This post is the first 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.
To begin, Part I of the series includes the Introduction, a brief summary of the impugned spending provisions of the Election Finances Act (“EFA”) and an overview of the Working Families decisions. Part II begins consideration of section 3, specifically the SCC’s interpretation of section 3 of the Charter. Parts III and IV each focuses on the other two issues (the relationship between rights and the relationship between rights and section 1). Part IV 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.
Forty-one years after the Charter reinvigorated Canadian human rights law, the decisions made under it have revealed the difficulty of developing a coherent and consistent jurisprudence interpreting it.
Among others, Charter analysis raises the following questions: how should we define the meaning of a right? What is the relationship between or among rights: how does the Charter fit together? and what factors in a particular case should be addressed at the contravention of rights stage and when should they be part of the justification stage? In addition, recent developments have renewed controversy over the use and application of section 33, the override provision.
Despite some basic principles, such as giving rights a liberal and purposive interpretation, the application of these principles too often lacks rigor. In this post, I illustrate this point through consideration of section 3 of the Charter and the Ontario Superior Court of Justice and the Court of Appeal decisions applying it to the Ontario government’s restrictions on third party funding prior to elections.
Section 3 of the Charter is plainly worded to guarantee the right to vote and to be eligible for legislative office. The Supreme Court of Canada, however, has discovered a treasure trove of meaning in section 3’s guarantee, finding an echo of section 2(b)’s emphasis on the importance of information. Through SCC interpretation, section 3 guarantees not merely the right to cast a ballot, but to do so with the goal of “effective representation”, achieved through receiving information relevant to voting and to governance.
Put another way, the application of section 3 is enhanced by considerations that also underlie section 2(b) of the Charter. And hidden behind its simple words lies an alchemy of Charter structure that allows it to substitute in the right case for section 2(b) to stymie government attempts to prevent legislation from being struck down. This possibility exists because section 2 (b) is subject to the notwithstanding clause or override in section 33 of the Charter and section 3 is not. Similarly, the wording of section 3 may prevent its application to impugned legislation, while a court finds the legislation contravenes a different section.
The latest case to address section 3 and (collaterally) section 2(b) is the Ontario Court of Appeal’s decision in Working Families (ONCA). This case dealt with limitations on third party advertising and spending prior to an election in Ontario under the EFA. (To be clear, “third party” in this context means individuals or groups who are not registered as political parties, but who want to participate in the election process through various means of communication.)
Working Families (ONCA) allowed an appeal from “Working Families II”, which held that the impugned legislative provisions were constitutional and did not run afoul of section 3 of the Charter. In Working Families I, Morgan J. had held that the amendments contravened section 2(b) and were not justified under section 1. Following Working Families I, the Ontario legislature had re-enacted the legislation with the inclusion of section 33 of the Charter, prompting the challenge under section 3.
On appeal, given that Working Families I was no longer in play, the Court of Appeal dealt only with Working Families II. The majority (Zarnett and Sossin JJ.A.) held the provisions were unconstitutional; Benotto J., in dissent, would have dismissed the appeal.
As I indicated in the Preamble, In this series of posts I outline the relevant provisions of the EFA, track the SCC interpretation of section 3 and consider the application of that jurisprudence to the two Superior Court and the Court of Appeal decisions about the third party restrictions, focusing on three specific issues raised by the jurisprudence:
- the scope of section 3;
- the relationship between Charter rights and particularly between section 3 and section 2(b); and
- the relationship between a guarantee and section 1 of the Charter, particularly in relation to section 3.
While I am focused on considering these issues as the courts have dealt with them under section 3, these questions are relevant to interpreting the Charter generally.
In the Conclusion, I discuss whether the meaning attributed to section 3 has complicated the application of section within the scheme of the Charter as a whole.
II. LIMITATIONS ON THIRD-PARTY ADVERTISING UNDER THE EFA
In 2017, the Ontario legislature enacted limits on third-party political advertising in 2017 applicable within six months of the dropping of the election writ (see Election Finances Act).
(Note that this kind of restriction can be applied only in fixed-date elections, which all provinces and territories, as well as Canada, have. However, not all elections are fixed date, since governments can lose non-confidence votes, normally followed by an election, and the prime minister or a premier may decide to ask the governor-general or lieutenant-governor, respectively, to call an election out of the fixed-date cycle. With these “surprise” elections, previously the norm, there is no pre-election period to which the provisions can apply.)
The applicants challenged these provisions in 2018, but before they were heard, in 2021 the government extended the six-month period to 12 months (see Election Finances Act), as well as added other provisions; see the current version of the EFA here).
After the Superior Court struck down the amendments under section 2(b) of the Charter, the government introduced “new” legislation, the Protecting Elections and Defending Democracy Act, 2021, which, along with the amendments to the EFA, included section 33 of the Charter. These provisions were subsequently incorporated into the EFA. This procedure, with the inclusion of the notwithstanding clause, thus displaced Morgan J.’s decision in Working Families I that these provisions were unconstitutional. Assuming no other developments, including a re-enactment of section 33, section would normally expire after five years, unless the declaration specifies earlier, pursuant to section 33(3).
The original applicants challenged the same provisions, but this time under section 3 of the Charter, which is not subject to section 33.
Justice Morgan set out the provisions of the EFA in detail in paragraphs 9 to 19 of Working Families I and then summarized the relevant provisions of the EFA, as amended:
the 12-month pre-election restricted spending period, the inclusion of issue-based advertising, anti third-party coordination provisions that prohibit collusion among political advertising groups, mandatory registration and reporting requirements that accompany expenditures on political advertisements, and the punishments and administrative penalties that have been enacted to enforce all of these policies. (Working Families I, para. 9)
The amendments retained the $600,000 spending limits that had been applicable to the 6 month restriction; they were now applicable to the 12 month limit.
Justice Benotto, in dissent at the Court of Appeal, described the spending amendments, relevant here, as follows:
[I]n advance of a fixed-date general election, each third party, whether big or small, may spend a total of $700,000 (now indexed to $819,700) on election-related advertising caught by the definition of “political advertising”, plus an unlimited amount on communications that are not caught by the definition. (Working Families (ONCA), dissent, para. 158)
(The reference to $700,000 includes the $100,000 spending permitted within a particular time frame that is in addition to the $600,000.)
The EFA defines “political advertising” as follows:
advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate and includes advertising that takes a position on an issue that can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate and ‘political advertisement’ has a corresponding meaning…. (EFA, section 1(1))
However, political advertising does not include several kinds of communications: editorials, debates, speeches, interviews, columns, letters, commentaries or news; the transmission to the public of these types of communication; distribution of books if distribution is intended prior to the election; communications to members of groups and trade unions, shareholders or employees of corporations; an individual’s personal views on the internet (on a non-commercial basis); and calls to electors to encourage them to vote.
III THE SUPERIOR COURT AND COURT OF APPEAL DECISIONS
As I stated above, Morgan J. held in Working Families I that the provisions unjustifiably contravened section 2(b) of the Charter, but in Working Families II held that they did not contravene section 3 of the Charter. The Ontario Court of Appeal reviewed only Working Families II, holding that the provisions did contravene section 3 without justification. It suspended the declaration of invalidity for one year to allow the provincial government to make changes.
Justice Morgan dealt with the restrictions on third-party advertising within 12 months leading up to the issuance of the election writ under section 2(b) of the Charter in Working Families I. As he said, “the section 2(b) guarantee has often been said to give expression in a political context the highest level of protection. As Justice McLachlin put it in the 1992 decision of R v Zundel [my form of online citation] , ‘The purpose of the guarantee is to permit free expression to the end of promoting…political or social participation’” (Working Families I, para. 25). Zundel had published a pamphlet that questioned whether six million Jews had died in the Holocaust and that, indeed, characterized the Holocaust as a myth.
Justice McLachlin added, “Tests of free expression frequently involve a contest between the majoritarian view of what is true or right and an unpopular minority view.” Furthermore, “this Court has consistently refused to take into account the content of the communication”. For herself and three other judges, McLachlin J. held that the “false news” provision under the Criminal Code, under which Zundel was charged, contravened section 2(b) and was not justified under section 1. The three dissenting judges held that the provision contravened section 2(b) but was justified under section 1. They also acknowledged that section 2(b) protected all forms of expression, regardless of content, except for violence.
Given the expansive interpretation the SCC has applied to section 2(b), very few instances of expression are denied its protection, once the court has funneled the impugned provision through the three-part test elaborated in Irwin Toy. For example, even parking a car might attract section 2(b) attention if the intent is to convey a meaning; and silence is also a form of expression (Irwin Toy). In Ford, the Court stated, “commercial expression which … protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self fulfillment and personal autonomy” (Ford, The Court, para. 59). Whether expression is protected is limited to a certain extent by where it occurs and the purpose of that location (Montréal (City) v. 2952-1366 Québec Inc.).
As a result, the analysis of section 2(b) may be somewhat more complicated than initial statements of its meaning suggest. Justice Morgan explained that depending on the context of the speech, the range of constitutional protection may be from medium to high (Working Families I, para. 26). However, the facts underlying Working Families easily pass the section 2(b) tests, given their political context.
Furthermore, he said, restrictions on third-party advertising raise not only freedom of speech issues, but also “[e]quality of speaking opportunities” (Working Families I, para. 27). Citing Libman, which addressed spending restrictions on third parties in Quebec referenda, Morgan J. stated, “the financing of political expression – specifically, election-oriented advertisements – is certainly an aspect of expression deserving protection under section 2(b) of the Charter; but its level of protection is a matter of context, to be weighed with and against other values underlying democracy itself.” (Working Families I, para. 28)
Justice Morgan applied the “egalitarian principle”, under which
freedom of expression is counterbalanced by a need to ensure that all citizens have an equal opportunity to participate in the electoral process. This principle has, in turn, been embraced by the Supreme Court, which in a series of cases has reiterated that ‘spending limits are necessary to prevent the most affluent from monopolizing election discourse’: Libman, at para 47. (Working Families I, para. 31)
Restrictions on third-party advertising, which can indirectly increase the available advertising for candidates and parties, flows from this principle. And this modification of free expression has become constitutionalized: “The Charter has therefore become not just a vehicle for guaranteeing political speech, but a vehicle for ‘promot[ing] the equal dissemination of points of view by limiting the election advertising of third parties’” (Working Families I, para. 32, citing Harper, which addressed limitations on third-party spending in federal elections).
Notably, this recognition of the need to limit speech to some degree does not find its way into the meaning of section 2(b) itself. As I already noted, freedom of expression is broadly defined, capturing almost all forms of expression, although there are exceptions. Generally speaking, government must justify most restrictions on speech under section 1 of the Charter. This is the case in Working Families I, where the Attorney General had conceded that the restrictions breached section 2(b) (Working Families I, para. 34).
In Morgan J.’s view, the provisions satisfied the first two stages of the section 1 test; however, they failed the minimal impairment test. He compared the original 6 months restriction with the 12 months amendment, noting that “[b]oth are said by the government’s own experts to reflect the same set of values; and both are likewise said by the government’s experts to be effective and to work.” (Working Families I, para. 71)
He explained, the options of 6 or 12 months “are not competing social values but rather competing ways of accomplishing the same social value – i.e. fair and egalitarian elections” and thus deference to the legislature is not appropriate. Deference “would not be to assess reasonable limits on a Charter right, but to impermissibly elevate legislative process over Charter conformity” (Working Families I, para. 72). The government had not explained why it extended the pre-election period. In addition, “As counsel for the Canadian Civil Liberties Association points out, the subject of electoral design is one in which the incumbent government has a structural conflict of interest in that its interest in self-preservation may dominate its policy formulation” (Working Families I, para. 73).
Justice Morgan followed Hutterian Brethren of Wilson Colony in requiring the government to apply the “least drastic” option to achieve its objective. Here, 12 months is obviously more restrictive than 6 months, which the government acknowledged could achieve the objective. (Working Families I, para. 75)
Although there are provisions that would satisfy the proportionality test, he held that the core of the provisions failed the minimal impairment test and therefore the provisions, when section 2(b) is considered, were not justified under section 1 (Working Families I, para. 90; my emphasis).
The majority of the Court of Appeal allowed the appeal from Morgan J.’s Working Families II decision. They found that the restrictions unjustifiably contravened section 3; they maintained that Morgan J. had not applied Harper correctly and that part of Morgan J.’s analysis was ambiguous. In dissent, Benotto J.A. found that Morgan J. had applied Harper correctly and that, while she did not conclude his decision was ambiguous, any ambiguity should be resolved in favour of finding the legislation constitutional.
Although the Attorney General did not argue that if the court found a violation of section 3, it was justified under section 1, the majority considered it anyway. They referred to the lack of evidence introduced by the Attorney General both with respect to the need to extend the restricted time period to meet the requirement that was not met by six months and with respect to whether there was any benefit justifying the infringement of rights. Therefore the restrictions were neither minimally impairing nor proportional (Working Families (ONCA), majority decision, paras. 138-141).
In my next post (Part II of this series), I begin discussion of section 3 of the Charter.
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