The Ontario legislature enacted the Better Local Government Act, 2018, which reduced Toronto City Council from 47 to 25 councillors and changed ward boundaries in the middle of a municipal election campaign.
The applicants challenged the constitutionality of the Act, arguing it violated section 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression) and unwritten constitutional principles.
The application judge found the Act violated section 2(b) and allowed the application.
On appeal, the majority (D.M. Miller J.A., with Tulloch and Harvison Young JJ.A. concurring) allowed the appeal and upheld the Act as constitutional.
The majority held that section 2(b) does not guarantee effective expression, does not require government to maintain platforms for expression, and does not incorporate the right to vote from section 3 of the Charter.
The majority also rejected arguments based on unwritten constitutional principles and jurisdictional limits in section 92(8) of the Constitution Act, 1867.
MacPherson J.A. (with Nordheimer J.A. concurring) dissented, finding the Act infringed section 2(b) by interfering with freedom of expression during an active election and that the infringement could not be justified under section 1 of the Charter.
