The Charter, Election Financing Laws, and Legislative Intent
Election financing law reform was a hot topic in several Canadian provinces throughout 2016. The trend looks likely to continue through 2017. On October 11, 2016 the Supreme Court of Canada (“SCC”) heard a challenge to British Columbia’s Elections Act, RSBC 1996, c 106 [EA]. Closer to home, new election financing rules came into effect in Ontario as of January 1, 2017. At the federal level, Prime Minister Trudeau’s presence at fundraisers with Chinese investors has been widely scrutinized and caused the governing party significant cause for concern. We can all agree that transparency and fair access to elected officials are important to a democracy. But how far can legislatures go when imposing limits on free speech and freedom of association as a way to ensure transparency? Part of that answer may come when the SCC releases its judgment in the case of BC Freedom of Information and Privacy Association v Attorney General of British Columbia, Docket 36495 [FIPA 3].
Zeroing In on Legislative Objectives
The FIPA 3 appeal concerns s. 239 of the EA, which requires third party sponsors of election advertising during a campaign period to register with the Chief Electoral Officer (“CEO”). The registration requirements include notarized applications made to the CEO, reporting of money spent on advertising, and public disclosure of the third party’s contact information. The penalty for non-compliance with s. 239 of the EA is a $10,000 fine, a year in prison, or both. This amendment to the EA was enacted as an effort of ensure transparency and limiting undue influence during an election period.
Unlike s. 353 of the Canada Elections Act, SC 2000, c 9 [CEA], which has a threshold expenditure of $500 before a party has to register with the CEO, the EA has no such threshold. To put that in context, during the writ period in BC, if a voter makes a handwritten sign that says “Vote for the Environment” they must register with the CEO or risk a fine. The BC Freedom of Information and Privacy Association (“Appellant”) launched a challenge to the validity of s.239, which it argues infringes the right to take part in activities protected by s.2(b) of the Charter.
At trial, the Attorney General of BC (“AGBC”) conceded that third party political expression falls under freedom of expression activities protected by s. 2(b) (BC Freedom of Information and Privacy Association v British Columbia, 2014 BCSC 660 [FIPA 1], para 98). However, AGBC argued that the registration requirements are trivial and insubstantial and do not, in purpose or effect, limit the activity protected (para 95). This argument centred on the two-step analysis required to make out a s. 2(b) breach, as set out in Irwin Toy Ltd v Quebec, 1998 SCR 927 [Irwin]. The Irwin analysis looks at: 1) whether the government activity falls within a sphere of conduct protected by the guarantee of freedom of expression; and 2) if not excluded, whether the purpose or effect of the government action is to restrict freedom of expression.
In FIPA 1, the trial judge found that in effect s. 239 does restrict freedom of expression (para 118). This finding makes logical sense. Canadians do not usually need to register with the government before they express themselves. By imposing a registration requirement, s. 239 tampers with this right of free expression. During both trial and appeal, the true issue of contention was whether s. 239 was saved by s. 1 of the Charter.
Before the British Columbia Court of Appeal (“BCCA”), the Appellant challenged the trial judge’s Oakes Test analysis. More specifically, the Appellant contended that the trial judge erred:
- in failing to require the AGBC to justify, with substantial evidence, the infringement on individuals who incur less than $500 in third party advertising;
- in defining the purpose of s. 239 as “to increase transparency, openness and public accountability in the election process and to promote an informed electorate”; and
- in finding the infringement was proportionate under s. 1 (BC Freedom of Information and Privacy Association v British Columbia, 2015 BCCA 172 [FIPA 2], para 39).
The BCCA found that the biggest challenge to s. 239 was mounted at the minimal impairment and the balancing of the beneficial and deleterious effects stages of the Oakes Test analysis (FIPA 2, para 49). The BCCA, however, found that given the insubstantial burden s. 239 places on third parties, it falls under the “zone of discretion” that should be accorded to the Legislature in promoting equality of participation and influence among the proponents of political views, in addition to, furthering the other objectives found to be pressing and substantial (para 57). The BCCA relied on Harper v Canada, 2004 SCC 33 [Harper], a case that unsuccessfully challenged s. 353 of the federal CEA, which places registration requirements for parties that spend more than $500 in third-party advertising.
Before the SCC, the Appellant argued that the courts below erred in characterizing the law’s objective. The Appellant argues that the true objective of s. 239 is to assist in administering provisions that prevent third parties from having undue influence on elections (Appellant Factum, para 49). The Appellant relies on Sauvé v Canada, 2002 SCC 68 [Sauvé] to argue that the broader and more abstract the objective, the more susceptible it is to different meanings in different contexts, and hence to distortion and manipulation (para 22). The Appellant submits that the question at issue should be: on what basis does the government contend that the registration scheme is needed to protect the election process from harm? (Appellant Factum, para 49).
The Appellant argued that in considering if the objectives were pressing and substantial, the BCCA relied upon a reasoned apprehension of harm rather than any specific proof of harm (para 54). It further argues that the “apprehension” standard for proof of harm applies only to the existence of harm and it may only be resorted to where the nature of the harm is such that traditional forms of evidence are not available (para 58). The use of this standard in Harper was supported by some social science evidence, whereas this was not the case in FIPA 1 or 2. Further, the Appellant challenges that the law is minimally impairing (para 59).
The Appellant makes some strong arguments about how the government’s lack of evidence shifts the onus of proof during the s. 1 analysis. FIPA 3 asks the SCC to clarify the concept of judicial “deference” to legislative intent and how far the government should go when making s. 1 arguments. The bigger issue is how far should judicial respect for the decision-making process of the legislature go? Chief Justice McLachlin in Sauvé stated that the limit on a fundamental right, in that case the right to vote, “requires not deference but careful examination” (para 9). Although we are not dealing with the right to vote, the FIPA 3 argument is quite strong in showing that the AGBC did not even attempt to introduce any evidence showing that the Legislature considered other, less impairing alternatives to the limit on free expression imposed by s. 239.
Further, the appellant has a good argument in asserting that in cases where the government does not introduce any evidence under s. 1, deference must necessarily be more limited (Appellant Factum, para 94). Effectively, acceptance of deference when no evidence is introduced by the government would mean that the burden of proof is reversed.
The finding in FIPA 3 will not only be important for freedom of expression in BC, but also in setting the standard the government will need to meet in order to impose these kinds of restrictions in the future. Importantly, an SCC decision in favour of the Appellant would have consequences on other government activities. In the meantime, in the sphere of electoral law, other provinces continue to introduce restrictions.
Enter Ontario Reforms
Ontario passed Bill-2, An Act to Amend Various Statutes with Respect to Election Matters, SO 2016, c 22 [Bill-2] on December 5 2016. Bill-2 is a fulsome overhaul of the province’s election financing laws. The fundamental changes to Ontario’s Election Act, RSO 1990, c E.6 include:
- a ban on corporate and union donations;
- a ban on union and corporations guaranteeing election loans for political parties;
- a prohibition on MPPs, Party Leaders, nominated candidates, leadership contestants and prescribed political staff from taking part in fundraising events;
- a limitation of third party spending to $4000 per district per writ period and $100,000 overall for that period.
- political parties now receive public quarterly allowances calculated by the amount of votes that they received in the last election.
I agree with the objectives of Bill-2 and view it as a step in the right direction. The changes are a welcome step in the transparency of the decision-making process at Queen’s Park. However, some of the amendments are deeply problematic. A strong critique of Bill-2 has come from civil society groups. Ontario non-profits have argued that Bill-2 puts unreasonable limits on democratic speech for non-profits, stifles voices, and adds an administrative burden on them (See here). Bill-2 includes both partisan and issue-based advocacy in its definition of “political advertising.” Community groups that spend more than $500 in communications during election campaigns now have to register with the CEO. This measure adds an administrative burden on often poorly funded and scarcely resourced community groups who want to engage in the electoral process. The purpose of Bill-2 was not to ban non-profit advertising, but big corporate and union donations. However, the $500 registration threshold is the same as that of the federal CEA and is unlikely to be the subject of a Charter challenge.
A stronger case could possibly be made against the nonsensical ban of MPPs, Party Leaders, nominated candidates, and political aides from taking part in fundraising events. A Charter challenge on freedom of association grounds could be a possibility. If the government wanted to ban undue influence as a result of fundraising activities, it should have banned the fundraising activity altogether. Under the current law, this same class of officials and staff is not prohibited from picking up the phone and calling the exact same people that attend fundraisers to solicit donations from them. The exact behaviour—the one that the law aims to prohibit with the ban on fundraiser attendance—can still take place on the phone or by email. The amendment limits particular groups’ rights to associate with others, while at the same time allowing and encouraging them to have those interactions in another form. Does this mean that the fundraising “cash-for-access” practice will now be driven underground? Would this ban be able to pass the Oakes Test? The answer may in part be clearer after the judgment in FIPA 3 is released. Alternatively, the legislature could just come to its senses and amend this comical ban without wasting time and resources going through the courts.