just a handful of companies? And that these companies have been shutting down newsrooms and laying off reporters continually over the past few decades?

Fact-based, credible journalism is essential to our democracy. Unlike many other newsrooms across the country, The Tyee’s independent newsroom is stable and growing.

How are we able to do this? The Tyee Builder program. Tyee Builders are readers who chip into our editorial budget so that we can keep doing what we do best: fact-based, in-depth reporting on issues that matter to our readers. No paywall. No junk. Just good journalism.

Fewer than 1 in 100 of our average monthly readers are signed up to be Tyee Builders. If we reach 1% of our readers signing up to be Tyee Builders, we could continue to grow and do even more.

If you appreciate what The Tyee publishes and want to help us do more, please sign up to be a Tyee Builder today. You pick the amount, and you can cancel any time.

Support our growing independent newsroom and join Tyee Builders today.
We value: Our readers.
Our independence. Our region.
The power of real journalism.
We're reader supported.
Get our newsletter free.
Help pay for our reporting.
Rights + Justice
BC Politics
Municipal Politics

BC Blasted for Joining Ontario’s Fight to Limit Rights of Municipal Voters

NDP government taking ‘regressive, conservative’ position on citizens’ charter rights, say critics.

Andrew MacLeod 19 Feb 2021 |

Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria and the author of All Together Healthy (Douglas & McIntyre, 2018). Find him on Twitter or reach him at .

Ontario Premier Doug Ford has found an ally in British Columbia’s NDP government in his legal battle to limit municipal voting rights.

The B.C. government’s position relies on an “extremely regressive” reading of the Constitution of Canada, said Martha Jackman, a professor of constitutional law at University of Ottawa who has also taught at the University of British Columbia and at the University of Victoria.

“I’m disappointed to see a social democratic government proposing the same very regressive, conservative and narrow reading of charter rights,” Jackman said.

The case dates back to 2018, when just two months ahead of the Toronto election, Ford’s government passed Bill 5, the Better Local Government Act, to reduce the number of wards in the city from 47 to 25.

The city challenged the law in court, and Ontario’s Superior Court of Justice ruled against the Ford government, ordering the election to go ahead with 47 wards. But the Court of Appeal for Ontario reversed the ruling in a 3-2 split decision.

“The frustration of candidates in facing altered electoral circumstances — unanticipated rivals, losing allies and needing to reach new voters — did not prevent them from saying anything they wished to say about matters in issue in the election or in promoting their candidacies,” Justice Bradley Miller wrote for the majority.

Justice James MacPherson expressed the view of the two dissenting judges. “By extinguishing almost half of the city’s existing wards midway through an active election, Ontario blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates, and the reciprocal engagement of many informed voters.”

The election was held with the reduced number of wards as Ford wanted, but the court battle over whether the changes violated voters’ and candidates’ rights to freedom of expression continues and is headed to the Supreme Court of Canada in March.

As the City of Toronto’s submission to the court put it, the case is “about the charter’s guarantee of freedom of expression, the scope of unwritten constitutional principles and whether municipal electors are entitled to effective representation.

“At the heart of it, this case asks this question: What is a democratic election, in Canada?”

Some 18 interveners have joined the case, including the attorney general of Canada, the Toronto District School Board, the Canadian Civil Liberties Association and the Métis Nation of Ontario.

The only provincial government to intervene is British Columbia, which in early February filed a 20-page factum laying out its positions. It argues that municipal governments and institutions like school boards “are creatures of provincial governments with no constitutional status” and that finding in Toronto’s favour would encroach on provinces’ power.

It makes an argument based on a distinction between positive and negative rights under the Constitution to support its position that the court should in no way limit provincial governments’ powers over municipalities, including their ability to set the terms for local elections.

Jackman said the distinction between positive and negative rights is “spurious” and has been rejected in international human rights law, though it continues to be made in Canadian courts.

If something is a “negative right,” it means someone can’t be prevented from exercising it, while a “positive right” is one where action is needed to make sure it can be fulfilled. For example, while Canadian courts have found governments can’t prevent someone who is sleeping outdoors from erecting a tent, they have not obliged governments to provide shelter, which would be a positive right.

Jackman argued it makes little sense to deny that voting is a positive right. For example, she said, a right to vote would be meaningless without governments providing the means by which it can be exercised.

Margot Young, a professor in the Allard School of Law at UBC, called the distinction between positive and negative rights a “zombie” that keeps getting raised from the dead in Canadian courts.

“It’s, I think, a very political claim that’s raised by governments and by the court when they don’t like the outcome of what a more expansive notion of government obligations would bring,” Young said.

It’s a surprising and disappointing position coming from a progressive government, she said, especially given Attorney General David Eby’s background as a human rights lawyer who worked to advance social justice. Before running for office, Eby was executive director of the BC Civil Liberties Association and had worked for the Pivot Legal Society to advance the rights of people who were homeless or under-housed.

“To have a social democratic government making these arguments about the charter providing only negative rights protections, and moreover primarily individual not collective rights protections, is deeply disappointing,” Young said.

“One would expect the attorney general in B.C., personally, given his own career trajectory, to have an appreciation for the importance of substantive rights protection that requires often positive government action.”

Eby was unavailable for an interview.

A spokesperson emailed a statement saying, “The B.C. Attorney General has intervened in this case because it is about constitutional principles concerning provincial powers in relation to municipalities.”

Young said Premier John Horgan’s B.C. government is acting in its own interests even though the action seems to contradict the NDP’s political perspective.

“It’s a good illustration of how governments talk out of both sides of their face often,” she said. “They say some things politically, then they turn up and argue in court against fuller, expansive, generous interpretations of charter rights.”

Stéphane Émard-Chabot, a lawyer acting for the Federation of Canadian Municipalities which is also intervening in the case, said most Canadians would be shocked by the position Ontario and B.C. are taking that local elections are meaningless and provincial governments can disrupt or stop them at will.

“The essential question the Supreme Court has to answer is, ‘Is local democracy part of the fabric of Canada or not?’” he said on the phone from Gatineau, Que. “The provinces are saying it’s not.”

Provinces have a role in setting up systems for local elections, but it’s a problem when a government makes changes to an election that is already under way, Émard-Chabot said.

“The key question here is does the province have the right to reset an election they don’t like, or do they have to wait until the next election,” he said. “If you can interrupt an election, up to when can you interrupt it?”

He pointed to the example of Istanbul, where Turkey’s government last year cancelled a mayoral election five weeks after it had been won by a candidate the federal governing party opposed.

The Ford government’s interruption of the Toronto election was unprecedented in the history of Canada, said Émard-Chabot. “To say that [democratic] process locally is not protected, when it’s been part of Canada since before Confederation, is a bit of a stretch,” he said.

While it’s understandable that provinces would want to preserve what they see as an absolute right to govern municipalities however they please, he said, it’s a “very dangerous tool” to protect that power by denying democracy.

That Ontario is getting support from B.C. in the case is disappointing to anyone who expected the NDP government to represent different values, said UBC’s Young. “People elect social democratic governments to be social democratic not only in their laws and policies but also in what they’re willing to argue and assert before a court.”

Jackman said the province’s position undermines citizens’ rights.

“As a progressive constitutional lawyer who’s spent my entire career fighting for an expansive reading of the charter that would protect the rights of everyone, not just the rights of people who have money, I was really disappointed to read the factum that to me didn’t look that different in substance from what I would have expected from the previous government.”  [Tyee]

Share this article

The Tyee is supported by readers like you

Join us and grow independent media in Canada

Facts matter. Get The Tyee's in-depth journalism delivered to your inbox for free.

Tyee Commenting Guidelines

Do not:

  •  Use sexist, classist, racist or homophobic language
  • Libel or defame
  • Bully, threaten, name-call or troll
  • Troll patrol. Instead, downvote, or flag suspect activity
  • Attempt to guess other commenters’ real-life identities


  • Verify facts, debunk rumours
  • Add context and background
  • Spot typos and logical fallacies
  • Highlight reporting blind spots
  • Ignore trolls and flag violations
  • Treat all with respect and curiosity
  • Stay on topic
  • Connect with each other


The Barometer

Are You Concerned about Rising Support for Canada’s Far-Right Parties?

Take this week's poll