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Third Party Election Spending and the Charter

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Third Party Election Spending and the Charter ELECTIONSPENDING AND THE CHARTER 429 LIBERTE, EGALITE, ARGENT: THIRD PARTY ELECTION SPENDING AND THE CHARTER 0 ANDREW GEDDIS Both the federal government and the courts have le gouvernementfederal et /es cours de Justice ont brought about changes in election law. The author apportedes modificationsa la loi electorate.l 'auteur reviews these recent changes In the legal landscape revolt le.r recents changementsdans le cadre legal that surroundelection mies. Inparticular third party entourant/es reg/es electorates, tout particulierement electionspending. Thequestions of "whatrules exist" /es depenseselectorates de tiers. la question,a savoir and "who shall make them" are particularly « quelles sont les reg/es qui existent II et « qui les importantto the discussionas this area of law tries to me/Ira en place ,, est particulierement importante reconcile individual interestsin liberty and equality dans celle discussionetant donne que ce domainedu in a democracy.The trio of SupremeC our/ of Canada droit teme de reconcilierles interets individuelset la decisions, Libman v. Quebec (A.G.), Thomson notion de liberte et d'egalite d'une democralie.Les Newspapersv. Canada (A.G.) and Sauve v. Canada trois dkisions de la Cour supreme du Canada. (Chief Electoral Officer), reveal ambiguity In the notamment Libman c. le Quebec (A.G.). Thomson Court's rationalefor limiting Individual liberty at Newspapersc. le Canada (A.G.)et Sauve c. le Canada electiontime. Thisambiguity Is broachedIn the recent (Directeur general des elections), manlfestent Supreme Court of Canada case of Harper v. Canada I 'amblg1111erelativement au raisonnementde la Cour (A.G.)where the Courtaccepted that Parliamentmay de limiter la liberte individuellependant un scrutm. legitimatelyseek to create a "level playingfield" at Cette a111bigu11ea ete entameedans la recente cause election time. de la Cour supreme du Canada de Harper c. le Canada (A.G.)oil la cour a accepteque le Parlement puisse, en route legitimile, creer " une egalite des chances » au momentd'un scrutin. TABLE OF CONTENTS I. INTRODUCTION. • . • . • . • . • . • . • • . • . • . • . • . • . • . • . 430 II. LAW, DEMOCRACYAND CAMPAIGNSPENDING .•........•.•....... 432 Ill. BEGINNINGAT THE BEGINNING:THE EARLY HISTORY OF THIRD PARTY SPENDINGRESTRICTIONS •.•.•.........•.•...... 439 IV. MUDDYINGTHE WATERS: THE SUPREMECOURT'S HAZY ELECTIONLAW JURISPRUDENCE. • . • . • . • . • . • . • . 443 A. LIBMAN V. QUEBEC(A.G.) ................................ 444 B. THOMSONNEWSPAPERS V. CANADA (A.G.) ..•..•.•.....•..•.•.• 446 C. SAUVE V. CANADA (CHIEF EUCTORAL OFFICER) .•.•.....•..•••• 448 D. CONCLUSION:A SOMEWHATAMBIGUOUS ELECTORALJURISPRUDENCE . • • . • . • . 451 V. LET US BEGIN AGAIN: LEGISLATIVECHANGE AND A NEW ROUND OF CHARTERCHALLENGES . • . • . • . • . • . • • . • . 452 VI. THE SUPREMECOURT'S FINAL WORD: EQUALITYRULES, OKAY? . • . • . • . • . • . • . • . • . 457 VII. CONCLUSION ..•.•...••.•.•........•..•........•.•.•....... 461 Senior Lecturer, Faculty of Law, Universityof Otago. New Zealand. My thanks to Colin Feasby, Kathryn Hollingswonhand Caroline Morris.The usual disclaimerapplies to the final product. 430 ALBERTALAW REVIEW (2004)42:2 I. INTRODUCTION A generalelection in Canadacauses a lot of people to becomeintensely excited, and with good reason. For one thing, an electionprovides a now largelysecular society with one of its few national civic rituals; it presents the polity with a set of shared experiencesas we witness the campaignunfold before heading en masse to the polls and culminatesin the sportive excitementof watchingthe results roll in. Underpinningthis sense of occasionon election day is the fact that the winner at the ballot box then gets to take a direct part in choosingthe bindingsocial rules (laws) the rest ofus subsequentlywill have to live under. The distributionof social rule makingpower through the electionprocess means that a great many individualsand groups have cause to care who wins out at the ballot box. And so candidatesfrantically campaign to win the ballotsof as manyvoters as they can, with the aim of capturinga place in Parliamentand possiblythe government.Each candidate is directly aided in his or her vote-seekingquest not only by the membersof the politicalparty that he or she may represent,but also by other supportiveindividuals and groupswho think that the candidaterepresents the best choicecome election day. To a degreethat reflectstheir varying levels of interest, the voters themselvesmay become involved in the election campaign process by gatheringinfonnation on the candidatesand their parties, discussing the issues with one another and perhaps even by actively posing questions and challengesto those seekingtheir votes. Interest groups will try and take advantageof this heightenedpolitical awarenessby making their particular concerns known to the voters, as well as to those competingto win the right to representthe electorate.Various news media cover the issues and personalitiesinvolved in the campaign in a mannerthat, dependingon your school of thought, either helps to infonn the voters or sensationalizesmatters in an unhealthyway. Punditsattempt, with a mixed levelof success,to predict the finaloutcome. And afterwards, academics, such as myself,pour over the entrailsof the process in order to dissect where it worked,and where it went wrong. Whatis often lost in the soundand the furygenerated by thesedisparate fonns of electoral interactionis the role that legal rules play in both orderinghow an election campaignis to operate and controllingthe way in which participantsmay act during it. As is discussed in more detail in Part II, virtuallyeverything that the participantsexperience during an election campaignis a direct or indirectconsequence of legal regulation.1 Therefore,the combined importanceof electionsas a procedurefor detenniningwho gets to wield law makingpower in a democraticsociety, along withthe centralityoflegal regulationin detennininghow this procedurewill take place, make the area of electoral law an important,if often overlooked, field.2 How the current legal rules work to structure the democratic moment that we experienceas an election,as well as whetherthese variousrules are adequateor desirable, are questionsthat are worthyof more sustainedand structuredinvestigation than they have receivedto date. Louis Massicoue,Andre Blais & Antoine Yoshinaka,Establishing the Rules of the Game: Election Laws In Democracies(Toronto: University ofToronto Press,2004). A notableCanadian exception is J. PatrickBoyer, Election Law In Canada: The Law and Procedure of Federal. Provincialand TerritorialElections (Toronto: Butterworths, 1987). ELECTIONSPENDING AND THE CHARTER 431 This article contributes to this investigativeproject by considering in some depth one particular issue of electoral regulation - Canada's experience with regulating third party election spending. This term of art refers to expenditureson public communicationsduring an election campaign by individualsor groups wishing to somehow influencethe outcome of the process but not seeking election themselves.Repeated attempts have been made in Canada to subject this type of spendingto legalcontrols, for reasonsdiscussed in Part II. One purpose of this article is to give a comprehensive,descriptive account of how the issue has been confronted in Canada through both various legislative measures and constitutional reviewsof these measuresby the courts. In additionto providinga descriptiveaccount of the issue, this article also uses it to illustratetwo questionsthat must be confrontedany time the general topic of electoral regulation arises. These questions, which are outlined in greater detail in Part II, may be summarizedhere as ''what electoral ground rules should we have?" and ''who ought to decide what these ground rules will be?" For the necessarily limited purposes of this article, these twin questions serve as a framingdevice, in order to clarify what is at stake when the issue of regulatingthird party election spending is considered by either the courts or Parliament. These two questions are pertinent for a number of reasons. First, as shall be seen, third party spending on election related communicationsraises the problem of how to reconcile individual interests in liberty and equality, both of which are important in ensuring that an election process forms a legitimatemeans of deciding who will wield law making power in a democraticsociety. This problemof reconciliationleads to the first order questionoutlined above: what ground rules, if any, should third party spendingbe subject to? However,there often will be ongoing disagreementin society at large, and between Canada's courts and its national and provincial legislaturesin particular, over what the most appropriate answer is to this question. The existence of this dispute or, to use a more loaded term, "dialogue" between Canada's courts and its legislative bodies then brings into play the second order question outlined above: in the final analysis, which of these institutionsshould decide how third party election spending will be regulated? The deeper purpose of this article is to demonstrate how the approach taken to the first order question of "what electoral ground rules should we have?" has conditionedthe responseof Canada's courts when they confront the second order question of"who ought to decide what these ground rules will be?" Therefore, this article seeks to provide a relativelycomplete account of the history of the regulationof third party election
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