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Elections - Federal Cases. Rebel News Network Ltd v. Canada (Commissioner of Elections)
In Rebel News Network Ltd v. Canada (Commissioner of Elections) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here of a JR dismissal where an issue was "whether it was reasonable for the Commissioner to find that the distribution of lawn signs was “election advertising” for the purposes of sections 2(1), 352, and 353 of the [Canada] Elections Act":[11] In its memorandum, Rebel News seeks to advance an argument based on paragraph (a) of the definition of "“election advertising”" in subsection 2(1) of the Act. This argument was not raised before the Commissioner. As noted by the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, at paragraphs 22 and 23, the Court "“also has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so”". The Supreme Court noted that a Court will not generally consider an issue raised for the first time on judicial review "“where the issue could have been but was not raised before the tribunal”".
[12] The issue related to paragraph (a) of the definition of "“election advertising”" in subsection 2(1) of the Act could have been raised by Rebel News before the Commissioner. Rebel News acknowledged that it did not refer to this paragraph in any of its submissions to the Commissioner and that it did not specifically raise any argument related to this paragraph before the Commissioner. Rebel News focused its submissions to the Commissioner on paragraph (b) of the definition of "“election advertising”" in subsection 2(1) of the Act. The general rule stated above will apply and the argument related to paragraph (a) of the definition of "“election advertising”" in subsection 2(1) of the Act will not be considered in this appeal.
[13] "“Election advertising”" is defined in subsection 2(1) of the Act:"2 (1) The definitions in this subsection apply in this Act. "
"2 (1) Les définitions qui suivent s’appliquent à la présente loi. "
"... "
"[...] "
"election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue with which a registered party or candidate is associated. For greater certainty, it does not include "
"publicité électorale"" Diffusion, sur un support quelconque et pendant une période électorale, d’un message publicitaire qui favorise ou contrecarre un parti enregistré ou l’élection d’un candidat, notamment par une prise de position sur une question à laquelle est associé un parti enregistré ou un candidat. Il est entendu que ne sont pas considérés comme de la publicité électorale: "
"... "
"[...] "
"(b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election; "
"b"") la promotion ou la distribution, pour une valeur non inférieure à sa valeur commerciale, d’un ouvrage dont la mise en vente avait été planifiée sans égard à la tenue de l’élection;" [14] Rebel News does not dispute that it transmitted an advertising message to the public during an election period. Rebel News does not dispute that the lawn signs opposed the Liberal Party and the election of its leader and certain members of the Cabinet. Rather, Rebel News focuses on paragraph (b) of the definition of "“election advertising”". Paragraph (b) provides, in part, that the promotion of a book (which would otherwise be election advertising) is not election advertising "“if the book was planned to be made available to the public regardless of whether there was to be an election”".
[15] The Commissioner, in paragraph 23 of his reasons, cites paragraph (b) from the definition of election advertising and highlights the passage that is relevant in this appeal:The relevant portion of the provision at paragraph 2(b) under “election advertising” clarifies that for greater certainty, election advertising does not include “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election” [Emphasis added [by the Commissioner].] It is clear from the underlined passage that the so-called “book exemption” applies only in relation to a book that would have been published whether or not the election was called. [16] Rebel News focuses on the immediately following paragraph in which the Commissioner states:24. I am of the view that the clarification at paragraph 2(1)(b) of the Act does not apply in this case because Rebel News had planned the launch of the book to coincide with the election. [17] Rebel News argues that the decision of the Commissioner that the distribution of the lawn signs which promoted the book was election advertising is not reasonable because paragraph (b) of the definition of election advertising states that the promotion of a book will not be election advertising "“if the book was planned to be made available to the public regardless of whether there was to be an election”". Rebel News submits that the Commissioner effectively changed the test to determine if paragraph (b) of the definition of election advertising applies. Rebel News argues that the Commissioner only focused on whether the launch of the book was planned to coincide with the election and, having found that the launch of the book was planned to coincide with the election, the Commissioner found that paragraph (b) of the definition of election advertising did not apply.
[18] Rebel News pointed to other books that were launched around the time of the election. The other books also related to individuals running in the election. Rebel News submitted that simply timing the launch of a book to coincide with an election does not make the promotion of Ezra Levant’s book election advertising. However, whether the promotion of any other book that was launched around the time of the election would not be included as election advertising as a result of paragraph (b) of the definition of election advertising is not before us. The only issue before us is the whether the Commissioner’s decision (that paragraph (b) of the definition of election advertising did not apply to the distribution of the lawn signs in this matter) was reasonable.
[19] This argument with respect to the Commissioner effectively changing the provisions of paragraph (b) of election advertising was raised before the Federal Court and I agree with the analysis and conclusion of the Federal Court Judge as set out in paragraphs 80 to 82 of her reasons. I would adopt these reasons and this analysis.
[20] A fair reading of the Commissioner’s reasons confirms that he was not creating a different test for the purposes of paragraph (b) of the definition of election advertising. In paragraph 23 of his reasons, the Commissioner, in quoting paragraph (b) of the definition of election advertising, highlighted the relevant test: "“if the book was planned to be made available to the public regardless of whether there was to be an election”". In the immediately following sentence, the Commissioner stated:It is clear from the underlined passage that the so-called “book exemption” applies only in relation to a book that would have been published whether or not the election was called. [21] This confirms that the Commissioner was focused on the test as set out in paragraph (b) of the definition of election advertising.
[22] The fact that Rebel News planned to launch the book to coincide with the election was relevant. It was a significant factual finding that formed part of the factual framework considered by the Commissioner in determining that paragraph (b) of the definition of election advertising did not apply, i.e. the book, that was promoted by distributing the lawn signs, was not planned to be made available to the public regardless of whether there was to be an election.
[23] The finding by the Commissioner that paragraph (b) of the definition of election advertising did not apply (and therefore that the distribution of the lawn signs was election advertising) was reasonable. . Democracy Watch v. Canada (Prime Minister)
In Democracy Watch v. Canada (Prime Minister) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed on stare decisis) an appeal of a denied judicial review challenging the date of the last federal election (it wasn't scheduled regularly every four years), advanced by a well-known public interest group:[1] This is an appeal of an order of the Federal Court (per Zinn J.) dated February 22, 2022. This order struck the appellants’ judicial review application (the Application) challenging the decision of the Prime Minister of Canada made on August 15, 2021 by way of Order in Council 2021-0892 issued by the Committee of the Privy Council, advising the Governor General to dissolve Parliament and call a general election.
[2] The appellants claim that the Prime Minister’s advice to the Governor General violates section 56.1 of the Canada Elections Act, S.C. 2000, c. 9 (the Act).
[3] Section 56.1 of the Act reads as follows:Canada Elections Act, S.C. 2000, c. 9
Loi électorale du Canada, L.C. 2000, c. 9
DATE OF GENERAL ELECTION
DATE DES ÉLECTIONS GÉNÉRALES
Powers of Governor General
Maintien des pouvoirs du gouverneur général
56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.
56.1 (1) Le présent article n’a pas pour effet de porter atteinte aux pouvoirs du gouverneur général, notamment celui de dissoudre le Parlement lorsqu’il le juge opportun.
Election dates
Date des élections
56.1 (2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.
56.1 (2) Sous réserve du paragraphe (1), les élections générales ont lieu le troisième lundi d’octobre de la quatrième année civile qui suit le jour du scrutin de la dernière élection générale, la première élection générale suivant l’entrée en vigueur du présent article devant avoir lieu le lundi 19 octobre 2009. [4] According to the appellants, that provision prohibits the calling of an election before the fixed election date set out in subsection 56.1(2) of the Act unless, consistent with an emerging unwritten constitutional convention stemming from the 2011, 2015 and 2019 general elections, a vote of non-confidence occurs in Parliament before that fixed date. They contend that this new constitutional convention prohibits election advice driven for purely partisan electoral advantage and that section 56.1 of the Act must now be read accordingly.
[5] The election called by the Governor General on the Prime Minister’s advice was held on September 20, 2021, whereas the fixed election date under subsection 56.1(2) of the Act was October 16, 2023.
[6] The respondents moved for an order striking the Application on the basis that it was moot, bereft of any chance of success, and an abuse of the Court’s process. The respondents also argued that the appellants lacked the requisite standing.
[7] After setting out the test applicable on motions to strike, the Federal Court determined that the Application lacked legal merit and was doomed to fail because this Court had decided the same issues raised therein in Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 F.C.R. 22, leave to appeal to the Supreme Court of Canada dismissed (2011 CanLII 2101 (SCC)) (Conacher). Conacher concerned the advice given by the Prime Minister to the Governor General, on September 7, 2008, to dissolve Parliament and set a polling date for October 14, 2008. This was a year or so after the Act had been amended to include section 56.1.
[8] The Federal Court considered, but rejected, the appellants’ contention that the factual and legal matrix underlying the present matter is different from the one in Conacher. Aside from the fact that the new constitutional convention asserted by the appellants was “far from established”, it determined that Conacher clearly established that section 56.1 of the Act, “as drafted, [did] not affect the Prime Minister’s ability to give advice to the Governor General” (Conacher at para. 7). It further held that, to the extent that constitutional conventions were relevant in deciding whether to call an election, they were only relevant insofar as “in the Governor General’s opinion, [they] may bear upon or determine the matter” (Reasons for Order at paras. 17-18 [my emphasis]). There's more of the stare decisis factual and legislative analysis at paras 13-19.
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