Democracy Notwithstanding


Only at the municipal level can democratic rights of voters and candidates be limited by a government without protection from the courts.  Instead of exploiting a gap in the Charter that allows democracy to be undermined, Doug Ford should guarantee these rights.  If he won’t then MPPs should exercise their free vote to do so.


Never before has the government of Ontario asked the Legislative Assembly to use the notwithstanding provision of the Charter of Rights to exempt legislation from review for Charter compliance.  Premier Ford is now asking it to do so in circumstances that may be technically permissible but only because the election being interfered with is municipal.   If similar attempts were made to interfere with a provincial election, the Act would similarly have been declared unconstitutional by the Superior Court, but the notwithstanding provision could not be invoked.


On September 10, 2018, the Superior Court decided that the Better Government Act, which effectively halved the number of Toronto City Council seats in the middle of the municipal election, violated the freedom of expression rights guaranteed by subsection 2(b) the Charter.   It found that legislation that changed the rules of an election, in the middle of that election, interfered with the freedom of expression that is the cornerstone of democracy in Canada.   The court relied on several Supreme Court of Canada cases dealing with democratic rights under section 3.   In most of these cases, the violation of democratic rights was closely tied to violations of the freedom of expression.   There is no doubt that had the court been able to do so, it would have found that the democratic rights enshrined in the Charter had also been violated since democracy was at the heart of the case. However, the court could not do so because the Charter only protects democratic rights for federal and provincial elections, not municipal ones.


One of the foundational principles of the Constitution is democracy.  Not democracy in the narrow majority rules sense; but, in a broad exchange of ideas, and representation sense, both during and between elections.    Rights and freedoms such as the freedom of expression and association are intrinsically connected to democracy.


As for the connection between democracy and elections, section 3 protects the right of Canadians to run and vote at provincial and federal elections.  This right has been found to embrace all of what democracy is about.  Most important for the present debate, these democratic rights under the Charter are considered so fundamental that they are not, like most other rights, subject to reasonable limits under section 1, nor can they be overridden by section 33’s notwithstanding clause.   Democratic rights in Canada are so fundamental that they cannot be subject to limits or override by legislatures, no matter the size of majority of members or the recentness of an electoral mandate.


Democracy at the municipal level of no less importance.  As the expression goes, all politics is local.  The closer the level of government to the electors, the greater the need for democratic principles to apply.


It may be that on a narrow reading of the democratic rights provisions, the provincial legislature, at the direction of the government, can use the notwithstanding clause because municipal elections are not specifically listed.   It is disconcerting that democratically elected MPPs, who benefit from constitutionally “super protected” democratic rights are being asked to use an extra-ordinary provision of that same constitution to deny that same protection to candidates and the voters of Toronto.   MPPs when considering their free vote should think hard and long before using the notwithstanding clause in this instance.  To use the notwithstanding clause in this case is not an exercise in democracy. It clearly denies and undermines it.


It may be that Toronto Council needs reform.  It may be that there should be fewer wards and greater efficiency.  But to achieve this at the expense of democracy should be rejected by those who, themselves, should be the embodiment of democracy.