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 held in the Rural Municipality of Taché 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 reasonable 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 during 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 that 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 legislation 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.

• An appeal brought before the Manitoba Court of Appeal was dismissed on January 28, 2000.

• The Court of Queen's Bench decision was affirmed by the Manitoba Court of Appeal in (2000) 145 Man. R. (21) 156.

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 campaign. 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, (now the Local Government Act [R.S.B.C. 1996] c. 323), 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.

• The Supreme Court decision was not appealed.

Issue

• Inspection of poll books after an election

Status

• Decision of Manitoba Court of Queen's Bench, February 12, 1999

Merits

• In the Winnipeg municipal election of October 28, 1998, allegations of irregularities led two candidates, Hart-Kangas and McCarron, to ask that Browton, the City Clerk, enable them to inspect the poll books. The Clerk applied to the Court for a Declaratory Order to determine whether she was obliged to refuse the request, pursuant to s. 101(7) of the Local Authorities Election Act, C.C.S.M. c. L180. This provision stated that "at any time before five o'clock in the afternoon on the day following the election, any elector… may... inspect the poll book." The court also considered the request of Hart-Kangas and McCarron to inspect all ballot papers related to the election. Insufficient evidence was available at that time for an order to this effect.

• Subsection 101(7) of the Local Authorities Election Act provided that requested documents can be inspected the day after the election in the presence of the returning officer. The returning officer is required to deliver all requested documents and ballot papers to the city clerk the day following the election, but the law is silent on any inspection of the required documents thereafter (except ballot papers). The clerk is required to keep all of the ballots and required documents for one year.

• The Court applied the principle derived from the precedent of Harris v. Ryan, (1997) 44 M.P.L.R. (2d) 194, in which the Newfoundland Supreme Court recognized the public interest in interpreting election legislation in a purposive fashion to encourage public access to election documents.

• In the present case, although there was some ambiguity in the Act in the sense that it was unclear whether documents could be inspected beyond the first day after the election, the court felt it should look at the object of the legislation. Therefore, the court ruled that, to ensure that elections are conducted in a free and open manner, the legislation must be interpreted so as to allow inspection of the required documents.

Issue

• Ballots rejected by deputy returning officers during 1995 referendum

Status

• Quebec 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.

• The Court of Appeal decision was not appealed.

Issues

• Threshold of candidates for a political party to qualify for registration

• Party affiliation on the ballot

Status

• On appeal from the Ontario Court of Appeal decision of August 2000 to the Supreme Court of Canada; leave granted on March 15, 2001; hearing not yet scheduled

Merits

• In 1993, the Communist Party of Canada (CPC), led by Miguel Figueroa, was de-registered because it failed to nominate 50 candidates at the general election. It also failed to nominate 50 candidates in the following federal election in 1997. Mr. Figueroa brought an action against the Attorney General of Canada, arguing that the requirements for party registration operated to the detriment of small political parties like the CPC.

• At first instance, Justice Molloy of the Ontario Court (General Division) ruled on March 10, 1999, that the Canada Elections Act, R.S.C. 1985, c. E-2, is unconstitutional as it applies to the following matters:

  • the liquidation of the assets of a registered party that failed to nominate 50 candidates [ss. 31(9), 31(12)-(14)];

  • the requirement that half of the $1 000 candidate's nomination deposit be refunded only if the candidate receives 15 percent of the votes cast in his or her electoral district [ss. 81(1)(j), 84(3)(a)-(b)];

  • the requirement that a party nominate 50 candidates to receive/maintain registered party status [ss. 24(2)-(3), 28(2)]; and

  • the provision that only candidates of registered parties are entitled to have their party's name on the ballot [s. 100(2)].

• Having made a finding of unconstitutionality respecting ss. 24(2)(a), 24(3), 28(2) and 100(2) of the Canada Elections Act, Justice Molloy then dropped the threshold for the minimum number of candidates to two (2) with respect to these subsections.

• The Attorney General of Canada appealed the decision of the first instance with regard to the constitutionality of the 50-candidate threshold to be a registered political party and the issue of having the party affiliation on the ballot. The nomination deposit and the automatic de-registration and liquidation of assets were addressed in the new Canada Elections Act, S.C. 2000, c. 9.

• The Ontario Court of Appeal held on August 16, 2000, that the 50-candidate requirement does not infringe the right of a candidate of a non-registered party to run for election to the House of Commons; that the requirement limiting identification of party affiliation on ballots to candidates endorsed by registered political parties infringes on the right to vote under s. 3 of the Charter and cannot be justified under s. 1; that the right to vote requires that voters have the opportunity to make an informed choice.

• According to the Court, party affiliation lies at the very core of the informational need and for many it is as important as the candidate's name. The purpose of the provisions is to prevent voters from being confused and misled. The Court also determined that there is no link between the 50 candidate requirement for registration (which it deemed reasonable), and the goal of preventing voters from being misled or confused by having party affiliation on the ballot. The Court declined to rule on whether or not s. 2(b) of the Charter was infringed, finding that s. 3 was more directly implicated.

• The case is now pending before the Supreme Court of Canada, as leave was granted March 15, 2001.

Issue

• Variation in population of electoral ridings

Status

• Northwest Territories Supreme Court judgment, March 5, 1999

Merits

• Following the creation of Nunavut out of the Northwest Territories effective April 1, 1999, the N.W.T. Electoral Boundaries Commission recommended that 2 seats (in Yellowknife) be added to the 14 which comprised the shrunken N.W.T. The Legislative Assembly refused and the plaintiffs took the matter to court for a declaration that the electoral map was in breach of s. 3 of the Charter, due to the resulting disparity in populations in ridings in Yellowknife compared to those in rural areas.

• According to the 1996 census, 9 of the 14 ridings had population differences of +/– 25 percent from the electoral quotient, with the widest extremes being –70 percent and +152 percent. The judge examined the populations in the seven smallest ridings and noted that it would be possible for a majority of members in the Legislative Assembly to be elected from ridings comprising only 31.5 percent of the total population. The judge noted that Yellowknife, with 44 percent of the population, could elect no more than 29 percent of the seats in the Assembly. If two more seats were added to Yellowknife, it could then elect 38 percent of the seats in the Assembly – still an under-representation, but not quite so extreme. In addition, the judge observed that even if two seats were added to Yellowknife, the ridings where Aboriginal persons were in the majority would still be able to elect a majority of members to the Assembly.

• The Commissioner of the N.W.T. argued that the Territories had a history of over-representing outlying areas and that, at the crucial time of division, this system should not be disturbed. A number of Aboriginal groups intervened, also opposing the application and relying on s. 35 of the Constitution Act, 1982 to claim that nothing should be done to affect the status quo until land claims and Aboriginal self-government negotiations are completed.

• The Court held that, while over-representation of sparsely populated constituencies could be tolerated, the "gross under-representation" of the ridings in question was a violation of s. 3 of the Charter.

• The Court added that s. 3 of the Charter was not to be understood as qualified by s. 25 of the Charter or s. 35 of the Constitution Act, 1982.

• The Court, therefore, ordered that the existing boundaries for the under-represented districts, where the right to vote was diluted, were unconstitutional. The proposed remedy was suspended until April 1, 1999, and later extended to September 1999, to give the Legislative Assembly time to amend the boundaries legislation.

• The intervenors sought leave to appeal but leave was denied.

• In June 1999, the electoral map of the N.W.T. was completely redrawn and the next general election (December 6, 1999) was run with 19 constituencies. Three electoral districts were added to Yellowknife, with another for Hay River and one for Inuvik. The average population per electoral district was calculated at 2 081 persons. Deviations varied from –60 percent to + 24 percent.

• Leave to appeal the Supreme Court decision was refused by the Court of Appeal in [1999] N.W.T.J., no. 81 (NWTCA).

Issue

• Third party election advertising during an election campaign

Status

• Judgment by Court of Queen's Bench of Alberta, June 29, 2001; appeal heard by the Alberta Court of Appeal on May 9, 2002 with judgment reserved.

Merits

• On July 7, 2000, Stephen Harper filed an action in the Alberta Court of Queen's Bench, challenging the constitutionality of ss. 323(1) and 323(3) (blackout period for election advertising), 350 (third party election advertising spending limits), 351 (provision re avoidance of s. 350), 352, 357, 359, 360, 362 (third party election advertising attribution, registration and disclosure provisions), and 358 (third party use of off-shore contributions for election advertising) of the Canada Elections Act, S.C. 2000, c. 9. The Chief Electoral Officer of Canada obtained intervenor status and testified at the trial.

• The day after the 37th general election was called, the Court of Queen's Bench issued an injunction suspending the operation of s. 350 (spending limits). The Alberta Court of Appeal confirmed the injunction. The Supreme Court of Canada, however, granted the Attorney General permission to appeal the injunction on November 10, 2001. At the same time, it temporarily suspended the lower court injunction, pending a final decision on the injunction issue. That hearing did not take place, as the Attorney General withdrew its appeal once the trial judge's decision was rendered.

• The Alberta Court of Queen's Bench issued its decision on the main application on June 29, 2001. The spending limits in s. 350 were found to be unconstitutional, as they infringed s. 2(b) of the Charter (freedom of expression) and could not be saved under s. 1 of the Charter as the provision was too vague to be considered law, the Crown had failed to show that it addressed any pressing and substantial concern, it lacked any rational connection with its objective, and it was not the least minimal intrusion necessary in order to accomplish its objective. Section 351 (avoidance of spending limits) was found to infringe s. 2(d) of the Charter (freedom of association). As s. 351 only existed to support s. 350, which had already been found to be unconstitutional, it could not be said to address a pressing and substantial concern and, thus, could not be saved under s. 1 of the Charter. The blackout provision was also found to infringe s. 2(b) but it was saved under s. 1 of the Charter as being justifiable in a free and democratic society. The other provisions were not found to infringe any constitutional rights.

• On October 11, 2001, the Attorney General of Canada filed its appeal before the Alberta Court of Appeal against the declaration of unconstitutionality of ss. 350 and 351. On the same day, Harper filed his cross-appeal against the declaration of constitutionality of ss. 323, 352-360 and 362.

• The appeal and cross-appeal were heard by the Alberta Court of Appeal on May 29, 2002.

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 define 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.

• The Supreme Court decision was not appealed.

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 at 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 at 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 Superior Court decision was not appealed.

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 legislators 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 legislators have 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, 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.

• The Court of Appeal decision was not appealed.

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, BCSC 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 Canadian National Election Study.

• The case also concerned the 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.

• The Superior Court decision was not appealed.

Issue

• Change of political party name; judicial review of Chief Electoral Officer of Canada's decision to allow change of name

Status

• Application before the Federal Court – Trial Division, May 2, 2000

Merits

• Following a request from the Reform Party of Canada, the Chief Electoral Officer of Canada decided on April 2, 2000, that the party could change its name to the Canadian Reform Conservative Alliance (in French, l'Alliance réformiste conservatrice canadienne), pursuant to ss. 24(4) and 25 of the Canada Elections Act, R.S.C. 1985, c. E-2.

• On May 2, 2000, the Progressive Conservative Party of Canada filed an application asking the Federal Court (Trial Division) to review the Chief Electoral Officer's decision. The party is asking the court for an order that the name of Canadian Reform Conservative Alliance so nearly resembles the name of the Progressive Conservative Party of Canada as to be likely confused with it, and for an order refusing the change of name.

• A notice of status review was issued by the Federal Court in the judicial review application, requiring the Progressive Conservative Party to show cause by June 1, 2001, as to why the case should not be rejected by reason of delay. After this show cause hearing, an order was issued by the Court directing the parties to follow a timetable for filing their submissions to the Court for the application. Subsequently, and on consent of all parties to the application, the Progressive Conservative Party moved to extend the deadlines as they appeared in the order's timetable on the grounds that discussions were being held between the parties to potentially resolve the matter.

• All parties have now filed their materials before the Court.

• No hearing date has been set.

Issue

• Change of political party name; violation of protected trademark law

Status

• Statement of claim before the Federal Court – Trial Division, May 23, 2000

Merits

• On May 23, 2000, the Progressive Conservative Party of Canada filed a statement of claim in the Federal Court under the Trademarks Act regarding the names Conservative, Conservatives, Progressive Conservative, Progressive Conservatives, Conservative Party and Progressive Conservative Party and their French language equivalents, including Parti conservateur, for use in association with the operation of a federal political party.

• A notice of status review was issued by the Federal Court in the judicial review application, requiring the Progressive Conservative Party to show cause by July 1, 2001, as to why the case should not be rejected by reason of delay. After this show cause hearing, an order was issued by the Court postponing the matter until after the decision has been rendered in the case (no. T-795-00, the judicial review).

R. v. Montgomery and Deane-Freeman

Issue

• The constitutionality of the requirement to provide certain information when an opinion survey is published during an election campaign (s. 326 of the Canada Elections Act)

Status

• An application concerning the constitutionality of this provision will be considered in Ontario Provincial Court on September 16, 2002

Merits

• Mr. Montgomery and Mr. Deane-Freeman were charged by the Commissioner of Canada Elections with failing to comply with s. 326(1) of the Canada Elections Act when they published an opinion survey.

• Subsection 326(1) requires the publication of the following information when an opinion survey is first published during an election period, or re-transmitted to the public within 24 hours of its first transmission: (a) the name of the sponsor of the survey, (b) the name of the person or organization that conducted the survey, (c) the dates on which the survey was conducted, (d) the population from which the sample was drawn, (e) the number of people who were contacted to participate in the survey, (f) the margin of error in respect of the data obtained.

• The defendants in this case are challenging the constitutionality of this provision. They state that it violates their guarantee of freedom of expression pursuant to s. 2(b) of the Canadian Charter of Rights and Freedoms, and is not a reasonable limit within the scope of s. 1 of the Charter. They also argue that the provision violates their right to not be deprived of their liberty except in accordance with the principles of fundamental justice (s. 7 of the Charter), and is not a reasonable limit within the scope of s. 1 of the Charter.

R. v. Smith
R. v. Bryan

Issue

• Premature publication of election results

Status

• Application filed with the Provincial Court of Nova Scotia, December 8, 2000

• Application filed with the Provincial Court of British Columbia, May 25, 2001

Merits

• The applicants are challenging s. 329 of the Canada Elections Act (listed as s. 328 prior to Bill C-2, the new Canada Elections Act passed in May 2000), which prohibits the dissemination of voting results from one district to another before the close of all polls in the other electoral district.

• In Smith, the results of the September 11, 2000, by-election in Kings–Hants electoral district (Nova Scotia) were posted on Mr. Smith's personal Web page prior to the close of polls in the Okanagan–Coquihalla (British Columbia) by-election of the same day.

• Similarly, in Bryan, the voting results of several electoral districts were posted on the Internet during the 37th federal general election (November 27, 2000) before the polls were closed in all electoral districts.

• The hearing in Smith is set for November 26, 2002. No hearing date has been set for Bryan.

Issue

• Single member plurality (SMP) electoral system

Status

• Application filed in the Ontario Superior Court of Justice on May 1, 2001

Merits

• The applicants filed a Notice of Application in the Ontario Superior Court on May 1, 2001. A hearing on the application has been postponed by agreement of the parties and will probably be heard in late fall 2001.

• The applicants are challenging ss. 2(1), 24(1) and 313 of the Canada Elections Act, on the basis that they are contrary to ss. 3 (right to vote) and 15 (right to equality) of the Canadian Charter of Rights and Freedoms. Subsection 2(1) contains definitions that apply in the Canada Elections Act. The Notice of Application and factum do not refer to the particular definition(s) which is/are being challenged. Subsection 24(1) provides for the appointment by the Governor in Council of a returning officer for each electoral district. Section 313 provides for the return of the writ by the returning officer, in which he or she declares the candidate who obtained the largest number of votes to have been elected.

• Section 3 of the Charter provides to every Canadian the right to vote. The applicants argue that in instituting SMP, the Act does not guarantee equal and effective representation, and is thus contrary to s. 3. They argue that SMP fails to provide parity of voting power or effective representation to the large number of people who support national parties that do not win an election, and whose supporters are not concentrated in one region.

• The applicants also allege that SMP affords discriminatory treatment to supporters of small nationally-based parties. They contend that support for a political party is an analogous ground for the purposes of s. 15 analysis, as demonstrated by the fact that many human rights acts in Canadian and international jurisdictions include political affiliation as a prohibited ground of discrimination.

• Furthermore, the applicants contend that the potential violation of the Charter rights are not demonstrably justifiable in a free and democratic society, as described in the Supreme Court's test in R. v. Oakes.

• The applicants seek a declaration that ss. 2(1), 24(1) and 313 of the Canada Elections Act violate ss. 3 and 15 of the Charter and, pursuant to s. 52 of the Charter, are null and void. They would like a suspension of this declaration for a period of two years to allow Parliament sufficient time to study the available alternatives with a view of selecting the model that is most suitable to Canada's constitutional traditions and political needs.

• The hearing date has not yet been set.

Issue

• Inmates' right to vote

Status

• Judgment of the Federal Court of Appeal, October 21, 1999, (1999) 180 D.L.R. (4th) 385; application for leave to appeal to the Supreme Court of Canada granted, August 10, 2000; hearing to occur in the fall session of the Court

Merits

• The Federal Court – Trial Division determined in this case that s. 51(e) (now s. 4(c)) 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 justify the infringement of s. 3. 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.

• The Supreme Court of Canada heard an appeal by the inmates in this case on December 10, 2001. No decision has yet been rendered.

Issue

• Criteria for the delimitation of electoral boundaries

Status

• Judgment of the New Brunswick Court of Queen's Bench, April 29, 1997, 188 N.B.R. (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 criteria that may be used in the drawing of constituency boundaries; these included, in particular, equality of population, geography and community of interest of the population. The central question in this case is whether the ethnic composition of ridings was sufficiently considered in this case in determining the number of seats in New Brunswick which are primarily Francophone.

• This matter has been discontinued.

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 ss. 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 supersedes 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 legislature 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.

• The Court of Appeal decision has not been appealed.

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

• Opinion poll blackout

Status

• Supreme Court of Canada judgment, May 29, 1998

Merits

• On appeal from the Court of Appeal of Ontario, the appellants brought an application for a declaration that s. 322.1 of the Canada Elections Act violated freedom of expression and the right to vote guaranteed by ss. 2(b) (freedom of expression) and 3 (right to vote) of the Canadian Charter of Rights and Freedoms. Section 322.1 prohibited the broadcasting, publication or dissemination of opinion survey results during the final three days of a federal election campaign. The Ontario Court (General Division) denied the appellants' application, maintaining that s. 322.1 did not violate a citizen's right to vote and that, although the section infringed freedom of expression, it was justified under s. 1 of the Charter. The Court of Appeal upheld the judgment.

• The Supreme Court of Canada found that the publication of opinion polls is designed to communicate meaning, and therefore falls within the realm of s. 2(b) of the Charter. Therefore, the prohibition of broadcasting, publication or dissemination of opinion survey results during the final three days of an election campaign was a restriction on freedom of expression.

• In its analysis, the Court found that the objective of guarding against the possible influence of inaccurate polls late in the election campaign by allowing for a period of criticism and scrutiny immediately prior to election day was of sufficient importance to consider s. 1 of the Charter. It also found that the three-day blackout period on the publication of polls did, to some extent, prevent the use of false or inaccurate polls by voters. However, such considerations were not enough to outweigh the infringement of the Charter right to freedom of expression in s. 2(b). It was, therefore, unnecessary to consider the infringement on s. 3 of the Charter.

Issue

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

Status

• Superior Court of Quebec 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 of Quebec 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 of Quebec 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 of Quebec 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 of Quebec 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.