Denying & Reckoning with Implicit Law: The Case of the City of Toronto v. Ontario (A.G.)
(2021) 25.2 Review of Constitutional Studies
31 Pages Posted: 7 Jan 2022
Date Written: September 22, 2021
Abstract
This article explores the role of implicit normativity in the Canadian constitutional order, in light of the City of Toronto’s constitutional challenge to the province of Ontario’s Better Local Government Act. The Act was passed by the recently elected provincial legislature during the municipality’s 2018 election, reducing the number of wards and revising electoral boundaries. The law was initially struck down when the City and some candidates challenged its constitutionality before the Superior Court of Ontario, but the Ontario Court of Appeal granted a stay of that order and the election proceeded under the new format. In a 3:2 decision, the Ontario Court of Appeal subsequently dismissed the constitutional challenge after a full hearing of the merits. The Supreme Court of Canada then heard an appeal of that ruling in March 2021, and its judgment is forthcoming.
The purpose of this case study is to identify what the arguments over the constitutionality of the Better Local Government Act reveal about the nature of implicit constitutional constraints on the exercise of political power. The article argues that the implicit dimensions to Canada’s constitutional order are not reducible to discrete doctrinal questions, such as the judicial enforceability of unwritten constitutional principles or the justiciability of constitutional conventions. Its central claim is that the vitality of Canada’s constitutional order depends on the public and their political representatives expressing commitment to the ideals the Constitution has the capacity to serve. Whatever the Court’s answer turns out to be to the constitutionality question in the City of Toronto v Ontario (Attorney General), though, the decision by itself is not going to yield better local government. Defining explicit constitutional limits on governing is a necessary but not sufficient condition for lawmakers to demonstrate the kinds of implicit normative commitments governing well demands, including the commitment to justifying their exercise of formal authority in a substantively reasonable way.
Keywords: unwritten constitutional principles, implicit law, municipalities, populism
JEL Classification: K10
Suggested Citation: Suggested Citation