Harper v. Canada (Attorney General), 2002 ABCA 301

• Judge: Berger, Paperny and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 16, 2002
• Citations: 2002 ABCA 301;(2002), 320 A.R. 1 (CA)

Harper v. Can. (A.G.) (2002), 320 A.R. 1 (CA);

    288 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. JA.047

Stephen Joseph Harper (respondent/appellant on the cross appeal/plaintiff) v. Attorney General of Canada (appellant/respondent on the cross appeal/defendant) and Chief Electoral Officer of Canada; Environment Voters, a Division of Animal Alliance of Canada and Democracy Watch (interveners)

(01-00389; 2002 ABCA 301)

Indexed As: Harper v. Canada (Attorney General)

Alberta Court of Appeal

Berger, Paperny and Ritter, JJ.A.

December 16, 2002.

Summary:

The plaintiff applied for a declaration that ss. 323, 350 to 360, and 362 of the Canada Elections 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 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 (20 hour advertising ban preceding the closing of the 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 spending provisions were invalid.

The Alberta Court of Appeal, Berger, J.A., dissenting, 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.

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 total per general election and $3,000 in a particular electoral district - The trial judge held that the third party spending limits did not violate the right to vote under s. 3 of the Charter - He stated that "Section 3 protects a right of sufficient information and does not, ..., confer a right on third parties to mount a major persuasive advertising campaign" - Third parties could engage in a modest national informational campaign and reasonable electoral district campaigns within the spending limits - Therefore, the voters' ancillary right to sufficient information under s. 3 was not breached - Voters were not precluded from receiving the views of third parties from other parts of the country - The limits did not undermine the core of the right to vote: effective political representation - The Alberta Court of Appeal affirmed that s. 350 did not violate s. 3 of the Charter - See paragraph 41.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - Section 323 of the Canada Elections Act precluded election advertising in the 20 hour period preceding the closing of the polls - The blackout was directed at candidates, registered parties and third parties - The trial judge held that s. 323 did not violate the right to vote under s. 3 of the Charter - The ban was minimal and applied equally to the candidates, registered parties and third parties - If voters required information immediately preceding polling day, they could most likely obtain it through the media - The trial judge stated that it was difficult to envision that the ban could lead to a deprivation of information such that a voter could not cast a rational and informed ballot - The Alberta Court of Appeal affirmed that s. 323 did not violate s. 3 of the Charter - See paragraph 41.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - Section 352 of the Canada Elections Act required third parties to identify their sponsorship of election advertising - Sections 353 to 357 set out registration requirements for third parties - Sections 359 and 360 set out disclosure 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 Alberta Court of Appeal affirmed that these provisions did not violate the right to vote under s. 3 of the Charter and actually advanced the informational component of the right to vote - See paragraph 41.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - Section 358 of the Canada Elections Act provided that third parties could not use contributions from foreign sources for election advertising purposes - The goal was to keep the Canadian electoral process Canadian - The Alberta Court of Appeal affirmed that s. 358 did not violate the right to vote under s. 3 of the Charter - See paragraph 41.

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 total per general election and $3,000 in a particular electoral district - The Crown admitted that the spending limits in s. 350 prima facie violated freedom of expression (Charter, s. 2(b)) - The Alberta Court of Appeal affirmed that s. 350 was not saved by s. 1 of the Charter - The objective of the legislation was to promote equality in federal elections by restricting third party advertising in order to prevent it from circumventing party and candidate limits - The Crown's evidence failed to establish that the legislation addressed a pressing and substantial concern - Further, the legislation did not minimally impair the freedom of expression - The spending limits appeared to amount to a total ban and the limitations in the Act included genuine issue advocacy - See paragraphs 39 to 42 and 63 to 188.

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 admitted that s. 323 was a prima facie violation of the freedom of expression (Charter, s. 2(b)) - The Alberta Court of Appeal held that s. 323 was not saved by s. 1 of the Charter - See paragraphs 30 to 33.

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 - Section 351 restricted a third party from splitting itself into multiple third parties or colluding with other third parties to circumvent the spending limits - Section 352 required third parties to identify their sponsorship of election advertising - Sections 353 to 357 set out registration requirements for third parties - Sections 359 and 360 set out disclosure requirements for third parties engaged in election advertising - 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 Alberta Court of Appeal affirmed that s. 350 violated freedom of expression (Charter s. 2(b)) and was not saved by s. 1 - The court held that the remaining sections were inextricably linked to the third party spending limits and could not stand once s. 350 was held to be of no force and effect - See paragraphs 189 to 193.

Civil Rights - Topic 1860.03

Freedom of speech or expression - Limitations on - Regulation of election or referendum advertising and spending - Section 358 of the Canada Elections Act provided that third parties could not use contributions from foreign sources for election advertising purposes - The plaintiff argued that s. 358 violated freedom of expression (Charter, s. 2(b)) - The trial judge held that the plaintiff failed to adduce evidence to establish that s. 358 violated s. 2(b) - There was no evidence that any third party relied on foreign contributions to the extent that they would be prevented from advertising without those contributions - The court held that even if s. 358 did violate s. 2(b), it would be saved under s. 1 as a reasonable limit prescribed by law - It was a proportionate response to the pressing and substantial objective of keeping Canadian elections Canadian - The Alberta Court of Appeal affirmed that s. 358 was not unconstitutional - See paragraphs 191 and 287 to 290.

Civil Rights - Topic 2160.3

Freedom of association - Limitations on - Regulation of election or referendum advertising and spending - Section 350 of the Canada Elections Act set spending limits on third party election advertising - Section 351 restricted a third party from splitting itself into two or more third parties or acting in collusion with another third party to circumvent the spending limits - The trial judge held that s. 350 violated freedom of expression - As a result s. 351, which prevented them from exercising freedom of expression in common, violated freedom of association under s. 2(d) of the Charter - The Alberta Court of Appeal affirmed that s. 351 violated s. 2(d) and was not saved by s. 1 of the Charter - See paragraphs 30 to 33 and 39.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Alberta Court of Appeal discussed the evidentiary threshold necessary under the s. 1 Charter analysis to establish whether the objects of impugned legislation responded to a pressing and substantial concern - See paragraphs 64 to 91.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See first, second and fourth Civil Rights - Topic 1860.03 and Civil Rights - Topic 2160.3 ].

Civil Rights - Topic 8554

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Prescribed by law - Section 319 of the Canada Elections Act defined "election advertising" as including advertising that took a position on an issue with which a party or candidate was "associated" - Section 350, which set spending limits on third party election advertising, referred to "an issue with which [a party or candidate] are particularly associated" - The trial judge held that the definition of "election advertising" was vague and not a limit "prescribed by law" - "Particularly associated" in s. 350(2)(d) was likewise vague - The Alberta Court of Appeal held that the definition of "election advertising" was not unconstitutionally vague - The court stated that "While 'association' cannot be defined a priori with precision, it is possible to determine when third party messages bear sufficient resemblance to political party and candidate policies that they come under the administration of the Elections Act" - The scheme of the Act was apparent and the context provided purpose, subject matter and the nature of the legislation - There was enough context to guide legal debate and allow interpretation - See paragraphs 43 to 62.

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 first 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 1860.03 , Civil Rights - Topic 2160.3 and Civil Rights - Topic 8554 ].

Cases Noticed:

R. v. Roach (1978), 25 O.R.(2d) 767 (Co. Ct.), refd to. [para. 6].

National Citizens' Coalition Inc. v. Canada (Attorney General) (1984), 11 D.L.R.(4th) 481 (Alta. Q.B.), refd to. [paras. 6, 201].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, consd. [paras. 9, 200].

Somerville v. Canada (Attorney General) (1996), 184 A.R. 241; 122 W.A.C. 241; 136 D.L.R.(4th) 205 (C.A.), refd to. [paras. 9, 263].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1 (S.C.C.), refd to. [para. 35].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [paras. 36, 196].

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., [1990] 2 S.C.R. 367; 112 N.R. 269, refd to. [para. 39].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 39].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Sunday Times v. United Kingdom (1979), 2 E.H.R.R. 245 (Eur. Ct. Hum. Rts.), refd to. [para. 43].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 46].

Prostitution Reference - see Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code.

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 48].

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. 51].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 52].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 57].

R. v. Morgentaler (1985), 11 O.A.C. 81; 52 O.R.(2d) 353 (C.A.), refd to. [para. 59].

R. v. LeBeau; R. v. Lofthouse (1988), 25 O.A.C. 1; 41 C.C.C.(3d) 163 (C.A.), refd to. [para. 60].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [paras. 63, 224].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [paras. 63, 234].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 65].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 66].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 66].

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. [paras. 67, 247].

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. 68, 196].

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. 68].

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. 69, 196].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1 (S.C.C.), refd to. [paras. 78, 199].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 80].

Buckley v. Valeo (1976), 424 U.S. 1 (Sup. Ct.), refd to. [para. 92].

Pacific Press v. British Columbia (Attorney General), [2000] B.C.T.C. 74; 73 B.C.L.R.(3d) 264 (S.C.), consd. [para. 99].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [paras. 117, 225].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

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. 133, 249].

Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; 156 N.R. 2; 66 O.A.C. 10, refd to. [para. 171].

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. 171].

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

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 186].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 196].

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. 196].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [paras. 225, 248].

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. 225].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 227].

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. 227].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 229].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 208 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 229].

Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Re, [1935] P.C.I.J. A/B No. 65, refd to. [para. 229].

Reform Party of Canada et al. v. Canada (Attorney General), [1995] 4 W.W.R. 609; 165 A.R. 161; 89 W.A.C. 161 (C.A.), refd to. [para. 230].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 263].

R. v. Advance Cutting & Coring Ltd. et al. (2001), 276 N.R. 1 (S.C.C.), refd to. [para. 266].

Lavoie et al. v. Canada et al. (2002), 284 N.R. 1 (S.C.C.), refd to. [para. 267].

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. 268].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201, refd to. [para. 277].

Statutes Noticed:

Canada Elections Act, S.C. 2000, c. 9, sect. 319 [para. 19, Appendix A]; sect. 323, sect. 349 [Appendix A]; sect. 350 [para. 20, Appendix A]; sect. 351, sect. 352, sect. 353, sect. 354, sect. 355, sect. 356, sect. 357, sect. 358, sect. 359(a), sect. 359(4), sect. 359(7), sect. 360, sect. 362 [Appendix A].

Authors and Works Noticed:

Canada, Law Reform Commission, Recodifying Criminal Law (1987), Report No. 31, p. 2 [para. 49].

Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report (Lortie Commission Report) (1991), p. 341 [para. 8].

Driedger, E.A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 58].

Dworkin, Ronald, Free Speech, Politics, and the Dimensions of Democracy, in Sovereign Virtue (2000), generally [para. 93].

Endicott, Timothy, Vagueness in Law (2000), p. 203 [para. 46].

Ewing, K.D., The Legal Regulation of Campaign Financing in Canadian Federal Elections (1988), pp. 578 to 582 [para. 206].

Hasen, Richard, Measuring Overbreadth: Using Empirical Evidence to Determine the Constitutionality of Campaign Finance Laws Targeting Sham Issue Advocacy (2001), 85 Minn. L. Rev. 1773, generally [para. 115].

Hasen, Richard, The Surprisingly Complex Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy (2000), 48 U.C.L.A. L. Rev. 265, generally [para. 115].

Hiebert, J., Interest Groups and Canadian Federal Elections, in Seidle, F. Leslie, Interest Groups and Elections in Canada (1991), p. 15, para. 3 [para. 7].

Hiebert, Money and Elections: Can Citizens Participate on Fair Terms Amidst Unrestricted Spending? (1998), 31:1 Can. J. of Political Science, pp. 91 to 110 [para. 121]; 111 [paras. 121, 123].

Hogg, Peter, W., and Bushell, Allison A., The Charter Dialogue Between Courts and Legislature (Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All) (1997), 35 Osgoode Hall L.J. 75, pp. 98, 101, 105 [para. 198].

Hogg, Peter W., Constitutional Law of Canada (Looseleaf Ed.), pp. 35-12 [para. 149]; 35-4 [para. 197]; 35-5 [paras. 231, 232]; 35-6 [para. 232]; 35-8 [para. 225]; 35-12 [para. 226]; 35-14.1 [para. 226]; 35-17 [para. 235]; 35-18 [para. 246]; 35-21 [para. 245]; 35-30, 35-31 [para. 263]; 35-32 [para. 266]; 35-39 [paras. 273, 274]; 751 [para. 185].

Jacobson, Charles, The Effect of the AFL-CIO's Voter Education Campaigns, generally [para. 106].

Jai, J., Policy, Politics and Law: Changing Relationships in Light of the Charter (1997-98) 8 N.J.C.L., generally [para. 197].

Johnston, Richard, Letting the People Decide, generally [para. 101].

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

Seidle, F. Leslei, Interest Groups and Elections in Canada (1991), p. 15, para. 3 [para. 7].

Slattery, B., A Theory of the Charter (1987), 25 Osgoode Hall L.J. 701, generally [para. 197].

Sullivan, Kathleen, Political Money and Freedom of Speech, 30 U.C. Davis. L. Rev. 663, generally [para. 95].

Waldron, Jeremy, Vagueness in Law and Language: Some Philosophical Issues (1994), 82 Calif. L. Rev. 509, p. 513 [para. 54].

Weine, K., The Flow of Money in Congressional Elections (1998), generally [para. 120].

West, Darrell M., Checkbook Democracy: How Money Corrupts Political Campaigns (2000), generally [para. 115].

Counsel:

A.D. Hunter, Q.C., Dr. S. Martin, Q.C., and D.H. de Vlieger, for the respondent, Harper;

T.W. Wakeling, Q.C., K.N. Lambrecht, Q.C., and M.K. Ignasiak, for the appellant, Attorney General of Canada;

D. Baker, for the intervener, Democracy Watch.

This appeal was heard on May 9, 2002, at Calgary, Alberta, before Berger, Paperny and Ritter, JJ.A., of the Alberta Court of Appeal.

On December 16, 2002, the judgment of the Court of Appeal was delivered and the following judgments were filed:

Paperny, J.A. (Ritter, J.A., concurring) - see paragraphs 1 to 194;

Berger, J.A., dissenting - see paragraphs 195 to 292.