Harper v. Canada (Attorney General), (2004) 320 N.R. 49 (SCC)

• Judge: McLachlin, C.J.C. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 10, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 320 N.R. 49 (SCC);2004 SCC 33;321 WAC 201;JE 2004-1104;130 ACWS (3d) 746;[2004] 8 WWR 1;239 DLR (4th) 193;[2004] 1 SCR 827;119 CRR (2d) 84;320 NR 49;27 Alta LR (4th) 1;[2004] SCJ No 28 (QL);348 AR 201

Harper v. Can. (A.G.) (2004), 320 N.R. 49 (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: [2004] N.R. TBEd. MY.024

Attorney General of Canada (appellant) v. Stephen Joseph Harper (respondent) and Attorney General of Ontario, Attorney General of Quebec, Attorney General of Manitoba, Democracy Watch and National Anti-Poverty Organization (NAPO), Environment Voters, a division of Animal Alliance of Canada, and John Herbert Bryden (interveners)

(29618; 2004 SCC 33; 2004 CSC 33)

Indexed As: Harper v. Canada (Attorney General)

Supreme Court of Canada

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

May 18, 2004.

Summary:

Part 17 of the Canada Elections Act estab­lished a third party electoral advertising regime. The plaintiff applied for a declar­ation that ss. 323, 350 to 360, and 362 of the Act violated some or all of ss. 2(b), 2(d) and 3 of the Charter of Rights and Freedoms and were of no force and effect under s. 52 of the Constitution Act, 1982.

The Alberta Court of Queen's Bench, in a decision reported at 295 A.R. 1, held that s. 350 (third party election advertising spending limits) violated freedom of expression (Char­ter, s. 2(b)) and was not saved by s. 1. Sec­tion 351 (prohibition on combination to ex­ceed limits) violated freedom of associ­ation (Charter, s. 2(d)) and was not saved by s. 1. Section 323 (advertising blackout pre­ceding closing of polls) violated s. 2(b), but was saved by s. 1. The remaining impugned pro­vi­sions did not violate ss. 2(b) or 2(d) of the Charter. None of the provisions violated demo­cratic rights (Charter, s. 3). The Crown appealed. The plaintiff cross-appealed, argu­ing that all of the third party election adver­tising provisions were invalid.

The Alberta Court of Appeal, Berger, J.A., dissenting, in a decision reported at 320 A.R. 1; 288 W.A.C. 1, held that ss. 323, 350 to 357, 359, 360 and 362 of the Act were of no force and effect. The court upheld s. 358 (ban on contributions from foreign sources). The Crown appealed. Section 358 was not in is­sue.

The Supreme Court of Canada, McLachlin, C.J.C., and Major and Binnie, JJ., dissenting in part, allowed the appeal. All of the im­pugned provisions, other than s. 351, breached freedom of expression (Charter, s. 2(b)). However, the infringement was jus­tified under s. 1 of the Charter. The im­­pugned provisions did not breach the right to vote (Charter, s. 3). Sections 351, 356, 357(3), 359 and 362 did not infringe free­dom of association (Charter, s. 2(d)). Mc­Lachlin, C.J.C., and Major and Binnie, JJ., held that the infringement caused by s. 350 of the Act was not justified by s. 1. Further, the minority held that s. 351 was invalid because it was too closely bound up with s. 350 to survive on its own.

Editor's note: for related decisions see 266 A.R. 262; 228 W.A.C. 262 and 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201.

Civil Rights - Topic 121

Voting and other democratic rights - Right to vote - General - Scope of - Section 350 of the Canada Elections Act set spending limits on third party advertising at $150,000 nationally per general election and $3,000 in a particular electoral district - The Supreme Court of Canada held that s. 350 did not infringe the right to vote (Charter, s. 3) - The right to vote included the right to meaningfully participate in the electoral process, which included a citi­zen's right to exercise his or her vote in an informed manner - A voter had a right to be "reasonably informed of all the possible choices" - However, s. 3 did not guarantee a right to unlimited information or to un­limited participation - The spending limits in s. 350 did not restrict information in such a way as to undermine a citizen's right to meaningfully participate - "Mean­ingful participation in elections is not synonymous with the ability to mount a me­dia campaign capable of determining the outcome. ... such an understanding of 'meaningful participation' would leave little room in the political discourse for the individual citizen and would be inimical to the right to vote." - See paragraphs 67 to 74.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - Section 350 of the Canada Elections Act set spending limits on third party advertising - Section 351 re­stricted a third party from splitting itself into multiple third parties or colluding with other third parties to circumvent the spend­ing limits - The Supreme Court of Canada held that the primary purpose of s. 351 was to preserve the integrity of the limits in s. 350 - Therefore, it was properly viewed as ancillary to s. 350 - The court held that s. 351 did not infringe freedom of expression (Charter, s. 2(b)) or the right to vote (Charter, s. 3) - Further, s. 351 did not infringe freedom of association (Char­ter, s. 2(d)) - Section 351 did not prevent individuals from joining to form an associ­ation in the pursuit of a collective goal - It existed only as a mechanism to enforce s. 350 - See paragraphs 122 to 127.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - Section 323 of the Canada Elections Act precluded election ad­vertising for 20 hours preceding the clos­ing of the polls - The Supreme Court of Canada held that s. 323 did not infringe the right to vote (Charter, s. 3) as it did not have an adverse impact on the infor­ma­tion available to voters - The ban was of short duration - It only foreclosed ad­vertising from third parties, candidates or political parties - It did not extend to media organizations and voters could ob­tain any necessary information from them -See paragraph 130.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - Part 17 of the Canada Elections Act established a third party electoral advertising regime - Section 352 required third parties to identify them­selves in election advertising - Sections 353 to 357, inter alia, set out requirements for registration with the Chief Electoral officer, financial agents and audits - Sec­tions 359 and 360 set out reporting re­quire­ments for third parties engaged in election advertising, including disclosing the names of contributors of over $200 and audits - Section 362 required the Chief Electoral Officer to publish the names and addresses of registered third parties and election advertising reports filed by third parties - The Supreme Court of Canada af­firmed that these provisions did not violate the right to vote (Charter, s. 3) - In fact, they enhanced the right to vote - See para­graph 140.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - [See Civil Rights - Topic 121 ].

Civil Rights - Topic 1860.03

Freedom of speech or expression - Limita­tions on - Regulation of election or refer­endum advertising and spending - Section 350 of the Canada Elections Act set spend­ing limits on third party advertising at $150,000 nationally per general election and $3,000 in a particular electoral district - The Crown conceded that s. 350 violated freedom of expression (Charter, s. 2(b)) - The Supreme Court of Canada held that s. 350 was a demonstrably justified limit un­der s. 1 of the Charter - The objectives of the spending limits were to promote equal­ity in the political discourse, protect the integrity of the financing regime appli­cable to candidates and parties, and ensure that voters have confidence in the electoral process - These objectives were pressing and substantial - There was sufficient evi­dence establishing a rational connection be­tween the spending limits and the objec­tives - Section 350 minimally impaired the right to free expression - The limits al­lowed third parties to convey their mes­sage to the electorate without overwhelm­ing can­didates, political parties or other third parties; precluded the wealthy from domi­nating the political discourse, thereby allowing more voices to be heard; allowed for meaningful participation in the electoral process and encouraged informed voting; and promoted a free and democratic so­ciety - Finally, the salutary effects of s. 350 outweighed the deleterious effects - See paragraphs 66 and 75 to 121.

Civil Rights - Topic 1860.03

Freedom of speech or expression - Limita­tions on - Regulation of election or refer­endum advertising and spending - Section 323 of the Canada Elections Act precluded election advertising for 20 hours preceding the closing of the polls - The blackout was directed at candidates, registered parties and third parties - The Crown conceded that s. 323 infringed freedom of expression (Charter, s. 2(b)) - The Supreme Court of Canada held that s. 323 was a demonstra­bly justified limit under s. 1 of the Charter - The objectives sought to be advanced by s. 323 were to provide commentators and others with an opportunity to respond to any potentially misleading election adver­tising and it ensured that electors in differ­ent parts of the country had access to the same information before voting - The ob­jec­tives were pressing and substantial - The blackout period was rationally con­nected to these objectives - The blackout was mini­mally impairing - There was no evidence that s. 323 had any deleterious effects - See paragraphs 47, 129 and 131 to 135.

Civil Rights - Topic 1860.03

Freedom of speech or expression - Limita­tions on - Regulation of election or refer­endum advertising and spending - Part 17 of the Canada Elections Act established a third party electoral advertising regime - Section 352 required third parties to iden­tify themselves in election advertising - Sections 353 to 357, inter alia, set out requirements for registration with the Chief Electoral officer, financial agents and audits - Sections 359 and 360 set out re­porting requirements for third parties en­gaged in election advertising, including disclosing the names of contributors of over $200 and audits - Section 362 re­­quired the Chief Electoral Officer to pub­lish the names and addresses of regis­tered third parties and election advertising re­ports filed by third parties - The Supreme Court of Canada held that these provisions infringed freedom of expression (Charter, s. 2(b)) - A third party failing to comply with these provisions was guilty of a strict liability offence - Therefore, the provisions had the effect of restricting political ex­pression of those who did not comply with the scheme - However, the infringement was justified under s. 1 of the Charter - The provisions implemented and enforced the scheme and provided voters with rele­vant election information - See paragraphs 48, 138, 139 and 142 to 146.

Civil Rights - Topic 1860.03

Freedom of speech or expression - Limita­tions on - Regulation of election or refer­endum advertising and spending - [See first Civil Rights - Topic 126 ].

Civil Rights - Topic 2160.3

Freedom of association - Limitations on - Regulation of election or referendum ad­vertising and spending - [See first Civil Rights - Topic 126 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Crown conceded that s. 350 of the Can­ada Elections Act (third party election advertising spending limits) violated free­dom of expression (Charter, s. 2(b)) - In determining whether the infringement was a reasonable limit under s. 1 of the Char­ter, the Supreme Court of Canada dis­cussed the standard of proof the Crown had to satisfy in demonstrating possible harm - The harm which Parliament sought to address could be broadly articulated as electoral unfairness - The court stated that "On balance, the contextual factors favour a deferential approach to Parliament in determining whether the third party adver­tising expense limits are demonstrably jus­tified in a free and democratic society. Given the difficulties in measuring this harm, a reasoned apprehension that the ab­sence of third party election advertising limits will lead to electoral unfairness is sufficient." - See paragraphs 75 to 88.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first, second and third Civil Rights - Topic 1860.03 ].

Civil Rights - Topic 8554

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Prescribed by law - The Crown conceded that s. 350 of the Canada Elec­tions Act (third party election advertising spending limits) violated freedom of ex­pression (Charter, s. 2(b)) - Section 319 defined "election advertising" as "the trans­mission to the public by any means during an election period of an advertising mes­sage that promotes or opposes a registered party or the election of a candidate, includ­ing one that takes a position on an issue with which a registered party or candidate is associated" - The trial judge held that the definition of "election advertising" was vague and, therefore, was not a limit "pre­scribed by law" - The Supreme Court of Can­ada held that although the definition of "election advertising" was broad in scope, it was not unconstitutionally vague - "It is clear that a regulatory regime cannot by necessity provide for a detailed description of all eventualities and must give rise to some discretionary powers -- a margin of appreciation. What is essential is that the guiding principles be sufficiently clear to avoid arbitrariness. While no specific cri­teria exist, it is possible to determine whether an issue is associated with a can­didate or political party and, therefore, to delineate an area of risk." - See paragraphs 89 and 90.

Civil Rights - Topic 8591

Canadian Charter of Rights and Freedoms - Practice - Onus or burden of proof - [See first Civil Rights - Topic 8348 ].

Civil Rights - Topic 8626

Canadian Charter of Rights and Freedoms - Regulation of guaranteed rights - Vague­ness rule - [See Civil Rights - Topic 8554 ].

Elections - Topic 6063

Offences - Advertising - Advertising or publication during prohibited period - [See second Civil Rights - Topic 126 and second Civil Rights - Topic 1860.03 ].

Elections - Topic 6065

Offences - Advertising - Third party spending limits - [See Civil Rights - Topic 121 , first Civil Rights - Topic 126 , first Civil Rights - Topic 1860.03 and Civil Rights - Topic 8554 ].

Cases Noticed:

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, consd. [paras. 2, 50].

R. v. Guignard (R.), [2002] 1 S.C.R. 472; 282 N.R. 365; 2002 SCC 14, refd to. [para. 11].

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; 2001 SCC 2, refd to. [paras. 11, 78].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, consd. [paras. 11, 50].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 11].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 11].

Irwin Toy Ltd. v. Québec (Procureur gé­né­ral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [paras. 11, 138].

Reference re Alberta Statutes, [1938] S.C.R. 100, refd to. [para. 12].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [paras. 12, 78].

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; 306 N.R. 70; 176 O.A.C. 89; 2003 SCC 37, consd. [para. 13, 68].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22, refd to. [para. 16].

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1, refd to. [para. 16].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 17].

Ford v. Québec (Procureur général) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

Red Lion Broadcasting Co. v. Federal Communications Commission (1969), 395 U.S. 367, refd to. [para. 18].

Martin v. Struthers (City) (1943), 319 U.S. 141, refd to. [para. 18].

Kleindienst v. Mandel (1972), 408 U.S. 753, refd to. [para. 18].

United States v. Dellinger (1972), 472 F.2d 340 (7th Cir.), refd to. [para. 20].

Somerville v. Canada (Attorney General) (1996), 184 A.R. 241; 122 W.A.C. 241 (C.A.), consd. [paras. 25, 56].

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, refd to. [paras. 26, 68].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 26].

McKinney v. University of Guelph, [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 26].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [paras. 29, 78].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, consd. [paras. 32, 78].

Schachter v. Canada, [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 46].

Alberta (Attorney General) v. Canada (Attorney General), [1947] A.C. 503 (P.C.), refd to. [para. 46].

National Citizens' Coalition Inc. et al. v. Attorney General of Canada (1984), 32 Alta. L.R.(2d) 249 (Q.B.), refd to. [para. 56].

Reference Re Provincial Electoral Bound­aries (Sask.), [1991] 2 S.C.R. 158; 127 N.R. 1; 94 Sask.R. 161, refd to. [para. 68].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 68].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 90].

Pacific Press v. British Columbia (Attorney General), [2000] B.C.T.C. 74; [2000] 5 W.W.R. 219; 2000 BCSC 248, consd. [para. 95].

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

Dunmore et al. v. Ontario (Attorney Gen­eral) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 125].

Canadian Egg Marketing Agency v. Pine­view Poultry Products Ltd. et al., [1998] 3 S.C.R. 157; 231 N.R. 201; 223 A.R. 201; 183 W.A.C. 201, refd to. [para. 125].

Canadian Egg Marketing Agency v. Richardson - see Canadian Egg Market­ing Agency v. Pineview Poultry Products Ltd. et al.

Statutes Noticed:

Canada Elections Act, S.C. 2000, c. 9, sect. 319 [para. 57]; sect. 323 [paras. 47, 53]; sect. 350 [paras. 3, 53]; sect. 351 [paras. 45, 53]; sect. 352, sect. 353, sect. 354, sect. 355, sect. 356, sect. 357, sect. 359, sect. 360, sect. 362 [para. 53].

Authors and Works Noticed:

Barbeau Committee Report - see Canada, Department of Secretary of State, Report of the Committee on Election Expenses (Barbeau Committee Report).

Canada, Department of Secretary of State, Report of the Advisory Committee on Election Expenses (Barbeau Committee Report) (1966), generally [para. 56].

Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy Final Report (Lortie Commission Report), generally [para. 51]; pp. 15, 16 [para. 79]; 326 [para. 79]; 327 [para. 108]; 328, 332 [para. 56]; 340 [para. 84]; 341 [para. 90].

Feasby, Colin, Libman v. Quebec (A.G.) and the Administration of the Process of Democracy under the Charter: The Emerging Egalitarian Model (1999), 44 McGill L.J. 5, generally [para. 62].

Fiss, Owen M., The Irony of Free Speech (1996), p. 4 [para. 62].

Johnston, Richard, Letting the People Decide: Dynamics of a Canadian Elec­tion (1992), generally [paras. 51, 97].

Johnston, Richard, The Volume and Impact of Third Party Advertising in the 1988 Election (1990), generally [para. 51].

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

Counsel:

Graham R. Garton, Q.C., and Kirk Lam­brecht, Q.C., for the appellant;

Alan D. Hunter, Q.C., Eric P. Groody and David H. de Vlieger, for the respondent;

Daniel Guttman and Michel Y. Hélie, for the intervener, the Attorney General of Ontario;

Jean-Yves Bernard and Jean-Vincent Lacroix, for the intervener, the Attorney General of Quebec;

Eugene B. Szach, for the intervener, the Attorney General of Manitoba;

David Baker and Faisal Bhabha, for the interveners, Democracy Watch and Na­tional Anti-Poverty Organization (NAPO);

Peter F.M. Jones, for the intervener, Envi­ronment Voters, a division of Animal Alliance of Canada;

John Herbert Bryden, appearing on his own behalf.

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario, for the appellant;

Code Hunter, Calgary, Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of Quebec, Québec, Quebec, for the intervener, the Attorney General of Quebec;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener, the Attor­ney General of Manitoba;

Bakerlaw, Toronto, Ontario, for the interveners, Democracy Watch and Na­tional Anti-Poverty Organization (NAPO);

Paterson, MacDougall, Toronto, Ontario, for the intervener, Environment Voters, a division of Animal Alliance of Canada.

This appeal was heard on February 10, 2004, before McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada, was delivered in both official languages on May 18, 2004, and the following opinions were filed:

McLachlin, C.J.C. and Major, J., dissent­ing in part (Binnie, J., concurring) - see paragraphs 1 to 49;

Bastarache, J. (Iacobucci, Arbour, LeBel, Deschamps and Fish, JJ., concurring) - see paragraphs 50 to 147.