Figueroa v. Canada (Attorney General), (2003) 176 O.A.C. 89 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 05, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 176 O.A.C. 89 (SCC);2003 SCC 37;[2003] SCJ No 37 (QL);[2003] 1 SCR 912;108 CRR (2d) 66;227 DLR (4th) 1;176 OAC 89;67 OR (3d) 440;306 NR 70

Figueroa v. Can. (A.G.) (2003), 176 O.A.C. 89 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] O.A.C. TBEd. JN.091

Miguel Figueroa (appellant) v. Attorney General of Canada (respondent) and Attorney General of Quebec (intervener)

(28194; 2003 SCC 37; 2003 CSC 37)

Indexed As: Figueroa v. Canada (Attorney General)

Supreme Court of Canada

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

June 27, 2003.

Summary:

Sections 24(2), 24(3) and 28(2) of the Canada Elections Act required a political party to nominate at least 50 candidates in an election to qualify for registered party status. Candidates nominated by parties without registered status could not, inter alia, issue tax receipts for donations received outside an election period, transfer unspent election funds to the party (rather than remitting them to the government) or list their party affiliation on ballot papers. Figueroa, the leader of the Communist Party of Canada, sued for a declaration that the 50-candidate threshold for registration violated, inter alia, s. 3 of the Charter (democratic rights).

The Ontario Superior Court, in a decision reported at [1999] O.T.C. Uned. C38, held, inter alia, that the provisions limiting registration eligibility to parties with 50 nominated candidates contravened s. 3 of the Charter and were not justified by s. 1. The court amended ss. 24(2)(a), 24(3) and 28(2) of the Act by reading down the 50-candidate requirement to two. Alternatively, if the 50-candidate requirement was valid as it related to registration, that requirement was unconstitutional when applied to the provisions prohibiting party affiliation on ballot papers. The court held that this prohibition contravened s. 3 of the Charter and was not justified by s. 1. Canada appealed.

The Ontario Court of Appeal, in a decision reported at 137 O.A.C. 252, allowed the appeal in part. The court held that the 50-candidate requirement did not violate 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 ballot papers. Figueroa appealed.

The Supreme Court of Canada allowed the appeal. The court declared ss. 24(2), 24(3) and 28(2) of the Act unconstitutional. The court suspended the declaration for 12 months to enable the Crown to comply with its reasons.

Civil Rights - Topic 103

Voting and other democratic rights - General - Democratic rights - Nature and scope of - The Supreme Court of Canada held that the purpose of s. 3 of the Charter was to promote and protect the right of each citizen to play a meaningful role in the electoral process - The court stated that "participation in the electoral process has an intrinsic value independent of its impact upon the actual outcome of elections. To be certain, the electoral process is the means by which elected representatives are selected and governments formed, but it is also the primary means by which the average citizen participates in the open debate that animates the determination of social policy. The right to run for office provides each citizen with the opportunity to present certain ideas and opinions to the electorate as a viable policy option; the right to vote provides each citizen with the opportunity to express support for the ideas and opinions that a particular candidate endorses. In each instance, the democratic rights entrenched in s. 3 ensure that each citizen has an opportunity to express an opinion about the formation of social policy and the functioning of public institutions through participation in the electoral process." - See paragraphs 19 to 30.

Civil Rights - Topic 103

Voting and other democratic rights - General - Democratic rights - Nature and scope of - The Supreme Court of Canada held that the purpose of s. 3 of the Charter was to promote and protect the right of each citizen to play a meaningful role in the electoral process - The court stated that it was not proper at the infringement stage of the analysis to balance the individual's right to meaningful participation against other democratic values, such as the aggregation of political preferences - The right of each citizen to play a meaningful role in the electoral process was not subject to countervailing collective interests - The right under s. 3 was not a qualified right in the same sense as ss. 7 and 8 of the Charter - If the government was to interfere with a citizen's s. 3 rights in order to advance other values, it had to justify that infringement under s. 1 of the Charter - The fact that Canada's current electoral system reflected certain political values did not mean that those values were embedded in the Charter - See paragraphs 31 to 37.

Civil Rights - Topic 103

Voting and other democratic rights - General - Democratic rights - Nature and scope of - The Supreme Court of Canada stated that "it is not my position that s. 3 [of the Charter] imposes upon Parliament a freestanding obligation to extend to political parties the right to issue tax credits for donations received outside the election period or to extend to candidates the right to transfer unspent election funds to the party. Section 3 prevents Parliament from interfering with the right of each citizen to play a meaningful role in the electoral process; it does not impose upon Parliament an obligation to enact legislation that enhances the capacity of political parties to raise funds for the purpose of communicating the ideas and opinions of its members and supporters to the general public. However, legislation that bestows a benefit upon some political parties, but not others, requires scrutiny." - See paragraph 48.

Civil Rights - Topic 121

Voting and other democratic rights - Right to vote - General (incl. scope of) - [See first Civil Rights - Topic 103 ].

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - The Canada Elections Act required a political party to nominate at least 50 candidates in an election to qualify for registered status - Candidates from unregistered parties could not, inter alia, issue tax receipts for donations received outside an election period or transfer unspent election funds to the party (rather than remitting them to the government) - The Supreme Court of Canada held that these restrictions meant that registered parties would have more resources available than non-registered parties for communicating their ideas and opinions to the public - Therefore, the 50-candidate threshold infringed s. 3 of the Charter by decreasing the capacity of the disadvantaged parties to introduce ideas and opinions into the open dialogue and debate that the electoral process engendered - Further, it undermined the right of each citizen to information that might influence the manner in which she or he exercised the right to vote - See paragraphs 48 to 54.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - The Canada Elections Act required a political party to nominate at least 50 candidates in an election to qualify for registered status - Candidates from unregistered parties could not, inter alia, include party affiliation on the ballot papers - The Supreme Court of Canada held that the 50-candidate threshold infringed s. 3 of the Charter - Political parties played such a prominent role in Canada's democratic system that the choice of candidates by some voters was based largely, if not exclusively, on party affiliation - The restriction on the right to include party affiliation on the ballot papers interfered with the capacity of unregistered parties to compete in the electoral process - This could reduce the amount of support that a party received and its capacity to influence policy - Further, the restriction also undermined the right of voters to make an informed choice among the various candidates - It violated s. 3 by ensuring that voters were better informed of the political platform of some candidates than they were of others - See paragraphs 55 to 58.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - Sections 24(2), 24(3) and 28(2) of the Canada Elections Act required a political party to nominate at least 50 candidates in an election to qualify for registered status - Candidates from unregistered parties could not, inter alia, issue tax receipts for donations received outside an election period, transfer unspent election funds to the party (rather than remitting them to the government) or include party affiliation on the ballot papers - The Supreme Court of Canada held that the 50-candidate threshold infringed democratic rights (Charter, s. 3) - The Crown argued that the threshold was justified under s. 1 because it advanced the objectives of improving the effectiveness of the electoral process, protecting the integrity of the electoral financing regime or ensuring that the process was able to deliver a viable outcome for Canada's form of responsible government - The court held that the threshold was not justified by s. 1 because the legislation failed the proportionality test - The court declared ss. 24(2), 24(3) and 28(2) of the Act unconstitutional - The court suspended the declaration for 12 months to enable the Crown to comply with its reasons - See paragraphs 59 to 93.

Civil Rights - Topic 161

Voting and other democratic rights - Right to be qualified for membership in legislature or parliament - General - [See first Civil Rights - Topic 103 and all Civil Rights - Topic 126 ].

Civil Rights - Topic 178

Voting and other democratic rights - Right to be qualified for membership in legislature or parliament - Political parties - [See all Civil Rights - Topic 126 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See third Civil Rights - Topic 126 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See third Civil Rights - Topic 126 ].

Elections - Topic 3202

Voting and ballots - Ballots - Form and content - [See second Civil Rights - Topic 126 ].

Elections - Topic 7065

Political parties - Registration - Qualifications - [See all Civil Rights - Topic 126 ].

Elections - Topic 7421

Election financing - Political contributions - General - [See first Civil Rights - Topic 126 ].

Cases Noticed:

Dixon v. British Columbia (Attorney General), [1989] 4 W.W.R. 393 (B.C.S.C.), refd to. [paras. 19, 106].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 20].

Reference Re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; 127 N.R. 1; 94 Sask.R. 161, consd. [paras. 21, 102].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [paras. 21, 131].

Harvey v. New Brunswick (Attorney General) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, consd. [paras. 21, 104].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 21].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 27].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 28].

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [para. 28].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 28].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 28].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 28].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1 (S.C.C.), consd. [paras. 32, 104].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [paras. 34, 128].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [paras. 34, 129].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [paras. 35, 131].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 59].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 59].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 65].

Egan and Nesbitt v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 65].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 65].

Canadian Disability Rights Council et al. v. Canada, [1988] 3 F.C. 622; 21 F.T.R. 268 (T.D.), refd to. [para. 104].

Muldoon and Teitelbaum v. Canada, [1988] 3 F.C. 628; 21 F.T.R. 154 (T.D.), refd to. [para. 104].

Hoogbruin v. British Columbia (Attorney General) (1985), 24 D.L.R.(4th) 718 (B.C.C.A.), refd to. [para. 104].

MacKinnon v. Prince Edward Island et al. (1993), 104 Nfld. & P.E.I.R. 232; 329 A.P.R. 232; 101 D.L.R.(4th) 362 (P.E.I.S.C.), refd to. [para. 109].

Reference Re Electoral Boundaries Commission Act (Alta.) (1991), 120 A.R. 70; 8 W.A.C. 70; 83 Alta. L.R.(2d) 210 (C.A.), refd to. [para. 109].

Reference Re Electoral Divisions Statutes Amendment Act (Alta.) (1994), 157 A.R. 241; 77 W.A.C. 241; 24 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 109].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 129].

R. v. Advance Cutting and Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1, refd to. [para. 130].

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 130].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 165].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 3 [para. 19].

Elections Act, R.S.C. 1985, c. E-2, sect. 24(2), sect. 24(3), sect. 28(2) [para. 3].

Authors and Works Noticed:

Blair, R.S., and McLeod, J.T., The Canadian Political Tradition: Basic Readings (2nd Ed. 1993), p. 62 [para. 168].

Brun, Henri, and Tremblay, Guy, Droit constitutionnel (4th Ed. 2002), pp. 374 to 379 [para. 141].

Cairns, Alan C., The Charter and the Constitution Act, 1982, in Blair, R.S., and McLeod, J.T., The Canadian Political Tradition: Basic Readings (2nd Ed. 1993), p. 62 [para. 168].

Canada, Report of the Committee on Election Expenses (1966), Part 1, pp. 33, 34 [para. 63]; 37 to 48 [para. 145].

Canada, Hansard, House of Commons Debates, vol. 8, 2nd Sess., 28th Parliament (June 23, 1970), p. 8509 [para. 175].

Canada, Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Provincial Parliament (1865), p. 29 [para. 164].

Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report (Lortie Commission Report) (1991), vol. 1, pp. 207 [para. 142]; 209 [para. 141]; 211 [para. 139]; 222, 223 [para. 148]; 249 [paras. 151, 157].

Courtney, John C., Electoral Reform and Canada's Parties, in Milner, H., Making Every Vote Count: Reassessing Canada's Electoral System (1999), p. 99 [para. 156].

Gaudreault-DesBiens, Jean-François, La Charte canadienne des droits et libertés et le fédéralisme: quelques remarques sur les vingt premières années d'une relation ambiguë, [2003] R. du B. (numéro spécial) 271, p. 297 [para. 168].

Hansard - see Canada, Hansard, House of Commons Debates.

Hogg, Peter W., Constitutional Law of Canada (Student Ed. 2002), p. 804 [para. 127].

Lortie Commission Report - see Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report (Lortie Commission Report).

MacIvor, Heather, A Brief Introduction to Electoral Reform, in Milner, Henry, Making Every Vote Count: Reassessing Canada's Electoral System (1999), pp. 21 [para. 154]; 28, 29 [para. 155].

Milner, Henry, Making Every Vote Count: Reassessing Canada's Electoral System (1999), pp. 21 [para. 154]; 28, 29 [para. 155]; 99 [para. 156].

Counsel:

Peter Rosenthal and Kikelola Roach, for the appellant;

Roslyn J. Levine, Q.C., Gail Sinclair and Peter Hajecek, for the respondent;

Dominique A. Jobin and Sébastien Arès, for the intervener.

Solicitors of Record:

Roach, Schwartz & Associates, Toronto, Ontario, for the appellant;

Attorney General of Canada, Toronto, Ontario, for the respondent;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervener.

This appeal was heard on November 5, 2002, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on June 27, 2003, and the following opinions were filed:

Iacobucci, J. (McLachlin, C.J.C., Major, Bastarache, Binnie and Arbour, JJ., concurring) - see paragraphs 1 to 94;

LeBel, J. (Gonthier and Deschamps, JJ., concurring) - see paragraphs 95 to 183.