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.”
Read more: Rights + Justice, Politics, BC Politics, Municipal Politics
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