In 24 concise paragraphs, Ontario’s top court dissected and demolished a trial judge’s ruling that the province had violated the free speech of candidates and voters in Toronto by altering ward boundaries in the middle of an election campaign.
“It is not in the public interest to permit the impending election to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the Legislature,” three judges of the Ontario Court of Appeal said in a unanimous ruling on Wednesday morning, after hearing arguments from the province, the city and others just one day before.
The ruling clears the way for the civic elections to proceed as the government of Premier Doug Ford wished, with 25 wards, instead of the 47 envisioned by Toronto City Council. The elections, and the wider Ontario political arena, had been thrown into an uproar, first by a court ruling, and then by the government’s decision to invoke the Constitution’s seldom-used notwithstanding clause to override the ruling. But the legal system offered a reminder on Wednesday that it possesses its own deterrent to judicial overreach: a higher court’s public slap down of a lower one.
The Progressive Conservative government had asked the Ontario Court of Appeal to stay (or suspend the effects of) the Sept. 10 ruling of Superior Court Justice Edward Belobaba, while it appealed. Justice Belobaba had barred the province from reducing the size of city council, saying the changes violated the right of voters and candidates to free speech.
The appeal court said it had to decide whether Ontario had a strong case in its appeal of Justice Belobaba’s ruling, because any decision on whether a stay was warranted would effectively settle the dispute over the number of wards. The appeal court’s point-by-point explanation – on settled precedent, on the meaning of free speech in constitutional terms and on whether the right to vote was relevant at all – disagreed in almost every particular with Justice Belobaba.
“The inconvenience candidates will experience because of the change from 47 to 25 wards does not prevent or impede them from saying what they want to say about the issues arising in the election,” wrote the three judges, Justice Robert Sharpe, Justice Gary Trotter and Associate Chief Justice Alexandra Hoy.
In their view, the government’s appeal would probably succeed. (The court sits in panels of three or five; a new panel would feature different judges and could possibly come to a different conclusion.)
“The court was not reticent about pointing out the flaws as it saw them in Justice Belobaba’s decision,” University of Ottawa law professor Carissima Mathen said in an interview. “It can read like a harsh ruling, but they had a tough legal standard to enable them to impose the stay, and so they had to justify their reasons as to why the appeal would likely have succeeded.”
Howard Anglin, executive director of the Canadian Constitution Foundation, a conservative legal advocacy group, said the Belobaba ruling was close “to the extreme of activism,” and the appeal court provided a necessary corrective.
While the stay ruling could still be appealed to the Supreme Court of Canada, constitutional experts such as author Peter Hogg said it was unlikely the court would agree to hear it. “For one thing, it’s inherently urgent, and it’s difficult for the Supreme Court to get its act together in a short period of time,” Mr. Hogg said in an interview.
And in the unlikely event that the province loses its appeal of the Belobaba ruling – restoring a finding that the new ward boundaries are unconstitutional – it is doubtful that the election results would be cancelled (or the election forestalled, if such a ruling were to come before the election).
“Everybody would be so anxious to avoid that result,” Mr. Hogg said.
Justice Belobaba used Section 3 of the Charter of Rights and Freedoms, the right to vote, as an interpretive tool for understanding Section 2(b), freedom of speech. But the appeal court said this approach blurred the lines between separate rights and, in any event, there is no municipal right to vote.
Justice Belobaba also said changing the rules in the middle of the campaign made the candidates’ speech less effective. But the appeal court said reduced effectiveness was not a constitutional violation.
Having found that the province would probably win the appeal, the conditions needed for a stay – such as a finding that “irreparable harm” would result without it – fell easily into place. Without a stay, the court said, the province would have no chance to implement its law changing the size of city council in time for the election.