City of Toronto election laws and the Charter’s “not withstanding” clause

The City of Toronto probably based its recent case against the Province on the Charter’s freedom of expression provision (Section 2) and not on the Charter’s freedom to participate in elections (Section 3) because Section 3 covers only Federal and Provincial elections, not (explicitly) municipal elections.  This morning I read some legal opinions that say Judge Belobaba’s decision may have stretched this Section 2 provision too far by extending it to election rights.
It’s interesting that the “not withstanding” clause (Section 33) applies explicitly to Section 2 freedoms but not to Section 3.  So the provincial government can probably get away with invoking it from a legal perspective.  But that sure doesn’t make it right.
The decision makes interesting reading…almost “folksy” in a lot of places.  I particularly liked paragraphs 76 -77, quoted in their entirety below:
[76]     Dealing with the second objective, voter parity, and giving the Minister the benefit of the doubt that he understood that the primary concern is not voter parity but effective representation, there is no evidence of minimal impairment. The Province’s rationale for moving to a 25-ward structure had been carefully considered and rejected by the TWBR and by City Council just over a year ago. If there was a concern about the large size of some of the City’s wards (by my count, six wards had populations ranging from 70,000 to 97,000) why not deal with these six wards specifically? Why impose a solution (increasing all ward sizes to 111,000) that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the City’s election?

[77]     Crickets.

[78]     I am therefore obliged to find on the evidence before me that the breaches of s. 2(b) of the Charter as found above cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1.

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