Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, 2003 SCC 37, 2003 SCC 37 (2003)

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912,

2003 SCC 37

Miguel Figueroa Appellant v.

Attorney General of Canada Respondent and

Attorney General of Quebec Intervener

Indexed as: Figueroa v. Canada (Attorney General)

Neutral citation: 2003 SCC 37.

File No.: 28194.

2002: November 5; 2003: June 27.

Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for ontario

Constitutional law - Charter of Rights - Democratic rights of citizens - Right to vote - Right to be qualified for membership in House of Commons or provincial legislative assembly - Right to meaningful participation in electoral process - Canada Elections Act providing that political parties must nominate candidates in at least 50 electoral districts to qualify for certain benefits - Whether provisions infringe right to vote or to run for office - If so, whether infringement justifiable - Canadian Charter of Rights and Freedoms, ss. 1, 3 - Canada Elections Act, R.S.C. 1985, c. E-2, ss. 24(2), 24(3), 28(2).

Under the Canada Elections Act, a political party must nominate candidates in at least 50 electoral districts in order to obtain, and then to retain, registered party status. Registered parties qualify for several benefits including the right of candidates to issue tax receipts for donations made outside the election period, to transfer unspent election funds to the party and to list their party affiliation on the ballot papers. The appellant challenged the constitutionality of the 50-candidate threshold. The trial judge held that the threshold was inconsistent with s. 3 of the Canadian Charter of Rights and Freedoms and that this infringement could not be justified under s. 1 of the Charter. The Court of Appeal held that the 50-candidate threshold was not inconsistent with s. 3 of the Charter, except to the extent that it denied candidates of non-registered parties the right to identify their party affiliation on the election ballot.

Held: The appeal should be allowed. Sections 24(2), 24(3) and 28(2) of the Canada Elections Act are declared unconstitutional. The declaration of unconstitutionality is suspended for 12 months.

Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie and Arbour JJ.: While on its face, s. 3 grants only a right to vote and to run for office in elections, Charter analysis requires looking beyond the words of the section and adopting a broad and purposive approach. The purpose of s. 3 is effective representation. Section 3 should be understood with reference to the right of each citizen to play a meaningful role in the electoral process, rather than the election of a particular form of government. This right is participatory and adverts only to a right to participate in the electoral process. This definition ensures that s. 3 is not construed too narrowly and emphasizes the reasons why individual participation is important, including respect for diverse opinions and the capacity of individuals to enhance democracy. Full political debate ensures an open society benefiting from diverse opinions and a social policy sensitive to the needs and interests of a broad range of citizens. Participation in the electoral process has an intrinsic value independent of the outcome of elections. The right to run for office provides an opportunity to present ideas and opinions to the electorate and the right to vote provides an opportunity for citizens to express support for ideas and opinions. In a democracy, sovereign power resides in the people as a whole and each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives.

The right to play a meaningful role in the electoral process is not subject to countervailing collective interests. A proportionality analysis considering benefits related to other democratic values should occur under s. 1, where limitations on the right are to be justified. This analytical approach does not vary with the nature of the alleged breach nor is s. 3 qualified in the same sense as ss. 7 and 8 of the Charter. The fact that we identify its implicit content with qualified phrases such as a voter's right to be reasonably informed or a candidate's right to have a reasonable opportunity to present a position reflects only that s. 3 does not protect the right of each citizen to play an unlimited role in the electoral process. The aggregation of political preferences is not to be elevated to constitutional status nor does s. 3 protect values or objectives embedded in our current electoral system.

Members and supporters of political parties that nominate fewer than 50 candidates meaningfully participate in the electoral process. The ability of a party to make a valuable contribution is not dependent upon its capacity to offer the electorate a genuine "government option". Political parties have a much greater capaci...

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