Why a judge stopped Ontario's reduction of Toronto city council

September 10, 2018
Article Source
The Globe and Mail

Municipalities are creatures of the provinces. Why then did Ontario Superior Court Justice Edward Belobaba say Monday that the Ontario Progressive Conservative government "clearly crossed the line" when, in the middle of a municipal election, it used its lawful authority to reduce Toronto's wards to 25 from 47? The Globe's justice writer Sean Fine explains.

How did the province cross the line - and what line was it?

The line crossed was the right to free-speech, protected by Section 2(b) of the Canadian Charter of Rights and Freedoms. Changing the rules in the middle of the game was not just unfair, Justice Belobaba said. It was an unconstitutional limit on the free speech of voters and candidates. For candidates, it was the suddenness of the change. For voters, it was the very substance of the change that crossed the line.

How did the smaller council affect the candidates' free speech?

The campaign started on May 1. Candidates based their decisions on where to run, what to say and how to spend money on the 47-ward structure, the judge said. The new rules took effect Aug. 14. The candidates' expression of their political messages was "severely frustrated and disrupted." Justice Belobaba found this an easy one. "How could it not" limit free speech, he commented. If the change had been made six months before an election, it would not have harmed candidates' free speech, he added.

Was it really that simple?

The judge adds in a small, complicating factor: electoral fairness. That, he says, is a fundamental value of democracy, "flowing from the political equality of citizens." And if candidates don't have a reasonable chance to present their positions, then an election is unfair and inequitable.

What did he say about voters' free speech?

It gets a bit more complicated here. First, he says the right to free speech in an election should be read together with the right to vote, protected by another section of the Charter, Section 3. That's because the right to vote, which he calls the most fundamental of all rights, is considered a form of expression. The right to vote includes the right to "effective representation." In short: free speech during an election = the right to effective representation.

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