Appendix 3: Fundamamental jurisprudence

• Author: Gregory Tardi
• Pages: 681-738

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 3

FUNDAMENTAL

JUISPRUDENCE

MAJOR RECENT CASES IN CHRONOLOGICAL ORDER

National Citizens’ Coalition Inc v Canada (Attorney General), 1984 CanLII

1181 (AB QB)

: Limitation of election expenses by third parties

: Restrictions on Charter rights of individuals need to be bal-

anced with the interests of society

is was the f‌irst instance, following the incorporation of the Canadian

Charter of Rights and Freedoms into the constitutional fabric of Canada,

that a fundamental issue of election law was placed before the judiciary

for adjudication. It was also the f‌irst of a string of cases in which the

regime of election expenses underwent judicial scrutiny. At stake in this

case was section .() of the Canada Elections Act, which stated that for

the entire duration of an election campaign, anyone other than a candi-

date or their ocial agent, or the registered agent of a registered party,

who incurred election expenses, was guilty of an oence. e Court

traced the history of Canadian election expenses law back to the s,

when the provisions against bribery, treating, and conveying voters to

the polls were f‌irst enacted on the basis of the British example. Following

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ANATOMY F AN ELECTION

a number of more modern reports on the issue of election expenses in

the age of costly television advertising, drafted over the previous two

decades, the obvious purpose of the provision was to prevent the pur-

chase of electoral results by those with deep pockets who favoured one

side or the other in an election. In addition, the Court was drawn to look

at the American example, where spending restrictions were said to be

limitations on freedom of expression.

e Alberta Court of Queen’s Bench considered the case as a matter

of weighing the individual citizen’s right to freedom of expression in

relation to the benef‌its to society arising from what it styled an eective

system for the election of Members of Parliament. Its characterization

was as follows: “A limitation to the fundamental freedom of expression

should be assessed on the basis that if it is not permitted then harm

will be caused to other values in society. is requires, as has been said,

a balancing of the respective interests of society and of the individual.”

e Queen’s Bench took a rather libertarian view of the law in f‌ind-

ing that the Attorney General of Canada had not made out a case for

limiting the section (b) freedom of expression. It found inconsistency

with the Charter and, in line with the then early development of Charter

jurisprudence, simply went on to state that it was not up to the court to

get involved with rewriting the law. Along with the provision limiting

election expenses, the court also invalidated section , which would

have required advertisements to be signed.

is case had a far more profound eect throughout Canada than

what the court might have anticipated. Although, as a Queen’s Bench

decision, it was technically applicable only within Alberta, given the

obvious imminence of a general election and the absence of opportunity

to amend the Act, the Attorney General and the Chief Electoral Ocer

decided that the subject provisions would not be applied anywhere in

Canada. e election was in fact held on September , . e Progres-

sive Conservative Party took full advantage of the ruling and, with its

help, went on to an overwhelming victory at the polls. is became the

f‌irst in a long string of cases on election expenses.

1 1984 CanLII 1181 (AB QB) at para 54.

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Fundamental Jurisprudence

Dixon v British Columbia (Attorney General) (1989), 59 DLR (4th) 247 (BCSC)

: Determination of electoral districts

: Equality of representation

Dixon has several characteristics that render it important. Following the

adoption of the Canadian Charter of Rights and Freedoms in , this was

the f‌irst among a series of cases of national importance that dealt with

the Charter’s Democratic Rights provisions, and in particular the develop-

ment of the meaning of the right to vote. In addition, this was the f‌irst

of a number of cases on the right to vote in which the principal author

was Beverley McLachlin, then Chief Justice of the British Columbia

Supreme Court and eventually Chief Justice of Canada.

is case originated from the fact that the provincial electoral re distri-

bution scheme adopted by British Columbia in  included electoral

districts that were seriously disproportionate to each other. In addition

to having dierent base calculations for mainland and Vancouver Island

electoral districts, dierentiations based on the metropolitan, suburban,

urban-rural, urban-coastal, or remote categorization of each district were

incorporated into the statutorily mandated electoral map. e result was

that electoral districts had great dierences in their population of vot-

ers, meaning that voters in dierent parts of the province had dierent

voting strength.

Dixon applied for an order to invalidate the legislation establishing

the province’s electoral districts. Some of the issues at stake were decided

in a f‌irst hearing before the Supreme Court of British Columbia. e

decision reported here was the principal one. As this was the f‌irst judi-

cial interpretation of the issue, the court was called upon to decide f‌irst

whether the Charter applied to the electoral boundaries regime made

under the Constitution Act of British Columbia. e court held that although

this Act is exclusively within provincial jurisdiction under Canada’s 

constitutional scheme, provincial exercise of legislative authority is not

beyond Charter scrutiny and section ()(b) of the Charter does govern

this case. In other words, the court could conduct its examination of the

issue brought to it.

2 Dixon v BC (AG), 1986 CanLII 770 (BC SC).

3 Now www.bclaws.ca/civix/document/id/complete/statreg/96066_01 Section 19, the

subject provision is now repealed.