Page - 131 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

131Municipal Power and Democratic Legitimacy in the Time of COVID-19 of reasonableness.9 In interpreting municipal action through a defer- ential lens, however, the SCC has applied the language of the constitu- tion as a “living tree”10 that must be “tailored to the changing political and cultural realities of Canadian society,” and “continually be reas- sessed in light of the fundamental values it was designed to serve.”11 The SCC has applied the principles of cooperative federalism and subsidiarity in order to characterize municipalities as stewards of the local community.12 In Canadian  Western  Bank  v  Alberta, the SCC explained, “The fundamental objectives of federalism were, and still are, to reconcile unity with diversity, promote democratic participa- tion by reserving meaningful powers to the local or regional level and to foster co-operation among governments and legislatures for the common good.”13 Courts are careful to state that an expansive view of municipal authority must not “invent municipal authority where none exists.”14 But once municipalities are created and empowered, constitutional principles imbue respect for their decisions. The respect given to municipalities by the courts is rooted in the closeness of citizens to local governments and the democratic and representative nature of their decision-making. The SCC stated that subsidiarity operates as a principle affirming that “legislative action is to be taken by the government that is closest to the citizen and is thus considered to be in the best position to respond to the citizen’s concerns.”15 However, the principle may not be used to override the division of powers in the constitution.16 Even before COVID-19 came to cities across Canada, spatial poverty, discrepancies in racial diver- sity, and a lack of affordable housing across neighbourhoods and communities were evident in large urban areas.17 The SCC’s rationale 9. Catalyst  Paper  Corp  v  North  Cowichan  (District), 2012 SCC 2, recently referenced by the SCC in Canada  (Minister  of  Citizenship  and  Immigration)  v  Vavilov, 2019 SCC 65 at para 108. 10. Edwards  v  Attorney-General  for  Canada, [1930] 1 DLR 98, [1930] AC 124. 11. Ibid. 12. See e.g. Canadian  Western  Bank  v  Alberta, 2007 SCC 22 (CanLII) at paras 22-23. 13. Ibid. 14. Spraytech, supra note 4 at 366. 15. See Reference re Assisted Human Reproduction Act, 2010 SCC 61 at para 183. 16. Ibid at para 72. 17. See e.g. Alan Walks, Income  Inequality  and  Polarization  in  Canada’s  Cities:  An  Examination  and  New  Form  of  Measurement  (Toronto: University of Toronto Cities Centre, 2013), online (pdf): <https://perma.cc/9J35-3VZJ>; and David Hulchanski, The  Three  Cities  Within  Toronto:  Income  Polarization  among  Toronto’s  Neighbourhoods, 1970–2005 (Toronto: University of Toronto Cities Centre, 2010); and Roger Keil, Melissa Ollevier & Erica Tsang, “Why Is There No Environmental Justice in