The Right to Vote and Freedom of Expression in Political Process Cases Under the Charter

Abstract

This Article considers Toronto (City) v. Ontario, an election law case that was recently heard before the Supreme Court of Canada. In Toronto (City), the main issue is whether Bill 5, a statute enacted by Ontario that restructured Toronto’s electoral districts midway through the 2018 municipal election, infringed the freedom of expression as protected by section 2(b) of the Charter. This Article argues that Bill 5 infringed section 2(b) in three ways. First, Bill 5 infringed the candidates’ electoral expression, in particular with respect to new electoral finance regulations that accompanied Bill 5. Second, Bill 5 undermined two democratic principles recognized by the Court in its section 2(b) political process cases: (1) the right to equal participation; and (2) the right to a free and informed vote. Third, Bill 5 interfered with the deliberative exchange of all electoral participants. The Article also considers a recent section 3 decision, Frank v. Canada. In Frank, the Court held that provisions banning long-term non-resident citizens from voting in a federal election infringed the section 3 right to vote and were not justified under section 1 of the Charter. The Article discusses Frank and analyzes some of its implications for future challenges to voter qualifications. Although Toronto (City) and Frank are not doctrinally connected, a joint appraisal provides an opportunity to consider the Supreme Court’s political process jurisprudence as a whole. The Article focuses in particular on the Court’s doctrines in its section 2(b) and section 3 political process cases, respectively. In addition, it claims that section 2(b) and section 3 are best understood as distinct yet complementary rights that are animated by the fundamental democratic values protected by the Charter.