CHARTER ISSUES as REFLECTED in SECTION 3 and the WORKING FAMILIES DECISIONS: PART 3

Preamble

This post is the third of a series considering three major issues under the Canadian Charter of Rights and Freedoms: the impact of how the Supreme Court of Canada (SCC) has defined rights; the relationship between rights; and the relationship between guarantees of rights and freedoms and section 1 of the Charter.

I focus the discussion of these issues through the lens of section 3, which guarantees the right to vote and to be eligible to sit in the legislature. Following the exploration of the SCC jurisprudence relating to each of the three issues in relation to section 3, I then consider how the Ontario Superior Court of Justice and the Ontario Court of Appeal applied that jurisprudence in Working Families Ontario v. Ontario (“Working Families I”) and Working Families Coalition (Canada) Inc. v. Ontario (“Working Families II”), both decisions of Morgan J. in the Superior Court, and Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (“Working Families” (ONCA)), respectively.

Part 1 of the series included the (I) Introduction, (II) a brief summary of the impugned spending provisions of the Election Finances Act (“EFA”) and (III) an overview of the Working Families decisions (see here).

Part 2 began consideration of section 3 of the Charter, specifically the scope of the SCC’s interpretation of section 3 with an Introduction and segment IV(A) reviewing the jurisprudence (see here).

The current post, Part 3, considers the relationship between rights, primarily the relationship between section 2(b) and section 3 of the Charter. Part 4 focuses on the relationship between rights and section 1.

Part 5’s Conclusion includes consideration of how section 3 conforms to the treatment of other sections. In addition, Morgan J. and the Ontario Court of Appeal comment on the application of section 33 of the Charter and I complete the series with a rundown of those comments in Part 6.

    B. Relationship Between Rights

      1. Supreme Court Jurisprudence

Often applicants bring claims based on Charter rights under more than one guarantee. It is quite feasible that a provision or statute contravenes more than one Charter right. Certainly, rights can reflect similar values or interests, even though they are not identical. And they all invoke values that inform the Charter as a whole.

The question that arises is the way in which these rights inform each other or, indeed, whether they do. To what extent do they supplement each other? To what extent is one an alternative route to the other to achieve the same goal? Working Families is an example of fact situations to which more than one guarantee applies, where the applicants made claims under section 2(b) and section 3. Between Working Families I and the Court of Appeal in Working Families, the same provisions were held to contravene both section 2(b) and section 3, but also section 2(b) and not section 3 (the latter comparing Working Families I and Working Families II).

In other contexts, the rights come into conflict (for example, freedom of religion and equality rights). (I discuss this in “Legal Frameworks: The Reconciliation Model” in Balancing competing human rights (2010); also see other contributions in this publication).
Sometimes, these “conflicts” play out through the analyses under the guaranteed right and under section 1, which I refer to below.

In Thomson Newspapers, Bastarache J., for the majority, said the following about the relationship between sections 2(b) and 3. Noting first that section 3 is not subject to the override, while section 2(b) is, he observed that “the fact that s. 3 is immune from such power clearly places it at the heart of our constitutional democracy”. He continued:

Moreover, in cases where freedom of expression and the right to vote may overlap or come into conflict, it is necessary to find an appropriate balance between both sets of rights. Support for this conclusion may be found in Dagenais v. Canadian Broadcasting Corp…. In that decision, this Court considered the balance to be achieved between the right to a fair trial and freedom of expression, in the context of publication bans. Lamer C.J. wrote for the majority, at p. 877:

A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.

Justice Bastarache concluded, “in my view, these comments are equally applicable where the right to vote overlaps with the right to free expression. Each right is distinct and must be given effect. (Thomson Newspapers, Bastarache J., paras. 79-80; citation omitted)

As did Working Families, Harper concerned limitations on third party advertising and spending, but in federal elections (the limitations on spending applied during the entire electoral period and the blackout on advertising applied only on polling day). The applicants challenged the relevant provisions in the Canada Elections Act under sections 2(b) and (3) of the Charter.

The majority held although one provision violated section 2(b), it was justified under section 1 and that the other provisions did not violate either section 2(b) or section 3. The dissent (written by McLachlin C.J. and Major J.) found the provisions did not violate section 3 and that one provision, which did violate section 2(b), was justified under section 1.

Given the applicants brought the challenge to the spending limits under both section 2(b) and section 3, it was, in Bastarache J.’s view, necessary to reconcile the rights under the two sections (Harper, Bastarache J., para. 50). He noted, “The respondent effectively equates the right to meaningful participation with the exercise of freedom of expression. Respectfully, this cannot be. The right to free expression and the right to vote are distinct rights …” Rather, he added, “[t]he more appropriate question is: how are these rights and their underlying values and purposes properly reconciled?”. (Harper, Bastarache J., para. 67; citation omitted; emphasis added)

Citing the Saskatchewan Electoral Boundaries case, Bastarache J. adopted McLachlin J.’s interpretation of section 3 as “effective representation”. It, in turn, requires effective participation or the right to “play a meaningful role” in selecting representatives and in participating in electoral debate. This requires voters to have access to different sources of information and this means there must be some limits on spending to remove (or minimize) the risk of only persons with more resources being able to disseminate information. (Harper, Bastarache J., paras. 68-70 and 72)

Indeed, he explained “[s]pending limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters. Spending limits which are overly restrictive may undermine the informational component of the right to vote.” Nor does the right mean that spending must be sufficient “to mount a media campaign capable of determining the outcome.” It is enough that third parties can mount a modest, informational campaign, as the trial judge found. (Harper, Bastarache J., para. 74) He held that there was no infringement of section 3, nor a conflict between section 2(b) and section 3.

Good intentions aside, many of the Charter rights tread the same ground. Section 3 itself is imbued with the values inherent in the Charter itself, in section 2(b) and in section 1. In Figueroa, Iacobucci J., speaking for himself and five other judges, states, “the best interpretation of s. 3 is one that advances the values and principles that embody a free and democratic state, including respect for a diversity of beliefs and opinions” (Figueroa, Iacobucci J., para. 27). In this sense, section 3 echoes the values underlying section 2(b) and, indeed, the Charter as a whole.

In other more specific ways, however, the rights may be distinguished. In City of Toronto, the Chief Justice and Brown J., for the majority, stated that section 2(b) does not import the concept of “effective representation” from section 3: “Simply put, ss. 2(b) and 3 record distinct rights which must be given independent meaning … Effective representation is not a principle of s. 2(b), nor can the concept be imported wholesale from a different Charter right.” (City of Toronto, Wagner C.J. and Brown J., para. 45)

Nevertheless, section 3 does import the notion of receipt of information necessary for a voter to be well-informed. For a voter to receive information, it must be provided and thus subject to section 2(b)’s protection. In this way, sections 2(b) and 3 form a partnership necessary for a democratic election, even if the government has neutralized section 2(b) by the invocation of section 33 of the Charter.

2.

      Court Decisions in Working Families

Justice Morgan repeated the comments from the Supreme Court cases that the analysis under section 3 is different from that under section 2(b). As Justice Morgan cautioned himself, “the Court must avoid simply repeating the analysis that pertained to the same legislation when reviewed from the perspective of the right to expression. Although both Charter rights [sections 2(b) and 3] apply to electoral advertising, ‘the content of one right cannot be subsumed by another, or used to inflate its content”. … (Working Families II, para. 70; citations omitted)

In Working Families II, Morgan J. highlighted the warning in Thomson Newspapers that “[w]here the identical legislation is challenged under two Charter rights, the Supreme Court has admonished that the distinction between the rights must be preserved in the analysis”, specifically, “where the right to vote overlaps with the right to free expression… [e]ach right is distinct and must be given effect” (Working Families II, para. 69).

Justice Morgan did note the Ontario Court of Appeal’s statement in City of Toronto, “[a]lthough both Charter rights apply to electoral advertising, ‘the content of one right cannot be subsumed by another, or used to inflate its content’” (Working Families II, Morgan J. para. 70). The majority in the Court of Appeal in that case more fully said:

But the basic structure of the Charter must be respected. Although the coverage of particular rights can overlap, the content of one right cannot be subsumed by another, or used to inflate its content. The application judge’s analysis wrongly imports the content of s. 3 into s. 2(b) in order to circumvent the decision of the constitutional framers not to extend the protection of s. 3 to municipal elections. (City of Toronto, ONCA, para. 76)

Yet the interplay between (or among) guarantees is revealed when a judge applies values or meaning to a right that a court referred to in the context of another guarantee.

In Working Families II, Morgan J. referred to Figueroa, albeit only in footnotes. For example, he relied on it for the proposition that “the Supreme Court has specifically stated that section 3 of the Charter encompasses ‘the right of the right of each citizen to play a meaningful role in the electoral process’.” (Working Families II, para. 41, fn. 30)

But he also cites Figueroa in Working Families I clearly within the context of section 2(b) of the Charter, even though Figueroa invokes section 2(b) only indirectly and only once: in Figueroa, Iacobucci J. says, “As this Court frequently has acknowledged, the free flow of diverse opinions and ideas is of fundamental importance in a free and democratic society.” And cites Dickson C.J. in Keegstra for the proposition, “The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy.” (Figueroa, Iacobucci J., para.28)

As Morgan J. says, the egalitarian model of democracy is to ensure that “voices backed with large financial resources do not come to “’deprive their opponents of a reasonable opportunity to speak and to be heard’” (Working Families I, para. 32).

Citing the SCC decision in City of Toronto, Morgan J. makes it clear that section 2(b) and section 3 protect different rights: “the right to vote is not synonymous with other rights in the Charter, including the right of free expression and the unwritten principle of democracy insofar as it grounds individual rights” (Working Families II, para. 103).

The majority in the Court of Appeal quoted Figueroa to make this point: “’the best interpretation of s. 3 is one that advances the values and principles that embody a free and democratic state, including respect for a diversity of beliefs and opinions’.” (Working Families (ONCA), majority, para. 62).

At the same time,

While we accept that interpreting s. 3 within the egalitarian model requires sensitivity to context, we do not accept that certain third party advertisers convey information of higher value under s. 3 than others, or that the nature or make-up of third parties constitutionally requires different treatment under the egalitarian model. (Working Families (ONCA), majority, para. 74)

The majority thus distinguished between ensuring a diversity of participants have an opportunity to contribute to the debate and promoting vigilance that this goal is not – and cannot be – unlimited:

‘Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard. Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties.’ (Working Families (ONCA), majority, para. 77, quoting from Libman, para. 47)

Put another way, as does Figueroa, the majority pointed out that the space for political discourse is limited and therefore if one or more actors take up a disproportionate amount of space, it will limit what is available to others (Working Families (ONCA), majority, para. 76).

For various reasons, then, it is appropriate to begin with the recognition that some level of limits on spending on third parties is desirable; the issue is “when a spending limit goes from being voting right-enhancing to being voting right-infringing”. (Working Families (ONCA), majority, para. 82) That point is reached when “‘spending limits … restrict information in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented'” (Working Families (ONCA), majority, para. 83, quoting Harper at para. 73).

These are concerns and issues that do not arise under section 2(b), especially at the rights analysis stage. There freedom of expression is not curtailed for some because it would undermine the freedom of others. Given section 2(b)’s wide scope, the dissemination of political information will not face challenges that pit different interests against each other. To the extent such interests matter, the court will consider them under section 1.

Section 2(b) and section 3 illustrate another difference between rights that undermine thinking about them as easily transferable. Under section 2(b), the party wanting to limit freedom of expression bears the onus of showing why that limitation is justifiable under section 1. Under section 3, the party opposing restricting and therefore wanting to show its desired involvement does not undermine effective representation bears the onus through the analysis of section 3.

Indeed, the analysis under section 3 is quite different from the approach taken with other rights. In particular, in Morgan J.’s view, the test for when there has been an infringement of section 3 is more rigorous than that under section 2(b). The following passage summarizes his view on the balancing that occurs within section 3:

The goal of the voting rights analysis in the first instance is not to restrain government or to make its legislative interventions as minimal as possible. Rather, it is to allow government to do what it takes to foster the kind of “equality in the political discourse [that] is necessary for meaningful participation”. … This means that the spending restrictions must at least leave room for the conduct by third parties of “modest, national, informational campaigns”, … but need not ensure that any third party can mount an expensive media campaign with the potential for determining election results. (Working Families II, para. 106; citations omitted)

The government has more sway under section 3, where it can designate limits designed to achieve effective representation and equality of third-party participation, than under section 2(b), where almost every kind of communication is protected. And, indeed, restrictions on advertising might enhance the “egalitarian” nature of elections. Accordingly,

Unlike under section 2(b), the analysis does not go right to section 1 where the government must meet a test of minimal intrusion. Under section 3, if the government intervenes in the political advertising market it must do so in a way that is attuned to right of voters to meaningful participation via an informed vote. Only if it were found not to be attuned to that objective would the section 1 analysis become relevant and the question of minimal impairment be raised. (Working Families II, para. 110)

Despite emphasizing that the rights are distinct, the Court of Appeal invited an overlapping analysis of section 3 and 2(b), finding that Morgan J. made errors in his analysis of whether the 12 month period was “carefully tailored” to the objective, analysis undertaken under section 3, not section 1. For example, “he failed to apply his findings from Working Families 1 that bore on the question of careful tailoring that was raised with respect to the challenged spending restrictions.” (Working Families (ONCA), majority, para. 100) Justice Morgan had held that the six month period was an appropriate one in Working Families I under sections 2(b) a finding on which the applicants were entitled to rely.

Next week: the impact of section 3’s interpretation on its relationship to section 1 of the Charter.

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