CASUAL LEGAL: “Absolute and Unfettered”: Provincial Authority Over Municipal Elections

By Taylor Thiesen
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

The Supreme Court of Canada (SCC) recently confirmed that provinces have the power to unilaterally make changes to municipal electoral institutions, even when a municipal election is imminent.

In 2018, the Province of Ontario passed a new law reducing the number of wards in Toronto from 47 to 25. The law was passed shortly before the municipal election, after nominations had closed and campaigning was well underway.

The City took the matter to court, arguing that the law was unconstitutional. The City based its argument on multiple constitutional rights and principles, including the election candidates’ right to free expression, the right to effective representation, and the unwritten constitutional principle of democracy.
The SCC ultimately held that the Province’s actions were not unconstitutional. It noted that the Province did not have a constitutional duty to provide a particular statutory platform (i.e. 47 wards rather than 25) to the election candidates.

Furthermore, the right to effective representation, which flows from Section 3 of the Charter of Rights and Freedoms, applies only to elections of representatives in the federal and provincial legislative assemblies, and does not apply to municipal elections.

Finally, unwritten constitutional principles, including the principle of democracy, cannot be used as a basis for invalidating legislation. The SCC reiterated that, subject to the Charter, provinces have “absolute and unfettered legal power” to legislate with respect to municipalities, and this power cannot be restricted by unwritten constitutional principles. This power comes from Section 92(8) of the Constitution Act, which states that “In each Province the Legislature may exclusively make Laws in relation to […] Municipal Institutions in the Province.”

While people may debate the wisdom of a province making major changes to a municipality’s electoral map shortly before an election, this case confirms that the province has the power to do so.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or email casuallegal [at] abmunis.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca, or call 310-MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.