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Charter - Democratic Rights (s.3). Fair Voting BC v. Canada (Attorney General)
In Fair Voting BC v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal considered the test for intervention 'as a friend of the court', here in a hopeful Charter s.3/15 case challenging the 'first-past-the-post' [aka 'single member plurality' ('SMP')] electoral system:[2] The appellants challenged various provisions of the Canada Elections Act, S.C. 2000, c.9 (“CEA”) as inconsistent with both ss. 3 and 15(1) of the Charter of Rights and Freedoms. The application was dismissed and the applicants have appealed to this court. The appeal has been listed for hearing on November 5, 2024.
[3] The argument advanced in the Superior Court was, in brief, that: (1) SMP infringes s. 3’s right to vote on the basis that it does not provide either the “effective representation” or “meaningful participation” that the Supreme Court has stated is entailed by s. 3: Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; and (2) SMP infringes s. 15(1)’s anti-discrimination provision in that it causes small political parties and their constituents to be underrepresented in Parliament, resulting in discrimination on the basis of the analogous ground of “political affiliation”, and that it results in the underrepresentation of women and racial minorities in Parliament.
A. The scope of the appeal
[4] With respect to s. 3 of the Charter, the appellants will argue on appeal that the application judge misapprehended the concepts of “effective representation” and “meaningful participation”; wrongly imported s. 1 considerations into the determination of whether s. 3 had been infringed; and misapprehended the applicants’ submission as seeking the imposition of a particular electoral system as a remedy.
[5] Additionally, the appellants will argue that the application judge erred in several respects in concluding that SMP does not infringe s. 15(1) rights. The proposed argument claims the application judge erred in failing to find a causal nexus between SMP and lower levels of representation of women and racial minorities in Parliament. The appellants will also argue in the alternative that political affiliation is analogous to the grounds of discrimination enumerated in s. 15(1), and that SMP wrongfully discriminates against persons who would vote for small parties.
[6] With respect to the Constitution Act, 1867, the appellants will argue that the application judge erred in finding that the Constitution Act, 1867 specifically calls for SMP.
[7] Given the application judge’s findings that the impugned sections of the CEA did not limit anyone’s Charter rights, he did not engage in a s. 1 analysis to determine whether the limits imposed were justified. The appellants will argue on appeal that the provisions fail the minimal impairment branch of the Oakes test because the record establishes that other electoral systems are available that do not unreasonably limit rights. . Working Families Coalition (Canada) Inc. v. Ontario (Attorney General)
In Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal consider a s.3 ['democratic rights'] Charter challenge to Election Finances Act amendments, here to third party election finance spending limits. In these quotes the court summarizes the current state of Charter s.3 ['democratic rights'] law, and the concept of 'proxies', which are 'method of ascertaining whether the restriction is constitutionally offside':(a) The proper analytic framework under s. 3 of the Charter
(i) General considerations
[61] Section 3 of the Charter provides: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. [62] The Supreme Court has confirmed how s. 3 should be read – broadly and in view of the principles that underlie it. “[A] broad interpretation of s. 3 enhances the quality of our democracy and strengthens the values on which our free and democratic society is premised”: Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 27. As the Court put it in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, at para. 27, “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.”
[63] At the heart of s. 3 is the imperative “to ensure the right of each citizen to participate meaningfully in the electoral process” and “that each citizen have a genuine opportunity to participate in the governance of the country through the electoral process”: Frank, at para. 26.
[64] At issue in these appeals is the informational component of a citizen’s right to meaningfully participate in the electoral process. The informational component was described by the Supreme Court in Harper, at para. 71:This case engages the informational component of an individual’s right to meaningfully participate in the electoral process. The right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner. For a voter to be well informed, the citizen must be able to weigh the relative strengths and weaknesses of each candidate and political party. The citizen must also be able to consider opposing aspects of issues associated with certain candidates and political parties where they exist. In short, the voter has a right to be “reasonably informed of all the possible choices”: Libman, at para. 47. [Emphasis added.] [65] In short, a citizen has a right to exercise their vote in an informed manner, which entails being reasonably informed of all electoral choices.
(ii) Section 3 protects the voter’s right to receive information in connection with elections
[66] We agree with the Attorney General’s submission that the analytic framework for a s. 3 challenge begins with a careful reading of the text. The reference in s. 3 to “[e]very citizen of Canada” having the right to vote in a provincial or federal election is inescapably directed toward participation in an election, as opposed to a right to lobby elected representatives or a free-standing right to engage in political discourse outside of elections.
[67] It follows that s. 3 protects the rights of individuals as voters in the electoral process, not the rights of third parties who hope to communicate with voters. As the application judge recognized, this distinction must be borne in mind since, in this respect, the s. 3 challenge differs from the s. 2(b) challenge, where the free expression rights of the appellants qua political advertisers were in issue.
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(iii) The egalitarian model and the informational component of the right to vote
[75] We begin with the Supreme Court’s development of the s. 3 framework in Figueroa, Libman, and Harper, and the Court’s acceptance of the egalitarian model concerning advertising spending.
[76] In Figueroa, Iacobucci J. recognized, at para. 49, that “there is only so much space for political discourse; if one person ‘yells’ or occupies a disproportionate amount of space in the marketplace for ideas, it becomes increasingly difficult for other persons to participate in the discourse.” In other words, the voices of certain citizens will be drowned out by the voices of those with a greater capacity to communicate their ideas and opinions to the general public: see paras. 49-52.
[77] In Libman, a s. 2(b) and s. 2(d) case involving spending limits on advertising during a referendum campaign, the Supreme Court specifically affirmed the egalitarian model, recognizing the danger of allowing those with greater resources to dominate political discourse. The Supreme Court explained that spending limits are essential to ensure fair elections, at para. 47:... [S]pending limits are essential to ensure the primacy of the principle of fairness in democratic elections. The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens. If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate (Lortie Commission, supra, at p. 324). To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person’s exercise of the freedom to spend does not hinder the communication opportunities of others. Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard. Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties. Thus, the principle of fairness presupposes that certain rights or freedoms can legitimately be restricted in the name of a healthy electoral democracy (Lortie Commission, supra, at p. 323). Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources (Lortie Commission, supra, at p. 324).
[78] Libman recognized the influence third parties may have on elections and thus the need to extend spending limits to them, at para. 49:The actions of independent individuals and groups can directly or indirectly support one of the parties or candidates, thereby resulting in an imbalance in the financial resources each candidate or political party is permitted. Such individuals or groups might either conduct a campaign parallel to that of one of the candidates or of a party and in so doing have a direct influence on the campaign of that candidate or party, or take a stand on a given issue and in so doing directly or indirectly promote a candidate or party identified with that issue. [79] Similarly, Harper recognized the benefits of limits on third party advertising, in that case in the federal election context. In dismissing the s. 3 challenge to third party advertising limits, the Supreme Court affirmed that individuals should have an equal opportunity to participate in the electoral process and that wealth is the main barrier to equal participation: at para. 62. As Bastarache J. explained, “the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of those with less economic power”: at para. 62. Third party limits, he explained, seek to protect two groups: Canadian voters, and candidates and political parties: at paras. 80-81.
[80] Under the “egalitarian model”, it is appropriate to limit third party spending more strictly than the spending of candidates and political parties. In Libman, the Supreme Court explained why, at para. 50:It cannot be presumed that equal numbers of individuals or groups will have equivalent financial resources to promote each candidate or political party, or to advocate the various stands taken on a single issue that will ultimately be associated with one of the candidates or political parties … Although what [third parties] have to say is important, it is the candidates and political parties that are running for election. Limits on independent spending must therefore be lower than those imposed on candidates or political parties. Otherwise, owing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate. [81] It follows that, 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.
[82] As the Supreme Court has made clear, however, there can come a point when a spending limit goes from being voting right-enhancing to being voting right-infringing.
[83] In Harper, at para. 73, Bastarache J. gave authoritative guidance on when spending limits will violate the informational component of the right to vote:Spending limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters. Spending limits which are overly restrictive may undermine the informational component of the right to vote. To 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. [Emphasis added.] [84] He went on, at para. 74, to state, with particular reference to the facts of that case:The question, then, is whether the spending limits set out in s. 350 interfere with the right of each citizen to play a meaningful role in the electoral process. In my view, they do not. The trial judge found that the advertising expense limits allow third parties to engage in “modest, national, informational campaigns” as well as “reasonable electoral district informational campaigns” but would prevent third parties from engaging in an “effective persuasive campaign” (para. 78). He did not give sufficient attention to the potential number of third parties or their ability to act in concert. Meaningful participation in elections is not synonymous with the ability to mount a media campaign capable of determining the outcome. In fact, such an understanding of “meaningful participation” would leave little room in the political discourse for the individual citizen and would be inimical to the right to vote. Accordingly, there is no infringement of s. 3 in this case and no conflict between the right to vote and freedom of expression. [Emphasis added.] (iv) When the informational component of s. 3 is infringed – the test and the proxies
[85] In our view, what the appellants must show to establish a violation of s. 3 is that 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.
[86] In order to determine whether the standard is violated, two proxies, or methods of ascertaining whether the restriction is constitutionally offside, are laid down by Harper.
Careful tailoring
[87] The first proxy is 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”. The requirement that the restriction be carefully tailored invites the court to examine the rationale, express or implicit, for the amount and duration of the spending limit – the express or implicit reasons why the lines were drawn where they were.
[88] The concept of careful tailoring is sometimes used when deciding whether an established Charter infringement can nonetheless be saved under s. 1. We have had the benefit of reading the dissenting reasons of our colleague, which emphasize that it is important not to conflate the s. 3 analysis with a s. 1 minimal impairment analysis. We make the same point. The requirement that the restriction be carefully tailored in the sense necessary to determine whether s. 3 has been infringed must be viewed differently from minimal impairment. In the s. 1 context, careful tailoring, through the choice of a reasonable alternative, is used not to determine whether a Charter right is infringed by the legislation, but to help evaluate whether a Charter infringement is minimally impairing, which is one (but just one) of the elements of the Oakes test: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. This is particularly the case with legislation that infringes a Charter right in the course of addressing complex social issues. As McLachlin C.J. stated in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 53:The question at this stage of the s. 1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit. Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal. In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives. [Emphasis added.] [89] Unlike in a minimal impairment analysis, the appellants in this case bore the burden of showing an absence of careful tailoring under s. 3. While the presence or absence of an explanation for the restrictions is relevant to discerning their rationale – and thereby enabling the court to ensure the measures are not overly restrictive – the onus was not on the Attorney General to demonstrate that the restrictions were carefully tailored. Similarly, in considering whether a s. 3 infringement has taken place, the careful tailoring analysis must not focus on whether a reasonable choice was made among alternatives that infringe the Charter right. Instead, the analysis must focus on whether an infringement has occurred at all. Therefore, the question is whether the challenged spending restrictions draw the line at the point of preventing the well-resourced from dominating political discussion without being overly restrictive so as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented. A conclusion that a choice was in some other sense “reasonable” does not answer this question.
[90] The Attorney General contends that Bastarache J.’s reference to careful tailoring represented a “pragmatic caution” but not a controlling legal test. According to the Attorney General, the controlling legal test is whether 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.
[91] We agree with the Attorney General about the constitutional standard, but disagree that the reference to “carefully tailored” spending restrictions can be so easily distinguished from the ultimate question of whether the rights of citizens to meaningfully participate in the political process and to be effectively represented have been undermined. The two are inextricably linked. In our view, this is demonstrated by Bastarache J.’s use of the term “must” in relation to careful tailoring, as opposed to some other modifier consistent with a mere caution. The use of the term “must”, in our view, indicates that careful tailoring is a consideration that the court is to use in determining whether the constitutional standard – the voter’s right to meaningfully participate in the electoral process – has been violated.
[92] The application judge accepted that the challenged spending restrictions had to be carefully tailored within the meaning of Harper in order to be found consistent with s. 3. However, as we discuss below, he erred in the way he conceptualized and applied that standard.
Modest informational campaign
[93] The second proxy in assessing whether the constitutional standard is met is the level of information campaign that the restrictions will permit a third party to conduct. Harper recognizes that nothing more need be permitted than a “modest informational campaign”, as opposed to a campaign that would be capable of determining the outcome. This is a fact-based, evidentiary analysis: Harper, at para. 115. As we discuss below, the application judge erred in the manner in which he approached this consideration. He did not make a finding that a modest informational campaign could be conducted.
Conclusion on proxies
[94] In summary, the presence or absence of careful tailoring, and the view the court takes of the level of information campaign that can be mounted in compliance with the restrictions, are not additional tests. They are considerations that must be used to inform whether the constitutional standard has been violated by spending restrictions because they “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, at para. 73. . Toronto (City) v. Ontario (Attorney General)
In Toronto (City) v. Ontario (Attorney General) (SCC, 2021) the Supreme Court of Canada consider Charter s.3 electoral rights:[45] Section 3 guarantees citizens the right to vote and run for office in provincial and federal elections, and includes a right to effective representation. The text of s. 3 makes clear, however, that it guarantees “only the right to vote in elections of representatives of the federal and the provincial legislative assemblies” (Haig, at p. 1031 (emphasis added)) and “does not extend to municipal elections” (p. 1031 (emphasis added), citing P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 2, at p. 42‑2). Simply put, ss. 2(b) and 3 record distinct rights which must be given independent meaning (Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at paras. 79‑80; Harper, at para. 67). Effective representation is not a principle of s. 2(b), nor can the concept be imported wholesale from a different Charter right.
[46] In any event, effective representation connotes voter parity which, while not exhaustive of the requirements of effective representation, is the overarching concern and the condition of “prime importance” (Reference re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158, at p. 184). What matters is the relative population of the wards, not their absolute size. To hold otherwise implies keeping the population of wards relatively constant by increasing the number of councillors to keep pace with population growth, a notion unknown to Canadian law (in s. 3 or elsewhere) and which would not be without its own difficulties, including potentially unwieldly growth in the size of Toronto City Council (M. Pal, “The Unwritten Principle of Democracy” (2019), 65 McGill L.J. 269, at pp. 298‑99; J. C. Courtney, Commissioned Ridings: Designing Canada’s Electoral Districts (2001), at pp. 15 and 19).
[47] And even were effective representation to apply as a consideration here, we would not find that the principle has been violated due only to the larger population sizes of the wards created by the Act. It is not disputed that the 25‑ward structure of the Act enhanced voter parity, relative to the 47‑ward structure preferred by the City (which was not even designed to achieve voter parity until 2026) (A.F., at para. 150; R.F., at paras. 35, 38, 133, 143 and 148). Indeed, the Toronto Ward Boundary Review’s reasoning for having rejected the 25‑ward structure was criticized on this very basis (R.R. (short), vol. II, at pp. 65, 69, 72-73 and 77-78). While the principle of effective representation encompasses more than simple voter parity, those who rely upon the principle of effective representation here fail to identify any other factors — geography, community history, community interests and minority representation — that could conceivably justify a departure from parity (see Reference re Prov. Electoral Boundaries (Sask.), at p. 184).
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