By: Colin Feasby
PDF Version: City of Toronto v Ontario and Fixing the Problem with Section 3 of the Charter
Case Commented On: Toronto (City) v Ontario (Attorney General), 2018 ONCA 761
Introduction
Ontario Premier Doug Ford’s recent restructuring of Toronto City Council in the midst of an election and the ensuing court battle shone a light on a significant gap in the constitutional protection of democratic rights in Canada. Elections for municipal government – arguably the most important level of government in the daily lives of Canadians – need not be conducted in accordance with the fundamental democratic norms found by the Supreme Court of Canada to reside within section 3 of the Charter. The Ontario Court of Appeal in Toronto (City) v Ontario (Attorney General), 2018 ONCA 761 following numerous appellate authorities, succinctly stated the law: “Section 3 does not apply to municipal elections and has no bearing on the issues raised in this case” [citations omitted] (City of Toronto, at para. 12).
This blog post is predicated on what I believe are two uncontroversial normative claims. First, the Supreme Court of Canada’s Charter section 3 jurisprudence, though not without its critics, has made federal and provincial elections more fair and democratic. The corollary of this normative claim is that democratic processes outside the aegis of section 3 are vulnerable to those who would impose unfair or undemocratic rules. Second, democratic processes that are not protected by section 3 of the Charter – referenda, band council elections, municipal elections, school board elections – are important to Canadians; perhaps more important in some respects than provincial and federal elections. This blog post contends that the lack of constitutional protection for important democratic processes is an unnecessary defect in our constitutional arrangement and proposes a way that the Supreme Court of Canada can remedy this defect.