It is not often that I can write a post in full agreement with a judicial decision. Perhaps this says something about my constitution. No matter, the Court of Appeal for Ontario’s recent decision in Toronto v Ontario is an admirable decision that strikes all of the right notes when it comes to interpreting overlapping Charter rights and the use of unwritten constitutional principles. Binding the decision together is a deep respect for the Rule of Law—the Constitution as textually enacted and in its appropriate purposive context.
In this post, I first briefly review the setup of the case, including the trial level decision at issue. Then I address two aspects of the Court’s reasoning that, I think, hit the nail on the head (1) Charter rights must be interpreted according to their distinct purposes and (2) unwritten constitutional principles cannot subvert the text of the Constitution. These may be obvious points to some, but this case illustrates why results-oriented reasoning at the trial level subverted these well-worn constitutional principles.
Facts and Setup
As is well-known, right before a municipal election, the Government of Ontario announced that it intended to introduce legislation that would essential cut the size of Toronto’s municipal council in half. The thinking behind the cut was to redraw the electoral boundaries along the same lines as the federal and provincial riding districts . Bill 5 introducing these changes was passed and the relevant statute came into force on August 14, 2018.
The City of Toronto among others challenged the statute in the Superior Court, most notably under s.2(b) of the Charter. Their challenge succeeded. Belobaba J found that (1) Bill 5 was enacted in the middle of an election campaign, disrupting candidates’ campaigns, making it so that candidates lost a right to effective campaign speech and (2) it doubled the population size of wards in the city, breaching a voter’s right to “effective representation.” Implicit in this conclusion are legal findings that s.2(b) of the Charter protects (1) a right to “effective representation”, relying on s.3 of the Charter and (2) “effective speech” in the context of campaigns. Belobaba J, on these bases, concluded that the statute infringed s.2(b) of the Charter, and could not be saved under s.1.
The Court of Appeal for Ontario reversed. Miller JA for the majority began the analysis with an important observation:
To interpret the Charter it is necessary to have regard to its basic structure, and to respect the decisions that were made to constitutionally guarantee some, but not all, possible rights, using particular formulations rather than others. These constraints on constitutional interpretation have been emphasized by the Supreme Court since the earliest years of the Charter….
With regards to s.2(b), which is an admittedly broad provision, Miller JA noted that there was a particular purposive and textual context in which the right had to be placed:
….the freedom of expression provision is the product of a particular context and history and is not so open ended as to be capable of supporting every conceivable rationale related to the exercise of expression…it is necessary to identify the actual purpose underlying this particular specification of the right, and not to impose others. The underlying purpose constrains and guides interpretation of the text of the Charter; it cannot be used to set the text aside .
Applying these principles, the Court first concluded that Belobaba J was wrong to conclude that s.2(b) protected a right to effective speech. Legislation that
…changes some state of affairs (such as the number of electoral wards), such that a person’s past communications lose their relevance and no longer contribute to the desired project (election to public office) is not, on that basis, a limitation of anyone’s rights under s.2(b)….
The Court also concluded that Belobaba J erred in importing notions of s.3 of the Charter into the s.2(b) analysis. While “[r]ights protections often overlap in protecting a single activity…”  “the basic structure of the Charter must be respected” . Miller JA concluded that “Instead of working from the text of the Charter and giving effect to the constitutional settlement it established, the application judge worked from the premise that, if he concluded that the Act was unfair to candidates and voters, it must therefore be unconstitutional. The Constitution does not work that way. No constitution does.”
Finally, the Court generally concluded that unwritten constitutional principles could not save the day for the applicants. Miller JA concluded that the text of the Constitution is to be preferred over amorphous principles, because those rights “whose textual formulations were debated, refined, and ultimately resolved by the committees and legislative assemblies entrusted with constitution-making authority” were clearer in the constitutional hierarchy. What’s more, because s.33 can be used to override certain enacted rights, the invocation of unwritten constitutional principles would deprive the legislature of this arrow in their quiver: it would be a final judicial remedy.
There are two key issues in this case, to my mind: (1) the Court’s conclusion that s.2(b) and s.3 must be interpreted distinctly and (2) the use of unwritten principles in constitutional reasoning.
First, it is important to identify an overall, important theme in the Court’s decision. When Belobaba J’s decision came out, I wrote a blog post on the matter, concluding that the decision contained a “remedy seeking a right.” Why? Because, as Miller JA pointed out, Belobaba J seemed to conclude that the Ontario Legislature’s decision was substantively unfair; and to make that stick, Belobaba J had to find a right to hook that conclusion. This is the exact sort of results-oriented reasoning that should be avoided in constitutional adjudication. Whether the Ontario Legislature’s decision was substantively unfair—even democratically unfair—is entirely beside the point.
And so, based on this sort of reasoning, Belobaba J drew the conclusions he did. For one, he found that s.3 of the Charter somehow informed interpretation of s.2 of the Charter. In a previous post, I called this method “constitutional substitution.” The idea is that, where one Charter provision (s.3) would not apply (in this case to municipalities), another right (s.2(b)) could be finagled to apply. This is the basis on which he concluded that s.2(b) guaranteed some sort of right to effective representation. But as Miller JA noted, if constitutional interpretation is to truly be purposive, it must begin from the premise that each Charter right contains within it its own purpose. This reflects the linguistic, historic, and philosophic compromise that sits behind each right. In this context, the framers chose not to extend voting rights or certain democratic protections to municipal institutions . This is an entirely reasonably policy choice—but that aside, it is a constitutional choice. It is not for one judge to subvert that choice by mixing and matching rights as he sees fit. Constitutional substitution, then, is wholly illegitimate.
In this sense, Miller JA’s approach is deeply respectful of the Rule of Law. The hierarchy of laws stands for the proposition that absent constitutional objection, legislation binds all: see the reasons of Stratas JA in Tennant, para 12 et seq. Deciding whether a law abridges the Constitution is thus important in the maintenance of this hierarchy. Making that decision should not be based on free-standing policy preferences, but on the text of the Constitution itself. The insertion of results-oriented reasoning subverts the hierarchy of laws by trumping duly-enacted legislation with policy preferences that find no place in the hierarchy of laws. Only the properly interpreted text of the Constitution—understood in its purposive context—can trump a statutory provision. On this front, the effect of Miller JA’s judgment is to provide meta-rules for deciding when the duly-enacted text of the Constitution—not the policy preferences of a judge—take priority over duly-enacted legislation.
On a related note, mixing and matching rights as Belobaba J
did undermines the explicit framework of the Constitution. As I wrote in my
Regardless, s.2(b) and s.3 are distinct Charter guarantees. They have distinct purposes, with “effective representation” being the purpose of s.3. While these purposes may sometimes overlap, it seems to me that the purposive approach to Charter interpretation has to insist on some analytical distinction between the rights to be of any use. If rights are to be interpreted in their “historic, political, and philosophic” context, surely that purposive context changes with the right in question. This has particular implications for the relationship between Charter rights and s.1 of the Charter. As Peter Hogg notes in his important article, how we construe Charter rights at the infringement stage has implications for the s.1 stage. If a right is construed broadly at the first stage (the purpose is construed broadly), then we leave s.1 for more work to do. Similarly, a right that is characterized with a narrow purpose may leave less work for s.1. This is a rough-and-ready purposive analysis, but it means that regularly mixing and matching Charter rights can have consequences for the evidence required to prove a Charter breach, the evidence required to sustain one, and the intensity of review that courts apply to particular infringements.
The idea is that inserting the personal policy preferences of judges through the method of constitutional substitution deeply upsets the delicate balance achieved through the constitutional consensus. This is something to be avoided.
Miller JA’s conclusion when it comes to unwritten principles can also be seen in this light. He seems alive to the concern that, as I wrote here, unwritten principles of the Constitution can be used to support results-oriented reasoning in constitutional adjudication. This is because the existing unwritten principles of the Constitution—the Rule of Law, and democracy, for example–are stated at such a high level of abstraction that they could exercise a centrifugal force over the actual text of the Constitution. If Charter interpretation is to be textual and purposive, it must be rooted to actual text and purpose. High-falutin’ principles cannot meaningfully curb the discretion of enterprising judges, though they can serve to gap-fill in appropriate circumstances.
Overall, Miller JA for the majority came to the right decision in this matter in the right manner. He corrected the main mistakes evident in Belobaba J’s decision. That is what we must expect of appellate courts.
Example: An employee asks to use flex-time as an accommodation of her family status – this will help her meet her mother’s age and disability-related needs. This request is granted. Some months later, the employer suspects that the employee is abusing this “privilege” because the employee is increasingly absent from the office during working hours. The employer sends a letter warning that further absences will result in discipline and possibly termination. The employer has taken no steps to determine whether there are legitimate Code-related reasons for the extra absences, nor has it indicated an intention to provide accommodation to the point of undue hardship in relation to such absences. This approach is not consistent with the objectives of the Code and should be avoided.