Tag: campaign spending

The Made-Up Law Made Them Do It

The Supreme Court’s made-up right to vote doctrine works its mischief at the Ontario Court of Appeal

Earlier this week, the Court of Appeal for Ontario released its decision in Working Families Coalition (Canada) Inc v Ontario (Attorney General), 2023 ONCA 139, which considers the constitutionality of an extension, from six months before an election to a whole year, of the period during which political speech by civil society actors in Ontario is severely restricted. The Superior Court had previously found that this extension was an unconstitutional violation of the freedom of expression protected by s 2(b) of the Canadian Charter of Rights and Freedoms. However, the Ontario legislature re-enacted it, invoking the Charter’s “notwithstanding clause”, s 33. The Court of Appeal unanimously holds that s 33 was validly relied on, but also, by a 2-1 majority, that the law nonetheless violates the right to vote, protected by s 3 of the Charter, whose application cannot be ousted under s 33.

The outcome is a disturbing one. The idea that a law that does not affect anyone’s ability to cast a ballot or run for office ― the two rights protected by s 3 ― but rather censors individuals and groups who are not candidates at an election precisely because they are not candidates, is a violation of the right to vote is, to put it mildly, counter-intuitive. The problem with the impugned legislation is that it is rank political censorship. Yet one would think that, since it enables legislatures to disregard the freedom of expression, s 33 of the Charter enables just this sort of self-serving abuse of power. Yet it would be a mistake to blame the Court of Appeal. The majority’s decision is a plausible application of one of the Supreme Court’s worst decisions of the last half-century: Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827.

Before getting to the main issue, a few words on the unambiguously correct and good aspect of the Court of Appeal’s ruling: the rejection of the argument that s 33 could not have been invoked in the first place. This too is a straightforward application of Supreme Court precedent, Ford v Quebec (Attorney General), [1988] 2 SCR 712, which held that the only implicit limit on resort to s 33 is that it cannot be retroactive; subject to this constraint, legislatures need not explain or justify suspending the enforceability of Charter rights. The applicants argued that Ford could be disregarded, either because election law was a special case or because the Supreme Court’s decision was no longer in tune with “the evolution of Charter jurisprudence since … 1988″ [56]. The Court of Appeal makes short work of both arguments, explaining that the importance of elections to the maintenance of democracy is sufficiently addressed by the fact that s 3 of the Charter is not subject to s 33, and that Ford has never been questioned, let alone overruled, by the Supreme Court.

This is quite right on both points. The fashionable academic theories on which the applicants relied, developed in the last few years in response to the resurgence of s 33, are unmoored from the Charter‘s text, and rely on fanciful extension of underlying principles about whose effects the Supreme Court is ambivalent at best. Of course, the Supreme Court remains free to make things up and reverse Ford. It may yet be urged to do so, whether if this case is appealed or indeed, as some have suggested, in a reference intended to limit the use of s 33. But I hope that the ease with which the Court of Appeal rejected the claim that Ford has been superseded by jurisprudential developments is indication of what is to come if that happens.

Section 2(b) of the Charter having been successfully ousted, the Court of Appeal moves on to the main event: the s 3 argument. This too is governed by Supreme Court precedent, Harper, which concerned the constitutionality of the federal scheme for silencing civil society political speech during (but not prior to) election campaigns. But the guidance it provides is nothing as clear as Ford‘s, and it is necessary to reproduce it here at some length.

Harper was mainly argued and decided on the basis of s 2(b), but s 3 was also raised. Bastrache J’s majority reasons on this point began by noting that it “cannot be” that “the right to meaningful participation” in elections, which is how the Supreme Court has long re-interpreted s 3, has an identical content “with the exercise of freedom of expression. … The right to free expression and the right to vote are distinct rights”. [67] Would that Justice Bastarache had stopped here! Instead, he declared that “[t]he right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner”. [70] This drew on no s 3 precedent whatever, but rather on Libman v Quebec (Attorney General), [1997] 3 SCR 569, a s 2(b) case. Undeterred, Ba starache J had the following to say:

[E]quality in the political discourse is necessary for meaningful participation in the electoral process and ultimately enhances the right to vote. Therefore … s. 3 does not guarantee a right to unlimited information or to unlimited participation. Spending 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. To constitute an infringement of the right to vote, these spending limits would have to 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.

The question, then, is whether the spending limits … interfere with the right of each citizen to play a meaningful role in the electoral process. The trial judge found that the advertising expense limits allow third parties to engage in “modest, national, informational campaigns” as well as  “reasonable electoral district informational campaigns” but would prevent third parties from engaging in an “effective persuasive campaign” … [But] [m]eaningful participation in elections is not synonymous with the ability to mount a media campaign capable of determining the outcome. [72-74; paragraph break removed]

The outcome of Working Families turns on the meaning of this less-than-pellucid passage, of which the majority and the dissent take different views.

The majority, Zarnett and Sossin JJA sees it as setting out “two proxies, or methods of ascertaining whether the restriction” on voter information “is constitutionally offside”. [86] The first is asking whether the restriction is, in Bastarache J’s words, “carefully tailord”, which in turn “”The requirement that the restriction be carefully tailored “invites the court to examine the rationale, express or implicit, for the amount and duration of the spending limit – the express or implicit reasons why the lines were drawn where they were”. [87] This, the majority insists, is a very different matter from the analysis required by s 1 of the Charter, and in particular from its “minimal impairment” stage, which asks whether less restrictive alternatives to the impugned measure were (reasonably) available to the legislature. Here,

the question is whether the challenged spending restrictions draw the line at the point of preventing the well-resourced from dominating political discussion without being overly restrictive so as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented. A conclusion that a choice was in some other sense “reasonable” does not answer this question. [89]

Moreover, in this case, this assessment must focus not only on the legal end-state created by the impugned law, but specifically on the transition from the regulatory regime it displaced, which restricted political speech by civil society actors for six months rather than a year. It is the change from the one to the other that must “carefully tailored” in the above sense.

The majority holds that it was not. While explicitly rejecting the contention that the impugned legislation “constitutes partisan self-dealing by the incumbent government”, [102] it considers that “doubling the restricted period without increasing the quantum, a result that was twice as restrictive as what had been found appropriate, without explanation, does not denote careful tailoring”. [109] While the government argued that the new regime did not impede the voters’ participation, the majority takes the position that “[i]f at least some voters are prevented from exposure to political information of value from third parties in the 6 to 12-month period, their right to meaningful participation under s. 3 may be undermined”. [112] That the new restriction is one of a range of reasonable alternatives does not matter either ― that would be a consideration under s 1 of the Charter, but not at the point of establishing a s 3 infringement.

The second “proxy” is whether the restrictions leave room for at least “a modest informational campaign”. The majority finds that there was no evidence that this was so. The first-instance judge’s suggestion that affordable means of communicating with the voters were available and sufficient for a modest campaign was speculative. Moreover, the resources that could be used under the impugned law had to be deployed over a period of 12 months, which again threw the validity of the law into doubt.

Having briefly considered whether the restriction of s 3 rights could be justified under s 1 of the Charter, the majority concludes that it could not. The law is unconstitutional, but the declaration to this effect is suspended for a year to allow the legislature time to consider its next steps.

In dissent, Benotto JA rejects the majority’s interpretation of Bastarache J’s reasons in Harper. For him

[t]he controlling test is not whether the spending limits are carefully tailored but whether they restrict information in such a way to undermine the right of citizens to meaningfully participate in the electoral process, which includes the right to vote in an informed manner. [161]

This test is concerned with the effects of the impugned law, not with whether a justification for it exists. To look at justification is to conflate the s 3 analysis with that which ought to take place under s 1. In this case, moreover, it would be a mistake to focus on the change from s six-month period of restricting civil society speech to the one-year one; the longer period “had to stand or fall on its own. It was not the change that was determinative, but whether the legislation … was Charter compliant.” [176]

The dissenting judge considers there was enough evidence that the impugned law left some space for civil society actors to communicate their views to the voters, which was all that Harper required. The judge below made findings to this effect which were open to him and should not be disturbed.

I have no strong views on whether the majority opinion or the dissent is the better application of Bastarache J’s comments in Harper. I think both the majority’s reading, which emphasises the importance of the “careful tailoring” language and the dissent’s, which focuses on the way Bastarache J seems to have formulated the ultimate question before him are plausible. It is true, as the dissent charges, that the majority’s “careful tailoring” analysis is hard to tell apart from what would normally take place under s 1 of the Charter. I would add, moreover, that the “two proxies” approach will be unhelpful if the two point in different directions, which one might think was the case here: the law wasn’t tailored carefully, or indeed at all, but it arguably did leave some room for political speech. But the approach favoured by the dissent suffers from its own flaws. For one thing, it seems to ignore Bastarache J’s tailoring language altogether. For another, it is entirely impressionistic, and leaves an ostensible constitutional right at the mercy of the government producing an expert who will say, as a former Chief Electoral Officer did in this case, that the spending limit imposed on civil society was “not nothing”. Pick your poison.

For my part, I want to stress that this case highlights the rare feat achieved by Bastarache J (and, of course, the other judges who signed onto his opinion) in Harper: being at once vapid and pernicious. Vapid, because the discussion of s 3 in Harper is too vague and self-contradictory to mean much of anything, let alone provide real guidance to the courts that are nonetheless bound to apply it. To repeat, it is not the Court of Appeal judges’ fault that they have a hard time puzzling out whether “careful tailoring”, “modest informational campaign”, or “meaningful participation” is the test for a s 3 violation, and what any of these things mean. Pernicious, because it still opens the door to what is quite obviously a freedom of expression issue that should be dealt with under s 2(b) of the Charter ― or, as here, ignored because the self-dealing legislature so decreed ― to be considered under the aegis of a different right, unsuited to the exercise as a matter of both constitutional text and doctrine.

Of course it’s true that, as Bastarache J said in Harper, “[g]reater participation in the political discourse leads to a wider expression of beliefs and opinions and results in an enriched political debate, thereby enhancing the quality of Canada’s democracy”. [70] But it simply does not follow that this is a matter for s 3 of the Charter and that “the right to vote in an election of members of the House of Commons or of a legislative assembly” includes a “right to exercise his or her vote in an informed manner”. [71] Not everything that is needed to make a given Charter right fully effective can be rolled into that particular right. A free press, and certainly the media’s ability to report on court proceedings, “enhance the quality” of the administration of justice and, for instance, the right to be judged by an independent and impartial tribunal. But it does not follow that restrictions on reporting on criminal trials are to be dealt with under s 11(d) of the Charter instead of s 2(b). Different Charter provisions have independent meanings and distinct doctrinal frameworks that give them effect, and confusing them is both wrong in principle and unhelpful in practice ― except, of course, for crassly results-oriented purposes.

In another controversy about election laws in Ontario, the Supreme Court put an end to similar confusion. In Toronto (City) v Ontario (Attorney General), 2021 SCC 34, it rejected the Superior Court’s re-branding of the franchise in municipal elections, to which s 3 of the Charter does not apply, as a form of expression protected by s 2(b). If given the opportunity, it should do the same with the re-branding of pre-electoral expression as “the right to vote in an election of members … of a legislative assembly”. This should be done in the clearest way possible ― that is to say, by rejecting Harper, at least on this point (until, in the fullness of time, its s 2(b) holding is also overturned). Harper‘s s 3 “analysis” was made-up, and it needs to be unmade in the place whence it came.

If It’s Broke, You’re Not the One to Fix It

The Québec Court of Appeal takes it upon itself to update obsolete election legislation. That’s not its job.

This post is co-written with Mark Mancini

One of us (Sirota) has written any number of times about Québec’s Election Act, which is remarkable by the staggering restrictions it imposes on election campaigns and by its drafting that has, on many points, not been updated this century. This combination of severity and obsolescence leads to all manner of controversy and problems in the Act’s application. A recent decision of the Québec Court of Appeal, Therrien c Directeur général des élections du Québec, 2022 QCCA 1070, illustrates this. 

At issue in Therrien was s 429 of the Act, which provides that, in the week after the writ for an election

is issued, no person, except the Chief Electoral Officer [CEO], may broadcast or cause to be broadcast by a radio or television station or by a cable distribution enterprise, publish or cause to be published in a newspaper or other periodical, or post or cause to be posted in a space leased for that purpose, publicity relating to the election.

As the Court (Justice Cournoyer writing with the agreement of Justice Dutil; Justice Fournier, who had also been on the panel, passed away before the decision was issued) recognizes, “when s 429 … was amended in 1995, social media did not exist. … The ordinary meaning of the words ‘post’ and ‘space leased’ could not envision virtual reality, be it virtual posters or virtual spaces”. [62]-[63] (We translate here and throughout.) The question was whether s 429 nonetheless applied to prohibit advertising on Facebook, such as an ad that the CAQ, for which the appellant was the social media manager, took out in the first week of the 2014 election campaign.

2014, you might think, is a long time ago. We’ll return to this below. You might also think that s 429 is unconstitutional. We are inclined to think so too. In Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877, the Supreme Court struck down a publication ban on polls for part of an election campaign, and a part both more sensitive and shorter than the one at issue here, namely the last three days. It is hard to argue that a ban on some advertising in the campaign’s first week is more justified, although perhaps a court would accept that it is necessary to maintain fair electoral competition. But the issue does not seem to have been raised in Therrien, which is a pure case of statutory interpretation. The Court observes that the issue of the applicability of a provision to circumstances that were not and could not have been anticipated at the time of its enactment is “a classic in statutory interpretation, but its solution, as this case shows, is not always obvious”. [9] With this much we agree. The Court’s solution in this case is that s 429 does apply to social media advertising. This we believe is wrong, in light of the―to repeat, obsolete―drafting of the Act.

The Court begins by interpreting s 429 on its own terms. Its effect is to ban some―though not all―political advertising in the first week of an election campaign. Its purpose, inferred from what it prohibits, is “to foster fairness and equality among all political parties at the outset of an election campaign”, [54] by preventing the incumbent from getting a jump-start on its competitors. As the Court notes, fixed election dates weren’t in place when s 429 was enacted.

Inferring this purpose from the mischief sought to be remedied is an unremarkable tool of interpretation, but in this case, we fear the Court’s analysis is backwards. It may be true that the purpose of the provision is to foster fairness and equality at the outset of the campaign. But this purposive analysis must build on convincing evidence in the text and the choices reflected in that text. In this sense, the Court’s analysis is flipped. At a number of points, it puts no weight on the ordinary, accepted meaning of the text, seemingly allowing the Court’s own view of the statutory purpose to drive the analysis. 

This leads the Court down the incorrect path. Drawing on Perka v R, [1984] 2 SCR 232 and R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 SCR 575, it states that while a statute’s terms are to be given the meaning they had at the time of their enactment, they “must not necessarily be confined to their original meaning” [65] at that time. What this means is that statutory language, provided it is sufficiently general, can be applied to facts and phenomena that weren’t or couldn’t be contemplated when it was enacted. But the focus of the analysis must be on the language used in the statute, and whether it could conceivably cover the phenomenon at issue. The issue, then, is “whether the text of s 429 prevents its extent to virtual posting in a virtual space”. [67]

The Court is right to cite these authorities at the outset, for they confirm the basic rule: the original meaning of statutory terms governs. This point was expressed most recently in R v Kirkpatrick, 2022 SCC 33, in the concurring opinion of Coté, Brown, and Rowe JJ. The concurrence articulated the accepted rule, unchallenged by the majority:  “[i]t is a fundamental error to apply the ‘living tree’ methodology to the interpretation of statutes” [55]. But the Court of Appeal disregards the basic principle it cites. Rather than asking whether the words can bear the “adaptation by the courts of general concepts to these new realities” [68], it expressly concludes that the meaning of the words “post” and “space leased” “could not contemplate virtual reality” [63]. It then moves to conclude that the terms “post” and “space” “do not prevent their application to the virtual dimension specific to social networks” [67].

Here both the method and the conclusion are faulty. As we note, the accepted method asks whether the provision, in its purposive context, can accommodate the new technological developments. The Court, instead, reasons backwards: instead of asking “does this provision apply?”, it asks “why wouldn’t this provision apply?”. This is inappropriate on several grounds.  Most basically, it is always for the party alleging that a provision applies―here, the CEO―to prove that this is so, and for good reason. Legislators who vote for legislative proposals do not and cannot time travel. The reach of statutes is fundamentally limited by their wording. By failing to positively affirm that a provision applies in a given circumstance, the Court distorts the reach of the law to cover phenomena that the text simply may not support. This, as we shall see, is an unacceptable form of spurious interpretation.

There are other normative reasons to reject the Court’s interpretation. Since the provision at issue is a penal one and restricts political speech, both the rule of lenity and the principle of legality counsel against applying it to doubtful or borderline cases. And substantively, the idea of a “virtual space” isn’t just a novel application of the existing concept of a space in the way that, say, same-sex marriage is a new application of the old concept of marriage. It is a metaphor and cannot do the work the Court wants it to.

The Court’s so-called purposive approach is also left wanting on its own terms, as it fails to have proper regard to the legislative context and to show why the purpose of the provision compelled its chosen interpretation. Consider the Court’s analysis of the history of s 429. In Frank v Canada, 2019 SCC 1, [2019] SCR 3, the dissenting opinion (unchallenged on this point), noted that “[t]he state of the law as it existed prior to an impugned provision coming into force can…give insight into why the provision was enacted” [131]. This, of course, is one way to discern the meaning of text; changes in wording can indicate changes in legislative purposes (as opposed to inferences based on what a legislature did not do).  In this case, the appellant sought to draw the Court’s attention to the fact that s 429’s predecessor provisions were phrased in general terms and did not specify particular forms of advertising prohibited in the early campaign, arguing that the legislature’s choice to now ban some forms of ads and not others had to be respected. The Court simply isn’t interested: “the history of the amendments to s 429 does not matter as much as the parties think in interpreting its text”. [55] In our view, this is a mistake. As noted in the Frank dissent, the history of a provision can often illuminate the textual means by which a legislature was attempting to solve a particular mischief. If the appellant is right (and the Court does not even bother setting out the previous version of s 429, so we cannot tell), his argument deserved to be taken seriously.

The Court goes on to add that its interpretation of s 429 is in agreement with that of the CEO, which can be taken into account without being binding. It is a bit difficult to say how much this argument influenced the Court―it is probably not a major factor in the decision. But any reliance on it is, nonetheless, disturbing. A court would not take special notice of the police’s interpretation of the Criminal Code. There is no reason to treat an administrative enforcement agency with any more indulgence. (It is telling, too, that the case on which the Court relies here, Cayouette c Boulianne, 2014 QCCA 863, is at root a dispute among neighbours, which turns on the meaning of a municipal by-law. Giving some weight to the municipality’s views in that context is not nearly as problematic as doing that when the administrator is the prosecutor.)

All in all, the Court’s analysis on this point is backwards as a matter of method, but the result is also problematic. Some may ask why the original meaning rule should be followed in a case like this, where new technological problems are so evident. The answer relates to the point of statutory interpretation. The job of courts is to interpret the text through which legislatures seek particular objectives (MediaQMI v Kamel, 2021 SCC 23, [39]). The text discloses how a legislature wanted to achieve its ends. By updating the statute for the legislature, the Court assumes that the legislature (a) wants its law extended; and (b) wants the law extended in this particular manner. It deprives the legislature—the exclusive law-maker—of the opportunity of creating a new regime that balances on- and offline expression. Citizens can rightly begin to question where the law is made.

The Court also accepts an alternative argument based on the effect of Québec’s Act to establish a legal framework for information technology (IT Framework Act) on s 429. In a nutshell, this law is meant to ensure that digital documents are treated the same as their analogue counterparts for various purposes. Documents are defined as follows, in s 3 of the IT Framework Act:

Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.

Moreover, pursuant to s 71

The concept of document, as used in this Act, is applicable to all documents referred to in legislative texts whether by the term “document” or by terms such as act, deed, record, annals, schedule, directory, order, order in council, ticket, directory, licence, bulletin, notebook, map, catalogue, certificate, charter, cheque, statement of offence, decree, leaflet, drawing, diagram, writing, electrocardiogram, audio, video or electronic recording, bill, sheet, film, form, graph, guide, illustration, printed matter, newspaper, book, booklet, computer program, manuscript, model, microfiche, microfilm, note, notice, pamphlet, parchment, papers, photograph, minute, program, prospectus, report, offence report, manual and debt security or title of indebtedness.

The Court holds that

the concept of document necessarily includes virtual posts, because the posts consist of information inscribed on a medium which has the same legal significance if it includes the same information, regardless of the medium … In this respect, “to post” or “cause to be post” includes the use of a medium on which information is inscribed, i.e. a document within the meaning of s 3.  Meanwhile … the absence of words “poster”, “post”, or “cause to post” from the list in s 71 is of no consequence. The use of the phrase “such as” to introduce the list of many types of document is clearly aimed at excluding any restrictive interpretation of the term document, as defined in s 3. [86]-[87] (Paragraph break removed)

Here too we are not persuaded. For one thing, open-ended though it may be, we do not think that the IT Framework Act’s definition of a document extends to virtual posts, or any other media of a broadcast nature. The IT Framework Act’s purpose provision, s 1, refers to “documentary communications between persons, associations, partnerships and the State”. Elsewhere, the IT Framework Act speaks of documents producing “legal effect” or having “legal value” (e.g. ss 5 and 9). A poster―or a radio or TV ad―aren’t “documents” within the IT Framework Act’s meaning any more than in ordinary language.

Section 71 supports this view, although of course the Court is right that its enumeration is not strictly speaking closed. It is, however, remarkably exhaustive (which is why we thought it worthwhile to reproduce it above). And, tellingly, while it does include audio and video “recordings”, it does not include broadcasts. Considering the exhaustiveness, the fastidiousness even, of the enumeration, we do not think the omission is accidental or that it can be gotten around by relying on the “such as” language. This might not be the proverbial elephant, but we do not think the National Assembly hid a beaver in s 71’s mousehole. At minimum, the Court had to explain in what sense a virtual post is “such as” the objects enumerated in s 71, and it does not do this.

So much for Therrien itself. But we think it is important to point out that it is not an isolated case, but rather part of a pattern of very questionable decision-making by both the Québec Court of Appeal and successive CEOs with respect to the Act, which is in dire need of reform. In effect, those in charge of administering the Act are trying to maintain or even extend its reach while avoiding, on a case-by-case basis, consequences they find intolerable.

So far as the Court of Appeal is concerned, we have in mind the decision in Métallurgistes unis d’Amérique (FTQ), section locale 7649 c Québec (Directeur général des élections), 2011 QCCA 1043, which upheld the Act’s draconian restrictions on “third party” political spending. In that case, a union was fined for criticizing a political party in communications addressed to its own members. More generally, individuals who are not candidates and unincorporated groups are limited to spending 300$ on election advertising. Corporations, including not-for-profit ones, are prohibited from spending a penny. This is difficult to reconcile with the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), [2004] 1 SCR 827, which recognized the right of “third parties” to engage in electoral advertising even as they also accepted the principle that such advertising can be strictly limited.

As for the CEOs, they attempted to censor “third party” interventions in each of the last two election campaigns ― that of a group opposed to the then-proposed “Charter of Values” in 2014 and that of environmentalist NGO Équiterre in 2018 ― provoking a public outcry. In 2014, the then-CEO flip-flopped and ended up withdrawing his objections. The 2018 story has only concluded recently (egregious delay is also, it seems, a pattern with the CEO), as Laura Lévesque and Thomas Laberge report in Le Soleil. The CEO has “blamed” and warned Équiterre but apparently not fined it. Yet as Sirota wrote at the time, the CEO was right to find fault with the campaigners on both occasions.

As further discussed in this post on the 2014 climb-down, the then-CEO reinterpreted the relevant provisions in a way that may have been sensible in light of the social and technological change since their enactment, as well as protective of the freedom of expression, but was not tenable in light of their text. The choice of merely “blaming” Équiterre is also, at first glance, understandable on the merits but not something provided for by the Act, except presumably as an exercise of an implicit prosecutorial discretion. In effect, the CEO is deciding what the Act means and when―and his decision to go easy on fairly clear violations by NGOs while prosecuting a debatable one by a political party is worth highlighting.

All this suggests, unequivocally to our mind, that the Act needs to be reformed so as to accommodate the social and technological realities of the 21st century. As it happens, the Canadian Press’s Jocelyne Richer reports that the CEO wants the Act to be “updated”―but mainly so as to introduce even more restrictions, specifically on advertising during the “pre-campaign” period. (In fairness, he was already asking for such an “update” in 2016. So far, the National Assembly has not obliged.) Parliament has added such restrictions to the Canada Elections Act some years ago, and Ontario has used the Charter’s “notwithstanding clause” to extend its censorship regime, which now covers more than one year in every four.

These rules are bad and possibly unconstitutional, as Sirota argued here and here. But, quite apart from their other problems, they would hit especially hard in Québec unless the Electoral Act’s existing strictures are relaxed to some degree, and also unless it is re-drafted so as to be technologically neutral to the extent possible. In the meantime, however, it is not the role of either the CEO himself or the courts to fiddle with the Act to make it work better. The law is broke, but they are not the ones who have the tools to fix it.

The System Is Working

Environmentalist groups have a point when they say they are being muzzled by Elections Canada; trouble is, that’s exactly how the law is meant to work

As the media reported earlier this week, environmentalist groups are angry at Elections Canada, which has warned them that spending money to raise awareness of climate change in the run-up to the coming federal election would subject them to the rules on “third party” participation in election campaigns. Many are feeling that they will be required to keep quiet during the campaign, which rather defeats the purpose of being advocacy groups. Even the BBC has a story on this.

For its part, Elections Canada has issued a response claiming that the Canada Elections Act doesn’t prevent advocacy groups from advocating, so long as they register if they spend $500 or more and comply with the spending cap. Elections Canada adds that the registration requirement “leads to increased transparency” and has been in place “for nearly 20 years”. Helpfully, I suppose, the statement concludes with an acknowledgement that the rules “can be complex”, and Elections Canada is happy to answer questions about them.

The rules are indeed somewhat complicated, as I explain below. But the bottom line is simple enough. Despite the officials’ protestations, NGOs ― be they environmentalist or other ― have a point when they say that they are being muzzled. To some extent, that’s what the Canada Elections Act is designed to do; to an even greater extent this might be an unintended consequence of the Act’s pursuit of transparency, but an entirely predictable one. The issues are well known; I, for one, raised them in my statement to the House of Commons Select Committee that considered the latest round of amendments to the Canada Elections Act. The only surprising thing is the degree to which people still end up being surprised when problems of sort arise.

The Canada Elections Act‘s regulation of political spending is predicated on the idea that attention during election campaigns should be focused on politicians ― individual candidates and political parties, especially parties. Parties, if they run candidates in all ridings, are able to spend tens of millions of dollars on advertising ― which they are entitled to buy at favourable rates, in addition to an allowance of free airtime. Non-politicians ― that is, individuals, labour and student unions, corporations, and NGOs ― are known as “third parties” in the election law jargon and, as I explained here, their participation in electoral debates is viewed as anomalous, indeed suspicious, and is strictly limited.

One set of limits concerns the amounts of money third parties are allowed to spend, which are only a small fraction of the spending allowed political parties. The Supreme Court has upheld the limitation of third party spending during election campaigns, notably in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, although there is good reason to be critical of that decision, which I have even rated as one of the worst in the last fifty years. (As I noted here, the High Court of Australia was also quite skeptical of Harper in a recent decision.) Last year, Parliament enacted further limits that apply even before the formal campaign begins, and their constitutionality has not yet been tested; Harper, in my view, does not dispose of the question.

In addition to spending limits, “third parties” are also subject to onerous registration and reporting requirements. Some of these are the cause of the latest dust-up. Specifically, Division 1 of Part 17 of the Canada Elections Act imposes such requirements on “third parties” that incur more than $500 of expenses on, notably “partisan activities” and “partisan advertising” during the “pre-election period”, which begins on June 30 of the year for which a fixed-date election is scheduled and ends with the start of the election campaign. During the election campaign itself, governed by Division 2 of Part 17, “election advertising”, as well as “partisan activities” count for the spending thresholds that can trigger registration and reporting requirements.

The definitions of “partisan” and “election advertising”, found in section 2(1) of the Canada Elections Act, are very broad. The former term “means the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes” a party or a candidate, further defined in section 2(7) as “naming”, “identifying” (“including by … logo” or picture, as the case may be, and “providing a link to an Internet page that” names or identifies the party or candidate. “Election advertising” includes the same things as “partisan advertising”, but also “taking a position on an issue with which a … party or candidate is associated”, even without naming that party or candidate. Since issues with which no candidate or party “is associated”, come election time, are about as common as colour pictures of a Maple Leafs Stanley Cup parade, the definition of “election advertising” encompasses pretty much any advertising that has anything to say on matters of government or policy.

Now, some means of communicating with the public are exempted from these definitions. In particular, the exemptions cover anything that the media will print or broadcast without charge to the speaker ― things like quotes in news items, interviews, and op-eds. Also exempt are organizations’ communications with their members, shareholders, or employees, as well as “the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views”. Note, though, that on its face the latter exemption doesn’t cover ― indeed, it rather pointedly excludes ― a group’s or an organization’s online communications, even if not paid for (for example, tweeting under the organization’s handle). And of course, any communication that the media are not interested in carrying free of charge will count as an advertising. In effect, for groups and organizations, the media are the gatekeepers of their ability to communicate with the public without having to register as “third parties”.

So what’s the big deal about registration? Well, although you won’t know it from the Elections Canada statement linked to above, registration doesn’t just mean filling out a form. There are a number of other requirements. To begin with, unions and corporations cannot register before their board has adopted a resolution authorizing them to incur expenses on “partisan” or “election advertising” (sections 349.6(5) and 353(5) of the Canada Elections Act). All “third parties” are also required to have a “financial agent” who will be responsible for collecting money to be spend on “partisan” or “election advertising” and for spending it (sections 349.7 and 354). These transactions must be done through a separate bank account (section 358.1) After the election is over, a detailed report on the money collected, advertising taken out, and costs incurred must be filed (section 359). And this is not all. Those “third parties” that spend more than 10,000$ are also required to file interim reports during the course of the election campaign and, most significantly, to appoint auditors (section 355) and file the auditor’s report on their spending (section 360).

Needless to say, this is all quite costly, at least in time, but also ― especially for those third parties that spend more 10,000$ ― in money. Big trade unions, whose budgets are extracted from workers who don’t get a say on whether to contribute or on how the money is spend, may not be especially troubled by these costs. But for NGOs, whose income comes from voluntary (albeit taxpayer-subsidized) donations, and which need to be much more careful about how they spend it, compliance with the Canada Elections Act may be too expensive. From their perspective, the sensible if unfortunate thing to do may well be to keep quiet for the duration of the election campaign, or even starting with the beginning of the pre-campaign period.

This means that for a period of almost four months preceding the election ― the period when the most people pay attention, even if it’s still sporadic and fragmentary attention, to political and policy issues ― civil society organizations may indeed be prevented from expressing their opinion about politicians, except to the extent that the media will let them. Again, the bigger and better-known you are, the less of a problem this may be for you. Smaller groups, whose views are (naturally and fairly) of less interest to the media, will find it more difficult to get across to the voters. The more unusual voices, in other words, are the ones who are the most at risk of being silenced ― in effect if not, perhaps, in intent ― by the Canada Elections Act.

And of course even for larger groups, having to pass through the media means sound-bite-sized interventions have a much better chance of getting across to the voters than anything more serious. Say that a politician or party is anti-environment, or pro-worker, or something equally inane, and the media may well pick it up. But they’re not going to run a detailed report card assessing the competing parties’ platforms on some issue ― but publishing it on an NGO’s website, let alone running it as an advertisement would mean having to comply with burdensome registration and reporting requirements under the Canada Elections Act.

No wonder, then, that environmentalists are feeling muzzled and frustrated. And of course groups pursuing other agendas may be feeling that way too ― or may come to feel that way when the occasion arises. They have more than a little justification. And they shouldn’t be the only ones feeling wronged. The voters should be too. You may not miss the presence of a particular set of activists in the election campaign, but the rules that silence them silence the activists on your side too. You may not be all that interested activists generally have to say, but you should be interested in politicians’ feet being held to the fire.

The ostensible rationale for registration and reporting requirements is that they serve to promote transparency, in addition to assisting in the enforcement of spending limits applicable to “third parties”. It is on that basis that the Supreme Court upheld those requirements that apply in the course of the election campaign ― although not those applicable in the pre-campaign period, which weren’t yet in the Canada Elections Act ― in Harper. Yet one needs to weigh the value of transparency against the costs that its pursuit imposes on those subject to the Canada Elections Act ― and, as I have just explained, on the voters who are being deprived of important contributions to the electoral debate.

The Harper majority’s analysis on this point was quite perfunctory. There is no real discussion of compliance costs and their deterrent effects. Instead, the majority is content to baldly assert that “[t]he appointment of a financial agent or auditor is not overly onerous. Rather, it arguably facilitates the reporting requirements.” [145] Even worse, the majority did not at all consider what I think is the crucial issue: the thresholds at which the registration and reporting requirements kick in. All it said was that the requirements “vary depending on the amount spent on election advertising”. [145] Yet one can accept the principle of imposing such requirements on heavy spenders while also acknowledging that the existing rules go much too far.

In New Zealand, “third parties” are not required to register until they spend NZ$13,200 (ca. C$11,000); more detailed reporting requirements only apply once a “third party” spends NZ$100,000. (Even then, third parties aren’t peremptorily required to provide an auditor’s report, although they may be asked to do so.) These strike me as rather more reasonable figures than those in the Canada Elections Act, though even they should probably be multiplied several-fold to account for the fact that New Zealand’s population is only a small fraction of Canada’s.

It is difficult to believe that a “third party” spending a few thousand, or even tens of thousand of dollars is going to have any substantial impact on an election by itself. At most, it may be successful enough in getting other people ― voters, media, or politicians ― to discuss the issues it is raising. It is this discussion, rather than anything published on an NGO’s website or even a Facebook ad, that might, conceivably albeit theoretically, matter. In the abstract, this discussion might be enriched by more disclosure. In practice, the very real costs of the disclosure requirements end up preventing the conversations from happening at all. I fail to see how the voters benefit from this.

As Elections Canada points out in its response to the environmentalist groups, the “advertising during the election period has been subject to the Canada Elections Act for nearly 20 years”. This is true. (As noted above, rules on advertising in the pre-election period are new.) For about half of this time, it has been known, at least to those who study these things, that the rules tend to hobble not business interests, but labour unions and civil society groups. Colin Feasby wrote about this in 2010; I did (in the context of Québec elections, which are subject to similar but even more draconian rules) in 2012; also in 2012 Tom Flanagan came out in support of rules like those in the Canada Elections Act, whose enactment he had opposed, with the declared intention to muzzle unions; I updated Dr. Feasby’s findings in an article published in 2015. And in my statement to the House of Commons Standing Committee on Procedure and House Affairs when it was studying amendments to the Canada Elections Act last year (which, among other things, introduced restrictions on “third parties” in the pre-campaign period) I specifically mentioned both the registration and reporting requirements’ tendency to muzzle civil society, and the needless low threshold at which these requirements apply. Needless to say, that had no effect on the resulting legislation.

Yet at every election the impact of restrictions on “third parties” seems to surprise. It happened in Québec in 2014, when the Chief Electoral Officer tried censoring a short documentary a group of citizens had produced to oppose the election of the Parti québécois and the enactment of its “values charter”. Eventually, the Chief Electoral Officer changed his mind; but he was wrong to do so. It happened again in Québec in 2018, now with environmentalist groups being targeted. And now it’s happening at the federal level. The system, one might say, is working. It was designed to shut down political debate not dominated by politicians or the media. That’s what it’s doing.

It will be obvious that I don’t think it’s a good system. Like the National Post’s Chris Selley, I think the rules need to be changed. Whether any restrictions on political spending are justified is debatable but, as noted above, one can accept the premises of Canada Elections Act and still support relaxing its requirements a great deal. Ideally, the next Parliament will take up the issue. But there is also room for litigation. Certainly rules on pre-campaign spending, whose constitutionality has not yet been tested all the way to the Supreme Court can be challenged. But perhaps even the registration and reporting rules upheld in Harper could be attacked, provided that the courts are forced to consider solid evidence of their pernicious effects.

Australia 1:0 Canada

Canadians have much to learn from the Australian High Court’s take on election spending limits for “third parties”

The High Court of Australia has just delivered Unions NSW v New South Wales [2019] HCA 1, a decision that should be of interest to readers who are concerned with freedom of expression in the electoral context ― a topical issue in Canada, given the recent imposition of further restrictions in this area by the recently enacted Bill C-76. The decision resulted from a challenge by a number of labour unions to New South Wales legislation that reduced the maximum amount a “third party” ― that is anyone not a candidate at an election or a political party ― is allowed to spend on campaigning in a nearly-six-month period preceding an election, from 1,050,000AUD (jut under a million Canadian) to 500,000AUD. The High Court unanimously held that the legislation was contrary to the implied freedom of political communication, which it had previously read into the Australian constitution‘s provisions requiring “representative” government.

The plurality judgment, by Chief Justice Kiefel and Justices Bell and Keane, finds that the third party spending limits are unconstitutional. That they restrict the ability to communicate is not in dispute. And while the plurality is prepared to assume that these limits are imposed for the legitimate purposes of levelling the campaigning playing field and preventing the wealthy from “drowning out” the voices of the less fortunate, they are not justified. Experts consulted prior to the enactment of the legislation provided no particular justification for recommending that the then-existing spending limits be reduced. A Parliamentary committee, however, recommend that the legislature look into the actual spending needs of third parties, and this was not done either. As a result, there is no reason for saying that the reduced limits are “reasonably necessary”.

Justice Gageler agrees with the plurality’s disposition of the case. He is persuaded of the legitimacy of the state’s pursuit “of substantive fairness in a manner compatible with maintenance of the constitutionally prescribed system of representative and responsible government”. [91] This might, in principle, justify much lower spending limits for third parties, which campaign on single issues, than for parties that must address a broad range of issues in their quest to form a government. However, “[i]t is not self-evident, and it has not been shown, that the cap set in the amount of $500,000 leaves a third-party campaigner with a reasonable opportunity to present its case”. [101] Absent such a showing, the restriction on the freedom of communication is not justified.

Justice Nettle’s conclusion is similar. He accepts the legitimacy of the objective of creating a level electoral playing field ― one on which political parties will be primary players ― and agrees that a legislatures may from time to time review the measures it takes to ensure fairness, including by lowering spending caps previously enacted. However, there must be a justification for whatever measures it takes from time to time. Such a justification is missing in this case. Although it was recommended that more evidence on the needs of third parties be collected, “for reasons which do not appear, that recommendation went unheeded. It is as if Parliament simply went ahead … without pausing to consider whether a cut of as much as 50 per cent was required”. [117]

Justice Gordon, like the plurality, assumes that restrictions on third party spending pursue a legitimate purpose, which she characterizes as the privileging of political parties and candidates. However, in the absence of evidence about the actual need for restrictions set at their current level, “the Court … cannot be satisfied that the level of the expenditure cap is reasonably appropriate and adapted to achieve the asserted constitutionally permissible end”. [150] It was for the State to show that the restriction it seeks to impose was justified, and it has not done so.

For his part, Justice Edelman considers that the reduction in the spending limits imposed on third parties, even as the limits imposed on political parties rose, cannot be explained by the purposes of maintaining a fair and corruption-free electoral system. Rather, it must have had an “additional purpose”, which “was to ensure that the voice of third-party campaigners was quieter than that of political parties and candidates”. [159] In other words, the reduction’s aim was “to burden the freedom of political communication of third-party campaigners”. [160] Justice Edelman considers that, although laws that rely on the relative silencing of some views in order to ensure that all can be heard are legitimate, to aim only at silencing some voices “is incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, and legislation so motivated is “invalid”. [160]

Needless to say, I am not qualified to comment on whether the High Court is correct as a matter of Australian law. What I can do is compare its decision with that of the Supreme Court of Canada in Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827, which addressed much the same issues. (Readers will recall that I am not a fan of Harper, to put it mildly, and included it in my list of the Supreme Court’s five worst decisions of the last half-century in this blog’s recent Twelve Days of Christmas symposium.)

This is most obviously so on the issue of deference to the legislature on the issue of the appropriateness of a limitation of the freedom of (political) expression, and the evidence required for the government to make this case. The Harper majority insisted that courts should approach legislative choices with deference. In its view, “[t]he legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case”, and that “a reasoned apprehension of … harm” [Harper, 77] is sufficient to restrict fundamental freedoms protected by the Canadian constitution.

This approach is explicitly rejected in Unions NSW. While the Australian judges avoid directly criticizing the Harper majority, both the plurality opinion and Justice Nettle explicitly side with the “strong dissent” of Chief Justice McLachlin and Justice Major (joined by Justice Binnie). The plurality takes a dim view of the submission “that Parliament does not need to provide evidence for the legislation it enacts [and] is entitled to make the choice as to what level of restriction is necessary to meet future problems”. [44] When legislative choice are made in a way that burden the freedom of political communication, they must be justified. Similarly, Justice Gageler speaks of the need for a “compelling justification”, and insists that “[i]f a court cannot be satisfied of a fact the existence of which is necessary in law to provide a constitutional basis for impugned legislation, … the court has no option but to pronounce the legislation invalid.” [95] Justice Gordon insists that “the Court must … be astute not to accept at face value the assertion that freedom of communication will, unless curtailed by a reduction in the cap to $500,000, bring about corruption and distortion of the political process”. [148]

Another point of contrast between Harper and Unions NSW is the treatment of the so-called “egalitarian model of elections” designed in part to favour the interests of political parties and candidates over those of the civil society groups, disparagingly consigned to the status of “third parties”. According to Harper, election campaigns must focus attention on parties and candidates, including by ensuring that any other participants in the public debate, except the media, will behave unobtrusively. By contrast, the plurality opinion in Unions NSW explicitly rejects the submission that candidates and parties deserve preferential treatment, advanced in part on the basis that elections are “not a choice between ideas, policies, views or beliefs except insofar as such choice may be reflected in the electoral choice between candidates”. [39] Rather, the plurality says, “ss 7 and 24 of the Constitution guarantee the political sovereignty of the people of the Commonwealth by ensuring that their choice of elected representatives is a real choice, that is, a choice that is free and well-informed” [40] ― including by third parties. Justice Gageler, of course, takes the contrary view on this point. Justice Edelman’s position is more complex. He explicitly endorses “a Rawlsian, egalitarian model” [178] in which spending limits prevent some speakers from “drowning out” others. However, he also considers that it is not legitimate to target particular speakers for silencing apart from such an anti-drowning out purpose.

A last difference between Harper and Unions NSW worth highlighting is recognition by Justice Gageler of “the propensity of an elected majority to undervalue, and, at worst, to seek to protect itself against adverse electoral consequences resulting from, political communication by a dissenting minority”. [66] Justice Gageler refers to prior cases where the risk of a government legislating to limit political competition the better to maintain itself in office was explicitly adverted to. Such legislation, he notes, is incompatible with presuppositions of the Australian constitutional order. Although he finds that, in this case, “[t]here is no suggestion of abuse of incumbency” [85] by one party against others, this clear-eyed position is in contrast to that of the Harper majorityr, which ignored the possibility that incumbent governments favour legislation that excludes “third parties” from electoral campaigns in order to avoid unpleasant criticism and so reduce the odds of losing power.

There are more interesting things in the Unions NSW decision than I have room to discuss in this post. For example, Justice Gageler’s comments about the role courts in finding facts that are relevant to deciding whether a statute is constitutional are in contrast to the position of the Supreme Court of Canada in cases such as Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, and should be very nutritious food for thought for those who are skeptical of the Bedford requirement of deference to trial judges. Justice Eledman’s comments on identifying statutory purpose (and in particular the role of general statements of purpose in the legislation) are also very interesting.

Overall, based on this one decision, I think that Canadians have a great deal to learn from Australians. Admittedly, the length of the High Court’s decisions is a deterrent ― Unions NSW is about 85 pages long, and I take it that it’s pretty short by Australian standards. That’s the cost of so many judges delivering full individual reasons. But the upside is that interesting ideas don’t get swept under the carpet in the process of getting to a set of reasons many judges can sign onto. I’m not saying the Supreme Court of Canada should go back to having each judge deliver his or her own reasons (though I wonder sometimes) but, at any rate, reading the Australian decisions may well be worth our while. In particular, the willingness of the Australian judges to keep a legislature accountable for imposing limits on the freedom of political expression without justification is a welcome reminder that their Canadian counterparts can do much more to protect individual rights in the electoral realm, and elsewhere.

Permanent Campaign or Permanent Censorship?

Richard Pildes has an interesting post over at the Election Law Blog, discussing Michael Ignatieff’s take on the “circumvention” of election campaign spending limits by the Conservative Party of Canada in their “permanent campaign” which, Prof. Ignatieff believes (and, in fairness to him, so do many others), destroyed him as a potential Prime Minister. The “permanent campaign” ― that is, political parties spending on advertising outside of the immediate pre-election periods, in which such spending is tightly regulated by the Canada Elections Act ― is a new phenomenon in Canada. (Not quite as new as prof. Pildes suggests; it started in 2007, when it was directed against Prof. Ignatieff’s predecessor, Stéphane Dion.) Prof. Pildes comments:

Why didn’t parties spend like this in the pre-election period before … ? … No reason, except that it just wasn’t done. Yet once political actors, including parties, believe this approach will work and have the funds to implement it, they naturally escape campaign spending limits by shifting spending to the pre-election period.

This, says prof. Pildes, is a problem not just for Canada, but for any other jurisdiction which limits political spending during the pre-election period, but not outside of it. (Prof. Pildes ties these limits to public financing of political parties, but that’s not a necessary connection, and indeed it has now been severed in Canada. Public financing for federal political parties has been abolished, but the restrictions on campaign spending, and hence the incentives to spend outside the regulated campaign period, remain in place.)

Prof. Ignatieff now favours “ban[ning] party advertising outside of election times,” but prof. Pildes notes that

once regulation moves outside of something clearly defined as a discrete “election period,” the issues become much murkier:  does Ignatieff advocate banning all party spending in support or against candidates at all times?  Or does he envision such a ban starting only a certain number of years after the most recent election, say 2-3 years, in anticipation of the next general election?

Expanding the restrictions on political spending and speech applicable during the election period would indeed be problematic. As I write in a paper on the regulation of political spending by “third parties” ― that is, anyone who is not a political party or a candidate for office ― which should appear sometime in the next few months in the McGill Law Journal,

the free discussion so essential to the existence of democracy and of parliamentary institutions is in Canada at no point so constrained as during electoral campaigns. No debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus at the core of the protection of the freedom of expression.

Are we prepared to accept the expansion of these constraints? And if we are, which constraints should we expand? Only those applicable to political parties, which professors Ignatieff and Pildes discuss, or should we also extend the limits applicable to “third parties,” whose political spending during election campaigns is now limited to an almost derisory amount which, as the dissenting judges in Harper v. Canada (Attorney-General), 2004 SCC 33, [2004] 1 S.C.R. 827 pointed out, that doesn’t allow them to use traditional media to communicate with national audiences?

British Columbia has, in fact, attempted to expand its restriction on “third party” spending to “pre-campaign periods,” first of 60 days and then of anywhere between 0 and 40 days, only for both attempts to be declared unconstitutional by its Court of Appeal, in  British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408 and Reference Re Election Act (BC), 2012 BCCA 394. As I wrote here in commenting on the latter decision, I’m afraid that it “is a somewhat wilful, or at least wishful, interpretation of Harper.” The rationale of the Harper majority, which upheld severe restrictions on third party advertising during election campaigns, might be stretched to apply to pre-campaign periods.

But it’s not a sure thing that the Supreme Court would so stretch it. (As best I can tell, BC didn’t appeal the decisions striking down its pre-campaign rules to the Supreme Court, so we had no occasion to find out.) At some point at least, it becomes increasingly difficult to justify silencing, or even muffling, political debate. We might find it acceptable for the 35-day period of an election campaign. But longer, and especially permanent, restrictions come with very high costs for our freedom of expression. The “permanent campaign” might be a detestable innovation, but permanent censorship would be even worse.

Bad Timing

In an interesting story yesterday, the Globe and Mail reported that “British Columbia’s largest public-sector union is appealing a fine of more than $3-million levied by Elections BC over a television advertisement that aired during the spring by-elections.” The union started an ad campaign three days before the by-elections were called. As the article tells the story – mostly with the Union’s perspective – the ad had nothing to do with the specific by-elections; it was directed against the provincial government’s policy towards civil servants in general. But since it disfavoured the party in government, opposing its stance on issues with which it is associated, it counted as election advertising. The union eventually cancelled the ad in the ridings in which the by-elections were taking place, but it had run for four days, which, in the view of Elections BC, was enough to violate the very low spending limits for individual ridings.

The union now says that Elections BC misjudged the amount of its spending (and thus of the fine, which is a multiple of the amount by which it broke the spending limit), counting its province-wide expenses for the duration of the ad campaign as expenses on the specific by-elections. That sounds like a reasonable complaint, but the article does not explain the view Elections BC, and I have not been able to find its decision on its website, so I will not express a definitive opinion.

In any event, this story is an illustration of a trend about which I blogged before. It is that restrictions on spending by “third parties” – that is citizens, unions, NGOs and anyone else except political parties and candidates – are, in Canada, working mostly not to the detriment not of the rich, whose influence they were intended to check, but of the not-so-rich who are able to wield considerable resources by organizing. It is mostly unions, as I noted here, but also, in Québec, the student movement. Another important point is that, as I pointed out in this op-ed about the impact of third-party spending restrictions on the Québec student movement, beginning an election campaign – which in most Canadian jurisdictions the first minister can do practically at will – can effectively silence an ongoing social movement or debate. What this case shows is that a general election might not even be necessary. A well-timed and strategically placed by-election can do the trick.

I suppose I will have occasion to blog about this case again, and probably similar ones too. In the meantime, we would do well to think again about whether our election-spending framework is actually a good thing for our democracy.

The Moneyed Interests

Restrictions on pre-electoral spending by citizens and groups other than political parties and their candidates (known in the jargon as “third-party spending”) have gained a rather unlikely supporter: Tom Flanagan. Prof. Flanagan, arguably Canada’s most prominent conservative thinker, has come out in support of such restrictions in an op-ed in the Globe and Mail.

This might seem surprising because conservatives (and libertarians) have usually opposed restrictions on third-party spending, while the left supported them. (Indeed, prof. Flanagan says he opposed the enactment of third-party spending restrictions while Jean Chrétien was Prime Minister.) The support for restrictions was always based on the fear of the pernicious influence of moneyed interests in politics. John Rawls, for example, argued that without spending restrictions, the rich would take over the political process and prevent the enactment of the sort of re-distributive policies he thought were necessary for society to be just. But the reality, as it turns out, is more complicated, which explains prof. Flanagan’s change of heart.

Prof. Flanagan points out that during the last election campaign in Ontario, public-sector trade unions spent large amounts of money on electoral advertising: “[t]ogether, the three spent more on advertising in the writ period than either of the main parties.” Furthermore, this spending all pursued a single objective – to attack the Progressive Conservative Party. Prof. Flanagan argues that it thus effectively amounted to support for the Liberals. The unions would not have been able simply to give that much money to the Liberals, but the absence of limits on third-party spending allowed them to circumvent the limits on direct contributions to political parties.

Prof. Flanagan thinks this has terrible consequences, though if your politics differ from his, you are likely to disagree. What should not be controversial is that third-party spending limits – or their absence – do not necessarily have the effects Rawls and other supporters of these limits on the left expected them to have. It is not only the rich who have a lot of money. It is also the not-so-rich who are able to pool their resources together, through trade-unions for example, or student unions (which are bound to run into the strictures of Québec’s spending restrictions when an election is called, as I have been saying for months). They too are the moneyed interests whom third-party spending limits prevent from getting their message across as effectively as they would like. Both on the left and on the right, those whose opinion of spending limits is based on the conventional wisdom that they prevent the “rich” from gaining a stranglehold on the political process and thus help the “powerless” need to reconsider their views.

Student Protests and Election Law

Cyberpresse (La Presse’s website) has published my op-ed (en français) on the effects a possible spring election in Québec would have on the student protests against tuition fee hikes. In a nutshell, I argue that, given their explicit opposition to the Liberal government, any expenses the protesters would engage in during an election campaign would count as third-party electoral expenses, and would therefore be illegal under Québec’s extremely restrictive electoral spending legislation, which prohibits third-party expenses in support of or in opposition to a political party or candidate. The law was intended to prevent the rich from capturing the democratic process, but operates to silence not only the rich, but also those who are not well-off.