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Charter - Democratic Rights (s.3)
MORE CASES
Part 2
. Ontario (Attorney General) v. Working Families Coalition (Canada) Inc.
In Ontario (Attorney General) v. Working Families Coalition (Canada) Inc. (SCC, 2025) the Supreme Court of Canada dismissed an appeal, this from an appeal to the Ontario Court of Appeal which was allowed and held that an Ontario Election Finances Act (EFA) "spending limit violated the right to vote under s. 3" ['Democratic rights of citizens'] of the Charter.
Here the reviews the Charter s.3 'democratic rights' doctrine:A. Legal Framework
[27] Section 3 of the Charter is foundational to our democracy and the rule of law (Sauvé, at para. 9; Frank, at para. 44). It has been described by our Court as “synonymous” with democracy, a principle that underlies our Constitution and form of government (Haig v. Canada, 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995, at p. 1031, quoting Saskatchewan Reference, at p. 165, per Cory J., dissenting, but not on this point; see also Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217 (Secession Reference), at paras. 61-69). A generous interpretation of the right to vote reflects its importance to the health and quality of Canadian democracy (Frank, at para. 27). Figueroa instructs that “an enriched understanding of s. 3 . . . advances the values and principles that embody a free and democratic state, including respect for a diversity of beliefs and opinions” (para. 27; see also Haig, at p. 1031).
[28] This Court has defined the scope of s. 3’s protection to safeguard the free and open participation of citizens in the electoral process. Section 3 “has an intrinsic value independent of its impact upon the actual outcome of elections” because the electoral process is the “primary means by which the average citizen participates in the open debate that animates the determination of social policy” (Figueroa, at para. 29). The right to vote in free and fair elections is a primary means for citizens to participate in their governance. It is the basis of the legitimacy of laws enacted by lawmakers as “the citizens’ proxies” and a vital incident of Canadians’ membership in a self-governing polity (Sauvé, at para. 31; see also para. 33; Figueroa, at para. 30; Frank, at para. 27; Secession Reference, at paras. 63-67).
[29] This Court has repeatedly confirmed that the purpose of s. 3 is to advance and ensure effective representation (Saskatchewan Reference; Haig; Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877; Figueroa; Harper). In the Saskatchewan Reference, McLachlin J. articulated a broad role of the individual in a representative democracy: “Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one’s grievances and concerns to the attention of one’s government representative . . .” (p. 183 (emphasis deleted)). The Court’s jurisprudence has thus recognized that both the institutional and individual elements of democracy inform the meaning of s. 3 — that is, both “the process of representative and responsible government and the right of citizens to participate in the political process as voters” (Secession Reference, at para. 65, citing Saskatchewan Reference).
[30] In Haig, Figueroa, and Harper, the Court affirmed the participatory nature of the right to vote. L’Heureux-Dubé J., in Haig, elaborated that the purpose of s. 3 is to grant citizens “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” (p. 1031; see also Figueroa, at para. 25). The participatory component of s. 3 “ensure[s] that each citizen has an opportunity to express an opinion about the formation of social policy and the functioning of public institutions” (Figueroa, at para. 29). Thus, s. 3 protects the ability of citizens to participate in the political life of the country through exposure to and involvement in the political discourse about policies and issues that affect them (Figueroa, at paras. 28-30; Harper, at para. 70).
[31] The principle of meaningful participation also arose in Harper, where the Court confirmed that it includes a citizen’s right to vote in an informed way — that is, “to be ‘reasonably informed of all the possible choices’” (para. 71, quoting Libman, at para. 47). This requires that citizens be able to hear viewpoints and other information from third parties, candidates, and political parties (Harper, at paras. 71-72). Even before the Charter, this Court recognized that true democracy requires that citizens have access to information, including from “sources independent of the government”, to participate in the governance of the country (Reference re Alberta Statutes, at p. 146).
[32] Section 3 protects the right of a citizen to vote “in a manner that accurately reflects his or her preferences” (Figueroa, at para. 54). To vote in this way, citizens must have access to information to “be able to assess the relative strengths and weaknesses of each party’s platform” (Figueroa, at para. 54; see also Harper, at para. 71). For citizens to have a meaningful opportunity to participate in their governance through voting, there must be equilibrium in the political discourse to allow voters to develop an informed view (Harper, at paras. 72-73; Libman, at paras. 49-50). In Libman and Harper, the Court considered spending limits on political advertising and endorsed the goal of electoral fairness reflected in the egalitarian model of elections, noting the threat of affluent individuals and groups using wealth to monopolize or dominate the electoral discourse (Libman, at para. 47; Harper, at paras. 62-63). Equality and fairness in elections are essential to the meaningful exercise of the vote and encourage public confidence in the electoral system (Figueroa, at para. 51; Harper, at para. 63; Libman, at para. 47). The egalitarian model of elections thus aims to “balance the rights and privileges of the participants in the electoral process: candidates, political parties, third parties and voters”, so that voters may be better informed (Harper, at para. 87; see also paras. 62 and 72).
[33] As this Court recognized in Figueroa, electoral fairness is “not synonymous with formal equality” (para. 51). The legitimate goal of ensuring a level playing field for those who wish to engage in the political discourse may permit different limits on different electoral participants. Such limits “in turn, enabl[e] voters to be better informed; no one voice is overwhelmed by another” (Harper, at para. 62).
[34] The focus of the Court in Libman and Harper was the threat of those with greater resources exerting a disproportionate influence on the vote, given their role in the electoral process (Harper, at paras. 61 and 72-73; Libman, at paras. 41 and 49-50). The Court recognized that independent spending could be limited more strictly than spending by candidates or political parties (Harper, at para. 61; Libman, at para. 50). As Harper observed, this Court has recognized that “third parties . . . are important and influential participants in the electoral process” (para. 63). However, as this Court also noted in Libman, at para. 50:... 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. While third parties may be focussed on particular issues, citizens expect political parties to take a stance on many of the significant issues that come up in the legislature and in public debate. Relatedly, the government may decide to subject individuals to a lower limit than broad-based organizations, given their different roles in the political process. Voters must be able to hear viewpoints and other information from third parties, candidates, and political parties (Harper, at paras. 71-72).
[35] Public debate dominated by any one actor, including political parties, threatens balance in the political discourse (Libman, at paras. 47-52; Harper, at para. 72). Harper held that overly severe spending limits may interfere with the ability of voters to hear a diversity of views and undermine the ability of citizens to vote in an informed way (para. 73). To meaningfully participate, voters should be able “to hear and weigh many points of view” (para. 87). If the differential treatment of participants has an adverse impact on citizens’ right to meaningfully participate in the electoral process, it will offend s. 3 (Figueroa, at para. 51).
[36] I conclude from this review of our jurisprudence that a spending limit will infringe s. 3 of the Charter if it allows political actors or third parties a disproportionate voice in the political discourse given their roles in the electoral process, thus depriving voters of a broad range of views and perspectives on social and political issues. Such disproportionality in the political discourse would violate voters’ right to be “reasonably informed of all the possible choices” (Harper, at para. 71, quoting Libman, at para. 47). This analysis is necessarily comparative, considering all actors. No one actor should be able to exert undue influence on the political discourse, drowning out other voices.
[37] To assess the potential impact of the limit, it must be considered in its statutory context, including any limits on other electoral participants. This appeal thus requires us to consider the right to vote in an informed way in the context of restrictions on information during a full year of the duration of a legislative assembly — the year before a fixed-date election.
[38] Section 3 protections are engaged in the pre-writ period. The timing and length of restrictions on information are important factors post-Harper, as fixed-date elections have made pre-writ spending restrictions more common. Different interests may be relevant in the pre-writ period, during which citizens’ s. 3 rights remain engaged, and the legislature sits and defines government policies. Political discourse on such issues is essential to democracy. Pre-writ spending limits thus raises different concerns, which were not at play in Harper or Libman.
[39] Moreover, whatever the content or perspective of the political advertising, our jurisprudence has stressed that voters must be able to “hear and weigh many points of view” and to consider the relative strengths and weaknesses of each candidate, political party, and the issues associated with them, to make an informed choice (Harper, at para. 87; see also para. 71; Figueroa, at para. 63).
[40] Third parties are varied, and may include civil society organizations, Indigenous groups, religious groups, unions, individuals passionate about causes, and entities representing business interests. They may bring different perspectives to an issue associated with a political party or push new issues on to the agenda. Organizations trusted by citizens or reflecting their preferences may help voters to identify issues of importance to them or disseminate their views into the political discourse, much as political parties do (Figueroa, at para. 40). Or they may challenge a citizen’s worldview and introduce them to new perspectives they may otherwise not have considered. They may represent vulnerable, less resourced, and dissenting voices, which “[a] democratic system of government is committed to considering” (Secession Reference, at para. 68). Or they may represent powerful interest groups that are well-resourced.
[41] Ultimately, the challenged spending limit’s broader impacts on political discourse and varied citizen participation in the context of the year leading to an election period are thus highly relevant to its constitutionality. Courts must guard against interference with the right of citizens of differing views and backgrounds to participate in fair elections by advancing the purpose of s. 3 in Canada’s heterogeneous society. At paras 42-58 the court sets out their reasoning that the impugned provision violated the Charter.
. 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.
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