Alexandra Flynn and Margot Young: Provinces are partners, not parents, to their cities

Opinion: Some large cities are bigger than provinces, grappling with urgent matters like infrastructure and housing, and are the first and most intimate level of democratic participation

By Alexandra Flynn and Margot Young

Are provinces like parents and cities their children, or are they partners working together?

On March 16, the Supreme Court of Canada heard arguments from the City of Toronto, the Province of Ontario and 15 intervenors on the constitutional relationship between Ontario and Toronto.

Why should we care about this in B.C.?  Because the Supreme Court of Canada will use this case to set the terms of provincial-municipal relations across Canada. The attorney general of B.C. thought the case important enough to be the only province other than Ontario to step into the legal fray.

Toronto challenged the Government of Ontario’s rearrangement of city council in the middle of its 2018 municipal election from 47 to 25 members. Toronto, unlike Vancouver, divides the city into wards, each of which elects its own city councillor.

The structure of wards used to be Toronto’s decision alone. Ontario’s action wiped out almost half of the campaigns, disentitling hundreds of candidates and disrupting citizen engagement.

Toronto claims that unwritten constitutional principles make cities more than mere “creatures of the province.” The principle of democracy protects all elections from political interference. The city also argues that the province’s mid-election interference infringed both candidates’ and voters’ rights to free expression under the Charter of Rights and Freedoms. Political speech lies at the core of those rights.

Like Doug Ford’s government, B.C. argues, in effect, that cities are kids, not partners, contending that provinces have the unilateral power to decide what cities do. B.C. maintains that if municipalities get special status, then school and park boards will demand the same.

They also argue that free expression doesn’t extend to the provision of municipal elections. B.C. cautioned the court against wading into a “political issue,” arguing it would be an “enormous and unjustified constitutional leap.”

B.C.’s NDP government has not been shy in asserting power over cities. Last month, Attorney General and Minister for Housing David Eby forced the City of Penticton to extend the timeline of a homeless shelter. A year ago, the province suspended the powers of all municipalities other than Vancouver to declare states of emergency. These actions made sense then, given the pandemic. But this track record, now read in light of B.C.’s arguments at the Supreme Court, suggests disrespect for local governments.

Cities are very different from when the Constitution was written. In 1867, 20 per cent of people lived in urban areas. Now 80 per cent do. Some large cities are bigger than provinces, grappling with urgent matters like infrastructure and housing. Cities are the first and most intimate level of democratic participation.

B.C.’s dismissal of the relevance of unwritten constitutional principles and the right to free expression are out of step with constitutional reality. The rule of law, democracy, federalism and the honour of the Crown are all unwritten, yet are seen as sacrosanct by the courts. Former chief justice Beverley McLachlin wrote that unwritten constitutional principles are “norms of justice so basic that they form part of the legal structure of governance.”  B.C.’s argument about the right to free expression minimizes local elections as important to democratic speech.

The Supreme Court of Canada has long emphasized that “co-operative federalism” includes municipalities: Different levels of governments collaborate as partners. Courts have also recognized that municipalities are democracies that represent local perspectives of their residents. Ironically, B.C. legislation setting out the power of municipalities says the same thing. It is contradictory for the province’s lawyers to blatantly refute this position at the top court.

Outside of court, the province claims to want relationships with cities through dialogue rather than through the courts. But B.C.’s arguments in this case suggest a one-way, top-down relationship.

The decision will come later this year, with far-reaching consequences for city power and civic democracy across the country. Let’s hope the court rejects B.C.’s position, and in so doing emphasizes the key constitutional role that cities play in 21st-century Canada.

*Originally published in the Vancouver Sun on April 6, 2021