Factum for Democracy Watch and the National Anti-Poverty
Organization's (NAPO) Intervention in the
Attorney General v. Stephen Harper case
re: limits on third party election advertising spending
(Hearing was on February 10, 2004 in the Supreme Court of Canada)
PART I - THE FACTS
1. This challenge to the impugned sections of the Canada Elections Act (“Act”), is based on arguments that threaten Canada’s entire approach to electoral finance. It is grounded on a libertarian belief that unlimited individual and collective expression must be sacred and inviolable. This view is incompatible with this country’s egalitarian tradition of democracy and the values embodied in the Canadian Charter of Rights and Freedoms(“Charter”).
2. The respondent seeks to reverse the direction that Parliament and the courts have taken on democratic reform. Canada has been moving gradually to an ever-more responsive elections process that widens the franchise and makes voting rights more meaningful for all Canadians.
3. Parliament recently enacted Bill C-24, which implicitly establishes
a more direct relationship between general expense limits, campaign contribution
limits and third party spending. There has been clear recognition
by both Parliament and the courts that limits in all three of these areas
are important to ensure fairness for disadvantaged groups as well as to
protect against corruption and maintain public confidence in the political
process. Bill C-24 reflects the understanding that limits in each
of the three areas (contributions, party/candidate expenses and third party
spending) are inextricably linked to one another in principle and in practice.
Bill C-24, An Act to amend the Canada Elections Act and the Income Tax Act (political financing), S.C. 2003, c. 19 (received Royal Assent June 19, 2003, entered into force January 1, 2004).
4. A failure to enforce limits in any of the three areas allows for loopholes to exist, which render the entire regime meaningless and ineffectual. For example, with Bill C-24, there are now limits on donations to candidates and parties at all levels, as well as limits on candidate and party expenditures. If the limits on how much third parties can spend are struck down, this will be an invitation to third parties, candidates and parties to circumvent the prescribed limits by delivering their campaign messages via third parties.
5. Democracy Watch and the National Anti-Poverty Organization (“NAPO”) accept the facts as stated in the Appellant’s factum.
6. Democracy Watch and NAPO take the position that spending limits are a necessary and justifiable measure. Limits do not serve the interests of any individual. A limitless regime benefits a few and harms the remainder. Those who would be harmed the most under a limitless regime are those for whom the Charter demands protection: women, the poor and members of minority groups. Democracy Watch and NAPO seek to promote the Charter values of equality and democratic participation by marginalized groups by encouraging this Honourable Court to uphold section 350 of the Canada Elections Act.
7. Democracy Watch and the NAPO are national non-profit advocacy organizations
committed to the advancement of democracy, government and corporate accountability,
and the eradication of inequality. They endorse the constitutional
principle of “one person one vote” and support legislation which advances
this democratic ideal. They have long supported the enforcement of
statutory limits on third party election spending out of a conviction that
such limits promote equality in elections, and ensure that as many people
as possible participate in shaping the public’s opinion, as well as constituting
PART II - THE ISSUES
8. The questions stated by this Court include whether the impugned sections of the Canada Elections Act, S.C. 2000, c. 9 infringe sections 2(b), 3 and 2(d) of the Charter of Rights and Freedoms and, if so, whether these violations are demonstrably justified in a free and democratic society pursuant to section 1. The appellant has conceded a violation of section 2(b) in relation to sections 350(1)-(4) and 323. Democracy Watch and NAPO will therefore confine their submissions to the appropriate application of the section 1 balancing test to the section 2(b) infringement. Democracy Watch and NAPO take the position that the impugned sections do not violate sections 3 or 2(d), but will not make submissions on these issues.
PART III - ARGUMENT
9. This Honourable Court has adopted a broad contextual approach when analyzing whether a limitation on freedom of expression pursuant to section 2(b) of the Charter can be justified under section 1. In doing so it has rephrased elements of the Oakes test. The contextual approach is situational, based on evidence, and requires that a balancing of values occur. When performing the third stage of the proportionality analysis under the Oakes test, the special features of the expression in question are to be carefully considered.
Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at para. 124 [tab 30]; Rocket v. Royal College of Physicians and Surgeons,  2 S.C.R. 232 at paras. 28-33 [tab 21]; Edmonton Journal v. Alberta Attorney General,  2 S.C.R. 1326 at paras. 46-52 [tab 6].
10. This Court has consistently held that it is important to avoid focusing
on section 1 as a purely limiting clause, and to recall that it serves
the important positive function of enforcing or guaranteeing rights.
As a result, rights limitations may be justifiable where the limit in question
further promotes the enjoyment of Charter rights and advances Charter values.
R. v. Oakes,  1 S.C.R. 103 at paras. 63-64 [tab 19].
11. This case engages a number of important Charter interests beyond the section 2(b) interest raised by the respondent, which must be considered under the contextual analysis of the section 1 balancing test. These contextual factors include the integral importance of the “one person one vote” principle to the constitutional right to vote; the constitutional model of equality designed to remedy discrimination and historical disadvantage that arise within a majoritarian democracy; the evolution of Canadian democracy towards greater inclusiveness, and the limits on freedom of expression inherent within this Court’s conception of section 2(b) itself.
A. Section 3 of the Charter as a contextual factor
(i) The Canadian democratic tradition is egalitarian
12. Section 3 of the Charter emphasizes the “one person one vote” principle. This is associated with the egalitarian conception of democracy, the purpose of which has been described by this Court as being:
"…to grant to every citizen of this country the right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in the legislation for which they will be accountable to their electorate."
Haig v. Canada (Chief Electoral Officer),  2 S.C.R. 995 at para. 63 [tab 10].
13. The history of democracy is in essence a story of the governed seeking to establish a government that protects them from the unfettered power of the wealthy and privileged. The Canadian tradition of democracy, founded on the British model, is but one of many models from which to choose. There is nothing self-evident about any democratic model. Because elections require a structure, and are not self-regulating, Parliament is required to make conscious choices about the kind of democracy we are to have. Canada has chosen a model that places a premium on citizen equality:
"Citizen equality does require, however, that different groups of citizens not be disadvantaged, in their effort to gain attention and respect for their views, by a circumstance so remote from the substance of opinion or argument, or from the legitimate sources of influence as wealth is."14. According to the egalitarian model, limits are to be placed on the ability of the wealthy to dominate information supply during the electoral process to the detriment of those with less economic power. The egalitarian model can be contrasted with the libertarian model, which favours unregulated freedom of speech within the “marketplace of ideas”. Free speech is regarded as trumping all other constitutional objectives. Because they have the means of doing so, the libertarian model presumes that the privileged should be able to express themselves disproportionately. Limitless persuasive speech is contemplated, subject only to the ability of the privileged to pay for media exposure, and the extent to which they perceive this to be in their interests.
Ronald Dworkin, “Free Speech, Politics, and the Dimensions of Democracy” in Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000) at 366 [tab 33].
15. In the United States, with its distinct political culture, the U.S. Supreme Court rejected the egalitarian model in favour of the libertarian model in its seminal decision on third party election spending. In striking down the limits, it stated:
"…the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."16. In contrast to the American approach, Canadian courts have paid due regard to the egalitarian assumptions underlying section 3 of the Charter. Courts have held that equality of voting power is fundamental to the right to vote and represents a core democratic value. This Court has held that: “...electoral fairness is related to the very values the Canadian Charter seeks to protect, in particular the political equality of citizens that is at the heart of a free and democratic society”.
Buckley et al. v. Valeo, (1976), 424 U.S. 1 at para. 86 [tab 3].
Concerning the importance of political equality, this Honourable Court has recently held that:
"…s. 3 imposes on Parliament an obligation not to enhance the capacity of one citizen to participate in the electoral process in a manner that compromises another citizen’s parallel right to meaningful participation in the electoral process… If the legislation interferes with the right of certain citizens to play a meaningful role in the social discourse and dialogue that the electoral process engenders, it is inconsistent with s. 3 of the Charter."It is significant that this Court has recognized that there is a finite amount of prime space and time for public dialogue in the critical period leading up to an election. When a resource is in scarce supply its value will increase, making it even more difficult for those with limited resources to effectively communicate their views. The goal of election legislation must be to guarantee that as many people as possible can participate meaningfully by gaining a fair share of access to the public arena. Spending limits ensure that a maximum number of citizens are offered the opportunity to participate meaningfully in the elections process, without election space and time being dominated by those select few with substantial financial resources. In considering the constitutionality of the “official party status” threshold requirements, this Court in Figueroa affirmed its finding in Libman that “there is already reason to be concerned that affluent parties will dominate the public discourse and deprive their opponents of a reasonable opportunity to speak and to be heard.” It went on to hold that legislation should not augment this disparity.
18. This Court’s reasoning in Figueroa can be applied to the case at bar. Striking down the third party spending limits would transform an egalitarian statute into a piece of legislation that bolsters the voices of the affluent, while further marginalizing the weak, having the result of heightening socio-economic disparities in Canada and depriving a large segment of Canadian society of the right to meaningfully speak and be heard.
(ii) European Human Rights Court recognizes the importance of spending
19. Like this Honourable Court, European courts have distanced themselves from the American approach reflected in Buckley by recognizing the importance of setting limits on election expenditures in general, and third party spending in particular. In its key decision on the issue, the European Court of Human Rights found that Britain’s limit on third party spending operated as a complete bar to the complainant’s expressive freedom. The Court accepted as a fact that spending limits are necessary to ensure fairness in elections. Thus, while an outright ban was held to be disproportionate and not rationally connected to the objective of the legislation, that objective ? to secure equality between candidates ? was found to be legitimate and necessary.
Bowman v. United Kingdom (1998), 26 E.H.R.R. 1 at paras. 38-47 [tab 2].
20. Commentators have noted that Canada and Europe share a common egalitarian conception of democracy, distinct from that of the United States, evident in the respective decisions of Libman and Bowman:
"…the Strasbourg court is travelling along similar lines to that of the Supreme Court of Canada in the important case of Libman v. Quebec (Attorney General) 151 D.L.R. (4th) 385. In both cases the tribunals emphasised the importance of equality in electoral matters, a consideration that has ceased to trouble the US Supreme Court."(iii) U.S. Supreme Court has distanced itself from Buckley
Navraj Singh Ghaleigh, “Election Spending and Freedom of Expression” (1998) Cambridge L.J. 431 at 433 [tab 35].
22. While campaign spending limits have long been recognized as important
in the United States, Buckley had set a precedent for opposing limits
on what is known as "issue advocacy", while limits on “partisan” or "express"
advocacy were accepted as reasonable and necessary. In subsequent
decisions, the U.S. Supreme Court consistently viewed so-called issue advocacy
as a form of speech that attracted the highest degree of constitutional
protection, and upheld what is essentially a false distinction between
these two forms of advocacy. The Court in McConnell rejected its
previous reliance on "magic words", decisively abandoned this distinction
once and for all, reversed its position in Buckley, and upheld FECA third
party limits on issue advocacy.
McConnell, United States Senator, et al. v. Federal Election Commission, et al., 124 S.Ct. 619 at 650 [tab 14].
23. 23. The Court heard evidence that the cost of advertising time rose
dramatically during the 60 days immediately prior to an election.
Most of the political ads that masquerade as "issue" ads aired during this
period: "Corporations and unions spent hundreds of millions of dollars
of their general funds to pay for these ads, and those expenditures, like
soft-money donations to the political parties, were unregulated under FECA."
These facts supported the Court’s conclusion that such advertisements were
specifically intended to affect election results, and provided a way of
supporting candidates outside the purview of the elections law.
McConnell, United States Senator, et al. v. Federal Election Commission, et al., 124 S.Ct. 619 at 651 [tab 14].
24. In upholding the constitutionality of FECA, the U.S. Supreme Court endorsed a new term, "electioneering communication", which bears considerable resemblance to "election advertising" in Canada’s elections law. FECA imposes both disclosure requirements and expenditure limits on third parties engaging in "electioneering communication". These provisions no longer represent a violation of an American’s right to "freedom of speech".
25. This shift by the U.S. Supreme Court recognizes that money, including
the use of third party political advertising, affects election results
by manipulating voter behaviour. Likewise, the European Court in
saw fit to accept this fact without discussion and developed its entire
judgment on the assumption that money influences elections. It is
surprising then, that the Alberta Court of Appeal so easily drew the conclusion
that there is no evidence that money influences election outcomes in Canada.
Harper v. Canada (Attorney General),  A.J. No. 1542 at para. 108 (C.A.).
(iv) Striking down section 350 is a step backwards for democratic
26. Conceptually, and from a Charter perspective, spending limits on third parties are indistinguishable from limits on parties and candidates. These measures, which have kept the costs of running for office in Canada low, make candidacy accessible to low-income and other segments of the public that tend to face systemic barriers to political participation. This challenge, if successful, would set the stage for a challenge to party and candidate limits. There has already been a case in which a court has characterized party and candidate limits as “additional, apparent Charter breaches”.
Somerville v. Canada (Attorney General),  A.J. No. 504 (Q.B.) at para. 25 [tab 28].
27. This Court’s decision in Libman was a seminal step forward, not just in terms of Canadian jurisprudence, but also in setting an example for other liberal democracies on how to combat the insidious spread of corruption and entrenched inequality in elections law. This Court defined and clarified the issue of election spending in this country, and followed up with the rights-expanding decisions in Sauvé and Figueroa.
28. Striking down section 350 threatens to erode these significant advances in democratic rights in Canada over the past five years. The Alberta Court of Appeal demanded more evidence that money corrupts politics in Canada before it would recognize the need for election advertising controls. It would have us step into a Buckley-era American-style election process and force us to experience a crisis in our democratic system before recognizing the need for such limits.
29. This Court has the authority to look to obvious examples abroad
and at home, and apply common sense to reach a conclusion that third party
election advertising seeks to influence elections by affecting human behaviour.
Legal commentators recognize that not only does campaign advertising “indirectly
bolster a candidate’s support at the polls”, but that it also affects “the
predispositions underlying the decision to vote”. In other words,
advertising has a profound effect not only on whom voters will vote for,
but on whether or not they vote at all.
Shanto Iyengar, “The Effects of Media-Based Campaigns on Candidate and Voter Behavior: Implications for Judicial Elections” (2002) 35 Ind. L. Rev. 691 at 695-696 [tab 36].
30. According to the evidence of the intervener, Environment Voters,
organizations such as theirs concentrate their resources on election-time
activities in the hope of persuading voters to cast their ballots with
environmental issues in mind. It campaigns directly to defeat or
elect candidates based on their environmental positions. Environment
Voters emphasizes the importance of election advertising, in that “the
use of television and/or video productions is one of the most effective
means of communicating political messages and information during election
Affidavit of Stephen Best (sworn November 3, 2003), Record of the intervener Environment Voters at paras. 8, 12 and 13.
31. Unlimited spending accomplishes exactly what those with minimal resources wish to avoid: an imbalance in the ability of citizens to enjoy an equal opportunity to engage in meaningful political speech. All of this naturally leads to actual or perceived corruption, the collapse of public faith in the electoral system, and the creation of a wealth hurdle for those wishing to enter politics.
(v) Section 3 requires Parliament to limit section 2(b)
32. All Charter rights strengthen and support each other. The voting rights section of the Charter is therefore relevant to any consideration of the right to freedom of political expression. To the extent possible, competing rights must be reconciled. This may prove difficult since section 2(b) is based upon libertarian values while section 3 reflects values that are egalitarian. If reconciliation of the rights in question proves impossible, “it is essential to recognize that the pressing and substantial objective at issue is itself a fundamental right and that, as such, it is a matter of exceptional importance”. The importance of section 3 comes into play when applying section 1 contextually to a violation of section 2(b).
New Brunswick (Minister of Health and Community Services) v. G.(J.),  3 S.C.R. 46 at para. 112 [tab 15].
33. Notwithstanding the high degree of constitutional protection given
to political speech, the "legislature must be accorded a certain deference,
to enable it to arbitrate between the democratic values of freedom of expression
and referendum [i.e. electoral] fairness". In doing so, Parliament must
take into account the appropriate roles of voters, candidates and parties,
the media and third parties, and the relationship between them.
Libman v. Quebec (Attorney General),  3 S.C.R. 569 at para. 61 [tab 13].
34. More importantly, when considering the balancing of rights, it is significant that the Charter accords preferential treatment to section 3 by insulating it from the section 33 override. This Honourable Court has described section 3 as “the cornerstone of democracy”, and has noted its uniqueness in relation to other Charter rights, including section 2(b), in adopting the words of Arbour J.A. (as she then was) in Sauvé v. Canada (Attorney General),  2 S.C.R. 438, aff’g (1992), 7 O.R. (3d) 481:
"It is indeed significant that s. 3 of the Charter is immune from the notwithstanding clause contained in s. 33…. It confirms that the right to vote must be protected against those who have the capacity, and often the interest, to limit the franchise."35. In the instant case, it is not the government that is seeking to limit the franchise through restrictive legislation, but rather a minority of wealthy citizens with visions of an élitist democracy. It should be recalled that section 350 does not operate as a total ban on election advertising, but rather sets a limit of $150,000 per election period, more than double the total average Canadian family income (i.e. units of two or more persons), before taxes. Moreover, left unaffected by the legislation is a range of other means of communication, including use of the internet, holding public meetings and rallies, person-to-person and door-to-door canvassing, writing press releases, op-eds and letters to the editor, and numerous other forms of expressive conduct that are available to all citizens, regardless of wealth. Spending limits do not restrict the content of political speech, only the quantity. No one is silenced.
Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68 at para. 36 [tab 26].
36. This Court has held that the right to vote guarantees citizens the
availability of sufficient information upon which to base an informed vote.
Restrictions on the flow of information could occur as a result of state
action or as a result of private action. It would therefore follow
that Parliament, as part of its positive obligation to legislate consistent
with the political rights of its citizens, could be required to ensure
that private action does not prevent voters from being able to cast informed
Somerville v. Canada (Attorney General)(1996), A.J. No. 515 (A.B.C.A.) at paras. 37-44 [tab 29]; Libman v. Quebec (Attorney General),  3 S.C.R. 569 at para. 47 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at para. 82 [tab 30].
37. Beyond providing justification for the government’s adoption of
section 350, the Charter likely requires the government to adopt
such a provision. The political rights section imposes positive duties
on government. This means that the right to vote may be infringed
by a statutory omission. The Act would likely have been subject
to a Charter challenge if it had not included a protective clause
such as section 350 limiting the role of big money in Canadian elections.
Re Hoogbruin v. British Columbia (Attorney General),  B.C.J. No. 2572 (B.C.C.A.) at paras. 4, 6-7 [tab 24].
38. The courts below did not consider the egalitarian purposes underlying section 3 of the Charter and therefore erred by failing to consider the positive obligation on the federal government to ensure the Act is inclusive of all voters and secures their equal opportunity to participate in the electoral process. Had the obligation on the government to promote inclusive and informed elections been included in the contextual analysis, greater deference would have been shown to Parliament’s attempt to balance the interests involved.
(vi) Section 350 promotes the underlying constitutional principle
39. This Honourable Court has articulated democracy as one of the four principles that underlie the Canadian constitutional structure. These principles are “not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments”.
Reference Re Secession of Quebec,  2 S.C.R. 217 at para. 54 (tab 23].
40. Democracy has been described by this Court as “a fundamental value
in our constitutional law and political culture” and a “baseline against
which the framers of our Constitution and, subsequently, our elected representatives
under it, have always operated”.
Reference Re Secession of Quebec,  2 S.C.R. 217 at paras. 61 and 62 [tab 23].
41. This Court has also held that the demands of democracy have resulted
in greater concern for the interests of disempowered groups and minorities
in order to remove barriers to broader participation in the democratic
system. This is what this Honourable Court has called “the Canadian
tradition”, which it has described as “one of evolutionary democracy moving
in uneven steps toward the goal of universal suffrage and more effective
Reference Re Secession of Quebec,  2 S.C.R. 217 at para. 63; Reference re Provincial Electoral Boundaries (Sask.),  2 S.C.R. 158 at p. 186 [tab 13].
42. In the case at bar, the respondent invokes section 2(b) in order to serve a purpose that undermines the fabric of Canadian democracy by seeking to limit the “one person one vote” principle. It is Parliament’s historical duty to uphold democracy as an unwritten principle of Canada’s constitutional tradition. In fulfilling this role, Parliament has taken it upon itself to ensure democratic rights through, among other things, the administration of fair elections. In so doing, Parliament has adopted an egalitarian approach to elections. Thus, while some might argue that the free speech of certain persons may be adversely affected by third party spending limits, the government would be breaching its constitutional obligation to promote democracy through fair and inclusive elections if it did not impose such limits.
B. Section 15 equality as a contextual factor
(i) Equality is an “interpretive lens” for all other Charter rights
43. Charter claims must be analyzed in the larger social and political context in which they arise. The freedom of expression issue raised in this case must therefore be examined in the context of the systemic inequalities faced by economically disadvantaged people in Canada and their lack of access to the political process.
U.F.C.W. Local 1518 v. K Mart Canada,  2 S.C.R. 1083 at para. 24 [tab 31].
44. This Court has described the equality guarantee as “the broadest
of all guarantees. It applies to and supports all other rights guaranteed
by the Charter”.
Andrews v. Law Society of British Columbia,  1 S.C.R. 143 at para. 52 [tab 1].
45. In the words of Dickson J. (as he then was), the purpose of the
equality guarantee is to be sought “by reference to the character and the
larger objects of the Charter itself, to the language chosen to
articulate the specific right or freedom, to the historical origins of
the concepts enshrined, and ... to the meaning and purpose of the other
specific rights and freedoms with which it is associated within the text
of the Charter”.
R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295 at para. 117 [tab 16].
46. Where equality interests intersect with other Charter issues,
the Court should use section 15 as an “interpretive lens” to define the
scope and content of other constitutional rights.
New Brunswick (Minister of Health and Community Services) v. G.(J),  3 S.C.R. 46 at para. 112 [tab 15].
47. While all Charter rights strengthen and support each other,
the equality guarantee has been held by this Court to play a uniquely significant
role in that process. In cases such as Sharpe, Butler,
and Irwin Toy, where the type of speech engaged in by the person
asserting a claim to section 2(b) Charter protection has systematically
and consistently undermined the position of other members of society, the
courts have demonstrated deference to the state action intended to regulate
or limit such forms of expression. This is particularly true when the group
being protected is vulnerable or included within an enumerated or analogous
ground under section 15(1) of the Charter.
R. v. Sharpe,  1 S.C.R. 45 at para. 140 [tab 20]; R. v. Butler,  1 S.C.R. 452 at paras. 83, 88-109 [tab 17]; R. v. Keegstra,  3 S.C.R. 697 at paras. 59-64, 76-79, 92, 132, 136 [tab 18]; Irwin Toy v. Québec (Attorney General),  1 S.C.R. 927 at paras. 71, 74-88 [tab 11]; Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at para. 93 [tab 30].
(ii) The Charter guarantees substantive equality
48. It is settled law that the Charter guarantees substantive equality as opposed to mere formal equality. This Court has consistently recognized that grave inequalities can sometimes be created by apparently neutral policies and actions. Promoting equality therefore requires proactive steps to remedy systemic factors which perpetuate inequality.
Andrews v. Law Society of British Columbia,  1 S.C.R. 143 at paras. 25-26 [tab 1]; Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497 at para. 40 [tab 12].
49. Section 15(1) of the Charter can impose a positive obligation
upon government to ensure members of protected groups secure equal benefit
from the right or privilege in question. This obligation exists whether
or not the condition of disadvantage giving rise to the Charter
protection was created or exacerbated by state action.
Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624 at paras. 72-79 [tab 7].
50. This Court has emphasized that section 15 does more than provide
a remedy for those who have suffered past discrimination. Its purpose
is also preventive and ameliorative in terms of improving the “position
of groups within Canadian society who have suffered disadvantage by exclusion
from mainstream society”.
Eaton v. Brant County Board of Education,  1 S.C.R. 241 at para. 66 [tab 5].
51. Parliament was well aware of the equality obligations it was under when passing the Act. It was enacted based the advice and guidance of the Lortie Report and Libman. Parliament chose not to go so far to ensure equal opportunity amongst voters as the Lortie Report recommended or the Libman decision authorized and, in its wisdom, gave greater scope to free speech values by establishing higher limits on third party election spending.
(iii) Spending limits protect vulnerable groups
52. The respondent disingenuously states at paragraph 57 that “proscribed speech could be intended to improve the life conditions of truly vulnerable groups”. As the respondent would be aware, it is unlikely that members of vulnerable groups, either individually or collectively, would be able to spend $150,000 on election advertising. Other organizations, which are dedicated to their benefit are generally called "registered charities", are subject to severe limits on the quantity of political speech in which they can engage under the Income Tax Act.
53. While the trial judge held that the third party election spending
limits contained in section 350 were not intended to protect a vulnerable
group, the Court of Appeal recognized that “it is naïve to believe
that money does not play a role in the political process. To the
extent that it does, sectors of the population are at a significant economic
disadvantage”. Yet, the court went on to agree with the trial judge’s
conclusion that the evidence did not support a finding that third party
spending has ever caused any harm.
Harper v. Canada (Attorney General),  A.J. No. 808 at para. 293 (Q.B.); Harper v. Canada (Attorney General),  A.J. No. 1542 at para. 111 (C.A.).
54. This line of reasoning ignores the decisions of this Honourable
Court emphasizing the preventive role of the Charter. It also
fails to account for this Court’s finding in Libman, where, considering
a comparable record, it held on a comparable issue that the limits on third
party election spending have the effect of preventing the most affluent
members of society from engaging in speech that is inimical to the free
and informed choice of others.
Libman v. Quebec (Attorney General),  3 S.C.R. 569 at para. 61 [tab 13].
55. This Court has subsequently affirmed that the protection of those
whose democratic rights are threatened is “not dissimilar” to the protection
of children who were vulnerable to targeted commercial advertising in the
Toy case: “A single party or faction with a great preponderance of
financial resources” could undermine “the free and informed choice by others”.
The potential for systemic inequality during elections, which the Court
regarded as real, means not only that political inequality can occur, but
that it can occur as a result of action that is discriminatory and contrary
to section 15(1) of the Charter.
Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at paras. 93-94 [tab 30].
(iv) Limits are necessary to ensure the democratic rights of the
56. Not all Canadian voters are impacted equally by third party election spending. Those with the lowest incomes comprise the group which cannot engage in political advertising at a cost in excess of the spending limits contained in the Act. This group is disproportionately composed of members in several of the enumerated categories in section 15(1) of the Charter. Alternatively, it could be defined as those persons from a disadvantaged “social condition”. This ground, or variations on it, is enumerated in the human rights legislation of all but three jurisdictions in Canada. Further, the Ontario Court of Appeal has recently held that receipt of social assistance constitutes an analogous ground of discrimination within the meaning of section 15(1). The most destitute in society require the most protection from the disproportionate influence of wealth on the electoral process. They are the ones who are least likely to have the resources to respond to major persuasive advertising campaigns that may go against their interests.
Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch),  O.J. No. 1771 (C.A.) (leave to appeal to SCC granted March 20, 2003) at paras. 86-92 [tab 8]; Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision, 2000, (La Forest Report) at 107 [tab 32].
57. The equitable participation of citizens with fewer resources in
the electoral process is one of the most important objectives of the third
party spending limits in the Act. Because this is the type
of equity interest that can attract protection under the equality clause
of the Charter, it is a matter of “exceptional importance” when
assessing whether the legislation's objectives are pressing and substantial
and whether its effects are proportional. This is because the objective
Parliament is seeking to address involves the advancement of the remedial
purposes underlying another section of the Charter. No hierarchy
of Charter values exists. These issues are to be resolved through
the proper application of contextual analysis.
Dagenais v. Canadian Broadcasting Corporation,  3 S.C.R. 835 at para. 97 [tab 4].
C. Section 2(b) of the Charter as a contextual factor
58. One of the contextual issues to be considered in determining the constitutionality of the third party election spending provisions is the effect of the provisions on freedom of speech, as protected under section 2(b) of the Charter.
Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at paras. 79-80 [tab 30]; Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835 at paras. 80-85, 97 [tab 4].
(i) Political speech deserves preferential protection over persuasive
59. This Court has held that not all expression is equally worthy of protection. Even genuine expression must sometimes be limited in order to protect those who may suffer adverse effects: “when the harm of expression outweighs its benefits, the expression may legitimately be curtailed”.
Rocket v. Royal College of Dental Surgeons of Ontario,  2 S.C.R. 232 at para. 28 [tab 21]; Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.,  1 S.C.R. 156 at para. 36 [tab 25].
60. Political expression is at the very heart of freedom of expression
and should therefore benefit from a high degree of constitutional protection.
One of the key principles underlying the protection of free expression
is that participation in social and political decision-making is to be
fostered and encouraged.
Libman v. Quebec (Attorney General),  3 S.C.R. 569 at para. 60 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at para. 92 [tab 30].
61. Persuasive speech (advertising and commercial speech) is not afforded
the same level of protection as informational political speech, particularly
when such speech is weighed against the interests of a vulnerable group
that is protected by restrictions on commercial speech.
Irwin Toy v. Quebec (Attorney General),  1 S.C.R. 927 at para. 74 [tab 11].
62. In determining whether the legislation ought to be upheld under
section 1 of the Charter, this Court must consider the particular
characteristics of the expression that is infringed. The degree of constitutional
protection varies depending on the nature of the expression at issue.
Major advertising campaigns should not be afforded the same level of protection
as informational campaigns because they are not as fundamental to political
R. v. Sharpe,  1 S.C.R. 45 at para. 140 [tab 20]; Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at para. 91 [tab 30]; Libman v. Quebec (Attorney General),  3 S.C.R. 569 at para. 60 [tab 13]; Rocket v. Royal College of Dental Surgeons of Ontario,  2 S.C.R. 232 at paras. 28-33 [tab 21].
63. The trial judge in this case found as a fact that the provisions
of the Act would not deter a modest informational campaign but would prevent
a persuasive media campaign. In other words, while the legislation allows
for basic political speech, it does not allow this to take place in the
form of unlimited commercial speech. The legislation properly considers
the nature of the expression at issue.
Harper v. Canada (Attorney General),  A.J. No. 808 at para. 142 (Q.B.).
(ii) Section 350 promotes equality of opportunity to engage in speech
64. Freedom of expression concerns not just the act of expression, but also the creation of an atmosphere in which all are given an equal opportunity to express themselves. The legislature and the courts must balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all.
Libman v. Quebec (Attorney General),  3 S.C.R. 569 at para. 61 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at para. 92 [tab 30].
65. If third party spending is not limited during elections, then the
nature of the interests (i.e. a single party or faction with a great preponderance
of financial resources) of the speakers could make the expression itself
inimical to the exercise of a free and informed choice by others. Thus,
the primary purpose of section 350 is to ensure a more equal opportunity
to disseminate points of view and thereby generate respect for democratic
traditions. Third party spending limits equalize the opportunity for more
people to put information in the public sphere for debate, and equalizes
their access to candidates, political parties and the news media.
Libman v. Quebec (Attorney General),  3 S.C.R. 569 at paras. 47 and 62 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877 at paras. 92-94 [tab 30].
(iii) Objective of section 350 is maintaining public confidence in
66. The trial judge identified the two related objectives of third party spending limits as: (1) to maintain the integrity of the candidate and party spending limits; and (2) to prevent the manipulation of public opinion and election outcomes by persons and groups not covered by the candidate and registered party spending limits.
Harper v. Canada (Attorney General),  A.J. No. 808 at para. 262 (Q.B.).
67. According to the court, these two objectives are linked by the common
fear that “independent election spending can influence the outcome of elections
by subjecting voters to election advertising skewed to one point of view”.
Harper v. Canada (Attorney General),  A.J. No. 808 at para. 250 (Q.B.).
68. The court then examined Canada’s virtually non-existent social science
concerning the impact of third party spending on election outcomes.
Based almost exclusively on one study, it found that the scientific evidence
was “inconclusive” and was not satisfied “that it is proper to call an
apprehension of harm [ i.e. from unlimited third party election spending]
reasonable”. In doing so, it reached a conclusion that is counterintuitive
and highly suspect.
Harper v. Canada (Attorney General),  A.J. No. 808 at paras. 274, 286 (Q.B.).
69. While the Court of Appeal raised some important concerns with the
trial decision, it nonetheless reached the same conclusion for the same
reasons. On the issue of social science research, Cairns J. demanded
precise and conclusive social science evidence that unlimited third party
spending creates an imbalance which tends to promote unfair elections.
Paperny J.A. modified this view by recognizing that ”concrete proof is
not necessarily required”. The respondent goes even further, when, at paragraph
117 of his factum, he states “measurement of any effect on voter choice
or election outcome is impossible”. It is now his position that the
concrete proof sought by the courts below will never be available.
Harper v. Canada (Attorney General),  A.J. No. 808 at para. 138 (Q.B.); Harper v. Canada (Attorney General),  A.J. No. 1542 at para. 108 (C.A.).
70. The Court of Appeal went on to agree with the trial judge in the
result, concluding that, “the evidence is insufficient to overcome the
threshold required for s. 1 of the Charter”. The Court reached
this conclusion despite having found that evidence was not necessary and
that there was “some evidentiary support as well as reasoned contemplation”
for the government’s position.
Harper v. Canada (Attorney General),  A.J. No. 1542 at para. 108 (C.A.).
71. In the absence of conclusive scientific evidence either way, it is reasonable in a democracy to consider whether the electorate apprehends potential harm can result from unlimited third party election spending. Unless voter opinion can be proven to be misinformed or improperly motivated, addressing public concerns should be a predominant objective of any piece of legislation. The public opinion survey results contained in the Lortie Report more than justify the conclusion that the public is overwhelmingly in favour of election spending limits, on both the spending of candidates/parties and third parties. These results reflect concern for the integrity of the electoral process if spending cannot be limited. Assuring the public that democracy is not for sale is a legitimate objective, not to mention a pressing and substantial one.
72. The Court of Appeal’s finding that third party spending limits have
but a “theoretical objective” and “lofty and symbolic goals” is inconsistent
with this Court’s statements in Libman, where a pressing objective
of the legislation was the preservation of “the confidence of the electorate
in a democratic process that it knows will not be dominated by the power
of money”. The Court of Appeal exceeded its jurisdiction in concluding
that, “the characterization of the objective in Libman and in this
appeal as promoting fair elections is too broad”. The majority erred
when it overruled a decision of this Court in circumstances that were not
distinguishable. This Court explicitly stated in Libman that
the principles underlying elections and referendum laws were sufficiently
analogous to one another, and that “[t]here are enough points of similarity
between the two systems to draw such a parallel”.
Harper v. Canada (Attorney General),  A.J. No. 1542 at para. 108 (C.A.); Libman v. Quebec (Attorney General),  3 S.C.R. 569 at para. 41 [tab 13].
73. The Court below should have deferred to the settled law and accepted that the Act pursues the objective of maintaining public confidence in the electoral process. This Court recognizes that successful democracies encourage widespread involvement in the electoral process, and derive their legitimacy in substantial measure from a widely held public recognition that each person’s participation is equally valued and will not be undermined by the wealth of the privileged.
(iv) Disclosure requirements must stand even if spending limits are
74. The Alberta Court of Appeal agreed with the trial judge that the attribution, registration and disclosure requirements of the Act do not, on their own, violate section 2(b) and in fact serve the useful purpose of transparency. However, the court concluded that the third party provisions of the Act were all inter-connected, and thus a finding of unconstitutionality would necessarily implicate all aspects of the third party provisions. The U. S. Supreme Court likewise recognized the importance of transparency in political speech, but reached the opposite conclusion, upholding third party disclosure requirements.
Harper v. Canada (Attorney General),  A.J. No. 1542 at paras. 40 and 190 (C.A.); McConnell, United States Senator, et al. v. Federal Election Commission, et al., 124 S.Ct. 619 at 651-52 [tab 14].
75. It is respectfully submitted that this position is untenable and
contrary to this Court’s jurisprudence on Charter remedies.
The disclosure requirements are an important part of the legislation irrespective
of the spending limits, despite the fact that they serve the same objectives.
There is no evidence to indicate that the disclosure requirement could
not stand independently and be practicably enforced in the absence of the
spending limits. Given the lower courts’ factual finding that mandatory
disclosure promotes transparency without offending the Charter,
this Honourable Court should sever only those parts which it finds directly
violate the Charter, and preserve the disclosure provisions intact.
Schachter v. Canada,  2 S.C.R. 679 at paras. 26-27 [tab 27].
IV - COSTS
76. The interveners named herein do not seek an award of costs.
V - ORDER SOUGHT
77. Democracy Watch and NAPO request that the appeal of the Attorney General of Canada be allowed and that the declaration of Cairns J., upheld by a majority of the Alberta Court of Appeal, that section 350 of the Act is in violation of the Charter and of no force and effect, be set aside.
All of which is respectfully submitted this 20th day of January 2004.
VI - LIST OF AUTHORITIES
1. Andrews v. Law Society of British Columbia,  1 S.C.R. 143………………….25-26
2. Bowman v. United Kingdom (1998), 26 E.H.R.R. 1…………………………………..38-47
3. Buckley et al. v. Valeo, 424 U.S. 1 (Supreme Crt. 1976)………………………………...86
4. Dagenais v. Canadian Broadcasting Corporation,  3 S.C.R. 835………..80-85, 97
5. Eaton v. Brant County Board of Education,  1 S.C.R. 241………………………..66
6. Edmonton Journal v. Alberta Attorney General,  2 S.C.R. 1326……………..46-52
7. Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624.……………..72-79
8. Falkiner v. Ontario (Ministry of Community and Social Services,
IncomeMaintenance Branch),  O.J. No. 1771 (C.A.) (leave to appeal
granted March 20, 2003)…………………………………………………………………86-92
9. Figueroa v. Canada (Attorney General), 2003 SCC 37………………………….50, 52-53
10. Haig v. Canada (Chief Electoral Officer),  2 S.C.R. 995…………………………..63
11. Irwin Toy v. Quebec (Attorney General),  1 S.C.R. 927…………………..71, 74-88
12. Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497……………40
13. Libman v. Quebec (Attorney General),  3 S.C.R. 569 ……………….41, 47, 60-61
14. McConnell, United States Senator, et al. v. Federal Election Commission, et al., 124 S.Ct. 619……..pages 644, 650-651
15. New Brunswick (Minister of Health and Community Services) v. G. (J.),  3 S.C.R. 46………..112
16. R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295………………………………………...117
17. R. v. Butler,  1 S.C.R. 452………………………………………………….83, 88-109
18. R. v. Keegstra,  3 S.C.R. 697……………………………59-64, 76-79, 92, 132, 136
19. R. v. Oakes,  1 S.C.R. 103……………………………………………………….63-64
20. R. v. Sharpe,  1 S.C.R. 45………………………………………………………..…140
21. Rocket v. Royal College of Physicians and Surgeons,  2 S.C.R. 232……… 28-33
22. Reference Re Provincial Electoral Boundaries (Sask.),  2 S.C.R. 158………….58
23. Reference Re Secession of Quebec,  2 S.C.R. 217………………………54, 61-63
24. Re Hoogbruin v. British Columbia (Attorney General),  B.C.J. No. 2572 (B.C.C.A.)……..….4, 6-7
25. R.W.D.S.U., Loc. 558 v. Pepsi-Cola Canada Beverages (West) Ltd.,  1 S.C.R. 156……..36
26. Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68………………………………..36
27. Schachter v. Canada,  2 S.C.R. 679…………………………………………….26-27
28. Somerville v. Canada (Attorney General),  A.J. No. 504 (Q.B.)………………….25
29. Somerville v. Canada (Attorney General),  A.J. No. 515 (A.B.C.A.)…………37-44
30. Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877……………..79-80, 91-94, 124
31. U.F.C.W. Local 1518 v. K Mart Canada,  2 S.C.R. 1083…………………………24
32. Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000), pp. 106-113.
33. Ronald Dworkin, “Free Speech, Politics, and the Dimensions of Democracy” in Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000), 351-385.
34. Colin Feasby, “Libman v. Quebec (A.G.) and the Administration of the Process of Democracy under the Charter: The Emerging Egalitarian Model” (1999) 44 McGill L.J. 5.
35. Navraj Singh Ghaleigh, “Election Spending and Freedom of Expression” (1998) Cambridge L.J. 431.
36. Shanto Iyengar, “The Effects of Media-Based Campaigns on Candidate and Voter Behavior: Implications for Judicial Elections” (2002) 35 Ind. L. Rev. 691.
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