Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845

SUPREME COURT OF CANADA

Appeal Heard: March 16, 2021 Judgment Rendered: October 1, 2021 Docket: 38921

Between: City of Toronto Appellant and Attorney General of Ontario Respondent - and - Attorney General of Canada, Attorney General of British Columbia, Toronto District School Board, Cityplace Residents' Association, Canadian Constitution Foundation, International Commission of Jurists (Canada), Federation of Canadian Municipalities, Durham Community Legal Clinic, Centre for Free Expression at Ryerson University, Canadian Civil Liberties Association, Art Eggleton, Barbara Hall, David Miller, John Sewell, David Asper Centre for Constitutional Rights, Progress Toronto, Métis Nation of Ontario, Métis Nation of Alberta and Fair Voting British Columbia Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Joint Reasons for Judgment: (paras. 1 to 85)

Wagner C.J. and Brown J. (Moldaver, Côté and Rowe JJ. concurring)

Dissenting Reasons: (paras. 86 to 186)

Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring)

City of Toronto Appellant

v.

Attorney General of Ontario Respondent

and

Attorney General of Canada,

Attorney General of British Columbia,

Toronto District School Board,

Cityplace Residents' Association,

Canadian Constitution Foundation,

International Commission of Jurists (Canada),

Federation of Canadian Municipalities,

Durham Community Legal Clinic,

Centre for Free Expression at Ryerson University,

Canadian Civil Liberties Association,

Art Eggleton,

Barbara Hall,

David Miller,

John Sewell,

David Asper Centre for Constitutional Rights,

Progress Toronto,

Métis Nation of Ontario,

Métis Nation of Alberta and

Fair Voting British Columbia Interveners

Indexed as: Toronto (City) v. Ontario (Attorney General)

2021 SCC 34

File No.: 38921.

2021: March 16; 2021: October 1.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights — Freedom of expression — Municipal elections — Province enacting legislation redrawing municipality's electoral ward boundaries and reducing number of wards during election campaign — Whether legislation limits electoral participants' right to freedom of expression and, if so, whether limitation justified — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) — Better Local Government Act, 2018, S.O. 2018, c. 11.

Constitutional law — Unwritten constitutional principles — Democracy — Province enacting legislation redrawing municipality's electoral ward boundaries and reducing number of wards during election campaign — Whether legislation unconstitutional for violating unwritten constitutional principle of democracy.

On May 1, 2018, the City of Toronto municipal election campaign commenced and nominations opened in preparation for an election day on October 22, 2018. On July 27, 2018, the closing day for nominations, Ontario announced its intention to introduce legislation reducing the size of Toronto City Council. On August 14, 2018, the Better Local Government Act, 2018, came into force, reducing the number of wards from 47 to 25.

The City and two groups of private individuals challenged the constitutionality of the Act and applied for orders restoring the 47-ward structure. The application judge found that the Act limited the municipal candidates' right to freedom of expression under s. 2(b) of the Charter and municipal voters' s. 2(b) right to effective representation. He held that these limits could not be justified under s. 1 of the Charter and set aside the impugned provisions of the Act. Ontario appealed and moved to stay the judgment pending appeal. The Court of Appeal granted the stay and, on October 22, 2018, the municipal election proceeded on the basis of the 25-ward structure created by the Act. The Court of Appeal later allowed the appeal, finding no limit on freedom of expression. The majority held that the City had advanced a positive rights claim, which was not properly grounded in s. 2(b) of the Charter, and concluded that the application judge had erred in finding that the Act substantially interfered with the candidates' freedom of expression and in finding that the right to effective representation applies to municipal elections and bears any influence over the s. 2(b) analysis. The majority also held that unwritten constitutional principles do not confer upon the judiciary power to invalidate legislation that does not otherwise infringe the Charter, nor do they limit provincial legislative authority over municipal institutions.

Held (Abella, Karakatsanis, Martin and Kasirer JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: Ontario acted constitutionally. The Act imposed no limit on freedom of expression. Further, unwritten constitutional principles cannot be used as bases for invalidating legislation, nor can the unwritten constitutional principle of democracy be used to narrow provincial authority under s. 92(8) of the Constitution Act, 1867, or to read municipalities into s. 3 of the Charter.

A purposive interpretation of Charter rights must begin with, and be rooted in, the text and not overshoot the purpose of the right but place it in its appropriate linguistic, philosophic and historical contexts. Section 2(b) of the Charter, which provides that everyone has the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication, has been interpreted as generally imposing a negative obligation rather than a positive obligation of protection or assistance. A claim is properly characterized as negative where the claimant seeks freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage. Such claims of right under s. 2(b) are considered under the framework established in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.

However, as explained in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, s. 2(b) may, in certain circumstances, impose positive obligations on the government to facilitate expression. Many constitutional rights have both positive and negative dimensions and this is so for s. 2(b). Central to whether s. 2(b) has been limited is, therefore, the appropriate characterization of the claim as between a negative and positive claim of right.

In the context of positive claims under s. 2(b), where a claimant seeks to impose an obligation on the government (or legislature) to provide access to a particular statutory or regulatory platform for expression, the applicable framework is that of Baier. As held in Baier, to succeed, a positive claim must satisfy the following three factors first set forth in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016: (1) the claim should be grounded in freedom of expression, rather than in access to a particular statutory regime; (2) the claimant must demonstrate that lack of access to a statutory regime has the effect of a substantial interference with freedom of expression, or has the purpose of infringing freedom of expression; and (3) the government must be responsible for the inability to exercise the fundamental freedom. These factors set an elevated threshold for positive claims and can usefully be distilled to a single core question: is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? This single question, a salutary clarification of the Baier test, emphasizes the elevated threshold in the second Dunmore factor while encompassing the considerations of the first and third factors. Substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is effectively precluded. While meaningful expression need not be rendered absolutely impossible, effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases.

In the present case, the City has not established a limit on s. 2(b). The City's claim is a claim for access to a particular statutory platform, and is thus, in substance, a positive claim. The Baier framework therefore applies, and the City had to show that the Act radically frustrated the expression of election participants such that meaningful expression was effectively precluded. The candidates and their supporters had 69 days to re-orient their messages and freely express themselves according to the new ward structure. The Act imposed no restrictions on the content or meaning of the messages that participants could convey. Many of the challengers who continued to campaign ultimately had successful campaigns, raising significant amounts of money and receiving significant numbers of votes. This would not have been possible had their s. 2(b) rights been so radically frustrated so as to effectively preclude meaningful expression. Some of the candidates' prior expression may have lost its relevance, but something more than diminished effectiveness is required under the Baier framework. In the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression may rise to the level of a substantial interference with freedom of expression. Section 2(b) is not a guarantee of the effectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign.

Furthermore, the unwritten constitutional principle of democracy cannot be used as a device for invalidating otherwise valid provincial legislation such as the impugned provisions of the Act. Unwritten principles are part of the law of the Constitution, in the sense that they form part of the context and backdrop to the Constitution's written terms. Their legal force lies in their representation of general principles within which the constitutional order operates and, therefore, by which the Constitution's written terms — its provisions — are to be given effect. In practical terms, unwritten constitutional principles may assist courts in only two distinct but related ways.

First, they may be used in the interpretation of constitutional provisions. Where the constitutional text is not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids. When applied to Charter rights, unwritten principles assist with purposive interpretation, informing the character and the larger objects of the Charter itself, the language chosen to articulate the specific right or freedom, and the historical origins of the concepts enshrined. Where unwritten constitutional principles are used as interpretive aids, their substantive legal force must arise by necessary implication from the Constitution's text. Secondly, and relatedly, unwritten principles can be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture. Structural doctrines can fill gaps and address important questions on which the text of the Constitution is silent.

Neither of these functions support the application of unwritten constitutional principles as an independent basis for invalidating legislation. On the contrary, unwritten constitutional principles, such as democracy, a principle by which the Constitution is to be understood and interpreted, strongly favour upholding the validity of legislation that conforms to the text of the Constitution. Subject to the Charter, a province, under s. 92(8) of the Constitution Act, 1867, has absolute and unfettered legal power to legislate with respect to municipalities. This plenary jurisdiction is unrestricted by any constitutional principle.

As for s. 3 of the Charter, it guarantees citizens the right to vote and run for office in provincial and federal elections, and includes a right to effective representation. The text of s. 3 makes clear, however, that it does not extend to municipal elections. Effective representation is not a principle of s. 2(b) of the Charter, nor can the concept be imported wholesale into s. 2(b). Section 3 and its requirement of effective representation also cannot be made relevant to the current case by using the democratic principle. Section 3 democratic rights were not extended to candidates or electors to municipal councils. The absence of municipalities in the constitutional text is not a gap to be addressed judicially; rather, it is a deliberate omission. The text of the 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.

Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be allowed and the application judge's declaration that the timing of the Act unjustifiably infringed s. 2(b) of the Charter restored. Changing the municipal wards in the middle of an ongoing municipal election was unconstitutional.

When a democratic election takes place in Canada, including a municipal election, freedom of expression protects the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day. That is at the core of political expression, which in turn is at the core of what is protected by s. 2(b) of the Charter. The right to disseminate and receive information connected with elections has long been recognized as integral to the democratic principles underlying freedom of expression, and as a result, has attracted robust protection.

A stable election period is crucial to electoral fairness and meaningful political discourse. As such, state interference with individual and collective political expression in the context of an election strikes at the heart of the democratic values that freedom of expression seeks to protect, including participation in social and political decision-making.

A two-part test for adjudicating freedom of expression claims was established in Irwin Toy. The first asks whether the activity is within the sphere of conduct protected by freedom of expression. If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. The second asks whether the government action, in purpose or effect, interfered with freedom of expression.

The legal framework set out in Baier, which was designed to address under inclusive statutory regimes, only applies to claims placing an obligation on government to provide individuals with a particular platform for expression. Claims of government interference with expressive rights that attach to an electoral process are the kind of claims governed by the Irwin Toy framework.

The distinction between positive and negative rights is an unhelpful lens for adjudicating Charter claims. All rights have positive dimensions since they exist within, and are enforced by, a positive state apparatus. They also have negative dimensions because they sometimes require the state not to intervene. A unified purposive approach has been adopted to rights claims, whether the claim is about freedom from government interference in order to exercise a right, or the right to governmental action in order to get access to it. The threshold does not vary with the nature of the claim to a right. Each right has its own definitional scope and is subject to the proportionality analysis under s. 1 of the Charter. There is therefore no reason to superimpose onto the constitutional structure the additional hurdle of dividing rights into positive and negative ones for analytic purposes.

In the present case, the s. 2(b) claim is about government interference with the expressive rights that attach to the electoral process and it is precisely the kind of claim that is governed by the Irwin Toy framework. Applying that framework, it is clear that the timing of the legislation, by interfering with political discourse in the middle of an election, violated s. 2(b) of the Charter. By radically redrawing electoral boundaries during an active election that was almost two-thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse. The Act eradicated nearly half of the active election campaigns, and required candidates to file a change of ward notification form to continue in the race. The redrawing of ward boundaries meant that candidates needed to reach new voters with new priorities. Voters who had received campaign information, learned about candidates' mandates and engaged with them based on the 47-ward structure had their democratic participation put into abeyance. The timing of the Act breathed instability into the election, undermining the ability of candidates and voters in their wards to meaningfully discuss and inform one another of their views on matters of local concern.

The limitation on s. 2(b) rights in this case was the timing of the legislative changes. Ontario offered no explanation, let alone a pressing and substantial one, for why the changes were made in the middle of an ongoing election. In the absence of any evidence or explanation for the timing of the Act, no pressing and substantial objective exists for this limitation and it cannot, therefore, be justified in a free and democratic society.

As for the role of unwritten constitutional principles, there is disagreement with the majority's observations circumscribing their scope and power in a way that reads down the Court's binding jurisprudence. Unwritten constitutional principles may be used to invalidate legislation. The precedential Constitution of the United Kingdom is not a written document, but is comprised of unwritten norms, Acts of Parliament, Crown prerogative, conventions, custom of Parliament, and judicial decisions, among other sources. Canada's Constitution, as a result, embraces unwritten as well as written rules. Unwritten constitutional principles have been held to be the lifeblood of the Constitution and the vital unstated assumptions upon which the text is based. They are not merely "context" or "backdrop" to the text. On the contrary, they are the Constitution's most basic normative commitments from which specific textual provisions derive. The specific written provisions are elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867. Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles.

Apart from written provisions of the Constitution, principles deriving from the Constitution's basic structure may constrain government action. Those principles exist independently of and, as in the case of implied fundamental rights before the promulgation of the Charter, prior to the enactment of express constitutional provisions. The legislative bodies in Canada must conform to these basic structural imperatives and can in no way override them. Accordingly, unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any express constitutional provision but is fundamentally at odds with the Constitution's internal architecture or basic constitutional structure. This would undoubtedly be a rare case; however, to foreclose the possibility that unwritten principles can be used to invalidate legislation in all circumstances is imprudent. It not only contradicts the Court's jurisprudence, it is fundamentally inconsistent with the case law confirming that unwritten constitutional principles can be used to review legislation for constitutional compliance. Reviewing legislation for constitutional compliance means upholding, revising or rejecting it.

Unwritten constitutional principles are the foundational organizing principles of the Constitution and have full legal force. They serve to give effect to the structure of the Constitution and function as independent bases upon which to attack the validity of legislation since they have the same legal status as the text. Unwritten constitutional principles not only give meaning and effect to constitutional text and inform the language chosen to articulate the specific right or freedom, they assist in developing an evolutionary understanding of the rights and freedoms guaranteed in the Constitution, which have long been described as a living tree capable of growth and expansion. Unwritten constitutional principles are a key part of what makes the tree grow. They are also substantive legal rules in their own right. In appropriate cases, they may well continue to serve, as they have done in the past, as the basis for declaring legislation unconstitutional.

Cases Cited

By Wagner C.J. and Brown J.

Applied: Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; distinguished: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; considered: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; referred to: Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 S.C.R. 409; Ontario English Catholic Teachers' Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470; Ontario Public School Boards' Assn. v. Ontario (Attorney General) (1997), 151 D.L.R. (4th) 346; East York (Borough) v. Ontario (1997), 36 O.R. (3d) 733; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Haig v. Canada, [1993] 2 S.C.R. 995; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; R. v. Poulin, 2019 SCC 47; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Huson v. The Township of South Norwich (1895), 24 S.C.R. 145; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Guerin v. The Queen, [1984] 2 S.C.R. 335; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285.

By Abella J. (dissenting)

Di Ciano v. Toronto (City); Natale v. City of Toronto, 2018 ONSC 1475, 1 O.M.T.R. 349; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527; R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Kleindienst v. Mandel, 408 U.S. 753 (1972); B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, [2017] 1 S.C.R. 93; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Morgentaler, [1988] 1 S.C.R. 30; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373; R. (on the application of Jackson) v. Attorney General, [2005] UKHL 56, [2006] 1 A.C. 262; R. (Privacy International) v. Investigatory Powers Tribunal, [2019] UKSC 22, [2020] A.C. 491; AXA General Insurance Ltd. v. HM Advocate, [2011] UKSC 46, [2012] 1 A.C. 868; Brandy v. Human Rights and Equal Opportunity Commission (1995), 183 C.L.R. 245; Kable v. Director of Public Prosecutions (NSW) (1996), 189 C.L.R. 51; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997), 190 C.L.R. 410; Lange v. Australian Broadcasting Corporation (1997), 189 C.L.R. 520; Roach v. Electoral Commissioner, [2007] HCA 43, 233 C.L.R. 162; South African Association of Personal Injury Lawyers v. Heath, [2000] ZACC 22, 2001 (1) S.A. 883; Fedsure Life Assurance Ltd. v. Greater Johannesburg Transitional Metropolitan Council, [1998] ZACC 17, 1999 (1) S.A. 374; Elfes Case, BVerfG, 1 BvR 253/56, Decision of January 16, 1957 (Germany); Kesavananda v. State of Kerala, A.I.R. 1973 S.C. 1461; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326; Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54; Roncarelli v. Duplessis, [1959] S.C.R. 121; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Edwards v. Attorney-General for Canada, [1930] A.C. 124; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473.

Statutes and Regulations Cited

Better Local Government Act, 2018, S.O. 2018, c. 11, Sch. 3, s. 1.

By-law to amend By-law 267-2017, being a by-law to re-divide the City of Toronto's Ward Boundaries, to correct certain minor errors, City of Toronto By-law No. 464-2017, April 28, 2017.

By-law to re-divide the City of Toronto's Ward Boundaries, City of Toronto By-law No. 267-2017, March 29, 2017.

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 3, 7, 15, 33.

City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, s. 128(1).

Constitution Act, 1867, preamble, ss. 91, 92.

Constitution Act, 1982, preamble, s. 52.

Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4.

Magna Carta (1215).

Municipal Elections Act, 1996, S.O. 1996, c. 32, Sch., s. 10.1(8).

Treaties and Other International Instruments

Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221.

Authors Cited

Bhagwat, Ashutosh, and James Weinstein. "Freedom of Expression and Democracy", in Adrienne Stone and Frederick Schauer, eds., The Oxford Handbook of Freedom of Speech. Oxford: Oxford University Press, 2021, 82.

Bobbitt, Philip. Constitutional Fate: Theory of the Constitution. New York: Oxford University Press, 1982.

Canada. House of Commons. House of Commons Debates, vol. X, 1st Sess., 32nd Parl., June 15, 1981, p. 10585.

Canadian Urban Institute. Draw the Line: Toronto Ward Boundary Review Project Work Plan, Civic Engagement & Public Consultation Strategy, April 28, 2014 (online: https://www.toronto.ca/legdocs/mmis/2014/ex/bgrd/backgroundfile-69434.pdf; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC34_1_eng.pdf).

Chan, Kathryn. "Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty" (2020), 6 C.J.C.C.L. 151.

Courtney, John C. Commissioned Ridings: Designing Canada's Electoral Districts. Montréal: McGill-Queen's University Press, 2001.

Dawood, Yasmin. "The Right to Vote and Freedom of Expression in Political Process Cases Under the Charter" (2021), 100 S.C.L.R. (2d) 105.

Elliot, Robin. "References, Structural Argumentation and the Organizing Principles of Canada's Constitution" (2001), 80 Can. Bar Rev. 67.

Flynn, Alexandra. "Operative Subsidiarity and Municipal Authority: The Case of Toronto's Ward Boundary Review" (2019), 56 Osgoode Hall L.J. 271.

Fredman, Sandra. "Human Rights Transformed: Positive Duties and Positive Rights", [2006] P.L. 498.

Good, Kristin R. Municipalities and Multiculturalism: The Politics of Immigration in Toronto and Vancouver. Toronto: University of Toronto Press, 2009.

Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021, release 1).

Johnson, (Alyn) James. "The Judges Reference and the Secession Reference at Twenty: Reassessing the Supreme Court of Canada's Unfinished Unwritten Constitutional Principles Project" (2019), 56 Alta. L. Rev. 1077.

Kreimer, Seth F. "Allocational Sanctions: The Problem of Negative Rights in a Positive State" (1984), 132 U. Pa. L. Rev. 1293.

Leclair, Jean. "Canada's Unfathomable Unwritten Constitutional Principles" (2002), 27 Queen's L.J. 389.

Macklem, Patrick. "Aboriginal Rights and State Obligations" (1997), 36 Alta. L. Rev. 97.

Moon, Richard. The Constitutional Protection of Freedom of Expression. Toronto: University of Toronto Press, 2000.

Newman, Dwight. "Canada's Notwithstanding Clause, Dialogue, and Constitutional Identities", in Geoffrey Sigalet, Grégoire Webber and Rosalind Dixon, eds., Constitutional Dialogue: Rights, Democracy, Institutions. New York: Cambridge University Press, 2019, 209.

Oliver, Peter C. "'A Constitution Similar in Principle to That of the United Kingdom': The Preamble, Constitutional Principles, and a Sustainable Jurisprudence" (2019), 65 McGill L.J. 207.

Ontario. Greater Toronto Area Task Force. Greater Toronto. Toronto, 1996.

Ontario. Legislative Assembly. Official Report of Debates (Hansard), No. 14, 1st Sess., 42nd Parl., August 2, 2018, p. 605.

Ontario. Office of the Premier. Ontario's Government for the People Announces Reforms to Deliver Better Local Government, July 27, 2018 (online: https://news.ontario.ca/en/release/49795/ontarios-government-for-the-people-announces-reforms-to-deliver-better-local-government; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC34_2_eng.pdf).

Pal, Michael. "The Unwritten Principle of Democracy" (2019), 65 McGill L.J. 269.

Rawls, John. Political Liberalism, Expanded ed. New York: Columbia University Press, 2005.

Roach, Kent, and David Schneiderman. "Freedom of Expression in Canada" (2013), 61 S.C.L.R. (2d) 429.

Rowe, Malcolm, and Nicolas Déplanche. "Canada's Unwritten Constitutional Order: Conventions and Structural Analysis" (2020), 98 Can. Bar Rev. 430.

Sen, Amartya. The Idea of Justice. Cambridge, Mass.: Belknap Press of Harvard University Press, 2009.

Siegel, David. "Ontario", in Andrew Sancton and Robert Young, eds., Foundations of Governance: Municipal Government in Canada's Provinces. Toronto: University of Toronto Press, 2009, 20.

Toronto Ward Boundary Review. Additional Information Report, August 2016 (online: https://static1.squarespace.com/static/53bc0914e4b0eb57996e4dee/t/57b5cc06b3db2b7747f917c3/1471532043560/TWBR.AdditionalInformationReport-AUG2016FINAL.pdf; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC34_3_eng.pdf).

Toronto Ward Boundary Review. Final Report. Toronto, 2016.

Toronto Ward Boundary Review. Options Report. Toronto, 2015.

Urbinati, Nadia. "Free Speech as the Citizen's Right", in Robert C. Post, Citizens Divided: Campaign Finance Reform and the Constitution. Cambridge, Mass.: Harvard University Press, 2014, 125.

Walters, Mark D. "Written Constitutions and Unwritten Constitutionalism", in Grant Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory. New York: Cambridge University Press, 2008 (2010 reprint), 245.

Weinrib, Jacob. "What is the Purpose of Freedom of Expression?" (2009), 67 U.T. Fac. L. Rev. 165.

Zhou, Han-Ru. "Legal Principles, Constitutional Principles, and Judicial Review" (2019), 67 Am. J. Comp. L. 889.

Zipkin, Saul. "The Election Period and Regulation of the Democratic Process" (2010), 18 Wm. & Mary Bill Rts. J. 533.

APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Tulloch, Miller, Nordheimer and Harvison Young JJ.A.), 2019 ONCA 732, 146 O.R. (3d) 705, 439 D.L.R. (4th) 292, 442 C.R.R. (2d) 348, 92 M.P.L.R. (5th) 1, [2019] O.J. No. 4741 (QL), 2019 CarswellOnt 14847 (WL Can.), setting aside a decision of Belobaba J., 2018 ONSC 5151, 142 O.R. (3d) 336, 416 C.R.R. (2d) 132, 80 M.P.L.R. (5th) 1, [2018] O.J. No. 4596 (QL), 2018 CarswellOnt 14928 (WL Can.). Appeal dismissed, Abella, Karakatsanis, Martin and Kasirer JJ. dissenting.

Glenn K. L. Chu and Diana W. Dimmer, for the appellant.

Robin K. Basu and Yashoda Ranganathan, for the respondent.

Michael H. Morris, for the intervener the Attorney General of Canada.

Mark Witten, for the intervener the Attorney General of British Columbia.

Paul Koven, for the intervener the Toronto District School Board.

Selwyn A. Pieters, for the intervener the Cityplace Residents' Association.

Adam Goldenberg, for the intervener the Canadian Constitution Foundation.

Guy Régimbald, for the intervener the International Commission of Jurists (Canada).

Stéphane Émard-Chabot, for the intervener the Federation of Canadian Municipalities.

Omar Ha-Redeye, for the intervener the Durham Community Legal Clinic.

Jamie Cameron, for the intervener the Centre for Free Expression at Ryerson University.

Geetha Philipupillai, for the intervener the Canadian Civil Liberties Association.

Christine Davies, for the interveners Art Eggleton, Barbara Hall, David Miller and John Sewell.

Alexi N. Wood, for the intervener the David Asper Centre for Constitutional Rights.

Donald K. Eady, for the intervener Progress Toronto.

Jason Madden, for the interveners the Métis Nation of Ontario and the Métis Nation of Alberta.

Nicolas M. Rouleau, for the intervener Fair Voting British Columbia.

The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by

The Chief Justice and Brown J. —

TABLE OF CONTENTS

	Paragraph
I. Introduction	1
II. Background	6
III. Issues	13
IV. Analysis	14
A. Freedom of Expression	14
(1) Principles of Charter Interpretation in the Context of Section 2(b)	14
(2) The Baier Framework	22
(3) Application	29
(a) Nature of the Claim	29
(b) Application of Baier	36
(c) Effective Representation	44
B. Democracy	48
(1) Interpretive and Gap-Filling Roles of Unwritten Constitutional Principles	49
(a) The Provincial Court Judges Reference	64
(b) The Secession Reference	67
(c) Babcock and Imperial Tobacco	70
(d) Trial Lawyers Association of British Columbia	74
(2) Relevance of the Democratic Principle to Municipal Elections	76
(a) Section 92(8) of the Constitution Act, 1867	79
(b) Section 3 of the Charter	81
(3) Conclusion on the Democratic Principle	83
V. Conclusion	85

I. Introduction

[ 1 ] While cast as a claim of right under s. 2(b) of the Canadian Charter of Rights and Freedoms, this appeal, fundamentally, concerns the exercise of provincial legislative authority over municipalities. The issue, simply put, is whether and how the Constitution of Canada restrains a provincial legislature from changing the conditions by and under which campaigns for elected municipal councils are conducted.

[ 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), 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), 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 ).

[ 3 ] Aside from one reference to s. 92(8) — and an acknowledgement that the Province of Ontario had constitutional authority to act as it did in this case — our colleague Abella J. all but ignores this decisive constitutional context (para. 112). And yet, these considerations loom large here. After the closing of a nomination period for elections to the Toronto City Council, the Province legislated a new, reduced ward structure for the City of Toronto and a correspondingly reduced Council. The City says that doing so was unconstitutional, because it limited the s. 2(b) Charter rights of electoral participants and violated the unwritten constitutional principle of democracy. It also, says the City, ran afoul of the constitutional requirements of effective representation, which it says flow from s. 2(b) of the Charter and s. 92(8) of the Constitution Act, 1867 by virtue of that same unwritten constitutional principle of democracy.

[ 4 ] None of these arguments have merit, and we would dismiss the City's appeal. In our view, the Province acted constitutionally. As to the s. 2(b) claim, the City seeks access to a statutory platform which must be considered under the framework stated in Baier. The change to the ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69 days between the Act coming into force and the election day. There was no substantial interference with the claimants' freedom of expression and thus no limitation of s. 2(b).

[ 5 ] Nor did the Act otherwise violate the Constitution. Unwritten constitutional principles cannot in themselves ground a declaration of invalidity under s. 52(1) of the Constitution Act, 1982, and there is no freestanding right to effective representation outside s. 3 of the Charter. Further, the unwritten constitutional principle of democracy cannot be used to narrow provincial authority under s. 92(8), or to read municipalities into s. 3.

II. Background

[ 6 ] In 2013, the City of Toronto engaged consultants to conduct the Toronto Ward Boundary Review of Toronto's then 44-ward structure. They recommended an expanded 47-ward structure, which the City adopted in 2016.

[ 7 ] On May 1, 2018, the City of Toronto campaign commenced and nominations opened in preparation for an election day on October 22, 2018. By the close of nominations on July 27, 2018, just over 500 candidates had registered to run in the 47 wards. That same day, the Government of Ontario announced its intention to introduce legislation reducing the size of Toronto City Council to 25 wards. On August 14, 2018, the Better Local Government Act, 2018, S.O. 2018, c. 11 ("Act"), came into force, reducing the number of wards from 47 to 25 (based on the boundaries of the federal electoral districts), and extending the nomination period to September 14.

[ 8 ] The City and two groups of private individuals applied on an urgent basis to the Ontario Superior Court of Justice challenging the constitutionality of these measures and seeking orders restoring the 47-ward structure. They argued that the Act breached Charter guarantees of freedom of expression, freedom of association, and equality, and that it violated the unwritten constitutional principles of democracy and the rule of law.

[ 9 ] The application judge agreed, finding two limits on s. 2(b) of the Charter ( 2018 ONSC 5151, 142 O.R. (3d) 336). First, he found that the Act limited the municipal candidates' s. 2(b) right to freedom of expression, a conclusion largely tied to the timing of the Act, enacted as it was during the election campaign. Secondly, he found that the Act limited municipal voters' s. 2(b) right to effective representation — despite the fact that effective representation is a principle of s. 3 (and not s. 2(b)) of the Charter — due to his conclusion that the ward population sizes brought about by the Act were too large to allow councillors to effectively represent their constituents. Neither of these limits could, he further held, be justified under s. 1 and he set aside the impugned provisions of the Act. As a result, the election was to proceed on the basis of the 47-ward system.

[ 10 ] The Province appealed and moved to stay the judgment pending appeal. The Court of Appeal for Ontario granted the stay on September 19, 2018, concluding that there was a strong likelihood that the Province's appeal would be successful and, on October 22, 2018, the Toronto municipal election proceeded on the basis of the 25-ward structure created by the Act ( 2018 ONCA 761, 142 O.R. (3d) 481). No issue is taken with the integrity of the election or the results thereof.

[ 11 ] When the Court of Appeal decided the Province's appeal on its merits, it divided. While the dissenters would have invalidated the Act as unjustifiably limiting freedom of expression, the majority allowed the appeal, finding no such limit ( 2019 ONCA 732, 146 O.R. (3d) 705). The City had advanced a positive rights claim — that is, a claim for a particular platform and not protection from state interference with the conveyance of a message. Consistent with the Baier framework governing such claims, the majority applied the factors stated in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, to conclude that the claim was not properly grounded in s. 2(b) of the Charter, and that the application judge had erred in finding that the Act substantially interfered with the candidates' freedom of expression. Further, he had erred in finding that the right to effective representation — guaranteed by s. 3 — applies to municipal elections and bears any influence over the s. 2(b) analysis. Finally, the majority held that unwritten constitutional principles do not confer upon the judiciary power to invalidate legislation that does not otherwise infringe the Charter; nor do they limit provincial legislative authority over municipal institutions. Though unwritten constitutional principles are sometimes used to fill gaps in the Constitution, no such gap exists here.

[ 12 ] The Court of Appeal appears to have granted the City public interest standing to argue the appeal (para. 28). The City's standing was not challenged before this Court.

III. Issues

[ 13 ] Two issues arise from the foregoing. First, did the Act limit (unjustifiably or at all) the freedom of expression of candidates and/or voters participating in the 2018 Toronto municipal election? And secondly, can the unwritten constitutional principle of democracy be applied, either to narrow provincial legislative authority over municipal institutions or to require effective representation in those institutions, so as to invalidate the Act?

IV. Analysis

A. Freedom of Expression

(1) Principles of Charter Interpretation in the Context of Section 2(b)

[ 14 ] — [ 21 ] [Paragraphs 14-21 address Charter interpretation principles and s. 2(b) framework, including the Irwin Toy and Baier frameworks for negative and positive rights claims.]

(2) The Baier Framework

[ 22 ] — [ 28 ] [Paragraphs 22-28 elaborate on the Baier framework for positive claims under s. 2(b), refining the three Dunmore factors into a single core question of substantial interference.]

(3) Application

(a) Nature of the Claim

[ 29 ] — [ 35 ] [Paragraphs 29-35 characterize the City's claim as a positive rights claim requiring access to a statutory platform.]

(b) Application of Baier

[ 36 ] — [ 43 ] [Paragraphs 36-43 apply the Baier framework to find no substantial interference with freedom of expression, given candidates had 69 days to reorient their campaigns.]

(c) Effective Representation

[ 44 ] — [ 47 ] [Paragraphs 44-47 hold that effective representation is a s. 3 principle not applicable to municipal elections and cannot be imported into s. 2(b).]

B. Democracy

(1) Interpretive and Gap-Filling Roles of Unwritten Constitutional Principles

[ 48 ] — [ 63 ] [Paragraphs 48-63 analyze the permissible roles of unwritten constitutional principles: interpretation of constitutional text and gap-filling structural doctrines, but not independent bases for invalidating legislation.]

(a) The Provincial Court Judges Reference

[ 64 ] In the Provincial Court Judges Reference, this Court considered whether judicial independence"an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867" (para. 109), restricted the extent to which a provincial government could reduce the salaries of provincial court judges. That principle, the Court held, emerged from the reading together of s. 11(d) of the Charter, and the preamble and ss. 96 to 100 of the Constitution Act, 1867 (para. 124). For the majority, Lamer C.J. was explicit in emphasizing the merely interpretive role of the unwritten constitutional principle of judicial independence in supplementing the text of ss. 96 and 100:

The point which emerges from this brief discussion is that the interpretation of ss. 96 and 100 has come a long way from what those provisions actually say. This jurisprudential evolution undermines the force of the argument that the written text of the Constitution is comprehensive and definitive in its protection of judicial independence. The only way to explain the interpretation of ss. 96 and 100, in fact, is by reference to a deeper set of unwritten understandings which are not found on the face of the document itself. [First and second emphasis added; third emphasis in original; para. 89.]

[ 65 ] In other words, where the constitutional text is not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids. This is an approach that resorts to unwritten constitutional principles where necessary in order to give meaning and effect to constitutional text. It is thus not dissimilar to this Court's approach to purposive constitutional interpretation, which begins with and is grounded in the text ( Quebec (Attorney General), at paras. 8-10); unwritten constitutional principles inform the purpose of the provisions of the text, thus guiding the purposive definition (R. Elliot"References, Structural Argumentation and the Organizing Principles of Canada's Constitution" (2001), 80 Can. Bar Rev. 67, at p. 84). To be clear, this must be a textually faithful exercise; the text remains of primordial significance to identifying the purpose of a right, being "the first indicator of purpose" ( Quebec (Attorney General), at para. 11), and the application of constitutional principles to the interpretive exercise may not allow a court to overshoot that purpose (paras. 4 and 10-11). More particularly, and as the Court affirmed in Quebec (Attorney General), the Constitution "is not 'an empty vessel to be filled with whatever meaning we might wish from time to time'" (para. 9, quoting Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 394). Rather, constitutional interpretation "must first and foremost have reference to, and be constrained by, [its] text" (para. 9).

[ 66 ] Our colleague resists this, notwithstanding the clear direction in Quebec (Attorney General) regarding the centrality to the interpretational exercise of constitutional text. Indeed, her approach is completely the opposite: far from being the primary element of the Constitution whose interpretation can be informed by unwritten constitutional principles, the text itself "emanates" from those principles, and thus it is the principles which are paramount (para. 168). This is entirely inconsistent with the Provincial Court Judges Reference, upon which she relies. Lamer C.J. applied the unwritten constitutional principle of judicial independence to guide his interpretation of the scope of provincial authority under s. 92(14) of the Constitution Act, 1867 and to fill a gap where provincial courts dealing with non-criminal matters were concerned (paras. 107-8). None of this supports applying unwritten constitutional principles as bases for invalidating legislation.

(b) The Secession Reference

[ 67 ] In Secession Reference, this Court said:

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in [Reference re Resolution to Amend the Constitution], supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. [para. 54]

A faithful reading of this passage must acknowledge the force ascribed to unwritten constitutional principles. Of significance, however, is that such force was conditioned by the nature of the questions posed in the reference — the conditions for secession of a province from Confederation — which the Court was called upon to answer. The case combined "legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity" (para. 1, quoting Reference re Manitoba Language Rights, at p. 728) to which the Court proposed an answer (being an obligation to negotiate in some circumstances) which, while constituting a "legal framework" in the form of a set of rules to legitimize secession, was enforceable only politically as "it would be for the democratically elected leadership of the various participants to resolve their differences" (para. 101 (emphasis added); see also Elliot, at p. 97).

[ 68 ] Of course, the Court made clear that it had identified "binding obligations under the Constitution of Canada" (para. 153), and that a breach of those obligations would occasion "serious legal repercussions" (para. 102). But the Court also acknowledged the "non-justiciability of [the] political issues" involved (para. 102), which meant that the Court could have "no supervisory role" over the political negotiations (para. 100). Recognizing that the "reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm" (para. 153), the Court fashioned rules in the event of whose breach the "appropriate recourse" would lie in "the workings of the political process rather than the courts" (para. 102). This is another instance of the separation of powers: courts do not supervise the legislature or the executive as to political process.

[ 69 ] Nothing, therefore, in the Secession Reference supports the proposition that unwritten constitutional principles can serve as an independent basis to invalidate legislation. While the obligations for the respective parties in that case had legal force by way of a judicial declaration, how that declaration would be given effect — that is, enforced — was deemed a question of political process, not legal process. Here again, as in the case of constitutional interpretation, the structural gap-filling role of unwritten constitutional principles was not and, we say, could not, be applied to invalidate legislation in the sense of declaring it under s. 52 to be of no force or effect.

(c) Babcock and Imperial Tobacco

[ 70 ] At issue in Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, was the constitutionality of a provision of the Canada Evidence Act, R.S.C. 1985, c. C-5, that allowed for an exception to disclosure, in litigation, based on Cabinet confidence. The respondents argued that the provision was ultra vires Parliament due to its inconsistency with the unwritten constitutional principles of the rule of law, judicial independence, and the separation of powers (by allowing the executive to prevent disclosure of evidence of its own unconstitutional conduct). McLachlin C.J., writing for the majority, held that "[a]lthough the unwritten constitutional principles are capable of limiting government actions, . . . they do not do so in this case" (para. 54 (emphasis added)). She reached this conclusion on the basis that "unwritten principles must be balanced against the principle of Parliamentary sovereignty" (para. 55), concluding:

It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government. [para. 57]

[ 71 ] McLachlin C.J.'s statement that unwritten constitutional principles are "capable of limiting government actions" was later explained by this Court in Imperial Tobacco. There, legislation authorizing action by the Province of British Columbia against tobacco manufacturers was challenged on the basis that it was inconsistent with, inter alia, the unwritten constitutional principle of the rule of law. For the Court, Major J. unequivocally rejected the appellants' proposed use of the rule of law to invalidate legislation for two reasons, only one of which is of relevance here:

. . . the appellants' arguments overlook the fact that several constitutional principles other than the rule of law that have been recognized by this Court — most notably democracy and constitutionalism — very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms). Put differently, the appellants' arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box. [Emphasis added; para. 66.]

[ 72 ] In other words, unwritten constitutional principles are indeterminate, such that they could be in theory deployed not only in service of invalidating legislation, but of upholding it. Major J. continued: the recognition of an unwritten constitutional principle such as the rule of law "is not an invitation to trivialize or supplant the Constitution's written terms", nor "is it a tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that courts give effect to the Constitution's text, and apply, by whatever its terms, legislation that conforms to that text" (para. 67). From this, it follows that the statement in Babcock that unwritten constitutional principles are "capable of limiting government actions" is to be understood in a narrow and particular sense: legislative measures are restrained by the unwritten principle of the rule of law"but only in the sense that they must comply with legislated requirements as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed)" ( Imperial Tobacco, at para. 60). Again, this understanding of unwritten constitutional principles precludes entirely their application to invalidate legislation under s. 52.

[ 73 ] This, we would add, is a complete answer to our colleague Abella J.'s assertions that this Court has "never, to date, limited" the role of unwritten constitutional principles, and that their interpretive role is not "narrowly constrained by textualism" (paras. 171 and 179). Our colleague reads Imperial Tobacco as narrowing the use of one specific unwritten constitutional principle — the rule of law — and not unwritten constitutional principles generally. But the problem of indeterminacy would inevitably arise with the use of any unwritten constitutional principle to invalidate legislation. Imperial Tobacco thus unequivocally affirmed both a narrow interpretive role for unwritten principles, and the primacy of the text in constitutional adjudication.

(d) Trial Lawyers Association of British Columbia

[ 74 ] In Trial Lawyers Association of British Columbia, this Court was called upon to decide the constitutionality of court hearing fees imposed by British Columbia that denied some people access to the courts. For the majority, McLachlin C.J. held that those fees, enacted pursuant to s. 92(14) of the Constitution Act, 1867, violated s. 96 of the Constitution Act, 1867 as they impermissibly infringed on the jurisdiction of superior courts by denying some people access to the courts (paras. 1-2). In obiter, she added that the connection between s. 96 and access to justice was "further supported by considerations relating to the rule of law" (para. 38), as "[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice" (para. 38, quoting B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, at p. 230). This was, she said"consistent with the approach adopted by Major J. in Imperial Tobacco" (para. 37):

The legislation here at issue — the imposition of hearing fees — must conform not only to the express terms of the Constitution, but to the "requirements . . . that flow by necessary implication from those terms" (para. 66). The right of Canadians to access the superior courts flows by necessary implication from the express terms of s. 96 of the Constitution Act, 1867 as we have seen. It follows that the province does not have the power under s. 92(14) to enact legislation that prevents people from accessing the courts. [Emphasis added; para. 37.]

[ 75 ] In our view, McLachlin C.J.'s invocation of Major J.'s "necessary implication" threshold from Imperial Tobacco signifies that, where unwritten constitutional principles are used as interpretive aids, their substantive legal force must arise by necessary implication from the Constitution's text. We therefore see nothing in this that is inconsistent with the Provincial Court Judges Reference and, in particular, with the limited scope of application of unwritten constitutional principles. The rule of law was used in Trial Lawyers Association of British Columbia as an interpretive aid to s. 96, which in turn was used to narrow provincial legislative authority under s. 92(14). The rule of law was not being used as an independent basis for invalidating the impugned court fees. In this way, McLachlin C.J.'s reasoning simply reflects a purposive interpretation of s. 96 informed by unwritten constitutional principles.

(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] S.C.R. 100; Switzman v. Elbling, [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.

V. Conclusion

[ 85 ] We would dismiss the appeal.

The reasons of Abella, Karakatsanis, Martin and Kasirer JJ. were delivered by

Abella J. —

[ 86 ] Elections are to democracy what breathing is to life, and fair elections are what breathe life into healthy democracies. They give the public a voice into the laws and policies they are governed by, and a chance to choose who will make those laws and policies. It is a process of reciprocal political discourse.

[ 87 ] The rules of an election, including the electoral boundaries and the timelines for campaigns, structure the process of reciprocal dialogue between candidates and voters in their electoral districts. The final act of voting, itself a form of political expression, is the culmination of the process of deliberative engagement throughout an election period. The stability of the electoral process is therefore crucial not only to political legitimacy, but also to the rights of candidates and voters to meaningfully engage in the political discourse necessary for voters to cast an informed vote, and for those elected to govern in response to the expressed views of the electorate.

[ 88 ] — [ 155 ] [Paragraphs 88-155 of the dissent analyze the framework for s. 2(b) claims in the electoral context, the distinction between positive and negative rights, the application of the Irwin Toy framework to find a breach, and the s. 1 analysis.]

[ 156 ] The purpose of the s. 2(b) right is not merely to restrain the government from interfering with expression, but also to cultivate public discourse "as an instrument of democratic government" (Hogg and Wright, at p. 43-8; see also Weinrib). Political discourse is at the heart of s. 2(b). Protecting the integrity of reciprocal political discourse among candidates and voters during an election period is therefore integral to s. 2(b)'s purpose. Elevating the legal threshold, as the majority proposes to do by applying Baier, adds a gratuitous hurdle, making it harder to prove a breach of this core aspect of s. 2(b) than other expressive activities. What should be applied instead is the foundational framework in Irwin Toy, which simply asks whether the activity in question falls within the scope of s. 2(b) and whether the government action, in purpose or effect, interfered with that expressive activity.

[ 157 ] Applying that framework, it is clear that the timing of the legislation violated s. 2(b) of the Charter. By radically redrawing electoral boundaries during an active election that was almost two-thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse.

[ 158 ] This brings us to s. 1 of the Charter. The purpose of the s. 1 analysis is to determine whether the state can justify the limitation as "demonstrably justified in a free and democratic society" ( Charter, s. 1; Fraser v. Canada (Attorney General), 2020 SCC 28, at para. 125). The limitation on s. 2(b) rights in this case was the timing of the legislative changes.

[ 159 ] But rather than explaining the purpose and justification for the timing of the changes, Ontario relied on the pressing and substantial objectives of the changes themselves as the basis for the s. 1 analysis, saying they were to achieve voter parity, improve efficiency and save costs. This was set out in the press release announcing the proposed legislation, which stated: "We ran on a commitment to restore accountability and trust, to reduce the size and cost of government, including an end to the culture of waste and mismanagement" (Office of the Premier, Ontario's Government for the People Announces Reforms to Deliver Better Local Government, July 27, 2018 (online)). And at the second reading of the legislation, the Minister of Municipal Affairs and Housing, the Hon. Steve Clark, declared:

During the recent provincial election campaign, my caucus colleagues and I heard very strongly from Ontarians that they want us to respect those taxpayers' dollars. We heard very clearly from Ontarians that government is supposed to work for them. I think Ontario sent a very clear message on June 7 that they want a government that looks after those taxpayers' dollars, and that is exactly what we're doing with this bill.

So, Speaker, I want to get into some of the details of the bill, and specifically I want to talk first about the city of Toronto. The bill, if passed, would reduce the size of Toronto city council to 25 councillors from the present 47 plus the mayor. This would give the taxpayers of Toronto a streamlined, more effective council that is ready to work quickly and puts the needs of everyday people first.

(Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 14, 1st Sess., 42nd Parl., August 2, 2018, at p. 605)

[ 160 ] Leaving aside that voter parity was hardly mentioned in the legislative debates, this Court has never found voter parity to be the electoral lodestar, asserting, on the contrary, that the values of a free and democratic society "are better met by an electoral system that focuses on effective representation than by one that focuses on mathematical parity" ( Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 188).

[ 161 ] But of overriding significance, the government offered no explanation, let alone a pressing and substantial one, for why the changes were made in the middle of an ongoing election. There was no hint of urgency, nor any overwhelming immediate policy need.

[ 162 ] In the absence of any evidence or explanation for the timing of the Act, no pressing and substantial objective exists for this limitation and it cannot, therefore, be justified in a free and democratic society. The legislation is, as a result, an unjustified breach of s. 2(b).

[ 163 ] While this dispenses with the merits of the appeal, the majority's observations circumscribing the scope and power of unwritten constitutional principles in a way that reads down this Court's binding jurisprudence warrants a response.

[ 164 ] In the Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (" Secession Reference"), the Court identified the unwritten constitutional principles of democracy, judicial independence, federalism, constitutionalism and the rule of law, and the protection of minorities. These principles are derived from the preamble to the Constitution Act, 1867, which describes our Constitution as "a Constitution similar in Principle to that of the United Kingdom" ( Secession Reference, at paras. 44-49; see also P. C. Oliver"'A Constitution Similar in Principle to That of the United Kingdom': The Preamble, Constitutional Principles, and a Sustainable Jurisprudence" (2019), 65 McGill L.J. 207).

[ 165 ] The precedential Constitution of the United Kingdom is not a written document, but is comprised of unwritten norms, Acts of Parliament, Crown prerogative, conventions, custom of Parliament, and judicial decisions, among other sources (Oliver, at p. 216; M. Rowe and N. Déplanche"Canada's Unwritten Constitutional Order: Conventions and Structural Analysis" (2020), 98 Can. Bar Rev. 430, at p. 438). Our Constitution, as a result"embraces unwritte[n] as well as written rules" ( Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 ("Provincial Judges Reference"), at para. 92, per Lamer C.J.).

[ 166 ] It is notable that many Parliamentary systems, notwithstanding their different constitutional arrangements, have also recognized that unwritten constitutional principles have full legal force and can serve as substantive limitations on all branches of government. [4]

[ 167 ] Unwritten constitutional principles have been held to be the "lifeblood" of our Constitution ( Secession Reference, at para. 51) and the "vital unstated assumptions upon which the text is based" (para. 49). They are so foundational that including them in the written text "might have appeared redundant, even silly, to the framers" (para. 62).

[ 168 ] Unwritten constitutional principles are not, as the majority suggests, merely "context" or "backdrop" to the text. On the contrary, unwritten principles are our Constitution's most basic normative commitments from which specific textual provisions derive. The specific written provisions are "elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867" ( Provincial Judges Reference, at para. 107; see also Switzman, at p. 306, per Rand J.). Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles. In other words, the text is not exhaustive of our Constitution ( New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, at p. 378, per McLachlin J.).

[ 169 ] Apart from written provisions of the Constitution, principles deriving from the Constitution's basic structure may constrain government action. Those principles exist independently of and, as in the case of implied fundamental rights before the promulgation of the Charter, prior to the enactment of express constitutional provisions (see e.g. Reference re Alberta Statutes, per Duff C.J.; Switzman, at pp. 327-28, per Abbott J.; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, per Beetz J.). As Beetz J. wrote for the majority in OPSEU, at p. 57"quite apart from Charter considerations, the legislative bodies in this country must conform to these basic structural imperatives and can in no way override them":

There is no doubt in my mind that the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. In the words of Duff C.J. in Reference re Alberta Statutes, at p. 133"such institutions derive their efficacy from the free public discussion of affairs . . . ." and, in those of Abbott J. in Switzman v. Elbling, at p. 328, neither a provincial legislature nor Parliament itself can "abrogate this right of discussion and debate". Speaking more generally, I hold that neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure. [p. 57]

[ 170 ] This leads inescapably to the conclusion — supported by this Court's jurisprudence until today — that unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any express constitutional provision but is fundamentally at odds with our Constitution's "internal architecture" or "basic constitutional structure" ( Secession Reference, at para. 50; OPSEU, at p. 57). This would undoubtedly be a rare case. But with respect, the majority's decision to foreclose the possibility that unwritten principles be used to invalidate legislation in all circumstances, when the issue on appeal does not require them to make such a sweeping statement, is imprudent. It not only contradicts our jurisprudence, it is fundamentally inconsistent with the case law confirming that unwritten constitutional principles can be used to review legislation for constitutional compliance. Reviewing legislation for constitutional compliance means upholding, revising or rejecting it. Otherwise, there is no point to reviewing it.

[ 171 ] In the Secession Reference, a unanimous Court confirmed that "[u]nderlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have 'full legal force', as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action" (para. 54, quoting Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 ("Patriation Reference"); see also Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 54, per McLachlin C.J.). That means they can be used to assess state action for constitutional compliance, which in turn can lead to endorsing, rejecting, limiting or expanding the acts of the executive or legislative branches of government. Again, with respect, we have never, to date, limited their role in the manner the majority proposes.

[ 172 ] The Court's reference to Patriation Reference dispels any doubt as to what it meant when it said that these principles have "full legal force". In the passage cited approvingly from the Patriation Reference, Martland and Ritchie JJ., dissenting in part, explained that unwritten constitutional principles "have been accorded full legal force in the sense of being employed to strike down legislative enactments" (p. 845 (emphasis added)). While Martland and Ritchie JJ. dissented in the result in the Patriation Reference, they cited judgments in support of the principle of federalism that remain good law and were viewed as necessary to "preserving the integrity of the federal structure" (p. 821), notably Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326 (P.C.), and Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31 (see also Secession Reference, at para. 81, citing Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, at p. 71). In other words, structural doctrine helps identify what the unwritten principles are, it does not limit their role.

[ 173 ] This Court expressly endorsed the unwritten principles of democracy as the "baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated" ( Secession Reference, at para. 62); the rule of law as "a fundamental postulate of our constitutional structure" ( Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142, per Rand J.)"the very foundation of the Charter" ( B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, at p. 229, per Dickson C.J.), and the source of judicial authority to override legislative intent "where giving effect to that intent is precluded by the rule of law" ( Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 23); federalism as "a foundational principle of the Canadian Constitution" ( References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 3, per Wagner C.J.); and judicial independence as a "constitutional imperative" in light of "the central place that courts hold within the Canadian system of government" ( Provincial Judges Reference, at para. 108). And of course, the unwritten constitutional principle of the honour of the Crown has been affirmed by this Court and accorded full legal force ( Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42, per Binnie J.; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 16, per McLachlin C.J.).

[ 174 ] In the Provincial Judges Reference, this Court relied, in part, on the unwritten constitutional principle of judicial independence to strike down legislative provisions in various provincial statutes. The issue was whether the principle of judicial independence restricts the manner and extent to which provincial legislatures can reduce the salaries of provincial court judges. While the principle of judicial independence finds expression in s. 11(d) of the Charter, which guarantees the right of an accused to an independent tribunal, and ss. 96 to 100 of the Constitution Act, 1867, which govern superior courts in the province, the unwritten principle of judicial independence was used to fill a gap in the written text to cover provincial courts in circumstances not covered by the express provisions. Writing for the majority, Lamer C.J. held that

[j]udicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located. [para. 109]

[ 175 ] In Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, this Court invoked the unwritten principle of the rule of law to create a novel constitutional remedy — the suspended declaration of constitutional invalidity. The Court developed this remedy notwithstanding that the text of s. 52(1) of the Constitution Act, 1982 states that unconstitutional laws are "of no force or effect" suggesting, when interpreted technically and in isolation from underlying constitutional principles, that declarations of invalidity can only be given immediate effect. As Karakatsanis J. wrote for the majority in Ontario (Attorney General) v. G, 2020 SCC 38, although s. 52(1) "does not explicitly provide the authority to suspend a declaration, in adjudicating constitutional issues, courts 'may have regard to unwritten postulates which form the very foundation of the Constitution of Canada'" (para. 120, quoting Manitoba Language Rights, at p. 752).

[ 176 ] Beyond the Reference context, in MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, this Court used the rule of law principle to read down s. 47(2) of the Young Offenders Act, R.S.C. 1985, c. Y-1, which granted youth courts exclusive jurisdiction over contempt of court by a young person, so as not to oust the jurisdiction of superior courts. Writing for the majority, Lamer C.J. held that Parliament cannot remove the contempt power from a superior court without infringing "the principle of the rule of law recognized both in the preamble and in all our conventions of governance" (para. 41).

[ 177 ] And in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, this Court struck down a regulation imposing hearing fees that were found to deny people access to the courts based in part on the unwritten constitutional principle of the rule of law, and relatedly, access to justice.

[ 178 ] The majority's emphasis on the "primordial significance" of constitutional text is utterly inconsistent with this Court's repeated declarations that unwritten constitutional principles are the foundational organizing principles of our Constitution and have full legal force. Being unwritten means there is no text. They serve to give effect to the structure of our Constitution and "function as independent bases upon which to attack the validity of legislation . . . since they have the same legal status as the text" (R. Elliot"References, Structural Argumentation and the Organizing Principles of Canada's Constitution" (2001), 80 Can. Bar Rev. 67, at p. 95; see also H.-R. Zhou"Legal Principles, Constitutional Principles, and Judicial Review" (2019), 67 Am. J. Comp. L. 889, at p. 924). By definition, an emphasis on the words of the Constitution demotes unwritten principles to a diluted role. "Full legal force" means full legal force, independent of the written text.

[ 179 ] Unwritten constitutional principles do not only "give meaning and effect to constitutional text" and inform "the language chosen to articulate the specific right or freedom", they also assist in developing an evolutionary understanding of the rights and freedoms guaranteed in our Constitution, which this Court has long described as "a living tree capable of growth and expansion" ( Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156, quoting Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136). Unwritten constitutional principles are a key part of what makes the tree grow ( Secession Reference, at para. 52; Provincial Judges Reference, at para. 106). This Court has never held that the interpretive role of unwritten constitutional principles is narrowly constrained by textualism.

[ 180 ] Unwritten constitutional principles are, additionally, substantive legal rules in their own right. As Lamer C.J. wrote in the Provincial Judges Reference:

[The preamble] recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate. As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law. [Emphasis added; para. 95.]

[ 181 ] Professor Mark D. Walters effectively explained why the role of unwritten constitutional principles has not been limited as the majority suggests:

The relationship between unwritten and written constitutional law in Canada may be conceived in different ways. At one point, Chief Justice Antonio Lamer observed that the role of unwritten principles is "to fill out gaps in the express terms of the constitutional scheme." This statement might suggest that judges are just reading between the lines in order to make the text complete. Or, to use another metaphor, judges are constructing bridges over the waters that separate islands of constitutional text, creating a unified and useable surface.

But the gap-filling and bridge metaphors do not capture fully the theory of unwritten constitutionalism as it has developed in the Canadian cases . . . . We must alter the bridge metaphor accordingly: The textual islands are merely the exposed parts of a vast seabed visible beneath the surrounding waters, and the bridges constructed by judges between these islands are actually causeways moulded from natural materials brought to the surface from this single underlying foundation. The constitutional text is not just supplemented by unwritten principles; it rests upon them. [Emphasis added; footnote omitted.]

("Written Constitutions and Unwritten Constitutionalism", in G. Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory (2008 (reprinted 2010)), 245, at pp. 264-65)

[ 182 ] It is also difficult to understand the need for the majority's conclusion that using unwritten constitutional principles to strike down legislation would circumvent the legislative override power in s. 33 of the Charter. This question is not directly before us.

[ 183 ] Finally, I see no merit to the majority's argument that courts cannot declare legislation invalid on the basis of unwritten constitutional principles because s. 52(1) of the Constitution Act, 1982 only applies to written text. This argument extinguishes the entire jurisprudence establishing that unwritten principles have full legal force. Section 52(1) provides that "any law that is inconsistent with the provisions of the Constitution is . . . of no force or effect". The majority's reading of s. 52(1), like much of the rest of its analysis, is a highly technical exegetical exercise designed to overturn our binding authority establishing that unwritten constitutional principles are a full constitutional partner with the text, including for the purposes of s. 52 ( New Brunswick Broadcasting Co., at pp. 375-78; Manitoba Language Rights, at p. 752; Ontario (Attorney General) v. G, at para. 120).

[ 184 ] It is true that in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, the Court questioned whether the rule of law could be used to invalidate legislation based on its content, but this was based on the specific contours of one unwritten principle, not unwritten principles in general. The Court did not constrain the reach of judicial independence, the other unwritten constitutional principle raised in that case. As Major J. explained in describing the limits of the content of the rule of law:

. . . it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation. The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies. The second principle means that legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that state officials' actions be legally founded. See R. Elliot"References, Structural Argumentation and the Organizing Principles of Canada's Constitution" (2001), 80 Can. Bar Rev. 67, at pp. 114-15. [para. 59]

Never, however, has this Court, until now, foreclosed the possibility of all unwritten constitutional principles ever invalidating legislation.

[ 185 ] The inevitable consequence of this Court's decades-long recognition that unwritten constitutional principles have "full legal force" and "constitute substantive limitations" on all branches of government is that, in an appropriate case, they may well continue to serve, as they have done in the past, as the basis for declaring legislation unconstitutional ( Secession Reference, at para. 54; see also Elliot, at p. 95; (A.) J. Johnson"The Judges Reference and the Secession Reference at Twenty: Reassessing the Supreme Court of Canada's Unfinished Unwritten Constitutional Principles Project" (2019), 56 Alta. L. Rev. 1077, at p. 1082; P. Bobbitt, Constitutional Fate: Theory of the Constitution (1982)). There is no need, as a result, to constrain the role of unwritten constitutional principles and newly declare that their full legal force does not include the ability, in appropriate circumstances, to declare legislation to be constitutionally invalid.

[ 186 ] I would allow the appeal and restore Belobaba J.'s declaration that the timing of the Act unjustifiably infringed s. 2(b) of the Charter.

Appeal dismissed, Abella, Karakatsanis, Martin and Kasirer JJ. dissenting.

Solicitor for the appellant: City of Toronto, Toronto.

Solicitor for the respondent: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Toronto.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.

Solicitor for the intervener the Toronto District School Board: Toronto District School Board, Toronto.

Solicitor for the intervener the Cityplace Residents' Association: Selwyn A. Pieters, Toronto.

Solicitors for the intervener the Canadian Constitution Foundation: McCarthy Tétrault, Toronto.

Solicitors for the intervener the International Commission of Jurists (Canada): Gowling WLG (Canada), Ottawa.

Solicitor for the intervener the Federation of Canadian Municipalities: Federation of Canadian Municipalities, Ottawa.

Solicitor for the intervener the Durham Community Legal Clinic: Durham Community Legal Clinic, Oshawa.

Solicitor for the intervener the Centre for Free Expression at Ryerson University: Borden Ladner Gervais, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Goldblatt Partners, Toronto.

Solicitors for the interveners Art Eggleton, Barbara Hall, David Miller and John Sewell: Goldblatt Partners, Toronto.

Solicitors for the intervener the David Asper Centre for Constitutional Rights: St. Lawrence Barristers, Toronto.

Solicitors for the intervener Progress Toronto: Paliare Roland Rosenberg Rothstein, Toronto.

Solicitors for the interveners the Métis Nation of Ontario and the Métis Nation of Alberta: Pape Salter Teillet, Toronto.

Solicitor for the intervener Fair Voting British Columbia: Nicolas M. Rouleau, Toronto.

[1] This Court's jurisprudence has involved, for example, restrictions on: publication ( Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527); obscene content ( R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120); advertising ( Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295); language ( Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790); harmful content ( R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Keegstra, [1990] 3 S.C.R. 697); manner or place of expression ( Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141); who can participate in a statutory platform for expression ( Haig v. Canada, [1993] 2 S.C.R. 995; Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673); voluntary expression (such as mandatory letters of reference or public health warnings) ( Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610); expenditures on expression ( Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827); or access to information (such as court proceedings or government documents) ( Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815). This case does not fall into any of these categories.

[2] Haig v. Canada, [1993] 2 S.C.R. 995 (s. 2(b) challenge to exclusion of Quebec resident from federal referendum); Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627 (s. 2(b) challenge to exclusion of Native Women's Association of Canada from federal funding to present on Charlottetown Accord); Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, overruled by Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 (s. 2(d) challenge to exclusion of RCMP members from labour relations legislation); Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 (s. 2(d) challenge to exclusion of agricultural workers from labour relations legislation).

[3] The same legal standard has applied to claims with respect to: freedom of association under s. 2(d) ( Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391 (right to collective bargaining); Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3 (right to good faith bargaining); Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 (right to statutory protections for collective bargaining)); the right to life, liberty and security of the person under s. 7 ( Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (physician-assisted dying); R. v. Morgentaler, [1988] 1 S.C.R. 30 (abortion); Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 (safe injection facility)); and equality under s. 15 ( Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 (interpretation services for deaf hospital patients); Vriend v. Alberta, [1998] 1 S.C.R. 493 (legislative protection against discrimination on the basis of sexual orientation)), to name a few examples.

[4] See also other jurisdictions in which unwritten constitutional principles have been accorded full legal force in the sense of being employed to invalidate legislative or executive action: United Kingdom ( R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373 (parliamentary sovereignty and accountability); R. (on the application of Jackson) v. Attorney General, [2005] UKHL 56, [2006] 1 A.C. 262, at para. 102, per Lord Steyn (judicial independence); R. (Privacy International) v. Investigatory Powers Tribunal, [2019] UKSC 22, [2020] A.C. 491, at paras. 100 and 144, per Lord Carnwath (judicial independence and rule of law); AXA General Insurance Ltd. v. HM Advocate, [2011] UKSC 46, [2012] 1 A.C. 868, at para. 51, per Lord Hope (judicial independence and rule of law)); Australia ( Brandy v. Human Rights and Equal Opportunity Commission (1995), 183 C.L.R. 245 (H.C.) (judicial independence); Kable v. Director of Public Prosecutions (NSW) (1996), 189 C.L.R. 51 (H.C.) (federalism); Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997), 190 C.L.R. 410 (H.C.) (federalism); Lange v. Australian Broadcasting Corporation (1997), 189 C.L.R. 520 (H.C.) (freedom of political communication); Roach v. Electoral Commissioner, [2007] HCA 43, 233 C.L.R. 162 (the right to vote)); South Africa ( South African Association of Personal Injury Lawyers v. Heath, [2000] ZACC 22, 2001 (1) S.A. 883 (separation of powers); Fedsure Life Assurance Ltd. v. Greater Johannesburg Transitional Metropolitan Council, [1998] ZACC 17, 1999 (1) S.A. 374, at para. 58 (legality)); Germany ( Elfes Case, BVerfG, 1 BvR 253/56, Decision of January 16, 1957 (rule of law and social welfare state)); and India ( Kesavananda v. State of Kerala, A.I.R. 1973 S.C. 1461, at pp. 1899-1900 (secularism, democracy and individual freedom)).