Supreme Court Documents Related To The 2% Challenge

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This document: 2006 CanLII 36358 (ON S.C.)
Citation: Longley v. Canada (Attorney General), 2006 CanLII 36358 (ON S.C.)
Date: 2006-10-26
Docket: 05-CV-291729PD
[Noteup] [Cited Decisions and Legislation]
COURT FILE NO.: 05-CV-291729PD
DATE: 20061026

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:
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BLAIR T. LONGLEY, KEVIN PECK, MIGUEL FIGUEROA, JIM HARRIS, MARIJUANA PARTY, CANADIAN ACTION PARTY, COMMUNIST PARTY OF CANADA, GREEN PARTY OF CANADA, CHRISTIAN HERITAGE PARTY and PROGRESSIVE CANADIAN PARTY
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Peter Rosenthal, for the Applicants

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Applicants
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THE ATTORNEY GENERAL OF CANADA
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Gail Sinclair and Peter Hajecek, for the Respondent

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Respondent
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HEARD: June 20, 21, 22, 23, and July 5, 2006, at Toronto

AMENDED REASONS FOR JUDGMENT

(The title of proceeding and paragraphs 1 (a), 39 and 41 of the original reasons released on October 12, 2006, have been amended.)

MATLOW, J.

[1] Judgment is to issue in favour of all of the applicants as follows:
a) declaring, effective retroactively to December 31, 2003, that section 435.01 (1) (a) and (b) of the Canada Elections Act, S.C. 2000, c.9 (“the Act”) are null and void and of no force or effect because these provisions contravene rights guaranteed by the Canadian Charter of Rights and Freedoms and are not justified by section 1 of the Charter and that section 435.01 (1) read as follows;
435.01 (1) The Chief Electoral Officer shall determine, for each quarter of a calendar year, an allowance payable to a registered party whose candidates for the most recent general election preceding that quarter received at that election at least one vote.
b) declaring that the political party applicants are entitled to recover from the Receiver General the quarterly allowances provided by these provisions from January 1, 2004, plus prejudgment interest as prescribed by the Courts of Justice Act. If counsel cannot agree on the specific amounts, I will settle the formal judgment;
c) dismissing all other claims except for costs. Counsel may make written submissions with respect to costs by exchanging copies of those submissions and by delivering them to the court within a reasonable period of time.
[2] Section 435.01 (1) (a) and (b) of the Act reads as follows:
435.01 (1) The Chief Electoral Officer shall determine, for each quarter of a calendar year, an allowance payable to a registered party whose candidates for the most recent general election preceding that quarter received at that election at least
(a) 2% of the number of valid votes cast; or
(b) 5% of the number of valid votes cast in the electoral districts in which the registered party endorsed a candidate.

[3] The essence of the applicants’ claims is that the political party applicants are entitled to receive this allowance without the need to meet the threshold requirements set out in the Act.
[4] All of the political party applicants are registered political parties.
[5] The applicant, Blair T. Longley is the leader of the Marijuana Party, the applicant, Kevin Peck, is the chief agent of the Canadian Action Party, the applicant Miguel Figueroa, is the leader of the Communist Party of Canada, and the applicant, Jim Harris, is the leader of the Green Party.
[6] The applicant, Green Party of Canada, did surpass the threshold in the federal election of 2004 and has subsequently been receiving the allowance. The other political party applicants did not meet the threshold and have not been receiving it.
[7] The applicants’ original notice of application and their factum gave notice of a proposed attack on section 435 (1) (e) of the Act in addition to an attack on section 435.01 (1) (a) and (b). At the opening of the hearing of this application before me, counsel for the applicants advised me that this was in error and he sought an order eliminating those references. His request was not opposed and was, accordingly, granted.
[8] As well, counsel for the respondent advised me that they had given notice of a motion in this application for an order effectively dismissing that part of this application brought by the political party applicants on the ground that political parties are unincorporated associations without capacity to bring legal proceedings in a case such as this. They fairly stated that they did not seek to avoid my consideration of the substantive issues raised but they submitted that those issues should be considered only as raised by the personal applicants. Further, they advised me that the original application had been instituted by only seven political party applicants but, in order to avoid rendering the application futile if it should be determined that they lacked status, all counsel had agreed that the personal applicants be added so that the application could proceed “by ensuring that at least some of the applicants have standing to claim sections 3 and 15 Charter rights as “citizens” or ‘individuals” and that ”the issue of the status of the remaining political party applicants could be addressed at the time of the hearing of this application itself of shortly thereafter”.
[9] I have concluded that the political party applicants do have status to bring this application and I will return to this issue again below.
[10] The primary argument made on behalf of the applicants is that these provisions contravene the right guaranteed by section 3 of the Charter. Further submissions were made in which their counsel also invoked section 2 (b) of the Charter (freedom of thought, belief, opinion and expression), section 2 (d) (freedom of association), and section 15 (equal protection and benefit of the law without discrimination).
[11] Section 3 of the Charter reads as follows:
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
[12] As will be evident from the judgment of the Supreme Court of Canada in Figueroa v. Canada (Attorney-General), 2003 SCC 37 (CanLII), [2003] 1 S.C.R. 912, to which I will return below, the right to vote includes much more than the mere right to enter a voting booth and mark a ballot that is counted in an election. This was recognized in paragraph 19 of the reasons for judgment of Iacobucci, J., writing for the majority, as follows:
19. Under s. 3 of the Charter, “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”. On its face, the scope of s. 3 is relatively narrow: it grants to each citizen no more than the bare right to vote and to run for office in the election of representatives of the federal and provincial legislative assemblies. But Charter analysis requires courts to look beyond the words of the section. In the words of McLachlin C.J.B.C.S.C. (as she then was), “[m]ore is intended [in the right to vote] than the bare right to place a ballot in a box”: Dixon v. British Columbia (Attorney General), 1989 CanLII 248 (BC S.C.), [1989] 4 W.W.R. 393, at p. 403.
[13] In Figueroa, the issue before the Supreme Court of Canada was whether other provisions in the Act which withheld from candidates nominated by political parties that have failed to satisfy the 50-candidate threshold which then existed the right to issue tax receipts for donations received outside the election period, the right to transfer unspent election funds to the party, and the right to list their party affiliation on the ballot papers, contravened section 3 of the Charter and, if they did, whether that contravention was reasonable and demonstrably justified under section 1 of the Charter.
[14] The court concluded that they did contravene section 3 of the Charter and that they were not saved by section 1. Having reached that conclusion, the court declined to rule on the application of section 2 (d) and section 15 (1) of the Charter.
[15] In reaching its conclusions, the court stated that the section 3 right included the right of each citizen to play a meaningful role in the electoral process. At paragraph 53, Iacobucci J. observed that conferring financial benefits on parties that met the 50-candidate threshold, as it then existed, but not to the others had the following effects:
53. This, in turn, diminishes the capacity of the individual members and supporters of such parties to play a meaningful role in the electoral process. As discussed above, political parties act as a vehicle for the participation of individual citizens in the electoral process; they are the primary mechanism by which individual citizens introduce their own ideas and opinions into the public dialogue that elections spawn. Legislation that contributes to a disparity in the capacity of the various political parties to participate in that dialogue ensures that some persons have a more effective vehicle for their ideas and opinions than others. The 50-candidate threshold thus infringes s. 3 of the Charter by decreasing the capacity of the members and supporters of the disadvantaged parties to introduce ideas and opinions into the open dialogue and debate that the electoral process engenders.

54. The restriction on these benefits has a more general adverse effect as well. The right to play a meaningful role in the electoral process includes the right of each citizen to exercise the right to vote in a manner that accurately reflects his or her preferences. In order to exercise the right to vote in this manner, citizens must be able to assess the relative strengths and weaknesses of each party’s platform — and in order to assess the relative strengths and weaknesses of each party, voters must have access to information about each candidate. As a consequence, legislation that exacerbates a pre-existing disparity in the capacity of the various political parties to communicate their positions to the general public is inconsistent with s. 3. This, however, is precisely the effect of withholding from political parties that have not satisfied the 50-candidate threshold the right to issue tax receipts for donations received outside the election period and the right to retain unspent election funds. By derogating from the capacity of marginal or regional parties to present their ideas and opinions to the general public, it undermines the right [page947] of each citizen to information that might influence the manner in which she or he exercises the right to vote.

[16] It is both self-evident and supported by the evidence that political parties and candidates require substantial sums of money in order to participate in any meaningful way in the electoral process. It is expensive to print and distribute campaign literature. Much of the information about the platform of a political party is communicated to potential voters through the media and it is very expensive to purchase political advertising. There are numerous other expenses required to run an effective election campaign. Even though eliminating the thresholds would provide relatively small amounts of funding to smaller parties, such funding would substantially increase the possibilities that such parties could make voters aware of their platform and candidates.
[17] The quarterly allowance payable to political parties that meet the threshold is, however, of greater importance now to political parties than before because of the statutory elimination of donations from corporations and trade unions and the statutory restrictions placed on the maximum size of donations that can be given by individuals.
[18] I am persuaded that the principles relating to section 3 set out in Figueroa are equally applicable to the case at bar and that I am bound to apply them to my determination of this case. I include not only those principles to which specific reference is made in these reasons but to all of them set out in the reasons of Iacobucci, J. Accordingly, there is no need for me to approach the issues raised with a new analysis. Indeed, it would be improper for me to do so. I am, therefore, persuaded that the impugned provisions contravene section 3 of the Charter.
[19] As well, I am persuaded that the principles relating to section 1 set out in Figueroa are also equally applicable and that the contravention of section 3 of the Charter cannot be justified.
[20] Just as in Figueroa at paragraph 68, I am not persuaded that the respondent has provided any persuasive evidence “to substantiate its claim that the threshold actually improves the cost-efficiency of the tax credit scheme. It is thus my conclusion that the rational connection test has not been met”.
[21] And further, just as stated in Figueroa at paragraph 69, I am persuaded that “Even if the government was able to advance sufficient evidence to substantiate its claim that the threshold requirement is rationally connected to the advanced objective, the legislation still fails the minimal impairment test”.
[22] Both of these observations taken from Figueroa are just as applicable to this case, substituting, of course, the quarterly allowance for the tax credit scheme referred to.
[23] I am persuaded that the threshold produces no benefit to anyone except the parties who do meet the threshold and do receive the statutory financial benefit that is not given to those who do not. The threshold is not required to verify the correctness of anything because it is only the number of votes that a political party receives that determines the amount of the quarterly allowance to which it is entitled. There is almost no possibility of dishonesty or error in determining the amount even if the threshold were eliminated.
[24] The threshold creates special problems for parties whose support is unevenly distributed across the country. Such parties must make a tactical decision about whether they are more likely to obtain 2% of the national vote if they run in all constituencies or to obtain 5% of the total vote in some selected constituencies. Requiring registered parties to make such a choice perverts the goals of democracy, and has the potential to deny electoral choice to citizens if parties are encouraged to target only certain constituencies in order to protect their funding.

[25] Providing public funds to parties based on the number of votes received encourages individual voters to participate in elections. Having a threshold for providing electoral finances tells potential voters for candidates of smaller parties that their vote will not result in a subsidy for the party of their choice. The quality and vigour of Canadian democracy suffers because such a threshold effectively discourage individuals who do not support one of the larger parties from participating in the electoral process.

[26] Counsel for the respondent sought to distinguish Figueroa on the basis that the threshold in issue in that case was a “point of entry’ threshold whereas the threshold in this case is a “point of access” threshold which applies to all political parties. In my respectful view, this is a difference without significance to the issues in this case.

[27] As well, counsel for the respondent sought to justify the impugned provisions on the basis that their overall objective “is to maintain public confidence in the integrity of the electoral process”. According to this argument, this includes maintaining Canadians’ faith in the electoral process as fair, accessible and transparent. It also includes maintaining Canadians’ faith in the integrity of the electoral process’ financing regime by endeavouring to ensure that public funds are not used for other than intended public policy purposes.

[28] In my view, this argument is also without merit. I consider that the existence of the threshold diminishes public confidence in the electoral process and encourages a public perception that the threshold exists only to benefit the major political parties who alternate, from time to time, in forming the government and are in a position to maintain it. As well, it is impossible to see any reasonable mechanism by which its existence can help ensure that public funds are not improperly used. At most, one can say, tautologically, that if no public funds are given to smaller and weaker political parties, then they certainly cannot spend any of them on either proper or improper purposes. In any event, there are more effective and less damaging means of achieving this purpose such as required reporting and audits were it genuinely sought.

[29] It may be of some anecdotal interest that the applicant in Figueroa is the same person as the applicant in this case bearing the identical name.
[30] I am also persuaded that the applicants have established a contravention of section 15 (1) of the Charter and are entitled to succeed on that basis too.
[31] Section 15 (1) of the Charter reads as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[32] I am persuaded that the political party applicants, other than the Green Party, of Canada, suffer discrimination by being deprived of the right to receive the quarterly allowance because they have failed to meet the threshold. The impugned provisions place smaller and weaker parties at a disadvantage in comparison with the major parties and I can find no rationale that would justify this approach. Small and weaker political parties play a very important role in the Canadian electoral process whether or not they receive large numbers of votes and they should be entitled to receive the quarterly allowance on exactly the same basis as the larger political parties.
[33] Even the section 15 (1) Charter right of the Green Party of Canada continues to be contravened because the Green Party could never be certain that it will continue to meet the threshold and thereby remain entitled to receive the quarterly allowance if the impugned provisions were permitted to survive.
[34] Accordingly, I am persuaded that this contravention of section 15 (1) of the Charter cannot be justified.
[35] With respect to the respondent’s motion challenging the status of the political party applicants in this proceeding, I have concluded that their right to be parties to this application is conferred by section 504 of the Act which reads as follows:
504. In the case of judicial proceedings or a compliance agreement involving an eligible party, a registered party, a deregistered political party or an electoral district association,

(a) the party or association is deemed to be a person; and

(b) any act or thing done or omitted to be done by an officer, a chief agent or other registered agent of the party, or by an officer, the financial agent or other electoral district agent of the association within the scope of their authority to act, is deemed to be an act or thing done or omitted to be done by the party or association, as the case may be.

[36] Without altering the legal status of a political party as an unincorporated association to that of a separate entity, section 504 deems a political party to be a “person”. This legal fiction provides a shorter and, perhaps, an easier way for persons who constitute a political party to bring action without resorting to the archaic requirements of the common law or to technical approaches such as the institution of a class action. Similarly, it enables others to take legal action against members of a political party by naming only the party. Although there may be other procedural difficulties created by this statutory provision which may one day require clarification, that day is not this one.
[37] This interpretation of section 504 is supported by section 402 (2) (f), which implicitly recognizes the right of a political party to engage in legal proceedings in its own name. It reads, in part, as follows:
(2) On the merger of two or more registered parties,

(f) the merged party replaces a merging party in any proceedings, whether civil, penal or administrative, by or against the merging party.

[38] This application is, as stated in paragraph 6 above, one for the enforcement of an entitlement provided by the same Act as that where section 504 is contained. In my respectful view, it would make no sense, therefore, to deny its application to this case.
[39] To the extent that the applicant political parties are entitled to succeed in this application, their victory accrues to their respective members on whose behalf the application must be considered to be brought. Those members are “individuals” in the context of section 15 of the Charter.
[40] Accordingly, both the applicant political parties and the personal applicants are entitled to successfully invoke both section 3 and section 15 (1) of the Charter.
[41] Having regard to the unique and unusual history of this dispute, including the rendering of the judgment in Figueroa in June of 2003 by the Supreme Court of Canada and the subsequent unheeded efforts made by various persons to persuade the government of the day to take steps necessary to repeal the impugned provisions from the Act, I am persuaded that it is just that my declaration be made retroactive and that the political party applicants be given the quarterly allowance of which they have been deprived. To deny the applicants this remedy would perpetuate the injustice of the government’s failure to introduce legislation to repeal the impugned provisions. There is, in my view, no better way for the government to attempt to reverse the harm done than by paying the allowance now, retroactively, so that all political parties affected may have an opportunity to approach the next federal general election on the same footing as the major political parties.
[42] I am not, however, persuaded that there should be any additional award made.
[43] I conclude by recording that, in my view, the conduct of counsel on both sides throughout this proceeding reflected, without exception, the highest standards of advocacy. They prepared their written material and presented their respective clients’ cases fairly and with skill and vigour
and, in the process, made my task a lot easier. I acknowledge their contributions with much admiration and gratitude.

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MATLOW, J.
Released: October , 2006.
COURT FILE NO.: 05-CV-291729PD
DATE: 20061026
ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N :

BLAIR T. LONGLEY, KEVIN PECK, MIGUEL FIGUEROA, JIM HARRIS, MARIJUANA PARTY, CANADIAN ACTION PARTY, COMMUNIST PARTY OF CANADA, GREEN PARTY OF CANADA, CHRISTIAN HERITAGE PARTY AND PROGRESSIVE CANADIAN PARTY

Applicants

– and –

THE ATTORNEY GENERAL OF CANADA

Respondent
___________________________________________
AMENDED REASONS FOR JUDGMENT

MATLOW, J.

Released: October 26, 2006

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