[17] Second, a federal or provincial legislature is sovereign and cannot bind itself. The provincial legislature can over-rule or contradict a previously enacted law. A subsequent
enactment that is inconsistent with an earlier enactment is deemed to impliedly repeal the
earlier enactment to the extent of the inconsistency.6 Thus, the argument that the City of
Toronto Act7 somehow imposed an immutable obligation to consult cannot succeed. The Province was entitled to enact Bill 5 and ignore completely the promise to consult that was set out in the previous law.
[18] Third, speaking broadly and again absent a constitutional issue, the provincial
legislature has no obligation to consult and no obligation of procedural fairness.
8 The doctrine of legitimate expectations, an aspect of procedural fairness, does not apply to
legislative enactments.9
[19] At first glance, Bill 5 although controversial in content appears to fall squarely
within the province’s legislative competence. Upon closer examination of the
surrounding circumstances, however, one discovers at least two constitutional
deficiencies that cannot be justified in a free and democratic society. The first relates to
the timing of the law and its impact on candidates; the second to its content and its impact
on voters.
[20] As I explain in more detail below, the Impugned Provisions breach s. 2(b) of the
Charter in two ways: (i) because the Bill was enacted in the middle of an ongoing
election campaign, it breached the municipal candidate’s freedom of expression and (ii)
because Bill 5 almost doubled the population size of City wards from an average of
61,000 to an average of 111,000, it breached the municipal voter’s right to cast a vote that
can result in effective representation.
