Strengthening Canadian Democracy

choicesVol. 10, no. 4, May 2004 ISSN 0711-0677 www.irpp.org

The Charter of Rights and Party Politics

The Impact of the Supreme Court Ruling in Figueroa v. Canada (Attorney General)

Heather MacIvor ounded in 1972, the Institute for Research on Public Policy is an independent, national, F nonprofit organization. IRPP seeks to improve public policy in Canada by generating research, providing insight and sparking debate that will contribute to the public policy decision-making process and strengthen the quality of the public policy decisions made by Canadian governments, citizens, institutions and organizations.

IRPP's independence is assured by an endowment fund, to which federal and provincial governments and the private sector have contributed.

Heather MacIvor teaches Canadian politics and political theory at the University of Windsor. She has published on electoral reform, party ondé en 1972, l’Institut de recherche en leadership selection and women in politics. She politiques publiques (IRPP) est un organisme is presently completing a book about the F canadien, indépendant et sans but lucratif. Charter of Rights. L’IRPP cherche à améliorer les politiques publiques This publication was produced under the canadiennes en encourageant la recherche, en mettant direction of Paul Howe, Assistant Professor, Department of Political Science, University of de l’avant de nouvelles perspectives et en suscitant des New Brunswick. The manuscript was copy-edited débats qui contribueront au processus décisionnel en by Mary Williams, proofreading was by matière de politiques publiques et qui rehausseront la Francesca Worrall, production was by Chantal Létourneau, art direction was by Schumacher qualité des décisions que prennent les gouvernements, Design, and printing was by Impressions les citoyens, les institutions et les organismes Graphiques. canadiens. Copyright belongs to IRPP. To order or request L’indépendance de l’IRPP est assurée par un fonds de permission to reprint, contact: dotation, auquel ont souscrit le gouvernement fédéral, IRPP les gouvernements provinciaux et le secteur privé. 1470 Peel Street, Suite 200 Montreal, Quebec H3A 1T1 Telephone: 514-985-2461 Fax: 514-985-2559 E-mail: [email protected]

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To cite this document:

MacIvor, Heather. 2004. “The Charter of Rights and Party Politics: The Impact of the Supreme Court Ruling in Figueroa v. Canada (Attorney General).” Choices, 10, no. 4. Montreal: IRPP

The opinions expressed in this paper are those of the author(s) and do not necessarily reflect the views of IRPP or its Board of Directors. Strengthening Canadian Democracy / Renforcer la démocratie canadienne Research Directeur / Directrice de recherche Geneviève Bouchard

ince the 1960s, increased levels of education and changing social values S have prompted calls for increased democratic participation, both in Canada and internationally. Some modest reforms have been implemented in this country, but for the most part the avenues provided for public participation lag behind the demand. The Strengthening Canadian Democracy research program explores some of the democratic lacunae in Canada's political system. In pro- posing reforms, the focus is on how the legit- imacy of our system of government can be strengthened before disengagement from pol- itics and public alienation accelerate unduly.

epuis les années 1960, le relèvement du niveau d'éducation et l'évolution Table of Contents D des valeurs sociales ont suscité au Canada comme ailleurs des appels en faveur 2 Introduction d'une participation démocratique élargie. Si 3 The Legal Background: Judicial Interpretation quelques modestes réformes ont été mises en of Democratic Rights œuvre dans notre pays, les mesures envi- 6 The Factual Background of the Figueroa Case sagées pour étendre cette participation restent 11 November 2002: The Supreme Court Hears the Case largement insuffisantes au regard de la demande exprimée. Ce programme de 13 June 2003: The Supreme Court Rules on Figueroa recherche examine certaines des lacunes 16 How Much Difference Will the Figueroa Ruling Make? démocratiques du système canadien et pro- 18 Conclusion pose des réformes qui amélioreraient la par- 20 Notes ticipation publique, s'intéressant par le fait 24 References même aux moyens d'affermir la légitimité de notre système de gouvernement pour contrer le désengagement de plus en plus marqué de la population vis-à-vis de la politique.

1 IRPP Choices, Vol. 10, no. 4, May 2004 (Attorney General) Figueroa v. Canada Court Rulingin Impact oftheSupreme and Party Politics: The The CharterofRights Heather MacIvor this violationcouldnotbejustifiedundersection1. Canadian CharterofRightsandFreedoms,that lated thedemocraticrightsinsection3of changes tothe media, despitethesignificance oftheimpending — asC-51 orC-3—hasbeennearlyinvisibleinthe sidered thebroaderimplications oftheruling.TheBill Elections Act threshold forpartyregistrationunderthe decision, theCourtstruckdown50-candidate O Introduction Party of Canada (CPC); victory forMiguelFigueroa, leaderoftheCommunist has beenscarce. is notyetclear. the degreetowhichtheywereaffectedbyruling broadcasters —werenotaddressedin the freeadvertisingtimeprovidedbyCanadian surplus fundsfromtheircandidatesandashareof of registeredstatus—includingtherighttoretain their candidatesontheballot.Theremainingbenefits tax receiptsfordonations,andtherighttoidentify addressed bytheSupremeCourt:powertoissue will beentitledtothetwobenefitsexplicitly eligible forinclusionintheregisterofparties.They allowed totake effectonJune27,2004. that the 2004. TheBillisdesignedtofillthelegislativevoid C-3 afterprorogationandreintroductioninFebruary legislative response,BillC-51, whichwasrenamed Court. InOctober2003,thegovernmenttabledits conformity withtheChartervaluesidentifiedby monthssothatParliament couldamendtheAct in 12 The effectoftheinvalidationwassuspendedfor Media coverageofthedecisionanditsaftermath Under BillC-3,politicalpartiesofallsizeswillbe Canada (AttorneyGeneral) Canada issueditsrulingin n June27,2003,theSupremeCourtof Figueroa ( 2 CEA CEA Figueroa ruling wouldcreateifitwere ). . Thepurpose of thispaperisto 1 It foundthatthethresholdvio- 3 only the was portrayedsimplyasa Globe andMail . Inaunanimous Figueroa v. Figueroa Canada , and con- 2 bring wider attention to Figueroa’s impact on Canada’s The Court’s jurisprudence on section 3 raises basic election law. It presents the legal and political back- questions: Should judges make binding decisions about ground of the case and discusses the policy issues pre- democratic processes? Which Charter value(s) should sented to the Supreme Court. It then summarizes the take priority in judicial evaluations of election laws? majority opinion of the Court4 and situates it in the Should freedom trump fairness, or vice versa? Or broader context of Charter jurisprudence. The paper should we try to balance the two? concludes by analyzing Bill C-3, the government’s legislative response to Figueroa, and briefly discussing The Role of Judges in the Electoral Process a few issues that the Bill does not address. It also con- The answer to the first question is obvious in cases — for siders the possible impact of the Figueroa ruling in example, Haig, Harvey and Sauvé — where the law delib- light of the current interest in institutional reform. erately denies an explicit section-3 right to a particular individual or group. Under those circumstances, the Charter speaks clearly, and the courts have little choice The Legal Background: Judicial but to enforce it. Section 24(1) of the Constitution Act, Interpretation of Democratic 1982 permits anyone whose Charter rights have been Rights “infringed or denied” to “apply to a court of competent jurisdiction to obtain such remedy as the court consid- ers appropriate and just in the circumstances.” Section ection 3 of the Charter states that “Every citizen 52(1) states that “The Constitution of Canada is the of Canada has the right to vote in an election of supreme law of Canada, and any law that is inconsis- members of the House of Commons or of a leg- S tent with the provisions of the Constitution is, to the islative assembly and to be qualified for membership extent of the inconsistency, of no force or effect.” The therein.” Before the proclamation of the Charter, these framers obviously intended the courts to resolve con- rights were protected by statutory and common law. flicts between the Charter and ordinary statutes in They could be granted, or denied, at the whim of fed- favour of the former. The entrenchment of democratic eral and provincial governments. Over time, the worst rights, their immunity from the legislative “override” in abuses of the franchise — the denial of voting rights to section 33 and the choice of “a free and democratic women, Aboriginal Canadians, and citizens of Asian society” as the benchmark for justification under sec- ancestry — were eliminated. Consequently, the tion 1, collectively instruct the courts to defend voting entrenchment of democratic rights in 1982 was and office-seeking with all possible vigour.8 viewed as a symbolic gesture, not as a significant But not all disputes over election law are so clear- constitutional change (see, for example, Boyer 1981, cut. Section 3 of the Charter is silent on most aspects of 31 n. 23, 85; Russell 1982, 31). Indeed, section 3 was electoral organization and activity. It does not mention the least controversial item in the 1968-82 negotia- political parties, interest groups, campaign finance or tions. Its text changed only once: the phrase “without the rules for drawing electoral boundaries. Is it legiti- The Charter of Rights and Party Politics by Heather MacIvor reasonable distinction or limitation” was deleted in mate for courts to answer questions about these issues? the spring of 1981 (Bayefsky 1989, 821).5 The intro- There are two primary arguments against judicial par- duction of section 1, the “reasonable limitations” ticipation in disputes over election law. First, the “argu- clause, allowed the drafters to remove many (but not ment from democracy” holds that “self-government must all) of the internal qualifications on the rights and entail self-government about self-government.” In other freedoms listed in the Charter.6 Henceforth, restric- words, democracy only thrives where “decisions about tions on the right to vote or to seek public office how the people are to govern themselves are made by would have to be justified, if at all, under section 1. those people on a continuous basis” (Schauer 1994, Before the Supreme Court issued its decision in 1336). If democracy means “rule by the people,” then Figueroa, it had had few opportunities to interpret presumably the people (or their elected representatives) section 3. Only five previous cases — the should make the rules. For those who take the opposite Saskatchewan Boundary Reference, Haig, Harvey and view — that judges can, and should, resolve disputes the two Sauvé rulings7 — had turned on the meaning over electoral processes — the unfitness of legislators to and application of either the right to vote or the right make their own rules forces citizens to rely on the courts to run for office. These rulings are briefly summa- to police democracy. When left to their own devices, rized in table 1. they argue, politicians will manipulate the rules of the

3 IRPP Choices, Vol. 10, no. 4, May 2004 order” Charter duties:theyareobligedto draft and legislative andexecutive branchesperform“first- ensure thatlawsconformto theConstitution.The requires courtsandlegislatures toworktogether is thattheCharter—section 1,inparticular— legal expertsandjudgesthemselves. ated acottageindustryamongpoliticalscientists, between thetwobranchesofgovernmenthasgener- islatures. Inrecentyears,theconceptofdialogue over theproperrelationshipbetweencourtsandleg- ment. Thiscontroversyreflectsthebroaderdebate to thelegislativeandexecutive branchesofgovern- above thepartisanfrayandleavepoliticalquestions police theelectoralprocess.Theyshouldremain the competenceandconstitutionalmandateto tion ofelectoraldisputesclaimsthatjudgeslackboth outsiders theopportunitytocompete. self-interest candistorttheelectoralprocessanddeny absence ofsuchrules,individualambitionandpartisan rules thatdemandswift,unbiasedenforcement.Inthe and punishviolations,thegameofpoliticshaspreset Stanley Cupplayoffsandassignsrefereestoidentify game ofhockey establishesruleslongbeforethe electoral gametoservetheirowninterests. C 9 oei h 92rfrna toplayameaningfulroleinthe Officer) Sauvé v. Canada(ChiefElectoral voteinthe1992referenda? (Attorney General) Harvey v. NewBrunswick federalelectionsbyallprison 2 SCR995 (Chief Electoral Officer) Haig v. Canada;Haigv. Canada [1993] 2SCR438 aeLglise ipsto Remedy votingpower, whichmustbe Disposition therighttovote? Legalissues Sauvé v. Canada(AttorneyGeneral) 2 SCR158 Boundaries (Sask.) Reference re Prov. Electoral Case Pre- Table 1 C 7 lcinofne rmseig justifiedunders.1 electionoffencesfromseeking SCR 876 The secondargumentagainstthejudicialresolu- Figueroa , [2002] 3SCR519 19] mn lcoa itit ilt s.3guaranteesrelativeparityof amongelectoraldistrictsviolate , [1991] 19]2poiiigproscnitdo oftherighttorunforofficewas prohibiting personsconvictedof , [1996]2 Jurisprudence onSection3oftheCharter 19] oe lgblt ilt h ih o DubéJ):s.3guarantees“theright votereligibilityviolatetherightto , [1993] Ddalwta rhbtdvtn n e uaiosjdmn eiee Immediatenullificationofs.51(e) Yes (unanimousjudgmentdelivered Didalawthatprohibitedvotingin , ilt h ih ovt?justifiedunders.1;deferenceto violate therighttovote? federal electionsbyprisoners Yes Did alawthatprohibitedvotingin None right torunforpublicoffice? No(unanimous):theinfringement office forfiveyearsviolatethe Did aNewBrunswicklaw None No(majorityrulingbyL’Heureux- Did residencyrequirementsfor inmates violatetherighttovote? i iprte npplto ie o(aoiyrln yMLclnJ:None No(majorityrulingbyMcLachlinJ): size population in disparities Did 10 The argument 9 Just asthe to denyacrucialdemocraticright because thepurposeoflawwas the of Parliament wasinappropriate the infringementcouldnotbe not therighttovoteinareferendum selection ofelectedrepresentatives,” violated s.3andwasnotsavedbys.1 of orally byIacobucciJ):theprohibition government andthelegislature effective representationin such asgeography;itguarantees balanced againstcompetingfactors process. may notbeappropriateinmatters ofelectoral second-order capacity. Judicial deferencetoParliament with theConstitutionthusfallstocourts,intheir mary responsibilityforensuringthatelectionsconform when theirowninterestsaredirectlyinvolved.Thepri- are morelikely tofailintheirfirst-orderCharterduties 1336). Consequently, legislators andCabinetministers ly tofavourthosedoingtheselecting”(Schauer1994, are madelargelybyselectingtheproceduresmostlike- case withelectorallaw, where “proceduraldecisions tive andfair-mindedway. But thisisnotalwaysthe carry outtheirfirst-ordertasksinareasonablyobjec- impose appropriateremedies(Slattery1987,708-9). fied bycountervailingsocialvalues,thecourtsmust freedoms areinfringedinawaythatcannotbejusti- ond-order” responsibilities;whenprotectedrightsand these lawsandadministrativeactsaspartofits“sec- Charter. Thejudicialbranchisrequiredtoreview administrative functions,infullcompliancewiththe scrutinize proposedlaws,andtoperformtheirvarious require notdeference, butcarefulexamination.” rule oflawandcannotbelightly setaside.Limitsonit right tovoteisfundamental to ourdemocracyandthe (majority rulingbyMcLachlinCJ): We generallyexpectthetwopoliticalbranchesto 11 In thewordsofChiefJustice McLachlin,“The 4 Immediate nullificationofs.51(e) the CEA CEA 12 Fairness and Freedom: Egalitarians versus the fairness of a referendum on a question of public interest, is of pressing and substantial Libertarians importance in a democratic society.15 When courts agree to evaluate election laws, which The egalitarian viewpoint is consistent with the Charter values should they take into account? Should Supreme Court’s general approach to Charter rights. As fairness and equality outweigh individual freedom, or long ago as 1986, former Chief Justice Dickson empha- vice versa? Colin Feasby designates the two poles of sized the danger of deferring to legislative purposes that this debate as the egalitarian and libertarian models, undermine equality: “In interpreting and applying the respectively. The egalitarian position holds that demo- Charter I believe that the courts must be cautious to cratic rights are only meaningful when every vote and ensure that it does not simply become an instrument of every voice carries a roughly equal weight in the elec- better situated individuals to roll back legislation which toral process; “a state of affairs in which some voices has as its object the improvement of the condition of may be more influential than others, or have more less advantaged persons.”16 The same principle can power in fact to produce political outcomes than others, apply to organizations, including political parties. The is suspect” (Schauer 1994, 1341). As John Rawls put it, court has made it clear in most instances, though not “the fair-value of the political liberties is required for a all,17 that the Charter should not be used to reinforce just political procedure, and...to ensure their fair-value economic inequalities; where necessary, it may legiti- it is necessary to prevent those with greater property mately be employed to redress imbalances in wealth and and wealth, and the greater skills of organization power. The competitive advantage of a governing party which accompany them, from controlling the electoral like the federal Liberals, relative to a small party like the process to their advantage” (Rawls 1987, 76). Communists, merits little protection from the Charter. In contrast, the libertarian approach brooks no inter- The split between egalitarians and libertarians is ference with the free exchange of political views, even reflected in the debate over the constitutional status of when that apparent “freedom” is skewed by an unequal political parties (MacIvor 2002, 479-504). Some judges distribution of wealth. It “allows those who are more prefer the “party equality” approach, which treats all articulate, more engaged, more diligent, and more political parties as important players in the electoral resourceful (or more full of resources) to have conse- process, regardless of their relative sizes or ideological quently more of a voice in political outcomes” (Schauer positions. When the larger parties exploit their control of 1994, 1341). According to Cass Sunstein, a libertarian the legislature by manipulating election laws to exacer- view of election laws “should be seen as a regulatory bate the competitive disadvantages of their smaller or decision to allow disparities in resources to be turned newer rivals, party-equality judges will use their powers into disparities in political influence” (1995, 98). under the Charter to invalidate or amend such laws.18 The libertarian approach dominates the electoral Other judges espouse the “two-tier” approach, which 13 jurisprudence from the US Supreme Court. It is also permits the state to treat larger, well-established parties reflected in several rulings from Canada’s provincial (those in the top tier) more generously than their smaller The Charter of Rights and Party Politics by Heather MacIvor courts. The best-known examples are the “third- or newer rivals (the second tier). Such judges are willing 14 party” rulings from Alberta and British Columbia, in to uphold laws that discriminate in favour of larger par- which judges struck down restrictions on campaign ties — those with the capacity to form governments or advertising by interest groups. Unlike its provincial elect sizeable numbers of MPs — and against those that counterparts, the Supreme Court of Canada favours cannot realistically hope to win elections. Consequently, the egalitarian approach to electoral regulation (see they are reluctant to find that laws designed by the big- Feasby 1998-99). That predisposition was clearly evi- ger parties to increase their advantage over smaller par- dent in Libman: ties violate the Charter; any violation is justified either [T]he basic objective of the Act at issue is to guarantee the democratic nature of referen- by the need to conserve scarce public resources or by the dums by promoting equality between the legitimate decision to privilege “political parties which options submitted by the government and stand a realistic chance of forming a government.”19 seeking to promote free and informed voting. In its egalitarian aspect, the Act is intended Despite the Supreme Court’s egalitarian ruling in to prevent the referendum debate being Libman, which told lower courts that excessively liber- dominated by the most affluent members of society. At the same time, the Act promotes tarian judgments would be overturned on appeal, the an informed vote by ensuring that some conflict between the two models has persisted for two points of view are not buried by others. This decades.20 So the importance of the Figueroa case highly laudable objective, intended to ensure

5 IRPP Choices, Vol. 10, no. 4, May 2004 Figueroa The FactualBackgroundofthe stand why, weneedtoexaminetheissuesincase. laws —whichitdid,infavouroftheformer. To under- party equalityandlibertariandefendersoftwo-tier resolve thedisputebetweenegalitarianadvocatesof the SupremeCourtofCanadaopportunityto its supporters(seeMacIvor2003a,b).Theappealgave extends wellbeyonditsimplicationsfortheCPCand (4)Finally, registeredpartiesmustadheretothe (4)Finally, Onceregistered,theparty hadtocomplywithall (3) (2) Iftheapplicationwasfiledbetweengeneral partyseekinginclusionontheregisterofparties (1)A ruling, thecriteriaforregistrationwereasfollows: I Elections Act The Party RegistrationSchemeinthe Although these requirementswerefairly onerous, spending limitssetoutinsection 422oftheAct. ing nominationtoParliament byaregisteredparty. from partyleadershipcandidates andpersonsseek- stituency association,andposteventdisclosure requires yearlyfinancialreportsfromeverycon- disclosure requirementssignificantly. TheAct now took effectatthebeginningof2004,expanded 386-87). BillC-24,thecampaignfinancelawthat reports toElectionsCanada(sections371-72 and the submissionofannualandpostelectionfinancial elements oftheelectionfinanceregime,including each election(section385). continuing tonominate50candidatesormoreat the registercouldonlymaintainthatstatusby tion wouldbedenied.Parties alreadylistedon before thedeadline;ifitfailedtodoso,registra- party hadtonominateatleast50candidates complete theregistrationprocess,aneligible would bedeclaredeligibleforregistration.To in thenextcampaign(section370). Theparty until afterthedeadlineforcandidatenomination elections, theregistrationcouldnottake effect tions 366-68ofthe2000 and thenamesofitschiefagentauditor(sec- headquarters, thenameandaddressofitsleader, mal nameandlogo,themailingaddressofits had tofileaformalapplication,providingitsfor- on thelistofregisteredparties.Priorto must applytothechiefelectoralofficerforinclusion n Canada,apoliticalpartyseekingstatebenefits Case CEA ). Canada Figueroa ties datesbackto1970, whenthe 50-candidate threshold. ister) inthenextfederalelectioniftheymet and anotherthreewereeligibletoregister(orrereg- was issued,therewereelevenpartiesontheregister, pursuing registration.Whenthe they didnotnecessarilydiscouragepartiesfrom each category of benefitswithoutunduly confusing Commission. A differentthresholdcouldbe setfor that hadbeenrecommended bythe1966Barbeau distinguished fromthepotentially costlysubsidies inexpensive benefits,suchas ballotlabels,couldbe ed thatthosebenefitsbedivided intotwocategories: treated asanindivisiblepackage.SomeMPssuggest- strated thatthebenefitsofregistrationneednotbe intriguing foratleasttworeasons.First,itdemon- that wouldpermitthespeedypassageofBill. anything otherthanadesiretofindcompromise in therecordthata50-candidatethresholdreflected as ameanbetween27and75;thereisnoindication figure of50appearstohavebeenchosenarbitrarily, reduced thecandidatethresholdfrom75to50.The parties —theministeracceptedanamendmentthat parties andtryingtopreventtheemergenceofnew ed thegovernmentfordiscriminatingagainstsmaller — particularlyNDPandCréditisteMPs,whocastigat- parties offtheballot. threshold wasneededtokeep regionalandfrivolous Progressive ConservativeMPsarguedthatahigh favour oftheincrease.First,bothLiberaland candidates to75.Twoargumentswereofferedin Liberal governmentwantedtoraisethenumberof the HouseofCommons(roughly27atthattime).The that thethresholdbesetat10 percentoftheseatsin Commons committeehadunanimouslyrecommended be necessarytosafeguardthepublicpurse. payer-funded subsidies,thenahighthresholdwould to determineeligibilityforbothballotlabelsandtax- later date.Ifthesameregistrationcriteriawereused introduce publicfinancingforpoliticalpartiesata the Housethatgovernmenthadpromisedto tration wasbyfarthemostcontentiousissue. C-215, thenumberofcandidatesrequiredforregis- Although severalamendmentswerecontainedinBill for nominations(21 daysbeforeelectionday). nominate atleast50candidatesbeforethedeadline ballot. To qualifyforthisprivilege,apartyhadto to allowpartiesidentifytheircandidatesonthe The regulatoryschemeforCanadianpoliticalpar- The initialdebateovertheregistrationthresholdis After considerablecriticismfromOppositionMPs 6 23 Second, aLiberalMPreminded 21 Figueroa CEA was amended decision 24 22 A 25 voters and political parties.26 Second, the debate (2)Access to voters’ lists. Registered parties are entitled revealed the clash between the party-equality and to receive updated copies of the permanent register two-tier approaches to electoral regulation. The of electors once a year. Although the accuracy of strongest assertion of the former position came from these lists is open to debate, their automatic provi- Ed Broadbent: “I do not think we should weigh the sion to registered parties gives the latter an organi- electoral system against the emergence of new politi- zational head start over nonregistered parties. cal and social changes in this country, no matter how (3)Tax receipts. The official agents of registered parties insignificantly these might be regarded by the rest of can issue tax receipts to contributors at any time — us at the outset...It would seem to me that the princi- unlike candidates, who may only do so during cam- ple we should recognize in respect of this legislation paigns. The deductible percentage of the donation is the right of one man or two men to begin a politi- shrinks as the donation grows. Under Bill C-24, a cal party, obtain nomination through the correct pro- $400 donation to a registered party generates a $300 cedure, and following that, have their name and their tax credit (75 percent); a $1,000 donation produces party listed on the ballot.”27 The minister responded, a credit of $558.33 (56 percent). Nonregistered par- “we are talking about national political parties and ties cannot issue tax receipts, which makes it more would want some expression of a very substantial difficult for them to raise funds.30 political position by having the candidates nominated (4)Assignment of candidate surpluses. Under section and put into the field.”28 The claim that a party 473(2) of the CEA, a candidate cannot hold unspent should demonstrate “a very substantial political posi- campaign funds and reimbursements in her cam- tion” before gaining access to public benefits is a paign account after the election is over. She must clear example of the two-tier approach. transfer any funds remaining after the payment of outstanding debts to her national party, or, more The Benefits Flowing from Party Registration commonly, to her constituency association. The 1973 Election Expenses Act (which took effect Independent and unaffiliated candidates, a category after the 1974 general election) introduced a scheme that includes those belonging to nonregistered par- of public benefits for political parties (and candi- ties, may not transfer surpluses and reimbursements dates). Only registered parties may qualify for these (if any) to a political party; instead, they must remit benefits, which have become considerably more any net balance to the receiver general. lucrative over the years. For the sake of clarity, I will (5)Ballot labels. Until 2001, registered parties enjoyed distinguish between two types of benefit: those that the exclusive right to identify their candidates on flow automatically from inclusion on the register of the ballot. Bill C-9 (the legislative response to the parties, and those that do not. The automatic benefits 2000 OCA ruling in Figueroa) amended the CEA to are as follows: extend this right to nonregistered parties with as few (1)Broadcasting. Registered parties are eligible for a as 12 candidates.

share of the free air time provided by television When it ruled on Mr. Figueroa’s appeal, the Supreme The Charter of Rights and Party Politics by Heather MacIvor networks during election campaigns. They also Court focused on the last three of the five automatic enjoy an exclusive right to buy the paid time on benefits just discussed. Neither the broadcasting provi- radio and television that is set aside by law to be sions nor the production of voters’ lists were at issue in sold at the lowest commercial rate. However, non- the case. registered parties may purchase air time on the While the nonautomatic benefits are available only free market at whatever rate the broadcaster to registered parties, they may only be claimed by par- wishes to charge. Although every registered party ties that enjoy significant electoral success. There are is entitled to a share of free and low-cost airtime, two major benefits in this category. those shares are unequal; they are based on the (1)Reimbursements. Only registered parties can qualify parties’ respective vote and seat shares in the pre- for public reimbursement of 60 percent of their vious general election. In the 2000 general elec- declared election expenses. However, a party is only tion, for example, the governing Liberal Party was entitled to reimbursement if it wins at least 2 per- awarded 115 out of 396 free minutes, or 29 per- cent of the national total (almost 260,000 valid cent, compared to 10 percent for the NDP, 4 per- votes in 2000) or 5 percent of the vote in the con- cent for the Green Party, and 1.5 percent for the stituencies where it has run candidates (section 435 fledgling Marijuana Party.29 of the CEA). (Candidates are also entitled to partial

7 IRPP Choices, Vol. 10, no. 4, May 2004 al changestothe $200 to$1,000 cussed here.First,itraisedthecandidatedepositfrom Amend theCanadaElectionsAct general election,itadoptedBillC-114, In 1993,shortlybeforeParliament wasdissolvedfora The FirstRoundintheBattle:1993-99 Parliament. No suchdifficultyconfronted thewealth- more difficult to persuadepeoplerunfor matter oflifeanddeath,the $500penaltymadeit exact momentthatfinding50 candidatesbecamea serious damageonpartieswith littlemoney:atthe or herdeposit.Together, theseprovisionsinflicted least 15percentofthevotewouldforfeithalfhis order tosurvive.Anycandidatewhofailedwinat 50 candidateswithadepositof$1,000each—in few weeksofacampaign—thecostnominating were nowforcedtoraiseatleast$50,000inthefirst potentially devastatingforsmallerparties,which balance tothefederalgovernment. down itsaffairs,selloffassetsandremitanynet from theregister. Thepartywouldbeforcedtowind during anelectioncampaignandwastherebystruck registered partythatfailedtonominate50candidates 114 requiredthechiefelectoralofficer toliquidateany penalty justforseekingpublicoffice.Second,BillC- and manyfromthelargerparties—wouldpaya$500 effect, mostindependentandminor-partycandidates— official agentsubmittedacompletefinancialreport.In The otherhalfwouldbereturnedafterthecandidate’s than 15percentofthevoteinhisorherconstituency. amount wouldbereturnedtoacandidatewhowonless flowing fromregistered-partystatus. did notdirectlyimpugnthenonautomaticbenefits (2) The combinedeffectofthesetwoamendmentswas Mr. Figueroa’sconstitutionalchallengetothe same asthoseforreimbursements. The votethresholdsfortheallowancesare general electionataflatrateof$1.75pervote. number ofvalidvotesitreceivedintheprevious party’s annualallowanceisdeterminedbythe the firsttimeinearly2004.Theamountofeach ties (section435.01), andthesewerepaidoutfor system ofdirectpublicsubsidiestoregisteredpar- Annual allowances. nonregistered parties.) including independentsandthoserepresenting ings; thisprovisionappliestoallcandidates, at least15percentofthevalidvoteintheirrid- reimbursement ofcampaignexpensesiftheywin 32 and stipulatedthatonlyhalf CEA , onlytwoofwhichwillbedis- Bill C-24establishedanew . 31 The Billmadesever- An Act to CEA (4)If theanswertoquestion3is“No,”thenwhatare (4)If theanswertoquestions1or2is“Yes,” thenare (3)If themandatory-liquidationprovisionand/or (2)Did the50-candidatethresholdforregistration— (1)Did questions totheOntarioCourt(GeneralDivision): candidate deposit.Ineffect,heposedthefollowing the 15percentvotethresholdforreturnofhalf the mandatoryliquidationofderegisteredpartiesand fewer than50candidates.Mr. Figueroaalsochallenged ballot labelsandcandidatesurplusestopartieswith to voters’lists.Hefocusedonthedenialoftaxcredits, impugn thebroadcastingprovisionsorentitlement nonautomatic benefitsofregisteredstatus.Nordidhe not justifiedundersection1. the CharterofRights,andthattheseviolationswere 50-candidate thresholdviolatedseveralprovisionsof against thefederalgovernment.Hearguedthat dating itsassets.Mr. Figueroafoughtback,filingsuit the registerofpartiesandorderedittobeginliqui- line. ThechiefelectoralofficerstrucktheCPCfrom only managedtofield8candidatesbeforethedead- failed tonominate50candidates.Butin1993,they eral electionssince1970, theCommunistshadnever organization andsappeditsresources.Inthesixgen- the eruptionoffactionalconflictweakened the was atalowebb. ThecollapseoftheSovietblocand leader oftheCommunistParty ofCanada.Theparty election. Atthetime,MiguelFigueroawasnew with aminimumofpublicdiscussion. ier parties,whichpassedtheBillintolawhastilyand status beseveredfromtherest ofthe old? Shouldthatparticularcriterion forregistered violation(s) arisingfromthe50-candidatethresh- the appropriateremediesforCharter in afreeanddemocraticsociety”(section1)? any oralloftheviolations“demonstrablyjustified tioned inquestion1? the voteviolateanyofChartersectionsmen- only tocandidateswhowonatleast15percentof the reimbursementofhalfcandidatedeposit office (section3),orequalityrights15[1])? (section 2[d]),therighttovoteandrunfor of expression(section2[b]),freedomassociation credits andcandidatesurpluses—violatefreedom and fortheresultingbenefitsofballotlabels,tax As notedearlier, Mr. Figueroadid not challengethe Bill C-114 tookeffectintimeforthe1993general some lowernumber, and “readingin”asubstitute benefits, “reading down”from50candidates to the impositionofvaryingthresholds fordifferent declared invalid?Otherpossible remediesincluded 8 33 CEA and criterion for registration (for example, a higher dant’s focus is not truly on the rights and responsi- number of signatures). bilities created by registration, but rather on its Figueroa’s case was heard by Madam Justice reluctance to extend the benefits of registration to Molloy in January 1998. Her decision and reasons for smaller parties.” Her remedy was to “read down” the judgment were issued in March 1999.34 Justice Molloy threshold from 50 candidates to two. However, she found for Figueroa on all points and applied remedies was careful to point out that this lower threshold for that amended the CEA in several key respects. Al- registration would only apply to the benefits at issue though a brief summary cannot do justice to Molloy’s in the case — namely, the issuance of tax receipts lengthy decision, the following points are the most and the labelling of candidates on the ballot. The relevant for the purposes of this paper. other automatic benefits, and by extension the (1)Justice Molloy found that the 15 percent vote nonautomatic benefits, would continue to require threshold for full repayment of candidate deposits the nomination of 50 candidates. Echoing the limited the right to run for office (section 3 of the Commons debate of 1970, Justice Molloy observed, Charter) by deterring serious candidates who could “There is no valid reason why the same threshold not afford to risk losing $500. She quoted the must apply with respect to all benefits.”38 Lortie Commission’s observation that the threshold (3) Justice Molloy held that the denial of tax credits to was “often too high for all but the winner and the nonregistered parties violated the right to run for runner-up,”35 and she noted that “Candidates who office. She was not suggesting that the government have no realistic expectation of garnering 15% of provide financial support to political parties, but the vote may nevertheless have a useful and rather that “if the government decides to extend a important role to play in the electoral process.”36 financial benefit to assist some candidates in an elec- Justice Molloy concluded that the violation of sec- tion, the benefit must be equally available to all” tion 3 could not be saved under section 1, because (emphasis added). She observed that “The ability of a there was no “rational connection” between the 15 political party to communicate its platform to voters percent threshold and the apparent objective of and potential supporters is directly related to its weeding out “frivolous” candidates. She “read financial resources.” It follows that parties with more down” the CEA to delete the vote threshold and to money to spend can give their candidates a distinct provide for the automatic repayment of the full advantage in electoral competition. So a law that deposit upon compliance with the reporting deprives some parties and their candidates of an requirements of the Act. effective fundraising tool (that is, the issuance of tax (2)The 50-candidate threshold for party registration receipts) renders the entire electoral system unfair and was also found to be an unjustified infringement thereby impairs the right to run for office. Moreover, of section 3. Justice Molloy pointed to “a general “Permitting tax credits only for contributions to the consensus that smaller parties make a valuable larger parties sends an implied message to taxpayers

contribution to the political process,” referring to that those parties are more worthy of support and The Charter of Rights and Party Politics by Heather MacIvor the Lortie Commission’s claim that “many indirectly channels financial support away from Canadians want the electoral process to be made smaller or emerging political parties.”39 No specific more accessible to the non-traditional parties so remedy was required, because the reduction of the that voters have a broader choice in the selection candidate threshold from 50 to two brought the tax- of their elected representatives.”37 A law that dis- credit provisions within the scope of constitutionality. criminates against smaller political parties is, (4) Justice Molloy found that the denial of ballot labels to prima facie, unconstitutional, because it impairs parties with fewer than 50 candidates violated the sec- the right to vote for one’s party of choice and the tion-3 right to cast an informed vote. It also violated right to run for office on a level playing field. Al- the right to run for public office by prohibiting certain though a Charter violation “prescribed by law” can candidates from stating their party affiliations. There only be justified if it serves some pressing and was no need to address the effects on freedom of substantial objective, no such objective was expression, because the government had already con- advanced by the government. Justice Molloy con- ceded a prima facie violation of section 2(b).40 She held cluded that the real objective of the threshold was that the restriction on ballot labels served no legiti- to enhance the relative advantages already accru- mate purpose and concluded that the lower threshold ing to larger and wealthier parties: “the defen- should apply to this particular registration benefit.

9 IRPP Choices, Vol. 10, no. 4, May 2004 5 Finally, JusticeMolloystruckdownthemandatory- (5) Figueroa When theOntarioCourtofAppeal(OCA)ruledon Forward, Two StepsBack The OntarioCourtofAppeal,2000:OneStep return ofcandidates’deposits.In2000,the deregistered partiesandthevotethresholdfor ments ofMolloy’sruling:theautomaticliquidation — butonlyifitcanaffordtodoso. make avaluablecontributiontoanelectioncampaign instead, sheassumedthateventhesmallestpartycan tinguish amongpartiesaccordingtosizeandwealth; party-equality approach.JusticeMolloydidnotdis- was upheld.The OCAorderedParliament toenacta tion. Theinvalidation oftheballot-labelprovision remedy andrestoredthehigher criterionforregistra- therefore overturnedJustice Molloy’stwo-candidate threshold didnotviolatesection 3oftheCharter;it A three-judgepanelfoundthat the50-candidate ballot labellingtothecandidatesofregisteredparties. the 50-candidatethreshold,andrestrictionof issues appealedbytheCrown:constitutionalityof reporting obligationscontinuedtoapply. the benefitsofregisteredstatus;however, manyofits While suspended,thepartycouldnotreceiveanyof nomination deadlineinthenextgeneralelection. application couldnotbeputintoeffectbeforethe apply forreregistrationimmediately, althoughits from theregister(section385).Itwouldbeeligibleto candidates bythedeadlinewouldbe“suspended” Elections Canada.Apartythatfailedtonominate50 upon submissionoftherequireddocumentsto amended law, candidatedepositsarereturnedinfull amended toremovetheseprovisions.Underthe liquidation provisionofthe expression. collectively exercising theirrightofpolitical course —butitalsobarredtheirmembersfrom ing candidatesforoffice,informingthepublicdis- functions —presentingpolicyplatforms,nominat- it preventpartiesfromengagingintheircore violation ofsections2(b),2(d)and3.Notonlydid The federalgovernmentdidnotappealtwoele- The 1999 freedoms. Shedeclareditinvalid. minimally impairingoftheinfringedrightsand ther rationallyconnectedtothatobjectivenor and substantialobjective,”theprovisionwasnei- objective oftheliquidationrule—wasa“pressing the protectionofpublicpurse—stated case inAugust2000, Figueroa 41 Although JusticeMolloyagreedthat ruling isaclearexampleofthe 42 CEA it dealtwiththetwo as anunjustified CEA was candidates.” a partythatnominatesonlyhandfulof and theeventualgovernmentofcountrythancan being moreinvolvedandcommittedtothatprocess significant numberofconstituenciescanbetaken as gy andresourcesnecessarytoruncandidatesina Political partieswhoare level ofparticipationinthatparticularelection. in anelectionisonemeasureofapoliticalparty’s electoral process...Thenumberofcandidatesfielded ties assumeameaningfullevelofparticipationinthe sentation...become operativeonlywherepoliticalpar- the electoralprocesswhichenhanceeffectiverepre- soned that“thepurposesservedbypoliticalpartiesin fying anumber. BillC-9,whichamendedthe new, lowerthresholdforballotlabelswithoutspeci- lar, apartythatcannot issuetaxreceiptsasanincen- resources tofulfill theselegalobligations. Inparticu- others, throughnofaultoftheir own,maylackthe meetings andraising$50,000 topaythedeposits.But up 50constituencyassociations, holdingnomination wealthier partiesmayhavelittle difficultyinsetting benefits ofregisteredstatus.Inreality, largerand/or do socanrun50candidatesandthusqualifyforthe quoted passageimpliesthatanypartychoosesto stituencies” inordertoqualifyforregistration.The “run candidatesinasignificantnumberofcon- party mustnotonlybe“prepared”butalso crucial flawinthetwo-tiermodel:factthata cal mobilizationofcitizens.Second,heoverlooked a the educativeeffectofpartyplatformsandpoliti- of elections:publicdiscussionalternativepolicies, First, JusticeDohertyignoredtheproceduralbenefits choose agovernment.” concluded that“theprimaryreasonforelectionsisto effective operationofresponsiblegovernment.” resentation inParliament andthuscontributetothe cratic self-government”;andto“organizeelectedrep- for politicalparticipationandthusenhancedemo- make thevotemeaningful”;to“providemechanisms cratic system:to“structureelectoralchoiceandthus fied threekey rolesforpoliticalpartiesinthedemo- the two-tierapproachtopartyregulation.Heidenti- for theunanimouspanel,wasclearlyinfluencedby court’s analysisofthe50-candidatethreshold. Molloy’s reasoning,Iwillfocushereontheappeal 2001. Becausetheballot-labelrulingfollowedJustice ballot identification,receivedroyalassentinJune require atleast12candidatesasaprerequisitefor This two-tierreasoningisflawedintworespects. Ontario AppealCourtJusticeDoherty, whowrote 45 10 44 prepared Justice Dohertyalsorea- to extendtheener- able CEA 43 to He to tive for potential donors may have a hard time rais- tions that Mr. Figueroa had posed in 1993 (when the ing the necessary funds. 50-candidate rule still applied to ballot labels). The party-equality ruling of Justice Molloy recog- nized the disparity in resources between larger and Does the 50-Candidate Threshold Violate the well-established parties and their smaller or newer Right to Vote or to Run for Office? rivals. In contrast, Justice Doherty implied that the Mr. Figueroa’s lawyer, Peter Rosenthal, asked the Supreme threshold imposed no serious barrier to registration Court to restore Justice Molloy’s ruling on the constitution- for parties with the wherewithal to provide “effective ality of the 50-candidate threshold. Relying on Libman, he representation,” and that parties that lacked that asked the Supreme Court to endorse Justice Molloy’s find- wherewithal were quite properly excluded from pub- ing that “providing benefits only to parties whose ideas are lic benefits. The fact that the law itself might make it popular or mainstream is the very antithesis of a true impossible for a party to perform the functions iden- democracy.”49 He argued that the 50-candidate threshold tified by Justice Doherty went unacknowledged. violated the rights of both minor-party candidates and “voters who wish to support smaller parties.” The latter violation arose from the denial of tax credits to parties November 2002: The Supreme with fewer than 50 candidates. This deprived a small Court Hears the Case party’s supporters of a benefit available to supporters of other parties while reducing the means available to their n October 2000, Mr. Figueroa and his lawyers chosen party and thus “lessening the possibility that their appealed the OCA’s restoration of the 50-candi- candidates will be elected.” He concluded that section 3 I date threshold to the Supreme Court of Canada. “protects the rights of all voters and candidates, including Leave to appeal was granted in March 2001. In those supporting or representing parties that have little or 50 September 2001 Chief Justice McLachlin issued six no chance of winning the election.” constitutional questions to be addressed by the court. Whereas the case for the appellant relied on the The last four went unanswered,46 so only the first two Libman ruling, the case for the respondent — the are reproduced here: Government of Canada, represented by the Department (1)Do sections 24(3)(a) and 28(2) of the Canada of Justice — was based on the Saskatchewan Electoral Elections Act, RSC 1985, c. E-2 (now sections Boundaries precedent. Roslyn Levine QC sought to per- 370[1] and 385, SC 2000, c. 9) limit the section-3 suade the Court to uphold the OCA’s restoration of the Canadian Charter of Rights and Freedoms rights of 50-candidate threshold. She argued that the key func- candidates or supporters of nonregistered political tion of political parties is to “aggregate the interests of parties by requiring that, in order to become and the voting public” and thereby provide “effective repre- remain a registered political party, a party must sentation.” In effect, she suggested that a single-party nominate candidates in at least 50 electoral dis- majority government was the most appropriate elec- tricts in each general election? toral outcome for Canada, and that an electoral regime The Charter of Rights and Party Politics by Heather MacIvor (2)If the answer to question 1 is in the affirmative, is that favoured larger parties promoted that outcome. this limitation reasonable and demonstrably justi- Levine described the 50-candidate threshold as “a fied in a free and democratic society under section valid measure” of a party’s ability to aggregate voters, 1 of the Charter?47 as well as a necessary protection for “the integrity of Although the first question was worded broadly, the electoral financing regime.” A permissive registra- the Court declined to consider the entire registration tion scheme that made it easy for parties to qualify for scheme and all of the associated benefits. It con- tax-credit privileges could threaten “the sustainability fined its analysis to the issues raised by of the public purse for this and other election financing Mr. Figueroa: the power to issue tax receipts for purposes.” Moreover, it might allow dishonest people to political contributions, the forfeiture of campaign create and register fictional parties purely for the pur- surpluses by candidates of nonregistered parties48 pose of issuing fraudulent tax credits for “political and the inclusion of party labels on the ballot. donations.” Levine also pointed out that the rights in Although the third issue had already been decided section 3 “are exercisable only by individuals, not by by the OCA, and the CEA amended in consequence, political parties,” and she argued that “the threshold for the Supreme Court was bound to answer the ques- political parties has no bearing at all on an individual’s ability to exercise either right.”51

11 IRPP Choices, Vol. 10, no. 4, May 2004 the threshold. Instead, itreferredtoa“pressing and failed topresent anyclearandspecificobjectives for ernment’s factumtotheSupreme CourtofCanada receipts forphonypoliticaldonations. use ittodefraudthegovernment byissuingtax tion weremadetooeasy, unscrupulouspeople would objective wasanadditionalconcern:ifpartyregistra- the ernment toprovethattheviolationisjustified.Under Charter rights,theonusshiftstosponsoringgov- established thataparticularlawviolateshisorher Once theplaintiff(inthiscase,Mr. Figueroa)has tiary burdenatthesecondstageofCharteranalysis. factum issurprising,giventhegovernment’seviden- cursory. Thelackofsubstanceintherespondent’s The section-1argumentsinbothfactawererather Democratic Society”? “Demonstrably JustifiedinaFreeand Section 3,ThenIstheInfringement If the50-CandidateThresholdInfringes ment hadnotmetthefirstelementin (4) theharmcausedbyCharterinfringementmust lawmustimpairtheCharterrightaslittle (3)the lawmustbe“rationallyconnected”tothat (2)the lawmustservea“pressingandsubstantial” (1)the four separategrounds: the respondentmustdefendimpugnedlawon port andthosenotsoentitled.” entitled tothestate’sdirectandindirectfinancialsup- a seriousenoughengagementinthiscrucialroletobe a clearlinebetweenpartieswhichhavedemonstrated cal will,”and“toprotectthepublicpursebydrawing emergence ofasufficientlyclearandcoherentpoliti- “to channelcurrentsofthoughtsoastopromotethe t identified twoobjectivesofthe50-candidate violation. AttheCourtofAppeal,governmenthad ciently “pressingandsubstantial”tojustifyaCharter the identificationofapolicyobjectivethatwassuffi- Unlike itsearliersubmission totheOCA,gov- In hisfactum,Mr. Rosenthalarguedthatthegovern- ous effectsofthelaw. be proportionaltoboththebeneficialanddeleteri- same objective;and ures thatmighthavebeenchosentoachievethe reasonably possible,inlightofalternativemeas- objective; the invalidationofimpugnedlaw); a “reasonedapprehensionofharm”arisingfrom (alternatively, thegovernmenthastodemonstrate important towarrantinfringingaCharterright policy objectivethatisproventobesufficiently Oakes test 52 and itssubsequentmodifications, 54 Implicit inthesecond Oakes hreshold: test: 53 to attractmanycontributors.” utors totheparty, andafrivolouspartyisnotlikely by apartyisinproportiontothenumberofcontrib- elsewhere inhisfactum,“theissuanceoftaxcredits public purse.Moreover, asRosenthalpointedout ticipate inpoliticscanbeviewedasathreattothe how alawdesignedtoencourageCanadianspar- the electors.” more difficultforlesspopularviewstobeheardby said to“channel currentsofthought”by“[making]it as Rosenthalpointedout,thethresholdcouldonlybe and tiveness ofCanadianelections,inboththeirprocess substantial concern”—thatis,“toenhancetheeffec- She pointedoutthat Chief JusticeMcLachlininthe2002 ernment donotmeetthestandardestablishedby “concerns” attributed tothethresholdbygov- process ensure thefairnessofaneminentlydemocratic ruling isthat“thepursuitofanobjectiveintendedto ing isinaccurate.Thecruxofthecourt’sunanimous tion of the popularvote.Fifth,government’sinterpreta- collectively, thosecandidateswononly0.1percentof to run69candidatesinthe2000generalelection; cal. TheNaturalLawParty hadthefinancialresources for election.Thisargumentisnotentirelyhypotheti- eligible aslonghalfofitsmembersagreedtostand dates,” party withamillionmembersbutonly49candi- 50-candidate rulewoulddenyregisteredstatusto“a dubious, atbest.AsJusticeMolloypointedout,the a validmeasureofpopularsupportforpartyis allowances, wasnotanissueinthecaseatbar.) financial support,suchasreimbursementsandannual that “enhancing theintegrityof credits isfarfromnegligible, parties perse.Third,whilethecostofpoliticaltax credit, whichbenefitsindividualcontributorsandnot ing “indirectfinancialsupport”topartiesisthetax stantial concern.” democratic process...amountstoapressingandsub- These “concerns” donotwithstandscrutiny. First, Sixth, andfinally, thevarious“objectives”or Fourth, theclaimthatnumberofcandidatesis rights havebeen infringed.Demonstrable not beleftguessingaboutwhy theirCharter cult...At theendofday, peopleshould make thejustification analysismorediffi- for argument,vagueandsymbolic objectives precisely becausetheyleave solittleroom outcome.” 60 ...is ahighlylaudableone.” Libman whereas apartywith100 memberswouldbe 57 12 55 Second, theprincipalmeansofprovid- as aprimarilyoutcome-orientedrul- Levine interpreted 56 58 59 it isdifficulttosee (Recall that“direct” 61 Libman outcome Sauvé to mean ruling. of a justification requires that the objective clear- The last stage of the analysis — the balance between ly reveal the harm that the government harmful and beneficial effects — received no attention hopes to remedy, and that this objective remain constant throughout the justification from the appellant. The respondent concluded by argu- process. As this Court has stated, the objec- ing that Canada’s electoral law is a model for democra- tive ‘must be accurately and precisely defined so as to provide a clear framework cies everywhere and reiterating the claim that benefits for evaluating its importance, and to assess should be confined to “parties serving the public func- the precision with which the means have tion of fielding a reasonable and sufficient number of been crafted to fulfil that objective.’62 candidates to play an important role in both the The second stage of the Oakes test, establishing a process and outcome of elections.”68 rational connection between the objective and the In sum, the arguments before the Supreme Court impugned law, received considerably more attention reflected a straightforward clash between the party- in the government factum. Levine claimed that the equality and two-tier approaches to political parties. threshold “encourages parties to aggregate interests The appellant and the respondent also differed over the to be more representative” and “protects the integrity relative importance of process and outcome in the judi- of the election financing regime, by ensuring that it cial review of election law. Ms. Levine did not attempt is only used for [the] intended electoral purposes.”63 to counter Mr. Rosenthal’s egalitarian argument with a She concluded that these goals are rationally con- libertarian analysis, perhaps because Libman demon- nected to the stated objectives. For the appellant, strated that the libertarian approach was a nonstarter at Rosenthal offered two counterarguments. First, he the Supreme Court of Canada. Levine relied instead on pointed out that the threshold was already in place the principles of fiscal responsibility and political “before there was any direct or indirect state financial aggregation to justify the 50-candidate threshold. support for political parties.”64 Therefore, the govern- ment could not claim a rational connection between the 50-candidate rule and the protection of the public purse.65 Second, Rosenthal suggested that “any true June 2003: The Supreme Court concern with protection of the public purse would Rules on Figueroa produce rules dealing directly with the use of public monies, and any such rules would apply to all parties, The Meaning and Purpose of Section 3 of the large and small.”66 In other words, the true purpose of Charter the threshold was not to ensure accountability for he majority opinion, authored by Justice Iacobucci, public funds, as the government claimed, but to pro- was supported by Chief Justice McLachlin and tect the interests of the larger parties under the cloak T Justices Major, Bastarache, Binnie and Arbour. of fiscal responsibility. Iacobucci began by defining the purpose of section 3, as The third stage of the Oakes test, the “minimal required by the Court’s purposive and contextual impairment” analysis, is fraught with difficulty for the approach to Charter rights. The former requires a judge The Charter of Rights and Party Politics by Heather MacIvor sponsoring government. A study of Supreme Court to determine the purpose for which a particular Charter rulings between 1986 and 1997 found that 60 percent guarantee was adopted — “to delineate the nature of the of the laws that failed the Oakes test did so because interests it is meant to protect.”69 The latter obliges the they were not “minimally impairing” of the relevant judge to restrict the Charter analysis to the specific inter- Charter right or freedom (Trakman, Cole-Hamilton ests engaged by each individual case. This helps judges and Gatien 1998, 140, table 1). Rosenthal offered no to strike a reasonable balance between Charter values argument on this point. For the government, Levine and competing social interests by acknowledging that “a contended that the threshold had little effect on the particular right or freedom may have a different value ability of political parties to form, operate and com- depending on the context.” Moreover, “the value to be pete for votes. She noted that the CPC itself had run attached to it in different contexts for the purpose of the more than 50 candidates in every election from 1974 balancing under section 1 might also be different.”70 So until 1993, and that it was able — despite its nonregis- Iacobucci undertook a purposive analysis of the right to tered status in 1993 and 1997 — to meet the criteria vote, not in the abstract, but in the context of Canada’s for reregistration in 2000. She also pointed out that political system and traditions. candidates, regardless of party status, can issue tax As we have seen, the OCA relied heavily on Justice receipts throughout the campaign period.67 McLachlin’s ruling in the Saskatchewan Boundary

13 IRPP Choices, Vol. 10, no. 4, May 2004 of abroadrangecitizens.” of socialpolicyissensitivetotheneedsandinterests broad rangeofoptions,butalsothatthedetermination it “ensures notonlythatpolicymakers areawareofa election campaign,isbothintrinsicandinstrumental; and wide-rangingpoliticaldebate,especiallyduringan anteed bysection2(b)oftheCharter. Thevalueoffull ticipation” tothefreedomofpoliticalexpressionguar- returned tothe party-equalitymodeladopted by play ameaningfulroleinthe electoralprocess?” parties thatnominatefewer than 50candidatesto capacity ofthemembersand supportersofpolitical party affiliationontheballot papersinterferewiththe unspent electionfundstothepartyandlisttheir tions receivedoutsidetheelectionperiod,totransfer restriction ontherighttoissuetaxreceiptsfordona- role intheelectoralprocess?Andifso,does nominate fewerthan50candidatesplayameaningful the membersandsupportersofpoliticalpartiesthat Then hedivideditintotwoseparateissues:“First,do to playameaningfulroleintheelectoralprocess.” old interfereswiththecapacityofindividualcitizens the caseasfollows:“whether50-candidatethresh- Justice Iacobuccireformulatedthecentralquestionof Does theThresholdViolateSection3? accountable totheirelectorate.” embodied inlegislationforwhichtheywillbe who, inturn,willberesponsibleformakingdecisions ingful roleintheselectionofelectedrepresentatives every citizenofthiscountrytherightto by formerjusticeL’Heureux-Dubé in of section3.Instead,headoptedthepurposedefined toral outcome.Iacobuccirejectedthatinterpretation section 3wastoencourageaparticularkindofelec- majority government.”Inotherwords,thepurposeof tation” tomean“theproductionofaone-party turn, JusticeDohertyinterpreted“effective represen- vote asaguaranteeof“effective representation.”In Reference form ofgovernment.” toral process,ratherthantheelectionofaparticular of eachcitizentoplayameaningfulroleintheelec- that theguaranteeofvotingrightsprotects“theright tion ofsocialpolicy.” pates intheopendebatethatanimatesdetermina- primary meansbywhichtheaveragecitizenpartici- ly aboutproducinggovernments;instead,theyare“the rejected JusticeDoherty’sclaimthatelectionsaresole- At thisstageof hisanalysis,Iacobucciexplicitly Iacobucci linked theguaranteeof“meaningfulpar- , whichdefinedthepurposeofrightto 74 72 73 Consequently, Iacobucci 71 Iacobucci concluded Haig play amean- : “togrant 75 ner inwhichsheorheexercises theright tovote.” citizen toinformationthatmight influencetheman- 50-candidate threshold“undermines therightofeach reducing thefinancialresourcesofsmallerparties, tions tothegeneralpublicisinconsistentwiths.3.”By various politicalpartiestocommunicatetheirposi- erbates apre-existingdisparityinthecapacityof ologies tothepublic.Therefore,“legislationthatexac- if allpartiescancommunicatetheirpoliciesandide- process iftheyknowwhattheirchoicesare—thatis, voters canonlyplayameaningfulroleintheelectoral meaningful roleintheelectoralprocess.”Additionally, members andsupportersof[smaller]partiestoplaya scheme “diminishesthecapacityofindividual parties overtheirsmallerrivals,theregistration By reinforcingthecompetitiveadvantageoflarger parties.” incorporated intothepoliticalplatformsofnational individual citizenswhosepreferenceshavenotbeen vide “a mosteffectivevehiclefortheparticipationof Although theymaynotformgovernments,pro- that havenotbeenadoptedbynationalparties.” attention ofthegeneralpublicissuesandconcerns dissent frommainstreamthinkingandtobringthe tively inelectioncampaignsviolatessection3. impossible, forsmallerpartiestoparticipateeffec- Consequently, alawthatmakes itdifficult,ifnot nance ofthecountrysubsequenttoanelection.” capacity (orlackthereof)toparticipateinthegover- discriminate fororagainstpartiesbasedon“their the politicaldiscourse,”statecannotarbitrarily ble ofintroducinguniqueinterestsandconcernsinto Judge Molloy. Because“all politicalpartiesarecapa- them theautomaticbenefitsprovidedunder inclusion ontheregisterofpartiesandthusdenied (potential) supporters—becauseitbarredthemfrom more precisely, therightsoftheircandidatesand old “interferedwith”therightsofsmallerparties— political parties; itviolatedtherightsof rights oftheindividuals directlyinvolved with smaller sum, theimpugnedlawdidmore thaninfringethe for presentationtothegeneralpublic.” political partytoformulateauniquepolicyplatform electorate agovernmentoptionandthecapacityof between thecapacityofapoliticalpartytooffer zens intheelectoralprocess.Thereisnocorrelation let forthemeaningfulparticipationofindividualciti- 50-candidate thresholddonotactasaneffectiveout- that politicalpartieshavenotsatisfiedthe Iacobucci pointedoutthatsmallerparties“tendto Iacobucci concludedthatthe50-candidatethresh- 77 He concluded,“thereisnoreasontothink 14 78 all voters. CEA 76 79 In . Figueroa had proven his argument that the threshold [Because] political parties that nominate candi- violated democratic rights.80 dates in fewer than 50 electoral districts typi- cally have a relatively small base of support, one would expect the percentage of political Is the Violation “Demonstrably Justified in a donations received by non-registered parties to be relatively insignificant — as one would Free and Democratic Society”? thereby expect the savings to the public purse The Supreme Court holds governments to a high to be relatively insignificant. If the right of standard of justification when section-3 rights have individual citizens to play a meaningful role in the electoral process is to be limited for fiscal been infringed. In his concurring judgment, Justice reasons, the savings would have to be much LeBel declined even to consider whether a law that more substantial than those associated with the restriction on the right of non-registered infringed democratic rights could be upheld under parties to issue tax receipts to individual citi- section 1: “[M]y finding that the legislation infringes zens for donations received outside the elec- 85 s.3 essentially amounts to a conclusion that it is tion period. inconsistent with the values of Canadian democracy. The third objective of the threshold was to protect the It is hard to see how it could nevertheless be shown integrity of the electoral regime by preventing frivolous to be ‘justified in a free and democratic society.’”81 parties from abusing the tax credits. While Iacobucci As already noted, the federal government’s factum acknowledged this as a pressing and substantial objec- did not identify persuasive objectives. Iacobucci com- tive in the abstract, he found that the government had piled his own list, extrapolating from the various failed to prove that it justified the infringement of sec- goals and purposes advanced by Levine. He identified tion 3: “There would seem to be two possible aspects to the first objective as “the improvement of the elec- this submission. The first is that failure to satisfy the 50- toral process through the public financing of political candidate threshold is evidence that a political party has parties.” While Iacobucci agreed that this objective is no genuine interest in the electoral process. The second “pressing and substantial,” he concluded that it is is that the 50-candidate threshold actively discourages actually counteracted by the 50-candidate threshold: organizations that have no electoral aim from seeking “Legislation that prevents certain political parties registered party status solely for the purpose of obtain- from issuing tax receipts or retaining unspent elec- ing the right to issue tax receipts. Neither aspect of this tion funds does not encourage individual citizens to submission provides a sufficient basis for concluding donate funds to political parties, but, rather, actively that the threshold requirement is rationally connected to 86 discourages the members and supporters of those par- the stated objective.” ties from making such contributions.”82 In the first place, “the 50-candidate threshold is an The second objective, to protect the public purse by inadequate mechanism for determining whether an restricting access to the political tax credit, also failed organization is a legitimate political party, with a gen- the “rational connection” test. According to Iacobucci, uine intention of participating in the electoral process.” the 50-candidate threshold “has no impact whatsoever Some serious parties may choose not to run candidates upon the potential overall burden of the tax credit in more than a handful of ridings. Others, lacking the The Charter of Rights and Party Politics by Heather MacIvor scheme on the public purse” because it does nothing resources to field 50 candidates, may nonetheless make to prevent individuals from contributing the maxi- a significant contribution to political debate. Nor is the mum amount to political parties. It merely discourages threshold an effective tool for distinguishing genuine donors from giving money to smaller parties.83 Nor political parties from those merely seeking to abuse the 87 was the law “minimally impairing” of democratic tax credits. Second, candidates — whether sponsored rights. Iacobucci argued that if fiscal responsibility by a registered party or not — can issue tax receipts were really a pressing concern, “a more appropriate during the campaign period. If interest groups “have means by which to address this problem would be to not already nominated candidates for the purpose of reduce the amount that each citizen is entitled to obtaining this benefit, it seems unlikely that they claim in respect of donations to political parties.” This would nominate candidates for the purpose of obtain- alternative policy would save public money without ing the right to issue tax receipts for donations 88 discriminating against any particular party or parties, received outside the election period.” Third, registered and thus would not infringe Charter rights.84 parties and those that wish to become registered must Finally, Iacobucci determined that the harmful effects meet several other obligations, including the submis- of the threshold outweighed any incidental benefits sion of audited financial reports. “Absent evidence associated with the restriction of tax-credit privileges. indicating that these requirements are not sufficient to

15 IRPP Choices, Vol. 10, no. 4, May 2004 strably justifiedinafreeanddemocraticsociety.” ernment hadfailedtoprovethatthelawwas“demon- minority orcoalitiongovernments.Thefederalgov- proven thatsingle-partymajoritiesarepreferableto those principles.” and democraticsociety, but,rather, istheantithesisof only discordantwiththeprinciplesintegraltoafree that acertainclassofcandidateswillbeelectedisnot ed fortheexpresspurposeofdecreasinglikelihood Iacobucci dismisseditoutofhand:“Legislationenact- outcome forourformofresponsiblegovernment.” “ensuring thattheelectoralprocessresultsinaviable the rational-connectionandminimal-impairmenttests. rights. Sothisobjective,like thefirsttwo,failedboth apply equallytoallparties,withoutinfringingCharter ing requirementsforparties—measuresthatwould achieved throughintensiveauditingandstrictreport- fraudulent taxcreditscouldbemoreeffectively would vanish.Moreover, theobjectiveofpreventing could meetthecriteria),nondisclosureproblem (which mostwouldpresumablywishtobe,ifthey out thatifthepartiesinquestionwereregistered were notrequiredtodisclosetheamounts.Hepointed registered partiesshouldforfeitthembecausethey missed Levine’sargumentthatcandidatesfromnon- from therestof theparty-registrationscheme iseasier practice, however, severingtheimpugnedsections matic benefits,wouldhaveremained inforce.In ing thosedealingwithbroadcasting andthenonauto- Act, 1982 down immediatelyundersection52ofthe could notbesaved,theCourthavestruckit denial ofparticularbenefitsinfringedtheCharterand T The RemedyImposedbytheCourt Figueroa How MuchDifferenceWillthe financing regime.” objective ofpreventingthemisuseelectoral the 50-candidatethresholdactuallyadvances credit scheme,thereisnobasisforconcludingthat party statusforthesolepurposeofabusingtax prevent [interestgroups]fromseekingregistered The finalobjectivewasdoomedfromthestart: With regardtocandidatesurpluses,Iacobuccidis- the 50-candidatethresholdandconsequent imposition ofaremedy. Having determinedthat he finalstepinthemajorityopinionwas . Theunaffectedsectionsofthe Ruling Make? 90 89 Moreover, theCrownhadnot CEA Constitution , includ- concerns.” party wouldnotraiseanyseriousconstitutional haps more,inordertoqualifyforregistrationasa ment ofnominatingatleast CEA Parliament verylittleguidanceinamendingthe the rulingandtoavoidalegislativevacuum.Itgave Parliament tobringthe of theinvalidationfor12monthstoallow stitutionality ofrestrictingaccesstothosebenefits.” addressed inthisappealordertodeterminethecon- necessary toconsiderfactorsthathavenotbeen access tothosebenefits.Itispossiblethatitwouldbe as totheconstitutionalityoflegislationthatrestricts a certainpercentageofthevote,Iexpressnoopinion tial reimbursementofelectionexpensesuponreceiving purchase reservedbroadcasttime,andtherighttopar- that provideaccesstofreebroadcasttime,theright will haveanimpactonsectionsofthe Figueroa would gowellbeyondthebenefitsatissuein impact ofstrikingdownthe50-candidatethreshold tion ofhisruling,Iacobucciacknowledgedthatthe said thandone.Althoughhetriedtolimittheapplica- these bills,amongthemC-51. Parliament inFebruary2004,itrevivedseveral of When thenewMartingovernment recalled all pendinglegislation,itdiedontheorderpaper. C-51 hadnotyetprogressed tosecondreading;like Bill C-51. WhentheHouseproroguedinNovember, House LeaderDonBoudriatheopportunitytotable in thefallof2003,whichgavethen–Government contest. TheHouseofCommonswasrecalledbriefly the governingpartywasinthroesofaleadership down whileParliament wasinitssummer recessand the federalgovernment.Thejudgmentwashanded The timingofthe Bill C-51 (NowC-3) House onFebruary 18.Thenewgovernment House cal amendments, theBillwasbrieflydebated inthe of politicalpartiescouldneverbejustified.” ment ofs.3arisingfromthedifferentialtreatment does itstandforthepropositionthataninfringe- ties willalwaysconstituteaviolationofs.3.Nor sition thatthedifferentialtreatmentofpoliticalpar- do so:“[T]hisdecisiondoesnotstandforthepropo- party equalityifitcouldjustifythemeanschosento Parliament thatitcouldcompromisetheprincipleof In theevent,courtchosetosuspendeffect Now namedC-3, . 92 First, JusticeLeBelsuggestedthat“a require- case: “[A]lthoughthedispositionofthiscase 93 Second, JusticeIacobuccitold 16 Figueroa 95 and incorporatingminortechni- CEA ruling wasawkwardfor one into conformitywith candidate, andper- Elections Act 94 91 leader, the Honourable Jacques Saada, moved that the candidate in a general election or a by-election is enti- Bill be referred to the Standing Committee on tled to inclusion on the register of parties. Procedure and House Affairs (SCPHA) before second The second objective is secured by new provisions reading. He informed the House that the government designed to prevent fraudulent parties from claiming wanted the Bill to pass quickly, in anticipation of a tax credits for donations. These provisions fall into two spring election. Once the legislative vacuum left by categories. The first category imposes new reporting Figueroa had been filled, the SCPHA would be given duties and organizational criteria on registered parties. a mandate to consider the broader issues raised by To achieve and maintain registered status, a party must the ruling and to draft a Bill that would become the have at least four officers, including the party leader permanent legislative response.96 (section 4). The leader is responsible for filing an annual The committee issued its report on March 12.97 The statement with Elections Canada affirming that the only substantive amendment was the addition of a party meets the new definition (section 15). The requi- two-year sunset on the amendments to the CEA con- site number of party members — all of whom must tained therein. The apparent purpose of the amendment appear on the register of electors — is increased from is to signal the government’s determination to replace 100 to 250 (sections 3 and 10). Beginning in 2007, every Bill C-3 with permanent legislation as quickly as possi- registered party must submit a list of 250 electors to ble. The committee narrowly rejected an amendment Elections Canada, accompanied by “their declarations in proposed by NDP MP Lorne Nystrom that would have the prescribed form that they are members of the party,” raised the candidate threshold in the Bill from one to every three years (section 15). These new criteria for twelve. Mr. Nystrom argued that the one-candidate rule registration are added to the existing obligations to file was insufficient to prevent the abuse of public funds. annual financial reports, both for the party as a whole He noted that a 12-candidate threshold would bring the and for each constituency association. If Elections legislation into line with the existing criteria for ballot Canada has reason to suspect that a registered party is labelling and official party status in the House of not a bona fide political organization and the party fails Commons without imposing undue burdens on smaller to allay this suspicion, then the commissioner of Canada parties. Seven of the MPs on the committee voted Elections may seek a court order to deregister the party against the amendment, perhaps swayed by the argu- and liquidate its assets. In making its decision, the court ment that the Supreme Court would not permit a must consider the party’s constitution, platform, elec- threshold higher than one; the other six voted in tion expenses, and any relationship between the party favour, signalling the possibility that the new registra- and another entity that may benefit financially from tion scheme would not survive parliamentary scrutiny.98 fraudulent use of the tax credits (section 23). The contents of Bill C-3 reflect two objectives: to The second category of provisions impose criminal bring the party-registration regime in the Canada penalties for reporting false information. A leader who Elections Act into conformity with the Supreme Court falsely claims that his party’s purpose is to participate ruling in Figueroa, and to provide new safeguards in public affairs risks a maximum jail term of five The Charter of Rights and Party Politics by Heather MacIvor against abuse of the tax-credit provisions by groups years and/or a $5,000 fine, as does an elector who falsely claiming to be political parties. The first objec- makes a false claim of party membership (sections 16 tive is achieved by defining a political party as “an and 21-22). Anyone who solicits or accepts a contribu- organization one of whose fundamental purposes is tion to a registered party with the intent to use the to participate in public affairs by endorsing one or money for nonpolitical purposes — in effect, anyone more of its members as candidates and supporting who deliberately abuses the political tax-credit provi- their election” (section 1). There was no definition of sions — will face the same penalty if caught and con- a political party in previous versions of the CEA. The victed (sections 17 and 22). The full amount of any new definition is consistent with both rulings in questionable donation must be remitted to the receiver Figueroa: Justice Iacobucci concluded that “the objec- general (section 22). The conviction of a party officer tives advanced do not justify a threshold requirement for an offense under the Act may result in the deregis- of any sort,” while Justice LeBel sensibly remarked tration and liquidation of the party (section 22). that the nomination of at least one candidate should Together, the new legal obligations and the penalties be regarded as a defining characteristic of a political for phony parties address the primary concern raised by party.99 Any group that can demonstrate that it par- the federal government in its response to Mr. Figueroa’s ticipates in public affairs by nominating at least one appeal: to protect the integrity of the election laws, and,

17 IRPP Choices, Vol. 10, no. 4, May 2004 nonautomatic –arestillconstitutionallyvalid. olds forthetwo-tierbenefits—bothautomaticand criteria. Thesecondquestioniswhetherthevotethresh- ue tobeprovidedallregisteredpartiesunderthenew ties —specifically, whetherallsuchbenefitswillcontin- automatic benefitscurrentlyprovidedtoregisteredpar- later investigations.Thefirstquestionconcernsthe questions, whichmaybeaddressedbytheSCPHAinits tion. However, BillC-3issilentonatleasttwomajor threshold asareasonablecriterionforpartyregistra- ty withthatdefinition,replacesthe50-candidate requirement thatallpartiesdemonstratetheirconformi- credit. Thenewdefinitionofapoliticalparty, andthe in particular, topreventtheabuseofpoliticaltax addressed inthe available toallregisteredparties.Theotherbenefits its, suggeststhatthisparticularbenefitwillremain teria foreach.BillC-3,withitsemphasisontaxcred- separated intotwotypes,withdifferenteligibilitycri- Judge Molloysuggestedthattheautomaticbenefitsbe initial debateovertheregistrationschemein1970. benefits toallregisteredpartieswasquestionedinthe As notedearlier, theextensionoffullpackage Unsolved Mysteries arate, though related, issue.Underthecurrent expression guaranteeinsection 2(b)oftheCharter. separately becauseoftheirconnection tothefree- the justicesmightwishtoconsider broadcastingissues smaller partiesbecauseofits scarcity. Alternatively, a publicresourcethatmaylegitimatelybedeniedto Reform Party case—mighttreatbroadcasting timeas the majorityonAlbertaCourtofAppealin Charter. Ontheotherhand,Supreme Court—like imply thatthelatteroptionwouldrunafoulof benefit whenallpartieshaveachancetobeheard, of electioncampaigning,andhisinsistencethatvoters approach. JusticeIacobucci’semphasisontheprocess mula? exclude thesmallestpartiesfromallocationfor- increased? OrwillParliament changethelawto parties, willtheamountofbroadcasttimebe registration shouldproducealargenumberofnew 360 inbothcategories.Ifthelessonerouscriteriafor minutes duringeachcampaignperiodiscappedat be determined.Atpresent,thenumberofavailable share offreeandlow-costbroadcasttime,hasyetto other automaticbenefits,particularlytherighttoa dates ontheballot—willalsoapply. Thestatusofthe candidate surplusesandthelabellingofpartycandi- The allocation formulaforbroadcasttime isasep- Figueroa appears toruleoutthelatter Figueroa ruling —theretentionof CEA , tion scheme,thentheymighttriggeraCharterremedy. as awaytocompensateforthelessonerousregistra- the SCPHAweretorecommendhighervotethresholds considered acceptableisimpossibletopredict.Butif tion. Whetherthecurrentvotethresholdswouldbe should alsoupholdavalidcriterionforthatdistinc- tions mightbejustifiableundersection1—thenit may notalwaysviolatesection3andthatanyviola- given Iacobucci’sstatementthatdifferentialtreatment purpose ofawardingpublicbenefits—apossibility, ciple ofatwo-tierdistinctionamongpartiesforthe tional muster. IftheSupremeCourtacceptedprin- of validvoteswonbyeachparty, wouldpassconstitu- able indicatorofpoliticalvalue,suchasthepercentage electoral process.Thisfindingimpliesthatamorereli- not anaccurateindicatoroftheparty’svaluein number ofcandidatesfieldedbyaparticularpartywas the section-1analysis,JusticeIacobucciruledthat Charter challenge.Attherational-connectionstageof of registeredstatusmaybemorelikely tosurvivea casts doubtonitsconstitutionality. ing judgesandJusticeIacobucci’srulingin between theparty-equalityargumentofdissent- Alberta CourtofAppealin1995,thesimilarities the allocationformulawasnarrowlyupheldby expense oftheirsmallerandnewerrivals.Although the largerandmorewell-establishedpartiesat forces thecompetitiveadvantagealreadyenjoyedby in thepreviousgeneralelection.Thisformularein- each party’sshareisdeterminedbyitsperformance candidate(s) and retainanysurpluscandidate funds. the vote,entitlingthemtoissue taxreceipts,labeltheir to theregisterofpartieson twenty-firstdaybefore parties withonlyoneortwo candidates willbeadded impending federalelection,as seemslikely, theneligible dates ontheballot.IfBillC-3takes effectbeforethe candidates weregiventherighttolabelthosecandi- Subsequently, nonregistered partieswithasfew12 that compliedwiththereportingprovisions. amount ofcandidatedepositstoallregisteredparties mandatory-liquidation ruleandtorefundthefull First, heforcedthefederalgovernmenttodelete S Conclusion The votethresholdsforthenonautomaticbenefits eral significantchangestoCanada’selectionlaw. Charter challengetothe ince Mr. Figueroawenttocourtin1993,his 18 CEA 100 has producedsev- Figueroa The practical impact of these developments will At the federal level, the Law Commission of Canada only become evident over the next several years. The was preparing to issue a major report on electoral number of new parties will depend on the willingness reform, which was expected to recommend a moderate of Canadians to form new political organizations (or form of MMP for elections to the House of Commons.104 revive defunct ones) for the purpose of contesting While this is not the first time the national government election to the House of Commons; the success of has been advised to adopt a new electoral system,105 the those organizations in attracting the support of vot- move toward MMP in five provinces and the activism of ers; and possible future amendments to the CEA. The Fair Vote Canada and other groups (Seidle 2002, part 2) new parties’ chances of electoral success, and their may create irresistible pressures for reform. At the same influence on Canadian politics and government, will time, newly minted prime minister Paul Martin appeared be conditioned by other institutional factors. Our cur- to be committed to parliamentary reform. He promised rent electoral system, single-member plurality (SMP), to give backbench MPs a larger role in policy-making makes it difficult for smaller parties to win seats in by relaxing the confidence convention and referring Parliament unless they command a large proportion more bills to committee before second reading (for of the vote in particular constituencies. In the long example, Bill C-3).106 term, the psychological effect of SMP discourages If any or all of these institutional reforms take effect, supporters of smaller parties, who must choose the impact of Figueroa will be enhanced. Instead of lan- between voting strategically for the major party that guishing in obscurity on the Opposition benches, MPs they find least objectionable and dropping out of the from smaller parties could find themselves in a strong active electorate altogether. SMP also manufactures bargaining position vis-à-vis a minority or coalition artificial single-party majority governments, whose government. Their ideas may be reflected not only in control over the executive and legislative branches of campaign discourse and parliamentary debate but also government excludes opposition MPs from a mean- in the substance of public policy. Canadians who are ingful role in policy-making. disaffected with the major parties and who now believe By the time Bill C-3 was tabled in Parliament, the that their votes would be wasted on a candidate from a institutional omens for smaller parties were unusually small party would have a chance to express their true positive. Electoral reform, long a favourite topic of preferences through the ballot box. MMP, on its own, political scientists, had begun to attract attention from would give political activists an incentive to establish the news media and interest groups. Five provincial and support new parties; combined with the new party- governments were seriously considering mixed-member registration regime and a more powerful legislative plurality (MMP). The Liberal government in Quebec was branch, that incentive would be all the greater. committed to introducing an electoral-reform bill in the It is too soon to say whether a more diverse party National Assembly in the spring of 2004 (see Dupuis system, with or without a more proportional electoral 2003). At the same time, a citizens’ assembly in British system, would cure the current democratic malaise in

Columbia was charged with designing a new voting Canada. A wider range of political options might The Charter of Rights and Party Politics by Heather MacIvor system, which would be put to the voters in a provin- reverse the recent decline in voter turnout, at least to cial referendum in May 2005.101 Ontario Premier Dalton some extent (Massicotte 2001). A more representative McGuinty promised a similar referendum before the and influential House of Commons could strengthen next provincial election, and he established a democrat- Canadian democracy by reinvigorating political debate ic-renewal secretariat to explore options for reform. and reducing the dominance of the governing party. New Brunswick’s Bernard Lord established a commis- Lowering the barriers to electoral participation may sion on legislative democracy, with a mandate to inspire more Canadians to involve themselves in party “examine and make recommendations on implementing politics, especially if they decide that party membership a proportional representation electoral system” that can give them more influence on public policy than would permit “a continued role for directly-elected participation in an advocacy group (Howe and Northrup MLAs representing specific geographic boundaries” — 2000, 33, table 20). Changing a political culture is a in other words, MMP.102 In Prince Edward Island, a judi- lengthy process with no guarantee of success. But in the cial commission recommended that the province adopt current climate of institutional reform, there is reason to some form of mixed electoral system; that recommen- expect a more vigorous and engaged electorate, and a dation was being considered by the government of closer relationship between civil society and the state, to Premier Pat Binns at the time of writing.103 evolve over the coming years.

19 IRPP Choices, Vol. 10, no. 4, May 2004 0See,forexample, HoggandBushell(1997);Roach 10 See,forexample,Schauer (1994,1336-37,1339-40); 9 12 See thedebateover“dialogueanddeference”between 11 7 InterviewwithRogerTassé, formerdeputyministerof 6 Comparewiththepreviousdraftofsection3,repro- 5 Thereweresixjusticesinthemajority, ledbyJustice 4 OntheJune27,2003broadcastof“TheNational,” 3 Section3oftheCharterreads:“EverycitizenCanada 2 SupremeCourtofCanada2003,37; 1 Notes See,forexample, 8 per Vriend v. Alberta judicial embraceofthedialoguemetaphorisevidentin (2001); Morton (2001); ManfrediandKelly(1999).The Ely (1980,especiallychapters4-6). Sauvé graphs 8-9,13-18, 68,104-8. McLachlin CJCandGonthierJ in graphs 57and125, under section1;seeparagraphs95-96, no bearingwhatsoeveronthestandardforjustification latter casearguedthattheexemption ofsection3had McLachlin CJ.Notethatthedissentingminorityin Electoral Officer) 2 SCR158; Reference reProv. ElectoralBoundaries(Sask.) 24, 2003. justice andtheprincipaldrafterofCharter, June duced onpage767ofBayefsky(1989). vidualistic analysis.Therewasnodissentingjudgment. tion ofsection3thatwasatoddswithIacobucci’sindi- the result,buttheyadoptedacommunitarianinterpreta- Iacobucci. ThethreejusticesfromQuebecconcurredin was accompaniedbyaphotographofMr. Figueroa. to Party” (p.A8).Thestory, writtenbyJaniceTibbetts, contained astoryheadlined,“CommunistsWinRight lawyer. TheJune28,2003editionofthe focused almostexclusively onMr. Figueroaandhis which devotedafewminutestothecase,reporter demonstrably justifiedinafreeanddemocraticsociety.” such reasonablelimitsprescribedbylawascanbe tees therightsandfreedomssetoutinitsubjectonlyto “The CanadianCharterofRightsandFreedomsguaran- be qualifiedformembershiptherein.”Section1reads: House ofCommonsoralegislativeassemblyandto has therighttovoteinanelectionofmembers 31, 2000(hereinafter Act for providingvaluableinformation. Many thankstoDianeDavidsonatElectionsCanada gestions ofPaul Howeandtheanonymousreviewers. I gratefullyacknowledgetheexcellent editorialsug- Brunswick (AttorneyGeneral), per (Attorney General) 68 (hereinafter Sauvé v. Canada(ChiefElectoralOfficer) Sauvé v. Canada(AttorneyGeneral) , 48-49ElizabethII,chapter9,RoyalAssentMay Iacobucci J;and Bastarache J; 2002, paragraph 9, Haig v. Canada,Haigv. Canada(Chief Sauvé , [1998]1SCR493,paragraphs 137-39, , [1993]2SCR995; Sauvé Thomson NewspapersCo.v. Canada , [1998]1SCR877,paragraph79, per R. v. Mills CEA 2002). McLachlin andIacobucciJJ. 2002, paragraphs4and44, per 2000). McLachlin CJC. , [1999]3SCR668,para- [1996] 2SCR876; Sauvé , [1993]2SCR438; Canada Elections Harvey v. New per 2002, para- , [2002]SCC National Post Gonthier J. , [1991] per 8Forexamplesoftheparty-equalitymodel,seedis- 18 1Theregistered partieswerethefiveinHouseof 21 IntheHarperandPacific Presscases,thecourtsdistin- 20 14 Theleadingcaseis 13 19 Theobviousexception tothisstatementistheCourt’s 17 16 15 and the1999 445 (hereinafterreferredtoas Court ofAppeal,March10, 1995,123DLR(4th),366- Canada etal.v. Canada(AttorneyGeneral) senting judgmentofConradJAin jurisprudence. appears tosignalamoveawayfromthatearlier Dunmore v. Ontario(AttorneyGeneral) per Canada (DeputyAttorneyGeneral) SCR 313, 470 US480(1985); Marxist-Leninist Party, theNatural Law Party and the Communist Party ofCanada,theMarijuanaParty, the Commons, plustheCanadianAction Party, the ing inelectioncampaigns. adopt thelibertarianapproach to third-partyadvertis- tinction allowedthecourtstoevade its section-1analysishadbeendiscredited.Thisdis- evidence onwhichtheSupremeCourtofCanadabased guished for themajority). (4th), 205-43; General) DLR (4th),481-96; General) National Citizens’Coalitionetal.v. Canada(Attorney December 10, 2003. no. 02-1674;arguedSeptember8,2003,decided Senator, etal.v. FederalElectionCommissionetal. position toadegree.See Supreme Courthasrecentlysofteneditslibertarian Comm. Comm’n v. ColoradoRepublicanFederalCampaign Government PAC See also, December 2002( which wasupheldbytheAlbertaCourtofAppealin [2001] ABQB558(http://www.albertacourts.ab.ca), (Attorney General) 0248 (http://www.courts.gov.bc); Reform Party v. Canada paper). Public ServiceEmployeeRelationsAct to bargaincollectively. See,forexample, labour byrecognizingeitherarighttostrike oraright refused toextendCharterprotectionorganized association clause.Untilrecently, mostofthejustices narrow interpretationofsection2(d),thefreedom-of- paragraph 141. R. v. EdwardsBooksandArtLtd. 569, headnotes, Libman v. Quebec(AttorneyGeneral) [2002] ABCA301). Bastarache J.However, themajorityrulingin , 533US431. However, theUnitedStates Libman , AlbertaCourtofAppeal,[1996]136DLR , AlbertaCourtofQueen’sBench,[1984]11 ne la FECv. NationalConservativePAC inter alia, per 20 LeDain andMcIntyreJJ; Figueroa Pacific Pressv. A.G.etal. on thegroundthatsocial-science Harper v. Canada[AttorneyGeneral] , 528US377; per curiam , AlbertaCourtofQueen’sBench, Somerville v. Canada(Attorney Buckley v. Valeo Nixon v. ShrinkMissouri , 368, ruling (discussedlaterinthe McConnell, UnitedStates per (hereinafter Reform Party v. Canada) Federal Election McFadyen JA(writing , [1986]2SCR713, Harper v. Canada Reform Party of , [1999]2SCR989, , 424US1(1976). stare decisis , [1997]3SCR Delisle v. , [2001] SCC94, (Alta.) , [2000]BCSC Libman Reference re , Alberta , [1987]1 1997). and , , , ; Green Party of Canada. The eligible parties were the 33 Reform MP Deborah Grey’s remarks to the Senate Christian Heritage Party (which lost its registration sta- Standing Committee on Legal and Constitutional Affairs tus in 2000), the National Alternative Party of Canada reflect the sentiments of the smaller parties (which Reform and the Ontario Party of Canada. was at that time): “I believe the reason there has been no 22 See Hansard, May 27, 1970, pp. 7395-413; May 28, opposition to this legislation is because the intent of the 1970, pp. 7439-42; June 9, 1970, pp. 7925-26; June amendments is to promote and protect the three estab- 16, 1970, pp. 8203-6; June 22, 1970, p. 8475; and June lished parties currently sitting in the House of Commons, 23, 1970, pp. 8507-10. while reducing political competition by making it more 23 Liberal MP James Jerome, reported in Hansard, May 28, difficult for new parties to emerge and challenge the sta- 1970, p. 7442; Progressive Conservative MP Michael tus quo” (Senate 1991, 30). Forrestall, reported in Hansard, June 16, 1970, p. 8206. 34 Figueroa v. Canada (Attorney General), Ontario Court 24 James Jerome, reported in Hansard, May 28, 1970, p. 7441. (General Division), March 10, 1999, 170 DLR (4th), 647- 25 See the speech of the mover of the amendment, Liberal 731 (hereinafter Figueroa 1999). MP Grant Deachman: “We must compromise in order 35 Supply and Services Canada (1991, 87). to arrive at the right figure. It is not really so much a 36 Figueroa 1999, p. 671. matter of argument as a matter of taste.” Reported in 37 Supply and Services Canada (1991, 228), quoted in Hansard, June 23, 1970, p. 8507. See also the minis- Figueroa 1999, p. 680. ter’s response: “There is no magic in the figure [of 38 Figueroa 1999, pp. 686-90, 691, 724-25, 729. 50]…I am prepared to accept as a suggestion” 39 Figueroa 1999, pp. 685, 683, 696. (p. 8509). The debate on the amendment concluded 40 Figueroa 1999, p. 699. with this comment by PC MP Heath Macquarrie, who 41 Figueroa 1999, p. 710. had earlier opposed raising the threshold from 27: “I 42 Figueroa v. Canada (Attorney General), Ontario Court of hope that this will carry so that we can move on, Appeal, August 16, 2000 (hereinafter Figueroa 2000); because I have no desire to spend the first half of the accessed at the court’s Web site (http://www.ontario- month of July on this legislation” (p. 8510). courts.on.ca), April 10, 2002. 26 See, for example, the question from NDP MP Les 43 Figueroa 2000, paragraph 73. Benjamin and the answer from Jerome (p. 7442). 44 Figueroa 2000, paragraph 76. 27 Reported in Hansard, June 23, 1970, pp. 8507-8. 45 Figueroa 2000, paragraph 79 (emphasis added). 28 Hon. Donald S. Macdonald, President of the Privy 46 Question 3 asked whether the 50-candidate threshold Council, reported in Hansard, June 23, 1970, p. 8509. infringed section 2(d), the guarantee of freedom of asso- 29 A Charter challenge to this allocation scheme, which ciation. Question 5 concerned a possible violation of the favours the larger and more established parties over equality rights in section 15(1). Questions 4 and 6 asked smaller and newer rivals, was narrowly rejected by the whether any violation of these two sections could be jus- Alberta Court of Appeals in 1995. See Reform Party of tified under section 1. The court ultimately ruled that the Canada v. Canada. threshold violated section 3 and could not be saved, so 30 This claim is not without its critics. One study found that there was no need to answer the remaining constitution- the tax credits were not a primary incentive for contribut- al questions. ing to a party, although their availability tended to 47 Supreme Court Bulletin of Proceedings, September 14, increase the size of donations. See Michaud and LaFerrière 2001, available on-line at www.scc-csc.gc.ca. (click on (1991, 385). However, given William Stanbury’s finding Ajudgments” and follow the links, then click on “bul- that the 1973 law provided “all the main parties [that is, letins”). The Charter of Rights and Party Politics by Heather MacIvor those with the power to issue tax receipts] with vastly 48 Neither Judge Molloy nor Justice Doherty had devoted larger sums to spend in the years between elections,” and much attention to the assignment of candidate surpluses, the fact that the tax credits in 1985-88 accounted for 29 largely because they both focused on the constitutionali- percent of registered-party income, its impact on party ty of the threshold itself. Once the validity of the thresh- funding appears to be substantial. See Stanbury (1991, 55) old had been determined, the resolution of the surplus and Michaud and LaFerrière (1991, 372). question was automatic. In contrast, the Supreme Court 31 Third session, thirty-fourth Parliament, 40-41-42 analyzed the surplus provision as a discrete factor in Elizabeth II, 1991-92-93, Bill C-114, An Act to Amend determining the constitutionality of the entire party-reg- the Canada Elections Act. istration scheme. 32 The Lortie Commission had recommended that the 49 Figueroa 1999, p. 688. $200 cash deposits be replaced by $1,000 performance 50 Appellant’s factum, Figueroa v. Canada (Attorney General), bonds that would be cancelled upon submission of the dated February 21, 2002, paragraphs 80 and 85. candidate’s postelection financial report. The commis- 51 Respondent’s factum, Figueroa v. Canada (Attorney sioners pointed out that a $200 penalty was insuffi- General), undated, paragraphs 63, 3-4, 64, and 56. cient to motivate compliance with the reporting 52 R. v. Oakes, [1986] 1 SCR 103, paragraphs 69-71, per requirements of the CEA, and that it did not begin to Dickson CJC (as he then was). cover the cost of enforcing compliance. See Supply 53 RJR-MacDonald Inc. v. Canada (Attorney General), and Services Canada (1991, 89). [1995] 3 SCR 199, paragraphs 126-52, per McLachlin J

21 IRPP Choices, Vol. 10, no. 4, May 2004 61 60 Appellant’sfactum,paragraph47. 59 Inthe1985-88periodalone,costofindividualand 58 Appellant’sfactum,paragraph106. 57 Respondent’sfactum,paragraph89(emphasisinoriginal). 56 Respondent’sfactum,paragraph89(emphasisinoriginal). 55 Appellant’sfactum,paragraph105. 54 69 Respondent’sfactum,paragraph98(emphasisinoriginal). 68 Respondent’sfactum,paragraph 94.Levinehintedat 67 Appellant’sfactum,paragraph 107. 66 Thisclaimisnotentirelyaccurate.Asnotedearlierin 65 Appellant’sfactum,paragraph107. 64 Respondent’sfactum,paragraph91. 63 62 74 73 72 71 70 vidual rights(paragraph 98). should notbestruckdownasa violation ofpurelyindi- political preferences,itservesan importantpurposeand that is,thosewiththewilland meanstoaggregate threshold “tendstobenefitparties withabroadappeal,” aggregation ofpoliticalwill.”Because the50-candidate tion 3isalsointendedtopromote “cohesiveness andthe acknowledges. Thehistoricalcontextsuggeststhatsec- process ismorecomplexthanIacobucci’sjudgment Moreover, therighttoparticipateinelectoral broader communityofallCanadians”(paragraph101). communities thatmake upCanadiansocietyandthe the representationofcommunities,bothvarious argued thatsection3“isalsoinherentlyconcernedwith ring justices,ledbyLeBelJ,differedonthispoint.They Libman Figueroa lion. SeeStanbury(1996,table17.6). corporate taxcreditsamountedtomorethan$47mil- CJC (ashethenwas). Corp (as shethenwas); democratic rightsas Hunter v. SouthamInc which addsuptoaninitialcostof$50,000perparty. fact thateachcandidatemustpayadepositof$1,000, parties seekingregistration.Thisclaimoverlooksthe suggested thatthethreshold“imposesnocosts”on the beginningofherfactum,wheresheerroneously another aspectoftheminimal-impairmentanalysisat fit therefrom. essary toensurethatonlynationalpartieswouldbene- with theunderstandingthatahighthresholdwasnec- tion thatpublicsubsidieswouldfollowshortly, and the paper, thethresholdwasadoptedinexpecta- Sauvé his approachtosection3in “the averagecitizen”highlightsanimportantaspectof Figueroa Figueroa Figueroa Figueroa Iacobucci Jwhenhereproducedthispassagein Haig v. Canada [1989] 2SCR1326,paragraphs51-52, Edmonton Journalv. Alberta(AttorneyGeneral) Dickson J(ashethenwas). ., [1994]3SCR835,paragraphs92-97, 2002, paragraphs22and23(citationsomitted). 1997, paragraph42(emphasisadded). ). 2003, paragraph29.Iacobucci’sreferenceto 1999, p.690. 2003, paragraph28. 2003, paragraph26. , paragraph61 (emphasisaddedby Dagenais v. CanadianBroadcasting individual ., [1984]2SCR145,p.157, Figueroa rights. Thethreeconcur- : itsemphasison per Wilson J. per , Lamer per 2Iacobucci notedthatoneofthebenefits atissuein 92 91 90 89 88 87 86 85 84 83 82 81 Onthisquestion—whetherthethresholdviolatedsec- 80 79 78 77 76 75 Figueroa Figueroa Figueroa Figueroa Figueroa Figueroa Figueroa Figueroa its, thefederalgovernmentenrichedthem. opposite: insteadofscalingbackthepoliticaltaxcred- Figueroa Figueroa Figueroa Figueroa though thereasonsdiffered. lated section3oftheCharterwasunanimous,even Thus thefindingthat50-candidatethresholdvio- Quebec (theonlyprovinceswithmorethan50seats). regional partiesinprovincesotherthanOntarioand regional representationbyprohibitingtheformationof party’s popularsupport,anditviolatedtheprincipleof threshold wasnotasufficientlyaccuratemeasureof als theopportunityformeaningfulparticipation.”The choice, tosuchanextentthatitdeniesthoseindividu- some candidates,andtheirsupporters’freedomof this appealcompromisesthecompetitivepositionof candidates togainaccessthebenefitsatissuein cluded that“therequirementofnominating50ormore these countervailingvaluesinsection3,LeBelcon- tory anddevelopment.Butdespitetheexistenceof important, especiallyinlightofCanada’spoliticalhis- old wasapart.Regionalrepresentationequally registration systemofwhichthe50-candidatethresh- which, inLeBel’sview, werepromotedbytheparty- motion ofcohesionoverfragmentation,”both “the aggregationofpoliticalpreferences”andpro- pation andeffectiverepresentation.”Theseinclude peting valueswhichcontributetomeaningfulpartici- the impugnedlawdoesnot“enhance anyofthecom- cratic rights,thecourtwouldhavetobesatisfiedthat plaintiff couldproveaviolationofhisorherdemo- court inrelationtootherChartersections.Beforea test, analogoustothosealreadyestablishedbythe ed bysection3.LeBelproposedaninternalbalancing collective democraticrights,allofwhichwereprotect- the electoralprocessmightbejustifiedbycompeting of theindividualrighttomeaningfulparticipationin could beestablished.Inotherwords,aninfringement to beweighedagainsteachotherbeforeaviolation section protectedseveralcompetingvalues,whichhad roads tothesameconclusion.LeBelarguedthat tion 3—thethreeconcurringjusticestookdifferent Figueroa Figueroa Figueroa Figueroa Figueroa — theidentification ofpartycandidateson 2003, paragraph91. 2003, paragraph80. 2003, paragraph76. 2003, paragraph76. 2003, paragraph75. 2003, paragraph74. 2003, paragraph70. 2003, paragraph69.Infact,BillC-24didthe 2003, paragraphs67-68. 2003, paragraph64. 2003, paragraph178. 2003, paragraphs52-54. 2003, paragraph45. 2003, paragraph42. 2003, paragraphs39-41. 2003, paragraph38. 22 the ballot — had already been extended to parties with as few as 12 candidates (see the earlier discussion of Bill C-9). He made it clear that unless the federal gov- ernment advanced more compelling objectives than those that had been offered to justify the 50-candidate threshold, the 12-candidate threshold would meet the same fate (Figueroa 2003, paragraph 92). 93 Figueroa 2003, paragraph 149 (emphasis in original). 94 Figueroa 2003, paragraph 91. 95 Third session, thirty-seventh Parliament, 2-53 Elizabeth II, 2004, Bill C-3, An Act to Amend the Canada Elections Act and the Income Tax Act. 96 House of Commons Debates, February 18, 2004. 97 House of Commons, third session, thirty-seventh Parliament, “Tenth Report of the Standing Committee on Procedure and House Affairs,” March 12, 2004. 98 House of Commons, third session, thirty-seventh Parliament, “Minutes of Proceedings and Evidence of the Standing Committee on Procedure and House Affairs,” March 11, 2004. 99 Figueroa 2003, paragraphs 92 and 149. 100 Reform Party of Canada v. Canada, per Conrad JA. 101 Information on the citizens’ assembly is available at www.citizensassembly.bc.ca/public 102 The commission’s mandate is posted at www.gnb.ca/0100/mandate-e.asp 103 For background information and a link to the report by Justice Carruthers, see Prince Edward Island (n.d.) 104 Documents relating to the Law Commission’s study of electoral reform are available at www.lcc.gc.ca 105 In 1979, the Task Force on Canadian Unity had called on the federal government to adopt an electoral sys- tem that would reduce the regional polarization among the parties in the House of Commons. This rec- ommendation does not appear to have received seri- ous consideration. 106 Details of the Democratic Reform agenda issued in early 2004 are available at www.pm.gc.ca/eng/dem_ reform.asp The Charter of Rights and Party Politics by Heather MacIvor

23 IRPP Choices, Vol. 10, no. 4, May 2004 Feasby, Colin.1998-99.“ Ely, JohnHart.1980. Dupuis, JacquesP. 2003.“ReformofDemocratic Boyer, J.Patrick. 1981. Bayefsky, AnneF., ed.1989. References Michaud, Pascale, andPierreLaFerrière.1991. “Economic Massicotte, Louis.2001. “ChangingtheCanadianElectoral Manfredi, ChristopherP., andJamesB. Kelly. 1999.“Six Makin, Kirk.2003.“Top CourtRestores FringeParty 2003b. “LevellingthePlayingField:ThePotential ——. ——. 2003a.“TheImportanceofBeing‘Democratic’:The MacIvor, Heather. 2002.“JudicialReviewandElectoral Howe, Paul, andDavidNorthrup.2000.“Strengthening Hogg, Peter W., andAllisonA.Bushell.1997.“TheCharter Morton, F.L. 2001. “DialogueorMonologue?”In Judicial Review cours/dis20030910_en.htm Accessed April13.www.mce.gouv.qc.ca/srid/ dis- Research onPublicPolicy Montreal,September10. Reform ofDemocraticInstitutions2.”Institutefor 10). Keynotepresentationattheconference“The Institutions: AProjectwithThreeAims”(September Butterworths. Framework ofElectionsinCanada 2. Toronto: McGraw-HillRyerson. 1982 andAmendments:ADocumentaryHistory Charter: TheEmergingEgalitarianModel.” Administration oftheProcessDemocracyunder In Analysis oftheFundingPolitical Parties inCanada.” System.” Bushell.” Degrees ofDialogue:AResponsetoHoggand Rights.” Halifax, May30. Political ScienceAssociation,DalhousieUniversity, Paper presentedattheannualmeetingofCanadian Impact oftheFigueroaCaseonCanadianElections.” Sackville, NewBrunswick,March15. Mount AllisonUniversityCentreforCanadianStudies, Circle: TheRoleoftheCourtsinaDemocraticCanada.” Elections Act Unanticipated ImpactoftheCharteron Justice under theCharter.” Democracy: TheContestedStatusofPolitical Parties Matters/Enjeux publics Canadian Democracy:TheViewsofCanadians.” Osgoode HallLawJournal the CharterofRightsIsn’tSuchaBadThingAfterAll.” Dialogue betweenCourtsandLegislatures(Or, Perhaps Journal edited byF. LeslieSeidle.Vol. 5of and Peter H.Russell.Montreal andKingston:McGill- Power andCanadianDemocracy Dundurn. Electoral ReformandParty Financing Research StudiesfortheRoyal Commission on Issues inParty andElectionFinanceinCanada 21. 44: 5. Globe andMail, Choices Osgoode HallLawJournal .” Paper presentedat“Squaringthe . Cambridge:HarvardUniversityPress. Democracy andDistrust:ATheoryof 7, no.1.Montreal:IRPP. Political Rights:TheLegal Windsor Yearbook ofAccess to Libman v. Quebec(A.G.) 1, no.5.Montreal:IRPP. Canada’s ConstitutionAct June 28. 35: 75. , editedbyPaul Howe . Toronto: The Collected 37: 513. . Toronto: McGill Law Canada Judicial and the . Vol. Policy , Stanbury, W.T. 1991. Slattery, Brian.1987.ATheoryoftheCharter.” Seidle, F. Leslie.2002.“ElectoralSystemReforminCanada: Schauer, Frederick.1994.“JudicialReviewoftheDevices Russell, Peter H.1982.“TheEffectofaCharterRightson Roach, Kent.2001. Rawls, John.1987.“BasicLibertiesandTheirPriority.” In Prince EdwardIsland.n.d.“ElectoralReformCommission.” Trakman, LeonE.,WilliamCole-Hamilton,andSean Sunstein, CassR.1995. Supply andServicesCanada.1991. Senate. 1993. 1996.“RegulatingtheFinancingofFederalParties and ——. Parties andCandidatesinCanada Hall LawJournal Canada/Canadian Policy ResearchNetworksInc. Governance.” Ottawa:LawCommissionof Objectives, Advocacy andImplicationsfor Democracy.” Public Administration the Policy-Making RoleofCanadianCourts.” Activism orDemocraticDialogue Press. Sterling McMurrin.SaltLake City:UniversityofUtah Selected Tanner LecturesonHumanValues reform/index.php3 Accessed April19,2004.www.gov.pe.ca/electoral Research onPublicPolicy. Queen’s UniversityPress;Montreal:Institutefor Drawing Board.” Gatien. 1998.“ Speech Canada. vol. 1.Ottawa:MinisterofSupplyandServices Commission onElectoralReformandParty Financing Committee onLegalandConstitutionalAffairs Scarborough: NelsonCanada,1996. by A.BrianTanguay andAlain-G.Gagnon.2ded. Candidates.” In Dundurn. on ElectoralReformandParty Financing Collected ResearchStudiesfortheRoyalCommission Rev. ed.NewYork: FreePress. . Proceedings oftheStandingSenate 24 Columbia LawReview The SupremeCourtonTrial:Judicial R.v. Oakes 1986-1997 Canadian Parties inTransition Money inPolitics: FinancingFederal Osgoode HallLawJournal 25: 701. Democracy andtheProblemofFree 25, no.1. Report oftheRoyal . Toronto: IrwinLaw. . Vol. 1of 94:1326. : Backtothe . Toronto: , editedby Osgoode 36: 83. The Canadian , no.41. , edited , The Charter of Rights and Party Politics The Impact of the Supreme Court Ruling in Figueroa v. Canada (Attorney General) Résumé by Heather MacIvor

e jugement Figueroa rendu en juin 2003 par la Cour suprême du Canada a éliminé le seuil des 50 candidatures que devait présenter un parti L petits et nouveaux partis des avantages de l’enre- avant de pouvoir s’enregistrer en vertu de la Loi élec- gistrement. En 1993, on a même modifié la loi pour torale du Canada. Le gouvernement fédéral a réagi en exiger des partis qui n’atteignaient pas ce seuil qu’ils modifiant la loi pour permettre aux partis présentant liquident leurs actifs et se retirent définitivement de un seul candidat de se prévaloir des avantage de cet l’échiquier politique. Quand cette nouvelle disposition enregistrement, y compris des reçus fiscaux et l’ins- a été appliquée au Parti communiste du Canada par cription du nom du parti sur les bulletins de vote. suite de l’élection de 1993, le chef de ce parti, Miguel Cette étude examine les enjeux de ce jugement, ses Figueroa, a contesté en bloc la constitutionnalité du répercussions sur la loi électorale et ses possibles mode d’enregistrement. Sa cause a fait l’objet de trois conséquences sur la vie politique et gouvernementale. jugements : M. Figueroa a remporté un premier succès L’auteure s’y intéresse d’abord à l’application de la à l’étape du procès, il a été partiellement débouté par Charte des droits et libertés à la loi électorale, en ce la Cour d’appel de l’Ontario, puis a finalement obtenu qui concerne notamment la légitimité d’une révision gain de cause devant la Cour suprême. L’auteure judiciaire du processus démocratique et les valeurs qui résume ces trois jugements ainsi que les arguments devraient éclairer une telle démarche. Elle soutient juridiques soumis à la Cour suprême en ce qui touche qu’on ne peut pas nécessairement faire confiance aux notamment l’article 3 (le droit de voter et de briguer législateurs élus pour rédiger des lois électorales un poste électif) et l’article 1 (la clause de prescription) équitables puisque l’intérêt du parti au pouvoir (et des de la Charte. Elle analyse également le jugement autres partis représentés au Parlement) est indissocia- majoritaire de la Cour et les raisons de la victoire de ble des règles du jeu politique. Elle examine également M. Figueroa. le poids relatif qu’on devrait accorder aux notions La dernière partie du document évalue les répercus- d’égalité et de liberté en contexte électoral, et plus pré- sions potentielles du jugement, examine le contenu de cisément en lien avec les partis politiques. Elle passe la réponse législative du gouvernement, en l’occur- finalement brièvement en revue la controverse régnant rence l’avant-projet de loi C-3, et relève certaines parmi les juges canadiens à propos de la constitution- questions clés omises dans cet avant-projet. En con- nalité des lois préjudiciables aux nouveaux et petits clusion, l’auteure anticipe les effets positifs du juge- partis, controverse à laquelle le jugement Figueroa a ment sur la vie politique et suggère de les renforcer justement mis fin. par d’autres changements juridiques et institutionnels, La section suivante décrit les modalités d’enre- en engageant par exemple une réforme électorale et en gistrement des partis prévues à la Loi électorale du réservant aux députés un plus grand rôle politique. Canada et en retrace l’évolution de 1970 à 2003, pour confirmer que le seuil des 50 candidatures privait les

25 The Charter of Rights and Party Politics The Impact of the Supreme Court Ruling in Summary Figueroa v. Canada (Attorney General) by Heather MacIvor

he June 2003 Figueroa ruling from the Supreme Court of Canada struck down the T 50-candidate threshold for party registration under the Canada Elections Act. In response, the federal government is amending the Act to permit parties with a single candidate to claim the bene- amended to require parties that failed to meet the fits of registered status, including tax credits and threshold to liquidate their assets and put them- ballot labels. This paper examines the issues at selves permanently out of business. When this law stake in the case, the case’s impact on Canada’s was applied to the Communist Party of Canada national election law, and its potential impact on after the 1993 election, party leader Miguel our politics and government. Figueroa challenged the constitutionality of the The paper begins with a general discussion of entire registration scheme. The paper describes the the Charter’s application to election law, focusing three rulings in the case: Mr. Figueroa’s victory at on the legitimacy of judicial review in matters of the trial stage, his partial defeat in the Ontario democratic process and the values that should Court of Appeal, and his ultimate success in the inform this review. It argues that elected legislators Supreme Court. It summarizes the legal arguments cannot always be trusted to write fair election before the Supreme Court, focusing on section 3 laws, because the self-interest of the governing (the right to vote and run for office) and section 1 party (and the other parties represented in (the limitation clause) of the Charter. It then con- Parliament) is bound up with the rules of the polit- siders the court’s majority ruling and the reasons ical game. Next, the paper considers the relative Mr. Figueroa won his case. weight that should be accorded to equality and The final section of the paper assesses the possi- freedom in the electoral context, and specifically in ble impact of the ruling. It sets out the content of relation to political parties. The paper briefly dis- the government’s legislative response, Bill C-3, and cusses the controversy among Canadian judges it identifies some key issues that are not included over the constitutionality of laws that discriminate in the Bill. The paper concludes by speculating against smaller and newer parties, a controversy about the positive effects of the ruling on that was finally resolved in the Figueroa ruling. Canadian politics and by suggesting that those The next section of the paper describes the effects could be magnified by other legal and insti- party registration scheme in the Canada Elections tutional changes (such as electoral reform and a Act and traces its development from 1970 to larger policy role for MPs). 2003. The 50-candidate threshold for registration effectively denied the benefits of registered status to smaller and newer parties. In 1993, the Act was

26