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Municipal - Constitutional. Toronto (City) v. Ontario (Attorney General)
In Toronto (City) v. Ontario (Attorney General) (SCC, 2021) the Supreme Court of Canada reviews the constitutional status of municipalities, in the context of democratic electoral rights:[2] Section 92(8) of the Constitution Act, 1867 assigns to provinces exclusive legislative authority regarding “Municipal Institutions in the Province”. Municipalities incorporated under this authority therefore hold delegated provincial powers; like school boards or other creatures of provincial statute, they do not have independent constitutional status (Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 S.C.R. 409, at paras. 33‑34). The province has “absolute and unfettered legal power to do with them as it wills” (Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470, at para. 58, quoting with approval Campbell J. in Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), 1997 CanLII 12352 (ON SC), 151 D.L.R. (4th) 346 (Ont. C.J. (Gen. Div.)), at p. 361). No constitutional norms or conventions prevent a province from making changes to municipal institutions without municipal consent (East York (Borough) v. Ontario (1997), 1997 CanLII 1316 (ON CA), 36 O.R. (3d) 733 (C.A.), at pp. 737-38, per Abella J.A.). And “it is not for this Court to create constitutional rights in respect of a third order of government where the words of the Constitution read in context do not do so” (Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, at para. 39).
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(2) Relevance of the Democratic Principle to Municipal Elections
[76] Democracy is, in light of the foregoing, a principle by which our Constitution is to be understood and interpreted. Though not explicitly identified in the text, the basic structure of our Constitution — including its establishment of the House of Commons and of provincial legislatures — connotes certain freely elected, representative, and democratic political institutions (Secession Reference, at para. 62).
[77] The democratic principle has both individual and institutional dimensions (para. 61). It embraces not only the process of representative and responsible government and the right of citizens to participate in that process at the provincial and federal levels, but also substantive goals including the promotion of self‑government (paras. 64‑65). So understood, the democratic principle sits alongside and indeed overlaps with other unwritten constitutional principles that this Court has recognized, including federalism and the rule of law (paras. 66‑67).
[78] In this case, the democratic principle is relevant as a guide to the interpretation of the constitutional text. It supports an understanding of free expression as including political expression made in furtherance of a political campaign (Reference re Prov. Electoral Boundaries (Sask.); Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100; Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285; OPSEU). But it cannot be used in a manner that goes beyond this interpretive role. In particular, it cannot be used as an independent basis to invalidate legislation.
(a) Section 92(8) of the Constitution Act, 1867
[79] The structure of neither the Constitution Act, 1867 nor the Constitution Act, 1982 requires by necessary implication the circumscription of provincial lawmaking authority under s. 92(8) in the manner proposed. Subject to the Charter, the province has “absolute and unfettered legal power” to legislate with respect to municipalities (Ontario English Catholic Teachers’ Assn., at para. 58). And this Court cannot grant constitutional status to a third order of government “where the words of the Constitution read in context do not do so” (Baier, at para. 39).
[80] Indeed, the City’s submissions neglect the fact, recognized in the passage from Imperial Tobacco, at para. 66, cited above, that unwritten constitutional principles other than the rule of law that have been recognized by this Court, including democracy and constitutionalism, strongly favour upholding the validity of legislation that conforms to the text of the Constitution. It follows that the unwritten constitutional principle of democracy cannot be used to narrow legislative competence under s. 92(8); as this Court has recognized, the provinces have plenary jurisdiction under this head of power, unrestricted by any constitutional principle (Public School Boards’ Assn. of Alberta).
(b) Section 3 of the Charter
[81] Nor can the democratic principle be used to make s. 3 of the Charter — including its requirement of effective representation — relevant to the current case. There is no open question of constitutional interpretation here. Section 3 democratic rights were not extended to candidates or electors to municipal councils. This is not a gap to be addressed judicially. The absence of municipalities in the constitutional text is, on the contrary, a deliberate omission (Imperial Tobacco, at para. 65). As the intervener the Federation of Canadian Municipalities argues, municipalities (or at least chartered towns) predate the Magna Carta (1215). Their existence and importance would have been known to the framers in 1867. The constitutional status of municipalities, and whether they ought to enjoy greater independence from the provinces, was a topic of debate during patriation (House of Commons Debates, vol. X, 1st Sess., 32nd Parl., June 15, 1981, at p. 10585). In the end, municipalities were not constitutionalized, either in amendments to the Constitution Act, 1867 or by reference in the democratic rights enshrined in the Charter.
[82] Unlike in the Provincial Court Judges Reference, therefore, there is no textual basis for an underlying constitutional principle that would confer constitutional status on municipalities, or municipal elections. The entitlement to vote in elections to bodies not mentioned in s. 3 is therefore a matter for Parliament and provincial legislatures (Haig, at p. 1033; Baier, at para. 39). Again, and like the school boards at issue in Baier, municipalities are mere creatures of statute who exercise whatever powers, through officers appointed by whatever process, that provincial legislatures consider fit. Were the unwritten democratic principle applied to require all elections to conform to the requirements of s. 3 (including municipal elections, and not just elections to the House of Commons or provincial legislatures), the text of s. 3 would be rendered substantially irrelevant and redundant (Imperial Tobacco, at para. 65). To repeat: the withholding of constitutional status for municipalities, and their absence from the text of s. 3, was the product of a deliberate omission, not a gap. The City’s submissions ignore that application of the democratic principle is properly applied to interpreting constitutional text, and not amending it or subverting its limits by ignoring “the primordial significance assigned by this Court’s jurisprudence to constitutional text in undertaking purposive interpretation” (Quebec (Attorney General), at para. 4). It is not for the Court to do by “interpretation” what the framers of our Constitution chose not to do by enshrinement, or their successors by amendment.
(3) Conclusion on the Democratic Principle
[83] Even had the City established that the Act was inconsistent with the principle of democracy, it follows from the foregoing discussion that a court could not rely on that inconsistency to find the Act unconstitutional. The Act was enacted pursuant to a valid legislative process and the Province had no obligation to consult with the City before it introduced the legislation, or to introduce the legislation at a particular time. (As the application judge correctly noted, the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, does not impose an immutable obligation to consult since the Province could enact the Act and overrule its previous enactment. Moreover, the related Toronto‑Ontario Cooperation and Consultation Agreement did not bind the Province in law.)
[84] In short, and despite their value as interpretive aids, unwritten constitutional principles cannot be used as bases for invalidating legislation, nor can they be applied to support recognizing a right to democratic municipal elections by narrowing the grant to provinces of law‑making power over municipal institutions in s. 92(8) of the Constitution Act, 1867. Nor can they be applied to judicially amend the text of s. 3 of the Charter to require municipal elections or particular forms thereof. The text of our Constitution makes clear that municipal institutions lack constitutional status, leaving no open question of constitutional interpretation to be addressed and, accordingly, no role to be played by the unwritten principles.
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