The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 29 (2005) Article 15 He Hath a Heart For Harping: Stephen Harper and Election Spending in a Spendthrift Age Richard Haigh Osgoode Hall Law School of York University [email protected] Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Haigh, Richard and . "He Hath a Heart For Harping: Stephen Harper and Election Spending in a Spendthrift Age." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 29. (2005). https://digitalcommons.osgoode.yorku.ca/sclr/vol29/iss1/15 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. He Hath a Heart for Harping: Stephen Harper and Election Spending in a Spendthrift Age Richard Haigh Prior to the actual decision by the Supreme Court of Canada in Harper v. Canada,1 the plaintiff, Mr. Stephen Harper, had every reason to feel confident that he would be victorious. He had a good track rec- ord, after all. Previous attempts by him and his organization, the Nation- al Citizen’s Coalition (NCC), challenging earlier federal gag laws on election spending, had proven successful.2 In the case itself, both lower court levels had ruled in his favour.3 And to top it all off, he had recently been crowned leader of a newly united Conservative Party of Canada.4 The Supreme Court of Canada’s (SCC) finding, therefore, must have struck a big blow to Mr. Harper. In a split decision, the Court held that the latest version of an ever-refined series of spending limits enact- ed by Parliament were acceptable. The timing could not have been more propitious: the decision was rendered on May 18, 2004, mere weeks prior to the June 28 federal election in which Harper challenged Paul Martin for the position of Prime Minister of Canada. This short paper examines the recent history of election financing laws in Canada, and then looks briefly at three distinct aspects of the Harper decision: the irony of Stephen Harper’s position in the case, evi- dential and conceptual problems associated with equating commercial Associate Director, Graduate Program, Osgoode Hall Law School Professional Devel- opment. Thanks to Chaim Sapirman for initial research assistance and help with this paper, Sara Wharton for performing most of the reference checks, Tiffany Coelho for assistance with the commercial advertising section and Michael Sobkin for reviewing and commenting on an earlier draft. Apologies to Ezra Pound, whose poem The Seafarer contains the line: “He hath not heart for harping.” 1 Harper v. Canada (Attorney General), [2004] S.C.J. No. 28, [2004] 1 S.C.R. 827. 2 Somerville v. Canada (Attorney General), [1996] A.J. No. 515, 136 D.L.R. (4th) 205 (C.A.); affg [1993] A.J. No. 504 (Q.B.). 3 Harper v. Canada (Attorney General), [2002] A.J. No. 1542, 2002 ABCA 301 (C.A.), affg [2001] A.J. No. 808 (Q.B.). 4 Harper was elected leader on March 20, 2004 at the Conservative Party of Canada Con- vention in Toronto, Ontario. 306 Supreme Court Law Review (2005), 29 S.C.L.R. (2d) speech with political speech, and an examination of whether financial restraints are of declining importance in an era where political influence is more subtly obtained. I. A BRIEF HISTORY OF ELECTION FINANCE REFORM AND THE HARPER DECISION Election finance regulation became a serious concern in Canada in the mid-1960s. The Barbeau Committee report in 1966 recommended to Parliament that candidates and their political parties should be subjected to spending limits during an election campaign.5 Some of these recom- mendations were adopted, resulting in amendments to the Elections Act in 1974 banning anyone other than parties or candidates from incurring any election expenses during a campaign. The crucial exception to this rigid rule allowed expenses to be incurred by third parties only for the purpose of advancing an issue of public policy ― the so-called “good faith” exception.6 This exception was short-lived. In 1983, the Chief Election Officer Jean-Marc Hamel agreed with critics who argued that the good faith exception was full of loopholes. Evidence showed that third parties were spending large sums of unaccounted for money during election cam- paigns. New regulations were adopted prohibiting anyone but a regis- tered agent of a party or a candidate from spending any money on the promotion of a candidate or a party.7 At this point, the NCC entered the fray. It began systematically challenging the federal position through strategic use of the courts and 5 Canada, Report of the Committee on Election Expenses (Ottawa: Queen’s Printer, 1966) (Chair: Alphonse Barbeau). 6 Election Expenses Act, S.C. 1973-74, c. 51, s. 12. This amendment created a new s. 70.1 to be inserted after s. 70 of the Canada Elections Act. The relevant s. 70.1(4) is as follows: Notwithstanding anything in this section, it is a defence to any prosecution of a person for an offence against this Act… if that person establishes that he incurred election expenses… (a) for the purpose of gaining support for views held by him on an issue of public policy, or for the purpose of advancing the aims of any organization or association, other than a political party or an organization or association of a partisan political character, of which he was a member and on whose behalf the expenses were incurred; and (b) in good faith and not for any purpose related to the provisions of this Act limiting the amount of election expenses that may be incurred by any other peson on account of or in respect of the conduct or management of an election. 7 An Act to Amend the Canada Elections Act (No. 3), S.C. 1983, c. 164, s. 14. (2005), 29 S.C.L.R. (2d) He Hath a Heart for Harping 307 the Charter of Rights and Freedoms.8 It took the position that the very idea of spending limits is anathema to a free and liberal society, gaining the backing of the Alberta courts in a number of separate judgments. The first in this line of decisions was National Citizens’ Coalition Inc. v. Canada (Attorney General) handed down by the Alberta Queen’s Bench.9 The Court held that the prohibition was an unjustifiable viola- tion to the right to freedom of expression under section 2(b) of the Char- ter. Unexpectedly, the decision was never appealed; as a result the next two federal elections, in 1984 and 1988, took place without any third party spending limits. Following the 1988 election, the Lortie Commission on Electoral Reform and Party Financing recommended to Parliament a new strategy for controlling third party spending. The Commission maintained that broad-based spending limits represented the best way to ensure that all voters received an equal amount of information; this would allow the election process itself to be conducted on as level a playing field as possible.10 As a result, Parliament amended the Elections Act in 1993 to include third party spending limits of $1,000, a prohibition on pooling resources (as a measure to prevent circumventing this limit), and adver- tising blackout periods during a start-up period after a writ is issued and again in the final two days of an election campaign. The NCC also suc- cessfully challenged these provisions in Alberta in Somerville v. Cana- da. An appeal by the Crown was dismissed.11 Up to this stage, the Supreme Court of Canada had not participated meaningfully in the debate. Its chance came in the case of Libman v. Quebec (Attorney General), a case involving campaign financing rules, albeit in the context of a referendum, not an election.12 In the decision, however, the Court expressed its disapproval of the Somerville decision. A unanimous SCC stated in obiter that In Somerville v. Canada (Attorney General)…the Alberta Court of Appeal declared [election spending] provisions to be unconstitutional. 8 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Sch. B to the Canada Act 1982 (U.K.), 1982, c. 11. 9 (1984), 11 D.L.R. (4th) 481 (Alta. Q.B.). 10 Canada, Royal Commission on Electoral Reform and Party Financing, Final Report: Re- forming Electoral Democracy (1991) (Chair: Pierre Lortie). 11 Supra, note 2. 12 [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, [1997] 3 S.C.R. 569. 308 Supreme Court Law Review (2005), 29 S.C.L.R. (2d) With respect, we have already mentioned that we cannot accept the Alberta Court of Appeal’s point of view because we disagree with its conclusion regarding the legitimacy of the objective of the provisions.13 as it had noted in an earlier passage that: the objective of Quebec’s referendum legislation is highly laudable, as is that of the Canada Elections Act. We agree in this respect with the analysis of the Lortie Commission and of the expert witness P. Aucoin regarding the need to limit spending both by the principal parties (the national committees in the case of a referendum) and by independent individuals and groups in order to preserve the fairness of elections.14 As a result, and with the implicit support of the Court, Parliament revised its strategy yet again by enacting Bill C-2.15 This latest reform initiative received royal assent on May 31, 2000 and reflects an evolv- ing trend towards further tightening of the purse strings.