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Longley V. Canada (Attorney General)

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Longley V. Canada (Attorney General) Page 1 Case Name: Longley v. Canada (Attorney General) Between Blair T. Longley, Kevin Peck, Miguel Figueroa, Jim Harris, Marijuana Party, Canadian Action Party, Communist Party of Canada, Green Party of Canada, Christian Heritage Party and Progressive Canadian Party, Respondents The Attorney General of Canada, Appellant [2007] O.J. No. 4758 2007 ONCA 852 231 O.A.C. 244 88 O.R. (3d) 408 165 C.R.R. (2d) 190 163 A.C.W.S. (3d) 402 288 D.L.R. (4th) 599 Docket: C46236 Ontario Court of Appeal Toronto, Ontario D.R. O'Connor A.C.J.O., R.P. Armstrong and R.A. Blair JJ.A. Heard: June 27 2007. Judgment: December 6, 2007. (128 paras.) Constitutional law -- Canadian Charter of Rights and Freedoms -- Democratic rights -- Right to Page 2 vote -- Reasonable limits -- Equality rights -- Discrimination, what constitutes -- Fundamental freedoms -- Freedom of expression -- Election financing -- Attorney General of Canada appealed decision finding that s. 435.01(1) of the Canada Elections Act infringed ss. 3 and 15 of the Charter -- Appeal allowed -- While s. 435.01(1) of the Act infringed s. 3 of the Charter, the infringement was justified under s. 1 -- There was no violation of ss. 2(b), 2(d) or 15 of the Charter -- The political parties were unincorporated associations and did not have status to bring a constitutional and Charter-based challenge to the Act in a stand-alone proceeding. Government law -- Political parties -- Attorney General of Canada appealed decision finding that s. 435.01(1) of the Canada Elections Act infringed ss. 3 and 15 of the Charter -- Appeal allowed -- While s. 435.01(1) of the Act infringed s. 3 of the Charter, the infringement was justified under s. 1 -- There was no violation of ss. 2(b), 2(d) or 15 of the Charter -- The political parties were unincorporated associations and therefore did not have status to bring a constitutional or Charter-based challenge to the Act in a stand-alone proceeding. Civil procedure -- Parties -- Associations -- Standing -- Appeal by the defendant Attorney General of the decision of the applications judge that the unincorporated association political parties had standing to bring the application based upon a constitutional and Charter-based challenge to provisions of the Elections Act allowed -- The "deemed person" provision of s. 5.04(a) of the Act gave political parties the status of legal entities for the purpose of proceedings under the Act only -- The political parties did not have status to bring a constitutional and Charter-based challenge to the Act in a stand-alone proceeding. Appeal by the Attorney General of Canada from an application judge's decision finding that s. 435.01(1) of the Canada Elections Act infringed ss. 3 and 15 of the Charter. The respondent, Longley, was the leader of the Marijuana Party of Canada. He, along with the political party respondents, contended that the current regime for the regulation and public support of registered political parties under the Act unconstitutionally deprived them of financial benefits available to larger political parties. Among the benefits available to registered political parties was the right of those that obtained more than two per cent of the vote nationally in a general election, or five per cent of the total votes cast in the constituencies where they ran candidates, to receive direct public financing in the amount of $1.75 for every vote cast, indexed, and payable quarterly. The application judge held that the provisions of s. 435.01(1) infringed ss. 3 and 15 of the Charter; that the infringements could not be saved by s. 1 of the Charter; and that the language of s. 435.01(1) should, by operation of the remedies of severance and reading in, be read to provide a minimum threshold of "one vote" for qualification for receipt of the quarterly allowances. He ordered the Receiver General for Canada to pay quarterly allowances to the six party respondents retroactively to January 1, 2004, plus pre-judgment interest, in the total amount of $567,435. The applications judge also ruled that s. 504(a) of the Act gave political parties standing to sue in their own name and to claim s. 3 and 15 Charter rights on behalf of their individual members. He rejected the respondents' claims for damages in the amount of $100,000 for each claimant for loss of political Page 3 opportunities, and punitive damages in the amount of $500,000 for each claimant. The respondents cross appealed from those claims. HELD: Appeal allowed. The cross-appeal was dismissed. The thresholds imposed by s. 435.01(1) of the Act violated Parliament's obligation "not to enhance the capacity of one citizen to participate in the electoral process in a manner that compromises another citizen's parallel right to meaningful participation in the electoral process." The thresholds violated s. 3 of the Charter. However, the violation was justified under s. 1 of the Charter. The s. 435.01(1) thresholds did not violate s. 15(1) of the Charter. Quarterly allowances were paid to political parties, not to individuals. The respondent political parties were not entitled to assert a claim under s. 15 that they, themselves, had been subject to differential treatment from larger parties. The respondents' ss. 2(b) and 2(d) claims also failed. The s. 435.01(1) thresholds did not lead to any substantial interference with the ability of members or supporters of political parties to exercise their freedom of expression or their freedom of association. The political parties were unincorporated associations and as such did not have status to bring a constitutional or Charter-based challenge to the Act in a stand-alone proceeding. The "deemed person" provision of s. 5.04(a) of the Act gave legal entity status to political parties for the purpose of proceedings under the Act only. Statutes, Regulations and Rules Cited: Canada Elections Act, S.C. 2000, c. 9, s. 435.01(1), s. 504 Canadian Charter of Rights and Freedoms, 1982, s. 2(b), s. 2(d), s. 3, s. 15 Appeal From: On appeal from the judgment of Justice P.T. Matlow of the Superior Court of Justice, dated October 12, 2006, with reasons reported at (2006), 82 O.R. (3d) 481. Counsel: Gail Sinclair and Peter Hajecek, for the appellant. Peter Rosenthal and Larissa Ruderman, for the respondents. [Editor's note: Corrigenda were released by the Court December 7, 2007 and February 21, 2008; the corrections have been made to the text and the corrigenda are appended to this document.] The judgment of the Court was delivered by R.A. BLAIR J.A.:-- Page 4 PART I -- BACKGROUND AND FACTS Introduction 1 "Money is the mother's milk of politics", says the respondent Blair Longley, leader of the Marijuana Party of Canada. The individual and political party respondents want more of it from the public purse. They say that the current regime for the regulation and public support of registered political parties under the Canada Elections Act unconstitutionally deprives them of financial benefits available to larger political parties. 2 Amongst the array of benefits available to registered political parties is the right of those that obtain more than 2% of the vote nationally in a general election, or 5% of the total votes cast in the constituencies where they run candidates, to receive direct public financing in the amount of $1.75 for every vote cast, indexed, and payable quarterly. The constitutionality of those thresholds -- found in s. 435.01(1) of the Act1 -- is the primary issue on this appeal. Additional issues involve the remedies imposed and rejected by the application judge (who found that the thresholds violated ss. 3 and 15 of the Canadian Charter of Rights and Freedoms), and his interpretation of s. 504 of the Act (which deems a political party or association, in certain circumstances, to be a "person"). 3 The Attorney General of Canada seeks to set aside the judgment of Matlow J., dated October 12, 2006. In that judgment Justice Matlow ruled that the provisions of s. 435.01(1) infringed ss. 3 and 15 of the Charter, that those infringements could not be saved by s. 1 of the Charter, and that the language of s. 435.01(1) should, by operation of the remedies of severance and reading in, be read to provide a minimum threshold of "one vote" for qualification for receipt of the quarterly allowances. He ordered the Receiver General for Canada to pay quarterly allowances to the six party respondents retroactively to January 1, 2004, plus pre-judgment interest, in the total amount of $567,435.60. He also ruled that s. 504(a) of the Act gave political parties standing to sue in their own name and to claim s. 3 and s. 15 Charter rights on behalf of their individual members. 4 Justice Matlow rejected the respondents' claims for (a) damages in the amount of $100,000 for each claimant for loss of political opportunities suffered as a consequence of the respondent political parties not receiving quarterly allowances, and (b) punitive damages in the amount of $500,000 for each claimant. The respondents cross-appeal from the dismissal of those claims. 5 For the reasons that follow, I would allow the appeal and dismiss the cross-appeal. Facts2 Current Public Funding for Registered Political Parties under the Act 6 At the present time, the Act provides a measure of public funding to registered political parties on a two-tiered basis.3 7 First, once a party has been registered, it becomes entitled to an initial set of benefits of both an informational and financial nature.
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