This post is the second of a series considering three major issues under the Canadian Charter of Rights and Freedoms: the impact of how the Supreme Court of Canada (SCC) has defined rights; the relationship between rights; and the relationship between guarantees of rights and freedoms and section 1 of the Charter.
I focus the discussion of these issues through the lens of section 3, which guarantees the right to vote and to be eligible to sit in the legislature. Following the exploration of the SCC jurisprudence relating to each of the three issues in relation to section 3, I then consider how the Ontario Superior Court of Justice and the Ontario Court of Appeal applied that jurisprudence in Working Families Ontario v. Ontario (“Working Families I”) and Working Families Coalition (Canada) Inc. v. Ontario (“Working Families II”), both decisions of Morgan J. in the Superior Court, and Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (“Working Families” (ONCA)), respectively.
Part 1 of the series included the (I) Introduction, (II) a brief summary of the impugned spending provisions of the Election Finances Act (“EFA”) and (III) an overview of the Working Families decisions.
The current post, Part 2, begins consideration of section 3 of the Charter, specifically the scope of the SCC’s interpretation of section 3 with an Introduction and segment IV(A) reviewing the jurisprudence.
Parts 3 and 4 of the complete post each focuses on the other two issues (the relationship between rights [segment IV(B)] and the relationship between rights and section 1 [segment IV(C)]. Part 4 ends with a Conclusion.
In addition, Morgan J. and the Ontario Court of Appeal comment on the application of section 33 of the Charter and I complete the series with a rundown of those comments in Part 5.
For Part I, see here.
IV. SECTION 3 OF THE CHARTER
Section 3 of the Charter is plainly worded: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
At first blush, section 3 (particularly the first part) is one of the most uncomplicated guarantees in the Charter. Unlike many Charter guarantees, it does not appear to lend itself to interpreting the conduct that might constitute the activity protected by the guarantee; and it is not like other guarantees that on their face are more complicated. Compare, for example, voting to “expression” under section 2(b), encompassing most forms of expression, including activity, or “equality”, ostensibly limited to discrimination, but increasingly “looser” with an increased list of protected grounds. It does not seem to contain internal limitations, as does section 8’s “unreasonable search and seizure”, for example. The only internal restriction is “citizenship”, which designates those to whom it applies rather than minimizing its application to them.
This does not mean there cannot be other restrictions on voting, but the government must justify them under section 1: see, for example, Fitzgerald v. Alberta, where the Alberta Court of Appeal held the age requirement for voting (18) violated section 3 but was justified under section 1. Fitzgerald provides another example of how more than one section of the Charter can apply to the same activity or legislative provision: the age qualification for municipal elections violated section 15(1), as well as section 3, but was again justified under section 1. (On eligibility to run for office, see Harvey, which I consider below.)
But if one does think it is one of the more undemanding Chartet guarantees, one would be wrong. The Supreme Court of Canada has read into section 3 a subtext reflecting the values underlying the fundamental freedoms, one that included the desired objective of voting. The decision most relevant to Working Families is Harper, since it dealt with the same issue of restrictions on third-party advertising during elections, albeit federal elections, among other matters. All the judges in Working Families, at both levels, followed Harper.
Harper itself adopts the approach the SCC took in Reference re Prov. Electoral Boundaries (Sask.) (“Saskatchewan Electoral Boundaries”), the first SCC case to consider section 3 (it involved changes to Saskatchewan’s electoral boundaries that affected the size of voter constituencies). Writing for the majority, McLachlin J. (as she then was) identified the purpose of section 3 as “effective representation”.
On the one hand, she sees this as a liberal and purposive interpretation, consistent with the interpretation given Charter guarantees. On the other hand, she appears to introduce factors in the right to vote that might have otherwise been considered under section 1 of the Charter as interfering with the right to vote or the collective benefit of voting.
Other cases address issues that are indirectly related to the impact on voters’ participation. These include Thomson Newspapers , which considered a temporal prohibition on public opinion surveys; and Figueroa, addressing a requirement to run a minimum of 50 candidates in federal elections.
Yet others deal directly with section 3’s literal wording respecting voting rights or eligibility to run for office. Sauvé, which considered eligibility to vote of prisoners serving two or more years imprisonment; and Frank, addressing non-resident Canadians’ eligibility to vote. (Also see the earlier Sauvé decision, which adopted the decision of the Ontario Court of Appeal in that case; also dealing with the denial of the vote to prisoners, but to all prisoners, it found it to be unjustified under section 1; it set out other cases holding denial of the vote provincially to be unconstitutional.)
In Figueroa, LeBel J. described this second category of cases addressing section 3’s literal wording as follows: “The impugned legislation in those cases literally contradicted the language of s. 3, which states that every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” (Figueroa, LeBel J., para. 104)
A third category of cases fail to read into section 3 an interpretation relevant to particular circumstances, including Libman and Haig and City of Toronto. Libman and Haig both concerned referenda rather than provincial or federal elections; City of Toronto involved a municipal election.
Another case that might have raised section 3, but did not, was Corbiere, deciding the right of non-resident members of an “Indian band” to vote in band elections; it is an example of how when one section of the Charter does not apply, another might: the applicants brought the challenge under section 15(1).
Finally, as I noted above, one decision, Harvey (1996) considered the second part of section 3, eligibility for office, when a member of the New Brunswick legislature was expelled and banned from running because of an election offence.
In the following segments of the full series, I consider the scope of section 3 (in this post), the relationship of section 3 to section 2(b) (in Part 3 of the series) and the relationship of section 3 to section 1 (in part 4 of the series).
A. Scope of Section 3
1. Supreme Court of Canada Jurisprudence
The Supreme Court of Canada first considered section 3 of the Charter in the 1991 Saskatchewan Electoral Boundaries case. The Electoral Boundaries Commission Act had determined that there be quota of urban and rural ridings and further, that urban ridings coincide with existing municipal boundaries. As a result, some ridings had more than the allowable difference from the provincial quotient and there was some under-representation in urban areas.
The majority took the opportunity in Saskatchewan Electoral Boundaries to interpret the right beyond the casting of a ballot to establish a more meaningful understanding of what voting involves. Justice McLachlin (as she then was) wrote the majority opinion, holding there was no violation of section 3. She began with a highly nuanced and expansive interpretation of the right:
The right to vote, while rooted in and hence to some extent defined by historical and existing practices, cannot be viewed as frozen by particular historical anomalies. What must be sought is the broader philosophy underlying the historical development of the right to vote — a philosophy which is capable of explaining the past and animating the future. (Saskatchewan Electoral Boundaries, McLachlin J.)
For McLachlin J., the right to vote was not simply a question of equality in voting populations among constituencies and the distribution of constituencies across the province, but of “effective representation”. Although effective representation is conditioned on parity of voting power, there are other factors to consider:
Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed. (Saskatchewan Electoral Boundaries, McLachlin J.)
These factors are relevant to determining whether there has been a breach of section 3. In taking this approach, she noted that the Saskatchewan Court of Appeal had defined section 3 by reference to equality of voting power and that only a very limited deviation was possible; accordingly, they held the boundaries contravened section 3. Notably, she said the Court of Appeal considered that “[o]ther considerations, such as geography, historical boundaries and community interests, fell to be considered under s.1” (Saskatchewan Electoral Boundaries, McLachlin J.).
Justice McLachlin had considered the meaning of section 3 when she was chief justice of the British Columbia Supreme Court. In the 1989 decision of Dixon v. British Columbia (Attorney General), dealing with the electoral districts under British Columbia’s Constitution Act, she noted that the Attorney General had conceded that the right to vote encompassed a number of different variables, including the following:
• The right not to, be denied the franchise on the grounds of race, sex, educational qualification or other unjustifiable criteria;
• The right to be presented with a choice of candidates or parties;
• The right to a secret ballot;
• The right to have one’s vote counted;
• The right to have one’s vote count for the same as other valid votes cast in a district;
• The right to sufficient information about public policies to permit an informed decision;
• The right to be represented by a candidate with at least a plurality of votes in a district;
• The right to vote in periodic elections; and
• The right to cast one’s vote in an electoral system which has not been “gerrymandered” — that is, deliberately engineered so as to favour one political party over another.
To these, she added “equality of voting power” or “’rep by pop’”. (Dixon, McLachlin C.J., p.16) Since absolute equality was not recognized pre-Charter, it cannot be said to have been included in the Charter. Rather, “relative equality of voting power is fundamental to the right to vote enshrined in s.3 of the Charter”.
Equality of voting power is so important that “only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed”. It is only after applying the electoral districts to this analysis under section 3, that the Chief Justice turned to section 1, finding the deviations unjustified.
Although the Chief Justice (as she was then) did not use the phrase “effective representation” in Dixon, by the time she penned the majority decision in Saskatchewan Electoral Boundaries as a justice of the Supreme Court of Canada two years later, “effective representation” had become the watchword for understanding voting rights in Canada. (I note that the phrase did appear with a negative cast in American jurisprudence McLachlin C.J. cited in Dixon at page 19); she rejected the US jurisprudence as having arisen in a different historical and philosophical experience from that of Canada.)
Writing for the dissent in Saskatchewan Electoral Boundaries, Cory J. agreed with the liberal parameters of the purpose and meaning of section 3 that McLachlin J. articulated. He stated, “In Canada it is accepted that, as a minimum, each citizen must have the right to vote, to cast that vote in private, and to have that vote honestly counted and recorded.” And although “each vote must be relatively equal to every other vote”, nevertheless, there can be variations when they “contribute to the better government of the populace as a whole”. (Saskatchewan Electoral Boundaries, Cory J.)
Despite this general agreement with McLachlin J., Cory J. concluded both the distribution of constituencies and the process for determining the constituencies violated section 3 and were not justified under section 1 because they failed to accord with the appropriate process: “the effect of the statutory conditions has been to interfere with the rights of urban voters”. Once the legislature established the Commission, it should have been free to determine how to meet voting fairness.
This interpretation of section 3’s voting rights, reading into section 3 a balancing of individual and collective interests, set the stage for subsequent cases dealing with issues that were related to voting but that did not concern the actual act of voting.
In Saskatchewan Electoral Boundaries, McLachlin J. had cited with approval other circumstances in which “countervailing factors” could be considered in determining whether there was effective representation, that is, at the section 3 stage (“Notwithstanding the fact that the value of a citizen’s vote should not be unduly diluted, it is a practical fact that effective representation often cannot be achieved without taking into account countervailing factors.”).
Thomson Newspapers dealt with restrictions on disseminating opinion survey results in various formats during the final three days of a federal election campaign. The applicants argued that “the partial ban on election polls hinders the electoral process because some of the voters are deprived of information relevant to the exercise of their right to vote” (Thomson Newspapers, Bastarache J., para. 84).
Justice Bastarache wrote the majority decision holding that the prohibition on publication was an unjustified limit on freedom of expression. He referred to section 3 only in passing, stating that for the restriction on information to constitute a contravention of section 3, it would have to undermine the purpose of section 3, to ensure effective representation.
Because of his finding on section 2(b) of the Charter, he chose not to address the section 3 challenge, “mostly because the evidence with regard to the relationship between the kind of information banned and the integrity of the election process is too sparse” (Thomson Newspapers, Bastarache J. para. 84).
Writing for the dissent in Thomson Newspapers, Gonthier J. concluded that the prohibition constituted a justifiable limit on section 2(b). He also considered section 3, adopting the liberal definition of voting rights established by Saskatchewan Electoral Boundaries. In his view, there was no contravention of section 3, stating there would only be a contravention of section 3 if the ban on releasing survey results undermined effective representation, which it does not. On the contrary, he explained,
[a] strategic voter cannot cast a significant vote if the information required to exercise that vote cannot be discussed and scrutinized in order to assess its real value. It follows that poll results which cannot be assessed in a timely manner may actually deprive voters of the effective exercise of their franchise. (Thomson Newspapers, Gonthier J., para. 19; emphasis added)
Figueroa reaffirmed the ramifications of taking section 3 beyond the simple right to vote. The Canada Elections Act required parties to nominate at least 50 candidates to be registered as a political party, with implications for tax receipts for donations and the fate of unspent election funds. Writing for the majority, Iacobucci J. explained why a liberal interpretation is appropriate: “On its face, the scope of s. 3 is relatively narrow: it grants to each citizen no more than the bare right to vote and to run for office in the election of representatives of the federal and provincial legislative assemblies. But Charter analysis requires courts to look beyond the words of the section.” (Figueroa, Iacobucci J., para. 19)
This does not mean a process that results in a majority government, but one that allows the opportunity of “each citizen to play a meaningful role in the electoral process” (Figueroa, Iacobucci J., para. 25). Given this scope, some requirement of a minimum number of candidates is consistent with the purpose of section 3; however, the threshold of 50 members to acquire party recognition
… undermines both the capacity of individual citizens to influence policy by introducing ideas and opinions into the public discourse and debate through participation in the electoral process, and the capacity of individual citizens to exercise their right to vote in a manner that accurately reflects their preferences. In each instance, the threshold requirement is inconsistent with the purpose of s. 3 of the Charter: the preservation of the right of each citizen to play a meaningful role in the electoral process. (Figueroa, Iacobucci J., para. 58)
Therefore, according to Iacobucci J., a 50 member threshold is too high, creating unfairness.
Here we see an emphasis on the individual voter’s rights while at the same time thinking about how a diminution of voters’ rights can achieve the common good.
Justice LeBel, writing for himself and two other judges, would have extended the interpretation of section 3 beyond Saskatchewan Electoral Boundaries, minimizing the responsibility of government to justify legislation under section 1. He pointed out, “The methodology developed in the electoral boundaries cases recognizes that the right to vote comprises many factors, and that its content can only be defined through a contextual and historical analysis.” (Figueroa, LeBel J., para. 97).
He disagreed with what he perceived to be the majority’s approach in Figueroa to focus on the section 3 analysis only on “the strictly individual aspects of participation in the political process” (Figueroa, LeBel J., para. 101). I address LeBel J.’s analysis further in the segment on the relationship between section 3 and section 1 in Part 4 of this series of posts.
Although the Court has defined the concept of “voting” in section 3 liberally to encompass values also inherent in section 2(b)’s guarantee (and, for that matter, underlying section 1), in other respects, it has taken it at face value.
Not surprisingly, this is the case with straightforward voting rights.
The SCC addressed the denial of voting rights to prisoners serving a sentence of two years or more in Sauvé. Despite her comment in Saskatchewan Electoral Boundaries that “countervailing factors” belonged under section 3, McLachlin C.J. concluded in Sauvé, “s. 3 must be construed as it reads, and its ambit should not be limited by countervailing collective concerns, as the government appears to argue. These concerns are for the government to raise under s. 1 in justifying the limits it has imposed on the right” (Sauvé, McLachlin C.J., para. 11). (In Sauvé, the government argued that denying prisoners the right to vote “promot[ed] civic responsibility and respect for the law and impos[ed] appropriate punishment” (Sauvé, McLachlin C.J., para. 19).
It thus appears “countervailing concerns” can be considered in determining whether the impugned system or legislative provision contravenes section 3 at the rights stage and they can also be considered as factors under section 1 when the government seeks to justify the system that has been found not to meet the criteria of effective representation. The distinction in Sauvé is easy to discern, particularly since it concerns a “simple” case of denial of the franchise; however, it is less easy to distinguish whether consideration of factors such as prohibiting release of polling results or restricting election spending for particular election participants more properly belongs under section 3 or section 1, except that the SCC has told us.
Frank was also an uncomplicated voting case, specifically whether the denial of the federal vote to otherwise eligible Canadians because they had lived outside Canada for at least five years (but intended to resume residence in Canada) was constitutional.
Writing for the majority, Wagner C.J. emphasized the literal wording of section 3, rejecting any judicial reimagining of the guarantee, at least on these facts, where the legislation added residence to citizenship (the internal qualification) as voting qualifications: “In clear language, the Charter tethers voting rights to citizenship, and citizenship alone. Section 3 does not mention residence. [T]he choice of the framers of the Charter to omit the residence requirement as an element of this core democratic right is significant.” (Frank, Wagner C.J., para. 29).
Given the way the Court has interpreted section 3 in other contexts, it might have been consistent for the Court to read “residence” into section 3, as it read “effective representation”, which is much further afield from the literal wording. Had they done so, the applicants would have borne the onus under section 3 of showing that the Canada Elections Act denied them their voting rights. Unless they could show this denied them effective representation, their challenge would likely have ended at that point.
The SCC decided Harvey five years after Saskatchewan Electoral Boundaries. It dealt not only with the right to vote, but also with the second part of section 3, the right to be eligible to run for office. Harvey was expelled from the New Brunswick legislature because he had convinced a minor to vote. The New Brunswick Elections Act provided that someone who had committed an offence under the Act was not allowed to vote for five years or to seek re-election for five years, as well as being expelled. I include this case because the latter half of section 3 is treated as exhaustive on its face.
Justice La Forest, for the majority, held that the provisions were a justified infringement of section 3 of the Charter. He began by stating, “[T]he right to be a candidate and to sit as a member of Parliament or a legislative assembly should be read in a broad manner.” (Harvey, La Forest J., para. 28) At the same time, he observed that in this context section 3 does not contain internal limits and any limit on a citizen’s right to sit as a representative needs to be justified under section 1.
Also interpreting the section literally, the Court has not been prepared to read opportunities to vote other than in federal and provincial elections into the section.
In Haig, Haig had moved from Ontario to Quebec prior to the 1992 Charlottetown Accord referenda. He was neither “ordinarily resident” in Ontario on the day of enumeration and he had not been a resident for six months in Quebec: he fell through “the legislative cracks”, to use Iacobucci J.’s term.
Writing for the majority in Haig, L’Heureux‑Dubé J. made the distinction clear.
Referring to the Saskatchewan Election Boundaries case, she wrote, “Clearly, in a democratic society, the right to vote as expressed in s. 3 must be given a content commensurate with those values embodied in a democratic state” and
[t]he purpose of s. 3 of the Charter is, then, to grant 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 legislation for which they will be accountable to their electorate.” (Haig, L’Heureux‑Dubé J.)
Nevertheless, she decided, regardless of how liberally the court should interpret it, section 3 has its limits. It encompasses voting for provincial (and territorial) and federal representatives and does not encompass voting in a referendum, which is a consultative process.
The Court has also interpreted section 3 strictly when it comes to the jurisdictions to which it applies.
In City of Toronto, after the 2018 municipal election had begun, the Ontario government passed legislation to reduce the Toronto Council from 47 to 25 wards. The City challenged the legislation under sections 2(b) and 3 of the Charter and unwritten principles. The majority of the Supreme Court of Canada rejected the challenge under both sections and the principles.
Writing for the majority, the Chief Justice and Brown J. treated the argument that unwritten constitutional principles could be used to read municipalities into section 3 with short shrift. They also noted that the omission of municipal elections was deliberate and therefore there is no gap to fill through the constitutional principle of democracy (City of Toronto, Wagner C.J. and Brown J., para. 81).
(It is worth noting that after the Superior Court of Justice struck down the legislation, the Premier had threatened to invoke section 33, but did not need to given the decisions of the Court of Appeal and the SCC, both of which upheld the legislation.)
Libman, a decision of the Court, did not address section 3, which was not applicable to Quebec’s Referendum Act. Instead, Libman challenged the legislative scheme for participation in the referendum under sections 2(b) and (d) of the Charter.
Nevertheless, two aspects of Libman link it to the cases that have considered section 3. The first is that it addressed spending limits on those who, like Libman, did not wish to align with one of the two national associations representing the “yes” and “no” votes in the referendum. The second is that it held that some restriction on their spending was conducive to promoting the expression of the majority. It raised “strik[ing] a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all” (Libman, para. 61).
At the heart of Libman are the values inherent in “political expression” and its relationship to the democratic process. The Court referred to several prior comments by the SCC relevant to this point, including the following by Dickson C.J. in Keegstra (Keegstra was charged under the Criminal Code for wilfully promoting hate through comments he made to his students in his classroom):
Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons. … The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all. (Libman, para. 29; emphasis added by the Court in Libman)
The Court held that both sections 2(b) and (d) were infringed, but that most of the impugned provisions were saved by section 1. The need to balance individual freedom of expression and that of “all” meant some restriction on the individual freedom was needed. The impugned provisions were therefore not purely restrictive of freedom of expression. This was because “[t]heir primary purpose is to promote political expression by ensuring an equal dissemination of points of view and thereby truly respecting democratic traditions.” (Libman, para. 61) (Not all the provisions were unconstitutional; nevertheless, given the context of the constitutional provisions in the scheme as a whole, the Court struck down the entire regime.)
We see the same approach to section 3, when restrictions on some participants may be necessary, or where some voters’ votes may be “worth” less, to realize the purpose of section 3 for the majority or community as a whole, as discussed in Saskatchewan Electoral Boundaries, Figueroa and Harper, for example.
I have left the discussion of Harper to the end of this review of the section 3 jurisprudence. It most resembles the Working Families facts and is the decision on which the lower court judges most rely.
Harper involved a challenge to Canada Election Act provisions that limited spending and advertising by third parties during federal elections. The majority of six judges held that the provisions infringed section 2(b) and they determined that certain of the provisions were justified and others were not. They did not infringe section 3 of the Charter, however.
Writing for the majority, Bastarache J. stated the case “requires the Court to revisit the principles and guidelines set out in Libman … in the regulation of elections.” (Harper, Bastarache J., para. 50). He explained that Libman was premised on an egalitarian model of voting:
The Court’s conception of electoral fairness as reflected in the foregoing principles is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process. Under this model, wealth is the main obstacle to equal participation … Thus, the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power. (Harper, Bastarache J., para. 62)
The current third party election advertising regime is Parliament’s response to this Court’s decision in Libman. The regime is clearly structured on the egalitarian model of elections. … The regime promotes the equal dissemination of points of view by limiting the election advertising of third parties who, as this Court has recognized, are important and influential participants in the electoral process. (Harper, Bastarache J., para. 63)
Justice Bastarache then considered whether the provisions infringe section 3. He notes the SCC previously characterized the purpose of section 3 as “effective representation”. He went on,
The right to effective representation is, however, more than just a right to be effectively represented in Parliament. As L’Heureux-Dubé J. concluded in Haig … the right to vote also includes the “right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate”. The Court expounded on this broader conception of the purpose of s. 3 in Figueroa.
The right to play a meaningful role in the electoral process under s. 3 of the Charter implicates a right of meaningful participation in that process. Meaningful participation is not limited to the selection of elected representatives.… (Harper, Bastarache J., paras. 69 and 70; emphasis added by Bastarache J.)
To play a meaningful role, a voter must be able to “exercise his or her vote in an informed manner”, requiring a range of information about candidates, parties and issues. What does this mean?
For voters to be able to hear all points of view, the information disseminated by third parties, candidates and political parties cannot be unlimited. In the absence of spending limits, it is possible for the affluent or a number of persons or groups pooling their resources and acting in concert to dominate the political discourse. … If a few groups are able to flood the electoral discourse with their message, it is possible, indeed likely, that the voices of some will be drowned out …. Where those having access to the most resources monopolize the election discourse, their opponents will be deprived of a reasonable opportunity to speak and be heard. This unequal dissemination of points of view undermines the voter’s ability to be adequately informed of all views. In this way, equality in the political discourse is necessary for meaningful participation in the electoral process and ultimately enhances the right to vote. Therefore, contrary to the respondent’s submission, s. 3 does not guarantee a right to unlimited information or to unlimited participation. (Harper, Bastarach J., para. 72)
In Bastarache J.’s view, spending limits “must be carefully tailored” so that they do not undermine political and third parties’ ability to disseminate information. Accordingly, “[t]o constitute an infringement of the right to vote, these spending limits would have to restrict information in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented.” (Harper, Bastarache J., para. 73)
In other words, inequality in the sense that third parties must be restricted in their spending is necessary to enhance equality in the electoral process, since for voters to be “well-informed” third parties should not be able to dominate the election landscape through uncontrolled spending. “Effective representation” must be exercised within a prescribed set of financial parameters.
- 2. Decisions in Working Families
The Ontario Court of Appeal in Working Families followed the SCC in the subtext it ascribed to section 3. To be well-informed as section 3 envisions requires that voters have access to information about the issues, parties and candidates. In contrast to section 2(b), as the Court of Appeal observed, Morgan J. recognized section 3 “protects the rights of individuals as voters in the electoral process, not the rights of third parties who hope to communicate with voters.” (Working Families (ONCA), majority, para. 67)
Justice Morgan had applied the liberal definition of section 3 in Working Families II. He noted, the amendments to the EFA do not prevent anyone from exercising their franchise, but that said, voting involved more than casting a ballot: “it encompasses the right of citizens to do so in an informed and meaningful way” (Working Families II, para. 72).
The rights of third parties intending to communicate with voters lie in section 2(b). The focus of section 3 is on the voter and, in effect, on the “ideal” precondition for voting. Voters do not have to be well-informed – being well-informed is not a precondition for voting – but voters must have the opportunity to be well-informed should they choose to be.
In Working Families II, Morgan J. took a very different approach to the same facts compared to Working Families I. He stated explicitly that the analysis under section 3 is different from that under section 2(b) (and, indeed, other rights). In the result, he found the provisions did not contravene section 3 (Working Families II, para. 113). I discuss this more fully below.
Although Working Families II is ostensibly about whether the provisions contravene section 3 of the Charter, section 2(b) makes an appearance, as it does in the Court of Appeal’s decision, as I note in Part 3 of this series of posts.
I give one example of one difference in Morgan J.’s analyses here: he found the effective restraint on television advertising (because of the cost compared to other methods given the funding permitted) was an unjustifiable contravention of section 2(b) because it was not a minimal impairment of the freedom of expression; however, he believed television advertising was not suited to a discussion of policy and thus did not further the “meaningful” participation that is a subtext of section 3. (Working Families II, para. 87) The same funding over the same time period applied to the same form of information dissemination contravened section 2(b) but not section 3.
From one perspective, the distinction Morgan J. made with respect to the value of television communication is hard to sustain. From another, it suggests he treated the use of television as a medium of communication under section 2(b) as simply that: a way to communicate; but he treated it as a source of content (policy discussion) under section 3.
Even so, relying on Harper, the Court of Appeal delineated the question the court must ask as “whether the restriction is ‘carefully tailored’ to ensure that candidates, political parties and third parties are able to convey their information to voters”, as opposed to being ‘overly restrictive’”. (Working Families (ONCA), majority, para. 87) Alone, this suggests that the relevant actors are those disseminating information.
The Court of Appeal cautioned that “carefully tailored” under section 3 is not to be confused with “minimally impaired” under section 1; the onus is on the applicant to show that the provisions are not carefully tailored. (Working Families (ONCA), majority, paras. 88 and 89) This issue is a source of disagreement by Benotto J. in dissent.
Elsewhere the majority framed the issue slightly differently: “the challenged spending restrictions limit information ‘in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented’. That is the constitutional standard for a violation.” (Working Families (ONCA), majority, para. 85). As they explained,
limits are necessary to ensure that the voices of the well-resourced do not drown out all others. However, where spending restrictions go too far, and third parties are prevented from providing political information to voters to an extent that undermines the right of citizens to meaningfully participate in the political process and to be effectively represented, the right to vote is infringed …. (Working Families (ONCA), majority, para. 3)
The majority of the Court of Appeal rejected, however, the submission of the appellants for an even broader interpretation that would recognize the “reciprocal” relationship between those receiving information and those providing it who are part of the same democratic dynamic.
Although both Morgan J. and the Court of Appeal (majority and dissent) applied the Saskatchewan Electoral Boundaries definition of section 3’s voting rights, they came to different conclusions.
Justice Morgan held the impugned provisions did not contravene section 3. The principle underlying his decision is signalled at the beginning of his decision: “third party spending on political advertisements may distort election results and make wealth the arbiter of influence on public decision-making. An unregulated market of election-oriented advertising may have a counter-egalitarian effect.” (Working Families II, para. 4)
The majority of the Court of Appeal held they did contravene section 3 and were not justified under section 1. The dissent would have upheld Morgan J.’s decision.
The majority’s reasoning focused on what they understood to be Morgan J.’s incorrect application of Harper and on his failure to assess the ramifications of the extension of the restrictive period from 6 to 12 months. They were also of the view that he had not paid enough attention to whether the spending limits were sufficient to mount a “’modest informational campaign’”. (Working Families (ONCA), majority, paras. 16 and 17)
Before considering Morgan J.’s decision in detail, the majority reviewed the treatment of section 3 in Figueroa, Libman and Harper.
The Court of Appeal adopted Figueroa’s postulate that “’the best interpretation of s. 3 is one that advances the values and principles that embody a free and democratic state, including respect for a diversity of beliefs and opinions.’” Citing Frank, it recognized the SCC’s acceptance of the “broad” meaning of section 3 even when the only issue is denial of the actual vote. (Working Families (ONCA), majority, para. 62)
Working Families, however, is not just about whether someone has been denied the vote, but about whether “the informational component of a citizen’s right to meaningfully participate in the electoral process” has been compromised, as the SCC articulated in Harper (Working Families (ONCA), majority, para. 64).
The majority, as did Morgan J., assessed the spending restrictions within the framework of the “egalitarian model” of elections. This means that government must take steps to make sure that “the voices of certain citizens will [not] be drowned out by the voices of those with a greater capacity to communicate their ideas and opinions to the general public”, referring to Figueroa (Working Families (ONCA), majority, para. 76; my addition).
Although Libman did not involve section 3 but spoke of the egalitarian model under sections 2(b) and (d) of the Charter, the Court of Appeal relied on it for two points: the need to control some spending in the interests of election fairness and the risk that third parties may distort the appropriate spending balance by aligning with a party or candidate (Working Families (ONCA), majority, paras. 77 and 78).
The Court of Appeal homes in on the core of section when the majority say, “in a s. 3 analysis, one cannot start from the proposition that any limiting of third party spending implies a breach of the right to vote in s. 3. Some level of spending limits is, on the contrary, necessary to enhance the right to vote.” Even so, “there can come a point when a spending limit goes from being voting right-enhancing to being voting right-infringing.” This point is reached when the restrictions undermines voters’ meaningful participation in the electoral process and to be effectively represented. (Working Families (ONCA, majority, paras. 81-84)
Justice Morgan also made the same points (Working Families II, para. 80). He focused on television advertisements, which the applicants wanted to be able to mount, but could not afford given the spending restrictions. He said while the advertisements were certainly examples of free expression, they were not amenable to providing the informational component needed under section 3 (Working Families II, paras. 82-87)
The question with respect to the right to vote is not whether the spending restrictions on such advertisements violate free speech; they do. And it is not whether they are justifiable as being a minimal impairment of the Applicants’ desired communications; they are not. Both of those questions were determined in the Applicants’ favor in the last round of litigation over the EFA. … [T]he question now posed under section 3 of the Charter, as explained by the Supreme Court in Harper, is whether the spending restrictions are “carefully tailored” to the egalitarian model of elections. (Working Families II, para. 88)
Justice Morgan also referred to the studies that supported that the 12 months restriction is “carefully tailored” for the purpose of section 3. The evidence from Working Families I, then considered under section 2(b), was relevant to the section 3 inquiry. However, these studies
must now be read with that legal context in mind. The speed of the new enactment therefore does not reflect a lack of care in tailoring the amendments [as the applicants argued], but rather reflects the fact that invoking the constitution’s ‘notwithstanding’ clause has changed the analytic landscape in which the amendments and their justification are now to be evaluated. (Working Families II, para. 100; my words added)
Although the impugned provisions failed the minimal impairment test in Working Families I, that is because section 2(b) requires the assessment from the perspective of the providers of information. Now under section 3, the voters and their rights under section 3 establish the reference against which the court must assess the provisions under section 3 (Working Families II, paras. 100-101).
The Court of Appeal criticized Morgan J.’s analysis because he did not focus on the difference between the original 6 months restriction and the subsequent 12 months restriction. Yet Morgan J. did consider both the impact of the 6 months and the 12 months restrictions, although not exactly in the way the majority in the Court of Appeal said he should have. Justice Benotto in dissent pointed out that Morgan J. was required to consider the legislation as it stood, not “previous iterations”, that he did so and that he supported his conclusions by reference to evidence relating to the 12 months restriction and its impact on voters rights under section 3.
Justice Benotto also disagreed with the majority that Morgan J. “erred in ‘failing to apply his previous findings’” in Working Families I. As she noted, Morgan J. made these findings under section 1 in Working Families I; however, as she also noted, Morgan J. recognized that the analysis under section 3 is different and therefore his analysis of the same information had to be different. (Working Families (ONCA), dissent, paras. 182-183) It may, indeed, be appropriate to acknowledge that Morgan J. did apply his previous findings, but that he appropriately considered how they fit within the different analysis section 3 requires.
The majority in the Court of Appeal concluded that while Morgan J. recognised that the applicants were not entitled to mount a persuasive campaign, he erred because he did not consider whether the restrictions prevented their mounting a modest campaign. Instead, he relied on Bastarache J.’s conclusion in Harper; however, Bastarache J. had considered the various ways the applicants could disseminate information and their cost in detail. Justice Morgan did not do that, although he did address the question without explicit detail of why the more expensive format, television, was not conducive to satisfying the requirements under section 3. (Working Families (ONCA), majority, paras. 123-134)
All the judges adjudicating Working Families tracked the limits under the EFA through the lens of Saskatchewan Electoral Boundaries. Nevertheless, in applying that broad definition, two judges (Morgan J. and Benotto J.A.) found that the funding limits under the EFA did not contravene section 3, while two judges (the majority in the Court of Appeal) held that they did.
The SCC had similarly held that the restrictions in Harper were constitutional but that requiring a minimum of 50 candidates for a party to have official party status, as in Figueroa, was not. The majority of the SCC in Thomson Newspapers did not address section 3 after finding that a ban on publication of survey results within a specific period before the election unjustifiably contravened section 2(b); however, the dissent did consider section 3, holding that the ban did not contravene the right to vote.
In my next post (Part 4 of this series), I consider the relationship between Charter guarantees, specifically section 2(b) and section 3, in part resulting from the Saskatchewan Electoral Boundaries expansive appreciation of voting rights.
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