March 15, 2021
On Tuesday, March 16, lawyers for the CCLA will be appearing before the Supreme Court of Canada in a case of vital importance to the protection of Canadian democracy and freedom of expression. In City of Toronto v. Ontario, the City of Toronto argues that provincial legislation changing the size of Toronto City Council in the middle of a council election is unconstitutional. CCLA is intervening in support of the City’s position. We argue that the Charter of Rights and Freedoms provides broad protection for political speech and that legislation that fundamentally undermines this speech – by changing the electoral rules of the game mid-election – is an unreasonable limit on this freedom.
The City and some individuals – including electoral candidates – started the litigation when the province enacted a law that reduced the size of city council from 47 to 25 seats. Ontario’s Superior Court initially struck down the law as unconstitutional, but this was reversed by the Ontario Court of Appeal and the election proceeded on the basis of the 25–ward structure. The case continues before the Supreme Court of Canada in light of its importance for municipalities all across the country.
The Ontario Court of Appeal’s decision was informed in part by a distinction drawn between “negative” and “positive” rights. In the freedom of expression context, the Supreme Court of Canada has said that the protection “prohibits gags, but does not compel the distribution of megaphones.” CCLA has argued that this artificial distinction should be rejected and that in this case, the law interfered with freedom of expression and should be examined contextually, based on the evidence, and in light of the values that freedom of expression is supposed to protect. CCLA argues that the guarantee of freedom of expression is intended to ensure that all citizens have an equal voice and can freely participate in the political process. The law enacted by the province fundamentally undermined these propositions.
We are grateful to our excellent pro bono counsel in this case, Steven Barrett and Geetha Philipupillai of Goldblatt Partners LLP. Our factum can be accessed through the Supreme Court website here: https://www.scc-csc.ca/case-dossier/info/af-ma-eng.aspx?cas=38921
Read the press release here.
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