Issue

• "False news" speech during a campaign

Status

• Judgment of Manitoba Court of Queen's Bench on July 7, 1999

Merits

• This was an application to void a municipal election in the Rural Municipality of Taché held on October 28, 1998, in which Gary Ammeter alleged that Ronald Perrier committed the offence of making false statements about Ammeter contrary to Manitoba's Local Authorities Election Act. The allegation was that Perrier had, during the campaign, distributed a pamphlet in which it was alleged that Ammeter had behaved dishonestly while in office. Section 141 of that statute makes it an offence to make or publish a false statement of fact in relation to the character or conduct of a candidate for the purpose of affecting an election.

• The court looked first at the standard of proof required of the plaintiff in order to make out his case. Upon a review of the relevant jurisprudence, the court took the view that where the allegation was that an offence had been committed, the standard to be applied by the court must be proof of the offence beyond a doubt. The balance of probabilities is not sufficient in a quasi-criminal case such as this.

• The court was also presented with a defence argument that an "offence" was different from an "election offence", with the latter referring only to an act committed on polling day itself, rather than at any time throughout the campaign. This argument was rejected. For the purposes of trying an election petition, an "election offence" is one created by the Act and committed at any time during the campaign.

• In this case, the evidence was not clear enough beyond a reasonable doubt, that the statements regarding Mr. Ammeter which were attributed to Mr. Perrier were actually made, or made in the manner alleged. The petition was dismissed.

• In addition to the resolution of this particular case, the judgment provided an excellent review of the legislative and judicial history of the "false news" provision. In this context, the court emphasized that the intent of the legislature was not to deal with opponents' criticism of a political figure's publicly espoused positions. Rather, it was meant to deal with allegations relating to his personal character or conduct.

Issue

• Liability for wilful misrepresentation of facts in an electoral context

Status

• Decision of the British Columbia Supreme Court, March 7, 2000, BCSC 416

Merits

• This action arose in the context of the mayoral election in the Village of McBride, British Columbia, held on November 20, 1999. In the previous term, Bonneville was mayor and Frazier was a counsellor. In the campaign for the 1999 election, they were both candidates for mayor. In the last few days before the election, a journalist prepared a package of documents based on the agenda for the Regional District Board within which McBride was situated and circulated it to local politicians, who then passed it on to voters. The documentation contained information detrimental to Bonneville's campaign because it presented as genuine certain plans concerning taxation that had been submitted to the Board by the Director of Development for the Regional District, but which had not yet been dealt with. Frazier passed on the documentation, knowing that consideration of the recommendation had been deferred until after the election and fully aware that the documentation was misleading.

• Frazier made a limited effort to explain that the document was misleading but continued to distribute it. He won the election handily.

• The action sought to declare the election invalid on the grounds that fraudulent means were used by the victor in his campaigning. The court found that the documentation circulated in McBride fell within the meaning of "fraudulent means". This was found to be contrary to s. 152(3) and (4) of the Municipal Act, which prohibit persuading or otherwise causing a person to vote, or refrain from voting, for a particular candidate by, among other things, fraudulent means. Frazier's conduct in distributing documents about his opponent which he knew to be false was below the standard required under the election provisions of the Municipal Act. Frazier's election was therefore declared invalid.

Issue

• Ballots rejected by deputy returning officers during 1995 referendum

Status

• Court of Appeal Judgment, December 17, 1999

Merits

• During the referendum on October 30, 1995, a complaint was lodged with the Chief Electoral Officer by the Committee of Quebecers for NO regarding ballots rejected by deputy returning officers in the constituencies of Chomedey, Marguerite-Bourgeoys and, to a lesser extent, in Laurier-Dorion and Notre-Dame-de-Grâce. The ballot rejection rate in these constituencies was significantly higher than rejection rates in other constituencies. Following the investigation, the Chief Electoral Officer prosecuted 29 deputy returning officers because they acted fraudulently, contrary to the Special Version of the Election Act for the Holding of a Referendum, as well as two official delegates because they assisted or encouraged the deputy returning officers to act in this way.

• The parties had agreed to proceed with two leading cases. Two initial Court of Quebec judgments acquitted defendants, Janie Fortin and Mathieu Lefebvre. The Chief Electoral Officer then appealed this judgment before the Superior Court, which upheld the trial division's judgment of April 16, 1998. On July 8, 1998, the Chief Electoral Officer obtained permission to appeal this judgment before the Court of Appeal.

• In the Court of Appeal's judgment of December 17, 1999, the deputy returning officers were acquitted, given that the required evidence of fraudulent intention was not demonstrated. The other proceedings were thus abandoned.

Issues

• Threshold of candidates for a political party to be susceptible of registration

• Party affiliation on the ballot

Status

• Appeal heard in the Ontario Court of Appeal on March 2-3, 2000; judgment reserved

Merit

• This litigation started in 1993 when the Chief Electoral Officer, pursuant to the requirement of the Canada Elections Act, de-registered the Communist Party of Canada because it did not field the required minimum of 50 candidates. In the period 1993-1997, minor procedural rulings were made and in connection with the 1997 general election, the case was revived. On March 10, 1999, Molloy J. of the Ontario Court (General Division) issued a substantive judgment by which she made the following changes in the law:

  • On the grounds of s. 3 of the Canadian Charter of Rights and Freedoms, the threshold of candidates required for a party to be registered was reduced from 50 to 2;

  • Based on Charter s. 2(b) and 3, party affiliation should be shown on the ballot where a party reaches the threshold of two candidates;

  • On the grounds of s. 2(b), 2(d) and 3 of the Charter, liquidation of a party's assets upon de-registration was not permitted; and

  • With regard to s. 3 of the Charter, half the $1 000 nomination deposit should be refunded to all candidates, not just those who reach 15 percent of the votes cast.

• The Attorney General appealed only the first two points of the judgment. The Chief Electoral Officer of Canada intervened on appeal, drawing the Court's attention to the many provisions of the Canada Elections Act that deal with registered parties and asking the court to provide clarity as to how its eventual decision would apply to each of those provisions. The ruling is expected no earlier than June 2000.

• The CEO did not take any position with respect to the constitutionality of the provisions at issue before the Court.

Issue

• Methodology to be used in the recounting of votes

Status

• Judgment of the Newfoundland Supreme Court – Trial Division, October 15 and November 20, 1997

Merits

• In respect of the St. John's mayoral election of October 1, 1997, Harris, who received the second best result, sought a recount. Irregularities were found. Relying on s. 593 of the Municipal Elections Act which provides that a returning officer can decide the validity of every ballot by examining the full content of the ballot boxes, Harris sought an order to have the returning officer permit access to all election documents, including the contents of the ballot boxes.

• The City of St. John's and Wells, the winning candidate, argued that the procedure can be used only in a petition to set aside the election, but not on a recount. They sought to have the matter determined pursuant to s. 578 and following of the Act, which provide the manner in which the ordinary counting of the votes is to take place.

• The court held that in interpreting legislation, it must consider the public policy which the legislature sought to promote through that legislation. Here, the goal was to encourage properly conducted elections and enabling the returning officer to open the envelopes and examine all documents relating to the election in order to note apparent irregularities serves that purpose. The court therefore ordered that all documents should be subject to examination and be made available for observation by the candidates.

Issue

• Inequality among candidates created by provisions granting remuneration to representatives of party candidates.

Status

• Judgment of the Superior Court of Quebec, December 11, 1998

Merits

• Following a motion for declaratory judgment filed by Mr. Jacques Hébert of the Action démocratique du Québec, the Superior Court of Quebec struck down certain provisions of the Election Act, particularly those granting remuneration to representatives of candidates of first and second ranking parties during the preceding election.

• Other provisions allowed for the reimbursement of part of the election expenses incurred by candidates of the first and second ranking parties during the preceding election, regardless of their performance during the current election. At the start of the election, these candidates received an advance on their guaranteed reimbursement for election expenses.

• All of these provisions were struck down by the Court as unduly restricting the freedoms of expression and association guaranteed by the Charter and creating an unacceptable inequality among candidates. The Attorney General of Quebec decided not to appeal this judgment.

Issue

• Prohibiting third party spending during referendum campaigns

Status

• Decision of the Supreme Court of Canada, October 9, 1997

Merits

• On October 9, 1997, the Supreme Court of Canada handed down a long-awaited unanimous decision with serious consequences for Quebec's electoral and referendum expenses legislation. This decision followed a motion for declaratory judgment filed by Robert Libman in anticipation of the 1992 referendum. The applicant was challenging the constitutionality of the provisions of the Referendum Act that restricted spending to support an option to national committees and their affiliated groups.

• The Supreme Court upheld Mr. Libman's claim that the provisions unduly restricted freedom of expression protected by the Canadian Charter of Rights and Freedoms. However, the highest court in the land clearly recognized the merits of the Quebec legislation, which aims primarily to ensure equality between the options in a referendum.

• The Court recognized that spending limits and controls are essential to maintain an equilibrium in financial resources and thus ensure the fair and equitable nature of elections and referendums. However, since the legislation restricts freedom of expression, the Court asked the legislator to comply with the requirements of the Charter.

• The judgment identifies the categories of people who are unjustly restricted in their freedom of expression and, although it does not set the monetary spending limit these people should have in a referendum or election campaign, it recognizes that their expenses should be limited and controlled like those of national committees or political parties and their candidates.

• Although the judgment concerns provisions that apply during a referendum, their similarity to provisions that apply during an election means that the legislator has no choice but to also amend the Election Act to allow third parties to intervene in electoral campaigns.

Issue

• Whether income tax receipts can be issued where there are political contributions directed to be used for the contributor's personal benefit.

Status

• Judgment of the B.C. Court of Appeal, April 10, 2000-05-02

Merits

• On June 30, 1999, the British Columbia Supreme Court awarded Longley $55 000 in damages on the grounds that officials of Revenue Canada had behaved with him in a manner that amounted to misfeasance in public office. Over a number of years, Longley had tried to have Revenue Canada interpret s. 127 of the Income Tax Act in such a manner that they would accept his notion of a "Contributor's Choice Concept", which was a contribution to a political party, combined with a direction for the specific use of the funds. The officials had repeatedly given Longley advice about the illegal nature of the Contributor's Choice Concept which they knew to be false and intentionally misleading.

• The MNR appealed but, without explanation, abandoned its appeal. Longley cross-appealed to obtain damages of $99 billion. Calling the quantification of damages by Longley "fanciful in the extreme", the court rejected the cross-appeal. The damages assessed by the trial court were left in place. Revenue Canada had declined to provide the proper information about whether the scheme was valid under s. 127 of the Income Tax Act. Nevertheless Longley and a few others were permitted to obtain the tax credits without objection.

• The Court of Appeal did not make a definitive statement on the validity of s. 127 because of the MNR's abandonment of its appeal of the trial ruling.

Issue

• Constitutional validity of third party spending limits on election advertising and requirements to report polling methodology

Status

• Judgment of the British Columbia Supreme Court, February 8, 2000, 2000 BCJC 248

Merits

• This case evolved from a number of different prosecutions and actions. At the outset, Garry Nixon, a resident of British Columbia was fined under s. 237 of that province's Election Act for having exceeded his election expenses limit. He then challenged the constitutional validity of the provision. Pacific Press, a division of the Southam newspaper chain, joined Nixon's challenge. The Attorney General asked for summary dismissal of the case but this was denied and the denial was affirmed by the Supreme Court of Canada.

• After the case on the merits was decided by the B.C. Supreme Court this February, the Attorney General of the province announced that there would be no appeal.

• The core of Pacific Press' argument was that the third party advertising provisions were contrary to the protection of freedom of expression under the Canadian Charter of Rights and Freedoms. This court agreed. Brenner J. felt that the Attorney General had not shown that a pressing and substantial problem existed, justifying the limitation on freedom of expression.

• Brenner J. distinguished the Supreme Court of Canada's decision in Libman v. Quebec (Attorney General) (1997) 151 D.L.R. (4th) 385, relying principally on new evidence from one of the authors of the 1988 Canada Election Study.

• The case also concerned methodology of public opinion polling. Here the court made a number of findings which also led it to conclude that no pressing and substantial concern existed that could justify the provision inserted into the B.C. Elections Act. In particular, it held that there was no evidence that opinion polls affect the manner in which people vote.

Issue

• Slanderous publication concerning well-known political figures

Status

• Judgment of the Quebec Superior Court on March 16, 2000

Merits

• In the January 1993 issue of "Lafferty Canadian Report", Lafferty, a financial analyst, levelled accusations against the Parti Québécois. He compared nationalism to undemocratic tribalism inevitably leading to dictatorship. He also compared Jacques Parizeau and Lucien Bouchard, the then leaders of the Parti Québécois and the Bloc Québécois respectively, to Hitler. These writings were reproduced in Le Devoir. Parizeau and Bouchard initiated an action in libel.

• The plaintiffs contended that criticism in political life is acceptable, but that such language is beyond the limits of what is acceptable or legal. The defendant pleaded fair comment.

• There was some initial discussion in the judgment of the protection of freedom of opinion and expression, provided by s. 3 of the Quebec Charter of Rights and Liberties of the Person. The court, looking at the jurisprudence, noted that the protection afforded by that provision was not absolute and decided it had to go on to determine whether the comments made public in this instance went beyond the limits of legal tolerance.

• The court did not hesitate in concluding the texts complained of comprised untruths and were defamatory. The evidence showed not only that the comparisons were unjustified, but that the plaintiffs were profoundly attached to democratic values.

• The court rejected the defence of fair comment as Lafferty knew nothing about Hitler and was not familiar with the program of the Parti Québécois. It ordered the defendant to pay a total of $40 000 in damages, an amount considerably less than the $100 000 claimed by the plaintiffs.

Issue

• Inmates' right to vote.

Status

• Judgment of the Federal Court of Appeal, October 21, 1999, (1999) 180 D.L.R. (4th) 385

Merits

• The constitutional validity of s. 51(e) of the Canada Elections Act has been litigated without a conclusive result for over a decade.

• The Federal Court-Trial Division had determined in this case that s. 51(e) was unconstitutional under s. 3 of the Canadian Charter of Rights and Freedoms. The Attorney General appealed, agreeing that s. 51(e) infringed s. 3 but that it was saved by s. 1. The Federal Court of Appeal was of the view that the twin objectives of the provision, namely the enhancement of civic responsibility and respect for the rule of law, as well as the enforcement of penal sanction, were sufficiently pressing and substantial to warrant infringement of the Charter. The impairment of inmates' rights caused by s. 51(e) is minimal, it said. Among a range of reasonable alternatives the choice made by Parliament was rational, and it was entitled to the deference of the court. Moreover, the court held that s. 51(e) did not infringe the equality provision of the Charter, s. 15.

• This litigation is continuing. Application for leave to appeal to the Supreme Court of Canada was filed on December 17, 1999, but has not yet been heard.

Issue

• Criteria for the delimitation of electoral boundaries

Status

• Judgment of the New Brunswick Court of Queen's Bench, April 29, 1997 (1977) 188 N.B. (2d) and 480 A.P.R. 330

Merits

• Just before the start of the campaign for the 1997 federal general election, the Société applied for an interim injunction to have declared unconstitutional that part of the Representation Order, 1996 which related to New Brunswick. That application was denied but the substantive issues are still to be tried.

• In Reference re Electoral Boundaries Commission Act (Sask.), (1991) 2 S.C.R. 158, the Supreme Court of Canada established a number of objective criteria for the drawing of constituency boundaries; these included in particular geography and community of interests of the population. The central question in this case is whether the ethnic composition of ridings can be included among these criteria so as to preserve the number of seats in New Brunswick which are primarily Francophone.

• The trial of this matter is unlikely to be held before the latter part of 2000.

Issue

• Public access to ballots

Status

• Judgment of the Quebec Court of Appeal, April 10, 2000

Merits

• The Montreal Gazette applied to the Chief Electoral Officer of Quebec to see the ballots rejected in the 1995 referendum but was turned down. The Conseil du référendum, a special panel of the Provincial Court constituted to hear judicial disputes arising from referendum matters, confirmed the CEO's decision and the Superior Court denied the Gazette's appeal. The Court of Appeal denied a further appeal.

• The Gazette relied on a provision in the Special Version of the Election Act for the holding of a Referendum, namely s. 488(2), according to which the CEO must make all information reports or documents relating to the law public. The defence of the Chief Electoral Officer was based first on s. 378 and 379 of that same statute, according to which ballots constitute election documents. The CEO pleaded, moreover, that s. 570 of the Special Version of the Election Act for the holding of a Referendum supercedes provisions of the Quebec Act on Access to Documents of Public Institutions and on the Protection of Personal Information, which might otherwise offer the remedy the plaintiff sought.

• Ballots have a special status which the legislator did not intend to apply to any other document. The production, handling, conservation and destruction of ballots are regulated by strict provisions from which there is no derogation. Section 570 of the Special Version of the Election Act for the holding of a Referendum is an absolute protection of the limitation of access to ballots to those expressly designated by law, namely the CEO and those whom he authorizes to have access in the course of vote counting, judicial recount, investigations by the CEO and prosecutions.

Issue

• Voting in the constituency of the elector's principal residence

Status

• Court of Appeal of Quebec, March 3, 1997

Merits

• During the general election of September 12, 1994, Mr. Robert Thérien was elected in the Bertrand constituency. Following this election, an election petition, addressed to the Court of Quebec, alleged that Mr. Thérien had committed election fraud by voting himself and encouraging electors to vote outside of the constituency of their principal residence.

• On February 21, 1996, the Court of Quebec annulled Mr. Thérien's election, declaring him guilty of election fraud for having voted in a place where he did not have a principal residence and for having encouraged vacationers to vote in the Bertrand constituency, even though most of them had their principal residence in the Westmount constituency.

• In a judgment issued on March 3, 1997, the Court of Appeal of Quebec confirmed the Court of Quebec's judgment of February 21, 1996. A stay of proceedings was dismissed on March 7, 1997, by Mr. Justice André Forget of the Court of Appeal of Quebec. On March 10, Mr. Thérien's counsel served a motion to the Supreme Court of Canada for leave to appeal the Court of Quebec's decision and to obtain a stay of proceedings of the Court of Appeal's decision.

• On March 14, 1997, Mr. Justice Peter Cory of the Supreme Court of Canada dismissed a motion for stay of execution. The motion for leave to appeal was dismissed on October 16, 1997.

Issue

• Denied entry on the voters list by a special board of revisors for the referendum of October 30, 1995

Status

• Superior Court judgment, April 3, 1997

Merits

• Legal proceedings were filed with the Conseil du référendum on October 28, 1995, involving an application to revise the voters list filed by five electors in the electoral division of Westmount-Saint-Louis, whose entry on the voters list had been refused by the special board of revisers. This application was to order the Chief Electoral Officer to enter the five electors on the voters list so that they could vote in the referendum. In its judgment of October 28, 1995, the Conseil du référendum ruled that the motion was out of order since it had no legal grounds. In fact, since the law did not provide any means of appeal of a decision of the board of revisers, the only applicable legal proceeding is through evocation or mandamus. Thus, the tribunal ruled that the board of revisers would have had to be directly implicated in the proceedings, which was not the case. The Conseil du référendum thus concluded that the applicants had not targeted the right person since the Chief Electoral Officer could not be replaced by a board of revisers.

• Following this decision, the electors who had filed the previous proceeding filed a new motion to have the decision of the board of revisers set aside. The members of the special board of revisers and the Chief Electoral Officer were directly implicated in the proceeding. In its decision of December 11, 1996, the Conseil du référendum allowed a motion for dismissal by the Chief Electoral Officer and dismissed the applicants' motion. The applicants asked the Superior Court to quash the decision of the Conseil du référendum, which the Court refused to do by dismissing their application for judicial review on April 3, 1997.