Harper v. Canada (Attorney General), 2000 SCC 57

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 2000
• Jurisdiction: Canada (Federal)
• Citations: 2000 SCC 57;(2000), 271 A.R. 201 (SCC)

Harper v. Can. (A.G.) (2000), 271 A.R. 201 (SCC);

    234 W.A.C. 201

MLB headnote and full text

[French language version follows English language version]

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

....................

Temp. Cite: [2000] A.R. TBEd. NO.073

Attorney General of Canada v. Stephen Joseph Harper

(28210; 2000 SCC 57)

Indexed As: Harper v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

November 10, 2000.

Summary:

Harper sued for a declaration that the provisions of the Canada Elections Act, 2000, affecting third party advertising were unconstitutional. The trial commenced on October 2, 2000, but was adjourned on October 13, 2000 after nine days of evi­dence. On October 22, 2000, an election writ was issued, with a polling date of November 27, 2000. Harper applied for an interlocutory injunction restraining the Chief Electoral Officer and the Commissioner of Canada Elections from enforcing the third-party spending limits, pending the decision.

The Alberta Court of Queen's Bench granted the injunction. The Crown appealed. Harper cross-appealed.

The Alberta Court of Appeal, in a decision reported 266 A.R. 262; 228 W.A.C. 262, dis­missed the appeal and the cross-appeal. The Crown applied for leave to appeal and to stay the injunction.

The Supreme Court of Canada granted leave to appeal. The court, Major, J., dissent­ing, stayed the injunction.

Civil Rights - Topic 1860.03

Freedom of speech or expression - Limita­tions on - Regulation of election or referendum advertising and spending -Harper sought a declaration that, inter alia, the third-party spending limits in the Canada Elections Act, 2000, violated the freedom of expression - An election was called before a decision could be rendered - The trial judge granted an interlocutory injunction restraining enforcement of the third-party spending limits - The Crown appealed and sought to stay the injunction - The Supreme Court of Canada stayed the injunction - The balance of convenience favoured staying the injunction - There was a rule against granting the equivalent of final relief in interlocutory challenges to electoral statutes, even in the course of elections governed by those statutes - The public interest in maintaining in place duly enacted legislation on spending limits pending a complete constitutional review outweighed the detriment to freedom of expression caused by those limits - More­over, the trial judge had to assume that the legislation was directed to the public good and served a valid public purpose - See paragraphs 1 to 12.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunc­tion pending litigation of Charter issue - The Supreme Court of Canada stated that "Applications for interlocutory injunctions against enforcement of still-valid legisla­tion under constitutional attack raise special considerations when it comes to determining the balance of convenience. On the one hand stands the benefit flowing from the law. On the other stand the rights that the law is alleged to infringe. An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicial­ly decided. Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough" - See paragraph 5.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunc­tion pending litigation of Charter issue - [See Civil Rights - Topic 1860.03 ].

Injunctions - Topic 1617.2

Interlocutory or interim injunctions - Pre­venting statute enforcement or implementa­tion - [See Civil Rights - Topic 1860.03 and first Civil Rights - Topic 8587 ].

Injunctions - Topic 1724

Interlocutory or interim injunctions - Stay of interim or interlocutory injunction - Pending appeal - [See Civil Rights - Topic 1860.03 ].

Cases Noticed:

Gould v. Canada (Attorney General) et al., [1984] 2 S.C.R. 124; 53 N.R. 394, refd to. [para. 7].

Metropolitan Stores (MTS) Ltd. v. Mani­toba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [paras. 7, 21].

Haig et al. v. Canada; Haig et al. v. Kings­ley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 7].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [paras. 9, 21].

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [para. 20].

Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 (H.L.), refd to. [para. 26].

Gould v. Canada (Attorney General) et al., [1984] 1 F.C. 1133; 54 N.R. 232 (F.C.A.), affd. [1984] 2 S.C.R. 124; 53 N.R. 394, refd to. [para. 28].

Authors and Works Noticed:

Berryman, The Law of Equitable Remedies (2000), pp. 37 [para. 26]; 51 [para. 25].

Cassels, Jamie, An Inconvenient Balance: The Injunction as a Charter Remedy, in Jeffrey Berryman, ed. Remedies: Issues and Perspectives (1991), pp. 303, 304, 305 [para. 25].

Roach, Kent, Constitutional Remedies in Canada (Looseleaf Ed.), p. 7-7 [para. 33].

Sharpe, Robert J., Injunctions and Specific Performance (Looseleaf Ed.), para. 3.1220 [para. 5].

Counsel:

None disclosed.

This application was heard by McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on No­vember 10, 2000, and the following opinions were filed:

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel, JJ. - see paragraphs 1 to 12;

Major, J., dissenting - see paragraphs 13 to 34.