PART I - THE FACTS
Overview
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.

Interveners’ Interest
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 it.
 

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), [1998] 1 S.C.R. 877 at para. 124 [tab 30]; Rocket v. Royal College of Physicians and Surgeons, [1990] 2 S.C.R. 232 at paras. 28-33 [tab 21]; Edmonton Journal v. Alberta Attorney General, [1989] 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, [1986] 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), [1993] 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."
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."
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."

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 limits
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."
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 Bowman 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), [2002] A.J. No. 1542 at para. 108 (C.A.).

(iv) Striking down section 350 is a step backwards for democratic rights
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), [1993] 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 campaigns.”
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.), [1999] 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), [1997] 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), [1993] 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."
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 votes.
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), [1997] 3 S.C.R. 569 at para. 47 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 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), [1985] 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 of democracy
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, [1998] 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, [1998] 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 representation”.
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 63; Reference re Provincial Electoral Boundaries (Sask.), [1991] 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, [1999] 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, [1989] 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., [1985] 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), [1999] 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, Keegstra 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, [2001] 1 S.C.R. 45 at para. 140 [tab 20]; R. v. Butler, [1992] 1 S.C.R. 452 at paras. 83, 88-109 [tab 17]; R. v. Keegstra, [1990] 3 S.C.R. 697 at paras. 59-64, 76-79, 92, 132, 136 [tab 18]; Irwin Toy v. Québec (Attorney General), [1989] 1 S.C.R. 927 at paras. 71, 74-88 [tab 11]; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 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, [1989] 1 S.C.R. 143 at paras. 25-26 [tab 1]; Law v. Canada (Minister of Employment and Immigration), [1999] 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), [1997] 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, [1997] 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), [2001] A.J. No. 808 at para. 293 (Q.B.); Harper v. Canada (Attorney General), [2002] 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), [1997] 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 Irwin 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), [1998] 1 S.C.R. 877 at paras. 93-94 [tab 30].

(iv) Limits are necessary to ensure the democratic rights of the poor
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), [2002] 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, [1994] 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), [1998] 1 S.C.R. 877 at paras. 79-80 [tab 30]; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at paras. 80-85, 97 [tab 4].

(i) Political speech deserves preferential protection over persuasive speech
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, [1990] 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., [2002] 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), [1997] 3 S.C.R. 569 at para. 60 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 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), [1989] 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 discourse.
R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 140 [tab 20]; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 at para. 91 [tab 30]; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 at para. 60 [tab 13]; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 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), [2001] 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), [1997] 3 S.C.R. 569 at para. 61 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 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), [1997] 3 S.C.R. 569 at paras. 47 and 62 [tab 13]; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 at paras. 92-94 [tab 30].

(iii) Objective of section 350 is maintaining public confidence in elections
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), [2001] 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), [2001] 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), [2001] 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), [2001] A.J. No. 808 at para. 138 (Q.B.); Harper v. Canada (Attorney General), [2002] 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), [2002] 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), [2002] A.J. No. 1542 at para. 108 (C.A.); Libman v. Quebec (Attorney General), [1997] 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 struck
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), [2002] 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, [1992] 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.

David Baker
Faisal Bhabha
 

VI - LIST OF AUTHORITIES

Tab No.-----------------------------Cases------------------------------------------------------Paragraph

1. Andrews v. Law Society of British Columbia, [1989] 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, [1994] 3 S.C.R. 835………..80-85, 97

5. Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241………………………..66

6. Edmonton Journal v. Alberta Attorney General, [1989] 2 S.C.R. 1326……………..46-52

7. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.……………..72-79

8. Falkiner v. Ontario (Ministry of Community and Social Services, IncomeMaintenance Branch), [2002] O.J. No. 1771 (C.A.) (leave to appeal to SCC
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), [1993] 2 S.C.R. 995…………………………..63

11. Irwin Toy v. Quebec (Attorney General), [1989] 1 S.C.R. 927…………………..71, 74-88

12. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497……………40

13. Libman v. Quebec (Attorney General), [1997] 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.), [1999] 3 S.C.R. 46………..112

16. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295………………………………………...117

17. R. v. Butler, [1992] 1 S.C.R. 452………………………………………………….83, 88-109

18. R. v. Keegstra, [1990] 3 S.C.R. 697……………………………59-64, 76-79, 92, 132, 136

19. R. v. Oakes, [1986] 1 S.C.R. 103……………………………………………………….63-64

20. R. v. Sharpe, [2001] 1 S.C.R. 45………………………………………………………..…140

21. Rocket v. Royal College of Physicians and Surgeons, [1990] 2 S.C.R. 232……… 28-33

22. Reference Re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158………….58

23. Reference Re Secession of Quebec, [1998] 2 S.C.R. 217………………………54, 61-63

24. Re Hoogbruin v. British Columbia (Attorney General), [1985] 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., [2002] 1 S.C.R. 156……..36

26. Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68………………………………..36

27. Schachter v. Canada, [1992] 2 S.C.R. 679…………………………………………….26-27

28. Somerville v. Canada (Attorney General), [1993] A.J. No. 504 (Q.B.)………………….25

29. Somerville v. Canada (Attorney General), [1996] A.J. No. 515 (A.B.C.A.)…………37-44

30. Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877……………..79-80, 91-94, 124

31. U.F.C.W. Local 1518 v. K Mart Canada, [1999] 2 S.C.R. 1083…………………………24

Secondary Sources
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.