C. Political Expression

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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As already noted, freedom of expression about political issues lies at the heart of our democratic tradition. But does this mean that Parliament is incapable of intervening in all situations? Expression in the real world of politics is closely tied to economic resources. Those who have money have the means to convey their message to the public; those who lack resources are at a disadvantage and to them the promise of freedom of expression may be ineffectual. Is Parliament entitled to alleviate economic inequalities by regulating election expenses? Such laws are designed to improve debate by ensuring that some voices do not drown out others. Does this laudable goal justify imposing restraints on the political expression of those who have more substantial resources?

In an early Charter case, a federal law prohibiting anyone other than a registered party or candidate from spending money during an election campaign to promote a cause or a candidate was struck down.36

The federal government contended that limiting the right of individuals to participate in campaigns was necessary to ensure the integrity of other provisions controlling expenditures by candidates. An Alberta judge held that the government had failed to prove its case. Given the

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importance of freedom of political expression, he was not satisfied that this significant constraint on the participation of individuals and groups who were not candidates was justifiable.

In 1996 the Alberta Court of Appeal came to a similar conclusion with respect to a federal law prohibiting any advertising between the date an election is called and the twenty-ninth day before voting day, as well as the day before and the day of the election.37The law also prohibited third parties from spending more than $1000 for advertising, promoting, or opposing a particular candidate. These measures followed the recommendations of a royal commission on elections. The "blackout" provision was intended to control escalating campaign costs and to limit the advantage of an incumbent. The third party spending provision was intended to prevent circumvention of spending limits imposed on candidates and to enhance public confidence in the electoral process by avoiding the risk of patronage in return for such spending. The Alberta courts were not persuaded by the evidence adduced by the Attorney General that these measures were justified as limits on freedom of expression under section 1. In the Court of Appeal, Conrad JA found that the government’s case failed to establish a sufficiently important objective to justify overriding a Charter right. In her view, the harm feared from unconstrained advertising and spending was essentially speculative. She also expressed the view that such restrictions, especially those effectively precluding participation by non-candidates, were fundamentally at odds with basic Charter values:

An important justification for the Charter guarantees of free expression and association, and an informed vote, is the need in a democracy for citizens to participate in and affect an election. It follows that there can be no pressing and substantial need to suppress that input merely because it might have an impact.38In a case dealing with Quebec’s referendum law, the Supreme Court of Canada reached a conclusion similar to that of the Alberta Court of Appeal even while revealing a different perspective.39The Court struck down a law imposing spending restrictions but expressly stated that third party spending limits of the kind at issue in the Alberta case could be justifiable. The Quebec referendum law limited expenditures and required that all expenses be paid from the funds of committees specifically authorized to represent one side or the other. The Court

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was entirely sympathetic to the view that limiting election expenses could be justified in order to ensure fairness in a campaign and to prevent the most affluent members of society from exercising a disproportionate influence, but it found that the Quebec law went too far. Individuals or groups not willing or able to affiliate with one of the authorized committees were precluded from even producing leaflets or posters to express their opinion. While limiting the rights of third parties to spend money during a campaign might be necessary to ensure the integrity of spending limits justifiably imposed on candidates or authorized...

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