Harper v. Canada (A.G.), 2001 ABQB 558
BETWEEN:
APPEARANCES:
A.D. Hunter, Q.C., E.P. Groody and D. de Vlieger
for the Plaintiff
T.W. Wakeling, R.Smith, Q.C. and M.K. Ignasiak
for the Defendant
J.P. Nelligan, Q.C.
for the Chief Electoral Officer of Canada
P. Jones,
for Environment Voters, a division of Animal Alliance of Canada
I. INTRODUCTION
[1] This is an action by brought by Stephen Joseph Harper (the "Plaintiff") against the Attorney General of Canada (the "Defendant" or "Canada") for a declaration that sections 323(1) and (3), 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, and 362 of the Canada Elections Act , S.C. 2000, c. 9 (the "Act ") are of no force and effect pursuant to section 52 of the Constitution Act, 1982. The Plaintiff claims that the impugned provisions violate some or all of ss. 2(b), 2(d) and 3 of the Canadian Charter of Rights and Freedoms .
[2] For the reasons that follow, I have made the following determinations:
. Section 350 of the Act relating to third party spending limits, violates s. 2(b) of the Charter and is not saved by s.1;
. Section 351 which prohibits third parties from combining or splitting in order to circumvent the spending limits, violates s. 2(d) of the Charter and is not saved by s. 1;
. Section 323 of the Act which bans election advertising in the 20 hour period preceding the closing of the polls, violates s. 2(b), but is saved by s. 1 of the Charter ; and
. None of ss. 352, 353, 354, 355, 356, 357, 358, 359, 360 or 362 of the Act violate any of ss. 2(b), 2(d) or 3 of the Charter .
II. BACKGROUND AND PROCEDURAL HISTORY
[3] Before turning to the substance of the case at bar, it is useful to set out some of the background which led to the amendments under consideration here. The history serves to put the current Act in its proper context and provides valuable legislative evidence regarding the purpose and objectives of the current limits.
A. History of Election Spending Limits
[4] In 1966 the Committee on Election Expenses (the Barbeau Committee) submitted a report which recommended a spending limit on print and broadcast media for candidates. The Barbeau Committee Report (Exhibit 10) expressed some concern that candidate spending limits could be undermined by persons and groups making expenditures to benefit a candidate. In 1971 the Special Committee on Election Expenses (the Chappell Committee) recommended that political parties, as well as candidates, be subjected to spending limits during an election (Exhibit 11).
[5] As a result of the work of these Committees, the Canada Elections Act R.S.C. 1970, c. 14, was amended in 1974 by the Election Expenses Act S.C. 1974, c. 51. Section 70.1 banned anyone other than a candidate or registered political party from incurring election expenses during an election period. The amendments contained a "good faith" exception whereby expenses incurred by third parties for the purposes of advancing support for an issue of public policy were permitted.
[6] Following the report of the Chief Electoral Officer submitted to Parliament in 1983 (Exhibit 25), the above noted "good faith" exception was removed. It was thought that the "good faith" exception provided too significant a "loop-hole" in allowing third parties to engage in partisan advertising under the guise of issue advertising. Chief Electoral Officer Hamel had stated in his report that third parties "have spent unlimited sums of money to promote or oppose a particular candidate or registered party, sums which they do not have to account for in terms of resources or amounts" (Exhibit 25 at 74). The new amendments made it an offence for anyone but a registered agent of a party or a candidate to use advertisements that oppose or promote a registered political party or candidate ( An Act to Amend the Canada Elections Act (No. 3) , S.C. 1980-81-82-83, c. 164, ss. 14 - 15). These amendments were struck down by this Court as contrary to section 2(b) and not saved by section 1 in National Citizens' Coalition v. Canada (Attorney General) , [1984] 5 W.W.R. 436 (Alta. Q.B.). That decision was not appealed and consequently there were no third party spending limits in force during the 1984 and 1988 elections.
[7] Following the 1988 election, a Royal Commission on Electoral Reform and Party Financing was appointed ( the Lortie Commission). The Lortie Commission's Report, " Reforming Electoral Democracy " (Exhibit 12), started from the premise that the "electoral process is predicated on the equality of the vote and of the right to be a candidate. This equality is granted so that each voter has the same opportunity to influence the outcome of elections" (Exhibit 12, at 14). According to the Lortie Commission Report, limits on election spending are necessary to promote equality of opportunity in the electoral process. At 339-40 of its Report, the Commission said the following:
Limits on the election expenses of candidates and parties and of other individuals and groups are necessary to promote the meaningful realization of democratic rights and freedoms in the electoral process. Spending limits on candidates and parties have clearly enhanced fairness by reducing the likelihood that candidates and parties with access to significant financial resources are unduly advantaged over those with less access. The result is a more reasonable balance in the election discourse. In addition, spending limits for candidates enhance fairness by promoting access to candidacy and thus elected office. Moreover, spending limits do not discourage electoral competition; rather, if both reasonable and effective, they encourage competition.
Spending limits on individuals and groups are also essential if election outcomes are not to be unduly influenced by independent advertising campaigns. Since the purpose of all election spending, including independent election spending, is to influence the outcome of elections, that is, the election of candidates and indirectly the formation of the government, independent spending must be subject to some limit.
[8] With respect to third parties, the Lortie Commission recommended that they be allowed to incur partisan election expenses not exceeding $1,000. The $1,000 limit was chosen because it exceeded the average financial contribution of individuals to parties and candidates and would, according to the Commission, allow for a third party "to engage in a significant amount of political activity" ( Exhibit 12 at 352). The Lortie Commission also recommended that third parties should be subject to the same bans on advertising (blackout periods) as candidates and registered political parties. It is unfair, according to the Commission, that third parties should be able to engage in partisan election advertising during a period that candidates and political parties are legally incapable of doing so (Exhibit 12 at 356).
[9] Parliament acted upon the recommendations of the Lortie Commission in An Act to Amend the Canada Elections Act , S.C. 1993, c.19. Of particular relevance to this action were:
. s. 213(1) which contained a third party ban on advertising 18 days after the election call and just prior to polling day;
. section 259.1(1) which limited third party election expenditures to $1,000; and
. section 259.2(2) which prohibited third parties from pooling resources in an effort to defeat the spending limits.
[10] The 1993 amendments were challenged by David Somerville. In an oral judgement, Macleod J. of this Court declared that ss. 259.1(1) and 213(1) breached ss. 2(b) and 3 of the Charter and that s. 259.2(2) breached ss. 2(b), 2(d) and 3 of the Charter and were not saved by s. 1 ( Somerville v. Canada (Attorney General) , [1993] A.J. No. 504 (Alta. Q.B.)). This decision was appealed. The Alberta Court of Appeal agreed with Macleod J.'s conclusion that the blackout violated ss. 2(b) and 2(d) of the Charter . However, the Court disagreed with the conclusion that the blackout rules deprived voters of "sufficient information", thereby concluding that s. 213 (1) did not violate s. 3 of the Charter . The Court also held that ss. 259.1 and 259.2 violated ss. 2(b), 2(d) and 3 of the Charter ( Canada (Attorney General) v. Somerville (1996), 39 Alta. L.R. (3d) 326 (C.A.)). The Court did not find that any of the violations of Charter rights constituted a reasonable limit on those rights under s. 1 of the Charter .
[11] The Somerville decision was not appealed further by Canada. However, in the 1997 decision of the Supreme Court of Canada in Libman v. Quebec (Attorney General) , [1997] 3 S.C.R. 569 the Court made some obiter observations with respect to the spending limits considered in Somerville . A unanimous Court stated at 619:
In Somerville v. Canada (Attorney General), supra , the Alberta Court of Appeal declared these [third party spending limit] provisions to be unconstitutional. With respect, we have already mentioned that we cannot accept the Alberta Court of Appeal's point of view because we disagree with its conclusions regarding the legitimacy of the objective of the provisions.
[12] The next step in the evolution of the provisions that are currently before me in the case at bar, was the tabling of the 35 th Report of the Standing Committee on Procedure and House Affairs ( Exhibit 9). The 35 th Report endorsed suggestions of the Chief Electoral Officer that the Canada Elections Act be amended to set up a framework for third party participation in the electoral process. Many of the features of the Report, including the suggestions of the Chief Electoral Officer with respect to third party spending limits, became incorporated in Bill C-2, An Act respecting the Election of members to the House of Commons and making consequential Amendments to other Acts .
B. The 2000 Act
[13] Bill C-2, which subsequently became the new Canada Elections Act, supra, received royal assent on May 31, 2000. Section 577 of Bill C-2 provided:
This Act comes into force six months after the day on which it is assented to unless, before that time, the Chief Electoral Officer has published a notice in the Canada Gazette that the necessary preparations for the bringing into operation of this Act have been made and that this Act may come into force accordingly.
[14] The Act was therefore to come into effect on November 31, 2000. However, on September 1, 2000 a notice was published in the Canada Gazette at the behest of the Chief Electoral Officer and the Canada Elections Act came into force that day.
[15] The provisions at issue in this case deal with third party election advertising. "Third parties" are defined as a person or group other than a candidate or a registered party ( s. 349). "Election advertising expenses" are expenses incurred in relation to the production and transmission of election advertising messages (s. 349). Section 319 defines "election advertising" as a message that promotes or opposes a registered party or candidate including messages that take a position on an issue that is associated with a registered party or candidate. Broadly speaking, s. 350 of the Act restricts spending by third parties on election advertising by setting limits of $150,000 per general election and $3,000 in a particular electoral district, the latter included within the former. Section 351 prohibits third parties from splitting or combining with other third parties in order to circumvent the limits set out in s. 350. These restrictions apply during an "election period" which means the period beginning with the issue of the writ and ending on polling day.
[16] The Act also contains several other sections which impact on third party election advertising. A third party must identify itself in any election advertising placed by it (s. 352). Third parties who spend $500 or more on election advertising must register with the Chief Electoral Officer and appoint a financial agent to authorize further election advertising expenses (ss. 353, 354 and 357). A third party that incurs election advertising expenses of $5,000 shall appoint an auditor and file an auditor's report with the Chief Electoral Officer (ss. 355 and 360). Third parties must file an election advertising report, which discloses the identity of contributors contributing amounts over $200 and the class of contributors (s. 359).
[17] Pursuant to s. 356, the Chief Electoral Officer is required to maintain a registry of third parties. The Chief Electoral Officer is also required to publish the names and addresses of registered third parties, as well as the election advertising reports mandated by s. 359(1).
[18] There are restrictions on the source of money that can be used for election advertising purposes. A third party shall not use a contribution for election advertising if it does not know the name and address or is unable to determine the class into which the contributor falls (s. 357(3)). A third party is also prohibited from using contributions from off-shore sources for election advertising purposes (s. 358).
[19] Finally, with respect to the provisions of the Act at issue in this case, s. 323 prevents any one (including candidates, registered parties and third parties) from knowingly transmitting election advertising to the public in an electoral district on polling day before the close of all the polling stations in the electoral district, thus effectively from 12:01 a.m. to 8:00 p.m. - a period of 20 hours.
C. History of These Proceedings
[20] The Plaintiff, Stephen Joseph Harper, is a resident of Calgary, Alberta and is qualified as an elector in an election of members of the House of Commons. By way of Statement of Claim filed June 7, 2000, he commenced the within action claiming relief in the form of a declaration that the numerous impugned provisions are contrary to the Charter and are therefore of no force and effect. The Attorney General defended the claim by way of Statement of Defence filed July 31, 2000. The Defendant did not take issue with the Plaintiff's standing to bring this action.
[21] By an Order of Chief Justice Moore of September 20, 2000, the Chief Electoral Officer was granted leave to intervene. That Order set the parameters of the Chief Electoral Officer's intervention including: permission for the Chief Electoral Officer to testify at trial and to be led by his counsel; with leave of the trial judge (which I granted) permission to conduct direct examination of the Defendant's witnesses; and permission to cross-examine the Plaintiff's witnesses. By virtue of that Order, the Chief Electoral Officer was to have no right to appeal the decision. I granted an Order with similar parameters with respect to the intervener, Environment Voters . Environment Voters intervened on behalf of the position taken by the Plaintiff.
[22] The trial of this matter commenced on October 2, 2000 and continued until October 13, 2000. On October 22, 2000, Parliament was dissolved and a general election called for November 27, 2000. That election call prompted an application by the Plaintiff to enjoin the Chief Electoral Officer and the Commissioner of Elections Canada from enforcing the impugned sections of the Act , pending a final determination of this matter. I granted that application in part, enjoining the enforcement of s. 350 of the Act relating to the third party spending limits only ( Harper v. Canada (Attorney General) , [2000] A.J. No. 1226). The Chief Electoral Officer and the Commissioner of Elections Canada were not enjoined from enforcing the remainder of the Act . That decision was upheld by the Alberta Court of Appeal on October 25, 2000, [2000] A.J. No. 1240). The Defendant sought leave from the Supreme Court of Canada to appeal the injunction and a stay of the injunction pending appeal. The application for leave was granted by the Supreme Court as was the stay of the injunction pending appeal ((2000), 193 D.L.R. (4 th ) 38).
III. RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS
[23] The relevant provisions of the Canada Elections Act, supra, and the Constitution Act, 1982 , are set out in Appendix A to these reasons.
IV. POSITIONS OF THE PARTIES
A. The Plaintiff
[24] The Plaintiff submits that the spending limits in the Act constitute a prima facie infringement of his right to free expression and his right to vote as set out in ss. 2(b) and 3 of the Charter , by limiting the amount that he, or any third party, can spend on election advertising. The assertion that limits on third party election spending constitute a prima facie breach of freedom of expression is well established by the jurisprudence ( National Citizens' Coalition v. Canada (Attorney General) , supra ; Somerville v. Canada (Attorney General) , supra ; Libman v. Quebec (Attorney General) , supra ; Pacific Press v. British Columbia (Attorney General) , [2000] 5 W.W.R. 219 (B.C.S.C.)).
[25] The Plaintiff also challenges the constitutional validity of what I will call the "attribution, registration and disclosure requirements" of the Act as they relate to third party advertising expenditures. He submits that these provisions violate ss. 2(b) and 3 and that some of the sections also violate the freedom of association guarantee found in s. 2(d) of the Charter . In addition to deterring third parties from advertising because of onerous reporting requirements, the Plaintiff submits that the impugned provisions violate privacy values that fundamentally underlie the sections of the Charter at issue.
[26] Section 323 prevents any one ( including candidates, registered parties and third parties) from knowingly transmitting election advertising to the public in an electoral district on polling day before the close of all the polling stations in the electoral district. The Plaintiff submits that this polling day blackout also constitutes an infringement of ss. 2(b) and 3 of the Charter .
[27] The Plaintiff submits that none of the impugned sections can be saved by s. 1 of the Charter because the Defendant is unable to prove that these provisions address, inter alia , a pressing and substantial objective in a free and democratic society.
B. The Defendant
[28] The Defendant admits that ss. 323( 1) (polling day blackout) and 350(1) to (4) (third party election advertising spending limits) prima facie infringe the Plaintiff's freedom of expression as guaranteed by s. 2( b) of the Charter . These infringements are, the Defendant submits, saved by s. 1. The Attorney General bases her s. 1 submissions with respect to the validity of third party spending limits primarily on the decision of the Supreme Court of Canada in Libman, supra . As noted above, in Libman , the Supreme Court of Canada stated in obiter , that former provisions of the Act (which were struck down by this Court in Somerville ) with lower spending limits, met the pressing and substantial objective threshold as well as the other aspects of the s. 1 test.
[29] With respect to the remainder of the impugned provisions, the Defendant submits that they do not constitute a violation of freedom of expression, freedom of association or the right to vote.
V. THE LAW
[30] Several cases have considered the issues of third party election spending and bans on publication during an election. While there are other cases relevant to the matters before me which I have considered and which I will discuss, infra , those described below are particularly apposite.
[31] One of the first cases to consider the constitutionality of limits on third party election spending was the decision of this Court in National Citizens' Coalition v. Canada (Attorney General) , supra . At issue were two sections of the Canada Elections Act which banned anyone other than a registered party or candidate from incurring any election expenses (s. 70.1(1)) and which required that printed advertisements promoting or opposing the election of a candidate or registered party must be authorized by the registered agent of the party or by the official agent of the candidate, effectively limiting election advertising to only registered parties and candidates (s. 72). Medhurst J. held that both of the impugned sections on their face limited freedom of expression as guaranteed by s. 2(b) of the Charter . With respect to whether the limitations could be justified pursuant to s. 1 of the Charter , Medhurst J. found that the Attorney General had failed to demonstrate that candidate and party spending limits would be in jeopardy if third party spending was not banned. Medhurst J. stated at 453:
Care must be taken to ensure that the freedom of expression, as guaranteed by s. 2 of the Charter, is not arbitrarily or unjustifiably limited. Fears or concerns of mischief that may occur are not adequate reasons for imposing a limitation. There should be actual demonstration of harm or a real likelihood of harm to a society value before a limitation can be said to be justified.
In my view it has not been established to the degree required that the fundamental freedom of expression need be limited. The limitation has not been shown to be reasonable or demonstrably justified in a free and democratic society.
[32] In the result, the Court declared that ss. 70.1(1) and 72 of the Canada Elections Act violated s. 2(b) of the Charter and to that extent were of no force or effect.
[33] In 1993, this Court again considered third party spending limits in the Canada Elections Act in Somerville v. Canada (Attorney General) , supra . At issue were a $1,000 limit on independent spending (s. 259.1(1)), a prohibition on persons pooling their resources in order to defeat the spending limits (s. 259.2(2)) and a ban on publication of election advertising during the first approximately 18 days of an election campaign and the final 48 hours (s. 213(1)). McLeod J. held that the spending limit and publication bans violated ss. 2(b) and 3 of the Charter . With respect to the latter section of the Charter , he stated at 6:
I think that it is apparent that voters are effectively precluded from receiving third party views from other parts of the country, and there is a breach of s. 3, and I so find.
[34] He also found s. 259.2(2) to be in violation of ss. 2(b), 2(d) and 3 of the Charter .
[35] In Somerville , the Attorney General had argued that the Lortie Commission Report provided the basis for the pressing and substantial concern: electoral fairness and the need for independent spending limits in order to ensure the effectiveness of candidate and party spending limits. The Court concluded that the Attorney General had failed to prove that the challenged sections addressed a pressing and substantial concern under section 1 of the Charter for the following reasons:
. the additional apparent Charter breaches of limits on candidate and registered party spending;
. the Chief Electoral Officer's lack of interest in investigating the effects of third party spending after two elections with no limits;
. the expert evidence with respect to the reliability of the studies which were the basis of the Lortie Commission's conclusions on the potential impact of independent election advertising.
[36] Thus, the impugned sections were struck as being in breach of the Charter and not saved by s. 1.
[37] The Attorney General of Canada appealed that decision and conceded in the Alberta Court of Appeal that all three sections at issue violated section 2(b).
[38] Conrad J.A., writing for herself and Harradence J.A. (Kerans J.A. concurring in short separate reasons) held that both ss. 259.1(1) and 259.2(2) infringed the guarantee of freedom of association. The restriction on speech was found to impact on the right to associate and the restriction on association held to impact on free speech. Conrad J.A. stated at 339:
In effect, the spending restrictions in both s. 259.1(1) and s. 259.2(2) force those who wish to participate by advertising in any meaningful way to do so through association with the political parties and candidates...By interfering with this ability of individuals, through association of their choice, to independently lend strength to a candidate or party, this legislation is a limitation of legitimate activities of association, and by extension, one's right to associate.
[39] Section 213 was found to also constitute a limit on freedom of association because it interfered with an association's right to "exercise its free speech, inform voters and promote its legitimate interests by endorsing a party or candidate at a critical time" (at 339).
[40] With respect to the right to vote under section 3 of the Charter , the majority held that this section encompassed an ancillary "right" to sufficient information. While s. 213 was not found to infringe s. 3 because information could be communicated via other sources such as the news media, ss. 259.1(1) and 259.2(2) were held to infringe s. 3. The latter sections were found to constitute such a serious restriction to sources of information, other than from parties and candidates, that the right to cast an "informed vote" was breached.
[41] The majority held that none of the infringements on guaranteed rights and freedoms amounted to a reasonable limit pursuant to s. 1 of the Charter . In short, it was found that the Attorney General had failed to prove that the legislation addressed a pressing and substantial concern. The Attorney General had offered as the primary rationale of the spending limits the need to ensure that the restrictions on candidate and party spending were not rendered ineffective by unregulated third party spending . Conrad J.A. agreed with the trial judge's finding that there was no proof of the impact of third party spending on the electoral process. She stated at 358:
This legislation bans input. This is a case where the objective of the legislation is not trying to balance expenditures of outside groups, the press and parties. Rather, one is led to conclude that the very aim or purpose of this legislation is to ensure that third parties cannot be heard in any effective way and that political parties are entitled to preferential protection. Its objective strikes at the core of these fundamental rights and freedoms, and is arguably legislation which has as its very purpose the restriction of these rights and freedoms, which can never be justified.
[42] The next case of significance to the issues at bar, is the decision of the Supreme Court of Canada in Libman v. Quebec (Attorney General) , supra . Libman involved provisions of the Quebec Referendum Act R.S.Q.C.,C-64.1. As described by the Court at 575, the "impugned provisions place limits on the expenses that may be incurred during a referendum campaign, inter alia by setting out what types of expenses are permitted and who may incur them". In order to be eligible to incur regulated expenses a person had to belong either to one of the national referendum committees or to a group affiliated with those committees.
[43] A unanimous Court held that political expression is at the core of the values encompassed by the freedom of expression guarantee in the Charter and that the impugned provisions of the legislation infringed both freedom of expression and freedom of association. With respect to freedom of association, the Court held that the right protected by s. 2(d) included the exercise in association with others of the constitutional rights and freedoms of individuals. The case therefore resolved itself into an issue of whether the limits on freedom of expression in ss. 2(b) and 2(d) were reasonable limits in a free and democratic society pursuant to s. 1 of the Charter .
[44] The Court found that while the standard of proof required under s. 1 remained proof on a balance of probabilities, scientific proof was not required. Referendum campaigns fall within the realm of social science, which does not lend itself to precise proof.
[45] With respect to the pressing and substantial objective that is required of a law if it is to be saved by s. 1, the Court found the objective of ensuring fair elections met this test. It is important to note that the appellant in that case conceded the importance of the objective. The Court also looked to the Lortie Commission to find that spending limits on election advertising were necessary to ensure fair elections and that for the spending limit regime to be effective, it must also apply to the expenses of independent individuals and groups. The Court expressly stated, in obiter , that it disagreed with the assessment of the Alberta Court of Appeal in Somerville with respect to third party spending limits. However, the Court ultimately found that the limits on independent spending contained in the Referendum Act did not minimally impair the rights at issue and therefore were not justified under s. 1.
[46] Thomson Newspapers v . Canada (Attorney General) , [1998] 1 S.C.R. 877 is the most recent case from the Supreme Court of Canada dealing with freedom of expression and the right to vote in the election context. That case considered a section of the Canada Elections Act which prohibited the broadcasting, publication, or dissemination of opinion survey results in the final three days of a federal election campaign. A majority of the Court held that the section was not a justifiable limit on freedom of expression. The majority declined to make a ruling on the s. 3 right to vote issue, given their conclusion with respect to s. 2(b).
[47] The s. 1 analysis conducted by the majority in Thomson Newspapers is instructive. They found that allowing a period of time to scrutinize opinion polls immediately prior to an election was a pressing and substantial concern. However, the majority concluded that s. 322.1 of the Canada Elections Act did not minimally impair the right of free expression. Bastarache J. stated that this was not an appropriate case for the Court to show deference to the legislature with respect to the means chosen to implement the legislative purpose. The government had not shown that the harm which it was seeking to prevent was either widespread or significant. Nor had Canada shown that less intrusive measures, such as a requirement to publish the methodological survey information with respect to opinion poll surveys, had been considered. In consequence, s. 322.1 was found to be of no force or effect.
[48] In a very recent decision, the British Columbia Supreme Court struck down third party spending limits in the British Columbia Elections Act S.B.C. 1995, c. 51 in Pacific Press v. British Columbia (Attorney General), supra . It is significant that the Attorney General for British Columbia initially applied to have the Plaintiff's claim struck summarily on the basis that Libman was dispositive of the third party spending issue. Both the British Columbia Supreme Court and the British Colombia Court of Appeal declined to summarily strike the claim ( Pacific Press v. British Columbia (Attorney General) (1998), 52 B.C.L.R. (3d) 197 (S.C.); aff'd (1998), 61 B.C.L.R. (3d) 377 (C.A.)). They reasoned that each case was a function of its own factual matrix. As such, it was better to let the case proceed to trial. Leave to appeal to the Supreme Court of Canada was denied, [1998] S.C.C.A. No. 628. The case therefore proceeded to trial.
[49] The ultimate decision of Brenner J. (as he then was) at trial, was that the third party spending limits in the British Columbia Act were a breach of ss. 2(b) and (d) and could not be saved by s. 1. Brenner J. heard much of the same evidence as was presented before me. He determined that the evidence was not sufficient to conclude that third party advertising had an impact on voter intentions. Brenner J. held that, based on the evidence before him, there was no validity in the assumption that fairness required restrictions on third party spending in the same way as it required restrictions on candidate and party spending. He stated at 238:
Simply put, there is no evidence in this case which would support the contention of the AGBC that there is or has ever been unfair dominance of the electoral process that requires legislative action. In my view the AGBC has not established that the legislation is responsive to any objectively measured concern about fairness and elections or about the impact of third party spending on election outcomes.
[50] Later, he stated at 240:
To override Charter rights it is necessary that there be more than a general hypothetical concern about a problem when there is no evidence to demonstrate that it has existed in the past or that it is likely to exist in the future. Simply put, more is required of the Legislative Branch prior to overriding fundamental Charter rights...
[T]he AGBC is unable to rely on any objective empirical evidence in support of the basic assumptions underlying the imposition of third party spending limits. Because this empirical evidence is to the contrary this is not a case where the government can rely on claims of common sense justification or a reasonable apprehension of harm.
[51] The Court also struck down a provision which required newspapers to publish methodological survey information at the same time that opinion polls were published during an election. It was held that this was a species of "forced speech" as it amounted to expropriated newspaper space by the government. The violation of s. 2(b) was not saved by s. 1 since the government did not establish that misleading poll information was a pressing and substantial concern requiring government action.
VI. REVIEW OF THE EVIDENCE
A. The Evidence at Trial Generally
[52] The Plaintiff introduced no viva voce evidence at trial. Rather, he relied on:
a. an opening statement to attempt to illustrate that all of the impugned sections of the Act were prima facie in breach of some or all of ss. 2(b), 2(d) and 3 of the Charter ;
b. admissions by the Defendant that ss. 323(1), and 350(1) - (4) breach s. 2(b) of the Charter ;
c. cross-examination of trial witnesses called by the Defendant and the intervener, Chief Electoral Officer of Canada; and
d. the report of Mr. Lazarus, admitted by agreement of counsel.
[53] The Defendant called a series of expert witnesses who both testified, and, introduced their respective experts' reports. One of Canada's experts, Professor André Blais, did not testify; rather, his report went in by agreement.
[54] The interveners, the Office of the Chief Electoral Officer and Environment Voters, called Jean-Pierre Kingsley and Stephen Best, respectively.
[55] In addition, the evidence consisted of 76 binders, some of which were marked Exhibits 1 to 32 and entered by agreement of the litigants, essentially for reference and for context and not to prove the truth of the contents. The balance of the Exhibits (33-81), were entered in the ordinary course through witnesses.
[56] I intend to refer to some of the evidence tendered when I review each of the four broad categories of the impugned provisions: election spending; attribution, registration and disclosure; off-shore contributions; and the advertising blackout.
[57] The main focus of the trial centred on election spending, and to a lesser extent attribution, registration and disclosure. There was very little evidence on the advertising blackout. The evidence was also minimal as it related to off- shore contributions.
[58] What follows is a relatively brief summary of the evidence and my findings as it relates to each of the four broad categories identified for the review of these provisions. The evidence will also be discussed and reviewed under the analysis of each of the sections of the Charter at issue in these proceedings.
B. Third Party Spending Limits
[59] The history of third party spending limits and their treatment by the courts has already been set out in these reasons and I will not repeat it here. Suffice it to say that, prior to the recent federal election in November of 2000, there have never been third party spending limits in place in Canada during a federal election.
[60] Professor Peter Aucoin gave expert evidence for the Attorney General. Professor Aucoin is a professor of political science at Dalhousie University and was the Director of Research for the Lortie Commission. He was qualified as an expert and thereby entitled to give opinion evidence on whether the limits on third party advertising in election campaigns advance the objective of fairness in democratic elections. Professor Aucoin testified that the values and objectives being pursued as a consequence of a campaign finance regime include securing the rights of citizens to vote and to be candidates, the pursuit of the value of fairness in those campaigns, an informed vote, transparency and encouraging participation in elections. According to Professor Aucoin, spending limits on candidates and parties advance the objective of fairness by ensuring that the cost of becoming a candidate does not become prohibitive and by ensuring that some voices are not " drowned out" by others with access to greater resources. This reflects an egalitarian, as opposed to a libertarian, philosophy of campaign finance controls.
[61] With respect to third party spending, Professor Aucoin stated that the most effective and fair campaign finance regime will encompass all participants who seek to influence an election outcome. This includes third parties. If third parties are excluded from the regime, this could result in an "uneven playing field" because there is no reason to believe that third party advertising is different from candidate and party advertising: it will have an effect on the vote outcome. In summary, the rationale for third party spending limits proceeds from the same assumptions and objectives as the spending limits on candidates and political parties. That is, to establish a "level playing field" for the contestants in order to advance fairness in electoral competitions.
[62] Professor Frederick Fletcher, who was put forward by the Attorney General and qualified to give expert testimony on electoral finance regimes and whether the limits in s. 350 are reasonable in the context of campaign finance regimes, agreed that the concern underlying third party spending limits is directed to the "threat third party advertising poses to the integrity of the candidate and party expenditure limits" (Transcript at 513). He opined that absent the limits, there is a possibility of evasion of the candidate and party limits that could result in an upward pressure on those limits. These concerns were echoed by the witness called by the intervener Office of the Chief Electoral Officer, Jean-Pierre Kingsley, who is the Chief Electoral Officer. Mr. Kingsley was qualified to give expert testimony on the Canada Elections Act and thereby entitled to give opinion evidence as it relates to the purposes of the Act and an opinion or opinions as to the need for third party controls in carrying out those purposes.
[63] Despite the concerns about fair elections cited by the Defendant's witnesses and Mr. Kingsley, none of those witnesses gave evidence that Canada had been subject to a substantively unfair election due to the lack of spending controls on third parties. However, Professor Aucoin did state at 1315 of the Transcript:
Unfair elections occur in the context in which we are discussing unfairness, when there is a campaign finance regime that does not promote fairness to the degree that it could, the degree to which there are unfair elections is the degree to which you have not structured your electoral process to promote fairness as much as possible.
[64] The idea that third parties can " tilt the level playing field" of candidates and parties was central to the recommendations of the Lortie Commission and critical to the evidence of the Defendant's witnesses and Mr. Kingsley when discussing the importance of third party spending limits. Much of the cross-examination of the Defendant's witnesses focussed on the extent to which this proposition is scientifically verifiable. In particular, cross-examination centred on an incident or series of incidents which I will briefly describe here and which will be discussed in greater detail in my analysis of section 1.
[65] Professor Janet Hiebert conducted research on the impacts of third party election advertising for the Lortie Commission. She did not give evidence in this trial but testified in the Somerville case. Transcripts of that evidence were filed in the case at bar as Exhibit 61 and used for cross-examination purposes. Her conclusions, especially as they related to third party spending in the 1988 general election, were based to a large extent on a memorandum prepared by Professor Richard Johnston in 1990 (Exhibit 44). That conclusion was that third party advertising may have had an impact on the outcome of the 1988 election. Her paper was submitted to and used by the Lortie Commission in its discussion of the necessity of third party spending limits. The Commission also cites to the unpublished work of Dr. Johnston in a manuscript of a then forthcoming book entitled "Letting the People Decide" ( Montreal & Kingston: McGill-Queen's University Press, 1992) (Exhibit 46). The critical incident occurred when Dr. Johnston communicated to Professor Hiebert, prior to the official publication of Professor Hiebert's paper for the Lortie Commission in April of 1992, that he no longer thought that third party advertising had an effect on the 1988 election. His revised conclusion, which was later published in "Letting the People Decide" in 1992, was that third party advertising had no discernable impact on vote intentions. Professor Hiebert did not communicate this revised opinion of Johnston's to anyone at the Lortie Commission prior to the publication of her research paper.
[66] Professor Aucoin testified in direct examination that he had not seen the 1990 Johnston memorandum upon which Professor Janet Hiebert based her analysis of third party spending impacts in the 1988 election. Professor Aucoin further testified that the fact that Dr. Johnston had revised his conclusions was not communicated to him in his capacity as research director for the Lortie Commission and that he did not find out about it until he read "Letting the People Decide" in late 1992. In 1993, Professor Aucoin appeared before the Standing Senate Committee on Legal and Constitutional Affairs to discuss amendments to the Canada Elections Act . He discussed third party spending limits. However, he admitted in cross-examination that he did not disclose to the Senate Committee that Dr. Johnston had altered his conclusions. When asked why he failed to inform the Senate Committee of this fact he answered: "I made no disclosure of the fact because the issue did not arise" (Transcript at 1213).
[67] In cross-examination Professor Aucoin admitted that the conclusions of the Lortie Commission on third party spending were based at least in part on the 1988 election and Dr. Johnston's memorandum. He agreed that there is no evidence, in terms of scientific studies, that show that third party spending in a Canadian election does have an effect. Dr. Johnston's is the only scientific study of the effects of third party election advertising. Professor Aucoin did note that during the trial of the Pacific Press case, Dr. Johnston further revised his conclusions to state that third party advertising had a negative impact during the 1988 election. There is no empirical evidence to show the effect of third party advertising in Canadian elections in the 1990's. Despite the lack of scientific evidence, Professor Aucoin stated that he still would recommend the need for third party spending limits in order to preserve the fairness of the electoral system. This opinion was echoed by Professor Fletcher.
[68] The Defendant also called Professor Gary Jacobson of the University of California at San Diego who was qualified to give expert testimony on third party campaigns and whether or not they have an effect on election results. Professor Jacobson's research is based on experience in the United States. He testified that there is scientific evidence to support the premise that campaigns conducted by candidates and political parties affect the outcome of elections. Similarly, voters respond to third party campaigning. There is nothing in the literature to suggest that voters treat information from third parties any differently than information from candidates or political parties. Professor Jacobson conducted a scientific study of the AFL-CIO's campaign in 1996 which demonstrated that third parties can affect election results. The effect was on "freshmen"; there was no significant effect on more senior candidates. He stated that his conclusions would not just apply in the United States because any campaign that provides information to voters in a democratic system has the potential to influence the outcome of the vote. Professor Jacobson admitted in cross-examination that there are some studies in the U.S. which indicate that third party spending had little impact and can be counter-productive. That included a study done by Jacobson himself.
[69] André Blais, a professor of political science at the University of Montreal, prepared an expert report for the Defendant on the potential impacts of third party advertising in Canada. Professor Blais did not give viva voce testimony, but his report was admitted into evidence by consent ( Exhibit 63). It should be noted that Professor Blais is one of the co- authors, along with Richard Johnston and others, of "Letting the People Decide". He stated that the Johnston study is the only sophisticated study of the impact of third party advertising in Canada. He opined, however, that while the Johnston study found no impact, there is no reason to believe that third party advertising can never have an impact. The Jacobson study indicates that there can be an impact. Further, according to Professor Blais, there is evidence that candidate and party advertising can affect the vote.
[70] Professor Fletcher gave evidence in Pacific Press , supra , and confirmed his testimony here, that there are critical differences between the political regimes in Canada and the United States. Those differences include:
1. Party discipline in Canada makes lobbying individual candidates less useful than lobbying efforts in the U. S.;
2. Parties do not play the same role in the U.S. as in Canada;
3. Candidates in the U.S. are not reimbursed by public funds unless they voluntarily agree to spending limits.
[71] Professor Fletcher gave evidence regarding the spending limits themselves and their relationship to candidate and party spending limits. The average candidate spending limit in the 1997 election was just over $62,000. This number is the maximum expenditure for all election expenses under the Act . The actual candidate's average expenditure on election advertising is much lower - in the area of $13,599 (Exhibit 65). The maximum spending permitted to any party that ran a candidate in each of the 301 electoral districts in Canada was $11,358,749 (Exhibit 65). The $3,000 constituency limit for third parties is just under five percent of the candidate limit. The $150,000 overall limit for third parties is approximately 1.3 percent of the maximum expenditure permitted to a political party (assuming the $ 11,358,749 figure). The ratio to the actual amount spent on advertising by political parties is 2.2 percent.
[72] Professor Fletcher stated in his expert report, and confirmed in his oral testimony, that in his opinion, third parties could run reasonable local and regional campaigns and modest national campaigns within the limits set out in the Act . In most ridings it would be possible to print a pamphlet or brochure and to circulate it to households in the constituency within the electoral district limits. Professor Fletcher testified that radio spots are a relatively inexpensive means of communication and that it would be possible to run a radio campaign over a period of time within the $3,000 limit. However, media such as radio, which crosses electoral boundaries, is an inefficient means of communication if a third party is targeting a particular candidate. With respect to newspapers, a third party could not purchase a significant ad in a large daily newspaper within the $3,000 limit. However, it could have a smaller ad or a number of ads of a quarter of a page or larger in a smaller daily newspaper. He gave evidence that network television is relatively expensive and would not be an effective means of advertising with respect to a candidate in a particular riding because it also crosses electoral boundaries.
[73] Regarding the $150,000 expenditure limit, Professor Fletcher testified that it would allow a third party to purchase a few national daily newspaper ads or a few national television spots in prime time. He opined that it would be possible to run a reasonably sized display ad in 10 major urban centres for under $100,000.
[74] Overall, Professor Fletcher thought that third parties could run reasonable local and regional campaigns and modest national campaigns within the limits set out in the Act . These would have to be informational, rather than persuasive, campaigns. He admitted in cross- examination that television is the most effective medium for advertising.
[75] Stephen Best of Environment Voters testified, but was not qualified as an expert. He stated that it would not be possible to run an effective third party advertising campaign within the limits set out in the Act . Laurence Lazarus, who is the media director at Griffin Bacal Volny, prepared an expert report which was admitted by consent (Exhibit 78). He did not give oral evidence. He likewise stated in his report that it would not be possible for a third party to mount an effective media campaign within the limits contained in s. 350.
[76] I find that the impetus behind, and objective of, the third party spending limits is a general concern about fairness in the electoral system. More specifically, the concern and the objective relate to ensuring the integrity of the candidate and registered party spending limits. However, I also find that this apprehension about fairness is not based on any concrete evidence of unfair elections in Canada. It is based on a hypothetical and tautological conception of "level playing fields" during elections. Given the idealized construct of the "level playing field" and the unfounded assertion that third party advertising is effective, it necessarily follows that any spending by third parties can "tilt" the "level playing field". This assertion is not borne out by the evidence. The only Canadian academic and scientific study of the ability of third party advertising to affect voter intentions, and therefore election outcomes, is that of Professor Johnston, et. al. in "Letting the People Decide". He concluded that third party advertising had no discernable effect. If there is no discernable effect, or a negative effect, then concerns about the integrity of the candidate and party spending limits are unfounded. I find the American experience to be of no assistance due to the vast disparities between the regimes. With respect, I adopt the words of Brenner J. in Pacific Press describing the differences and his conclusion at 235:
Accordingly, I conclude that to the extent that the American experience constitutes a cautionary tale or a powerful negative example, there is no evidence that the excesses described can be easily imported into Canada. I accept Professor Fletcher's evidence of the profound institutional differences between the political systems in the two countries and I conclude that there is no evidence to suggest that such importation has or is likely to occur.
[77] There is, therefore, no evidentiary foundation upon which to conclude that election fairness is adversely affected by third party advertising during an election period.
[78] With respect to the spending limits themselves, I find that third parties can engage in modest, national, informational campaigns and reasonable electoral district informational campaigns, within the spending limits set out in the Act . However, it is not possible for a third party to engage in an effective persuasive campaign, either nationally or within a constituency, without running afoul of the spending limits.
C. Attribution, Registration and Disclosure Requirements
[79] This evidence relates to various sections of the Act between ss. 352 and 362.
[80] Lisa Young, an assistant professor of political science at the University of Calgary, was the Defendant's primary expert witness called respecting these provisions. She was qualified respecting disclosure by third parties, whether the provisions are reasonable in the context of campaign finance regime, and to compare the third party provisions with party and candidate requirements. She stated that her opinion only related to registration and disclosure aspects of third party spending and not to the spending limits themselves. Dr. Young assumed and took the spending limits as they existed and then assessed the registration and disclosure requirements.
[81] Dr. Young testified that the objectives of these sections are:
1. to facilitate enforcement of spending limits by third parties;
2. to discourage unethical behaviour;
3. to enhance public confidence in the system and the integrity of it; and
4. to facilitate the accountability of public funding but conceded that that was not germane as it related to third parties, as no public money was involved.
[82] Professor Young stated that the need for a third party registration and disclosure regime became clearer with the higher limits in the Canada Elections Act , and also the need for transparency from the standpoint of source and amounts of contribution apart from spending limits. She compared the disclosure provisions for third parties with those of parties and candidates and stated that they are similar. This is exemplified by the $ 200 threshold limit for registered parties, candidates and third parties. Indeed, the provisions for reporting are less extensive for third parties than for parties and candidates as they only relate to election advertising, whereas parties' and candidates' reporting relates to ads and operational expenses as well. Professor Young did state that the reporting requirements for third parties respecting the ads themselves are more extensive than for candidates and parties in that they have to relate to the time of the ads and where they are published. As to the audit provisions, they are similar to the candidate and party provisions but there is a higher threshold ($5,000) for third parties. She also stated that the reporting provisions respecting agents and deadlines are similar to those of parties and candidates.
[83] She opined that none of the provisions were unnecessary in relation to the objectives other than perhaps the following:
1. the time and place of the ad was germane only if you had spending limits; and
2. copies of the Minutes of the corporation to authorize ads by third parties was perhaps overly intrusive.
[84] She further opined that the time to register by third parties was not a problem as it would not waste a great deal of time and was a simple process. She stated that it would take Elections Canada no more than 3 or 4 days to respond, but that a third party could prepare the application to Elections Canada prior to the writ "dropping". However, it could not actually be submitted prior to the writ issuing.
[85] The time line (4 months) to report after the election is less demanding than in some provinces (90 days) and is the same for parties and candidates. Indeed, in the U. S., disclosure must be made prior to election day and she opined that that is more onerous. On the whole she felt that all of these provisions were satisfactory and necessary. She summed up by saying that the burden on third parties is less than on parties and candidates.
[86] She stated that there is no evidence that reporting requirements (whether onerous or not) have affected parties or candidates. Indeed, since parties have been obliged to register, the number of parties has increased from 4 in 1972 to 14 in 1993 and now 10. It is obvious that reporting requirements have not dissuaded the formation of new parties. Similarly, there has been an increase in the number of candidates despite (and since) the requirements to register and disclose. There is no evidence of less money being contributed with disclosure requirements in place.
[87] As to the auditor, she stated that no complex bookkeeping was required. She also stated that the privacy concerns were not an issue as auditors were "professionals".
[88] In summary she stated that while the regime was not perfect, it was properly balanced on the public's right to information against a third parties' right to participate in the debate and that it was "a reasonable balance".
[89] In cross-examination Dr. Young noted that the Lortie Commission did not recommend reporting and disclosure requirements for third parties. However, under the Act there are minimal demands on third parties relative to these topics. The U.S. regime is far more onerous and there is a significant administrative burden, she stated. She reflected upon the U.S. experience and stated that for issue advertizing there was no reporting required as the reporting requirements related to partisan ads only.
[90] Dr. Young testified that to compare Canada with the U.S. was not a good comparison as we have no contribution limits but spending limits and disclosure requirements. She stated that in her view, disclosure discouraged unethical behaviour and gave an example but stated that she knew of no actual examples in Canada, nor examples of undue influence.
[91] She stated that disclosure puts the onus on third parties to demonstrate that there has been compliance with the legislation and that equated with parties and candidates. All three groups are to "open their books" rather than being involved in an investigation based on rumour, innuendo and allegation. She stated that she was aware of some provinces having spending limits with no disclosure provisions. She also made comparisons with the British Columbia legislation considered in Pacific Press , supra , where the limits were struck. However, disclosure provisions remain in British Columbia.
[92] As it related to s. 353, she stated that $500 for third party registration was necessarily arbitrary and she would be hard pressed to give a rationale. She stated that it might just as conveniently have been $250 or $1,000. Dr. Young drew a comparison between the higher thresholds in the U.K. at 1,000 pounds but also said that the spending limits in the U.K. are higher. She prefers the Canadian scheme but would have been more inclined to $1,000 over $500. She conceded that she did not know "where the $500 came from". In conjunction with s. 353 (registration) and the $500 threshold amount, she stated that both $500 or $1,000 for third party registration would be "in the range" although they are arbitrary. The $500 signifies serious intervention, that is intended, and that also relates to the $200 contribution limits and the $5,000 audit limit.
[93] I asked a few questions of Dr. Young and she stated that there would be utility in disclosure/registration even though there were no spending limits. The sections go beyond simply enforcing spending limits to discourage undue influence and unethical behavior, to enhance public confidence and to provide knowledge to the public.
[94] When discussing disclosure and registration requirements, Mr. Kingsley stated that they were important as they related to the release of names of contributors to parties and candidates and to third parties if over $200. Registration for third parties is similar to registration for parties and candidates.
[95] Mr. Kingsley stated that Canadians have a "right to know" who is contributing to third parties. On the subject of registration time for third parties he stated that there was a 24 hour turnaround for registration and one could ascertain registration particulars by either the phone or the website. He stated with respect to registration, that Elections Canada posted the information on their website in order to inform Canadians.
[96] Stephen Best spoke to the reporting, accounting and the administrative provisions of the Act . He confirmed that it was "a package deal" and that if there were limits, reporting was necessary and conversely if there were no limits there was no need for reporting. That was contra the evidence of Professor Young as to the utility of reporting despite no spending limits. He stated that he would not list names of contributors on the basis of a potential for controversy, fear, exposure and deterrence. He also stated that reporting of some expenditures was problematic. In cross-examination he confirmed that none of the E.V. donors have objected to their names being published and that 300 donors had given to the cause in 1999, 10% of whom were over $200 and received no objections to the disclosure. He had testified to the Senate Standing Committee on Legal and Constitutional Affairs that he had no trouble with listing donors or attribution however, he now seems to have changed his opinion.
[97] Professor Fletcher stated that " he can't determine or it's difficult to determine if or how many people are deterred by these impugned provisions on registration and disclosure" ( Transcript at 355). He opined that registration as a party infringes on Section 2(d) and 2(b). He stated that he had no opinion on the proposition that "disclosure of finances diminish participation by citizens" (Transcript at 586). He further testified that he had not studied these principles in formulating his report. He stated that registration was within and part of the party and candidate regime and that it was fair.
[98] Professor Aucoin, when talking of disclosure and its ideals indicated that the ideals were transparency, public accountability, supporting the idea of an informed vote, deterrence from undue influence and to enforce the spending limits. He stated that registration and disclosure requirements are an integral part of the regime to: 1) implement the financial regime, and 2) advance an informed vote to ensure that contributors are transparent. Registration is necessary to administer the regime and secure objectives. Professor Aucoin admitted that these various sections imposed a burden and an obligation upon third parties. At no stage did Professor Aucoin ever admit that it was a limit or a restriction.
[99] With respect to the attribution requirement in s. 352, Professor Young testified that her concerns with respect to anonymous advertisements were two-fold:
1. newspapers invariably insist on names in letters to the editor; and
2. there is a concern with an anonymous ad being libellous.
[100] Therefore, the concerns for public information outweigh citizens' ability to participate.
She further reflected upon anonymous ads and stated that they were to be avoided in election ads even though she had discovered no political science writings to support her opinion. She was read a statement regarding anonymity and readily conceded that there was some merit to it, but when assessing the value of the message the factor in that assessment is "anonymity" and stated that she can assess the value of an anonymous ad but cannot speak for the Canadian electorate to do so. She also drew a distinction between a complex and short statement advocating a cause of action, the latter being more difficult and even more difficult on an anonymous ad. Professor Fletcher also referred to transparency - anonymous sources - and to the problem of no opportunity to reply.
[101] Dr. Young was a most impressive, most candid witness. She was firm in her opinions, but at the same time ready to concede the shortcomings in the registration, attribution and disclosure regime. Those shortcomings related to the arbitrariness of the limits -- the fact that it was not perfect but that it had attempted to strike a reasonable balance. I was impressed by her evidence.
[102] I find that one of the purposes of the registration and disclosure requirements is to enforce the spending limit regime. However, I find that these provisions have utility apart from the spending limits, especially as they relate to transparency and voter information. I further find that the impugned provisions are not onerous and that there has been no evidence of a deterrent effect, other than Stephen Best's viva voce testimony (in contradiction of his earlier testimony before the Standing Senate Committee) of a potential deterrent effect to engaging in election advertising. I do not accept Mr. Best's testimony before this court on this point. With respect to attribution as found in s. 352, I find that at least one of the purposes is to allow parties and candidates to respond to advertisements.
D. Ban on Use of Contributions from Off-Shore Sources for Election Advertising Purposes
[103] The evidence adduced at trial respecting this topic was meagre. In this two week trial this subject was broached with only two witnesses, Mr. Kingsley, and then later very casually with Professor Aucoin.
[104] Mr. Kingsley stated that since 1993 foreign contributions, similar to those described in s. 358, have been forbidden in relation to parties and candidates (s. 404). Under s. 358 use of foreign contributions by third parties for election advertizing purposes is prohibited. Unlike s. 404, receipt of foreign contributions is not banned, only use of those funds for advertising purposes during an election campaign. It is much narrower than s. 404 which is applicable to parties and candidates.
[105] The concern, as expressed by Mr. Kingsley, "-- is that the process, the Canadian electoral process, should be Canadian basically" and that it should only "- involve Canadians basically and not others" (Transcript at 939). Moreover, prior to the passage of this legislation, it was not possible to discern the source of third party contributions.
[106] In cross-examination Mr. Kingsley conceded that while there ought not to be contributions from foreign nationals, it would not be improper for a non-Canadian commentator to write a partisan article in a Canadian magazine.
[107] Professor Aucoin in his expert report confirmed that the objective of this section is to preserve the national integrity of Canadian elections. He was not questioned extensively on this topic on the witness stand.
[108] I find that the objective of s. 358 is to preserve the Canadian democratic process for those with a legitimate interest in Canadian governance. I find that while this prohibition may affect third parties, there is no evidence which suggests that Canadian third parties rely on foreign contributions in order to engage in election advertising. I would finally note that the restrictions on foreign contributions as it relates to third parties is considerably less onerous than those dealing with candidates and political parties. Third parties are not prohibited from receiving contributions from off-shore sources; the prohibition only relates to the use of such monies for election advertising purposes.
E. The Polling Day Blackout
[109] Section 323 prohibits any person, including parties, candidates and third parties from advertizing on polling day from 12:01 a.m. to 8:00 p.m. (the close of the polling stations in the electoral district). Again, the evidence on this subject was minimal with only Mr. Kingsley and Professor Aucoin briefly testifying.
[110] Mr. Kingsley did not address this subject in chief. He was, however, questioned in cross-examination. He testified that the provisions related to both advertizing and publication of a new poll on polling day. He conceded that while there are other restrictions dealing with the polls on voting day, and that there have been disturbances, the provisions of the Act , leaving aside the blackout provisions, have been "extremely workable.
[111] With respect to Professor Aucoin's evidence, the subject was not broached in examination in chief, however, he was questioned in cross examination. He conceded that Section 323(1) constituted a limit on Section 2 (b) which has been admitted by the Defendant.
VII. ANALYSIS
[112] The Plaintiff challenges all of the impugned sections as being contrary to ss. 2(b) and 3 of the Charter . He also submits that ss. 351, 356, 357(3), 358, 359 and 362 contravene s. 2(d) in addition to ss. 2(b) and 3. While the Plaintiff avers that all of these latter sections contravene s. 2(d), his submissions focussed only on s. 351 which bans the combining or pooling of third party resources with respect to election advertising. Therefore, s. 351 will be the only section reviewed in relation to the freedom of association guarantee.
[113] The impugned provisions of the Act will be analysed in relation to ss. 2(b) and 3 of the Charter under four broad categories: 1. Spending limits; 2. Ban on publication (Blackout); 3. Attribution, registration and disclosure requirements; and 4. Ban on use of off-shore contributions. I now turn to an analysis of whether the sections of the Act which fall under these four broad categories, contravene ss. 3 and/or 2(b) and whether s. 351 violates s. 2(d) of the Canadian Charter of Rights and Freedoms .
A. The Right to Vote
[114] Section 3 of the Charter provides:
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
[115] The right to vote encompasses more than merely the right to attend at a voting station and deposit a ballot. In Dixon v. British Columbia (Attorney General) (1989), 59 D.L.R. (4 th ) 247 (B.C.S.C.) McLachlin C.J.S.C. (as she then was) opined at 257:
Viewed in its textual context, the right to vote and participate in the democratic election of one's government is one of the most fundamental of the Charter rights. For without the right to vote in free and fair elections all other rights would be in jeopardy. The Charter reflects this. Section 3 cannot be overridden under s. 33(1); it is, in this sense, a preferred right. [ Citations omitted.]
[116] Dixon also listed 10 core values encompassed by the right to vote. Included in that list was the "right to sufficient information about public policies to permit an informed decision" (at 259). The essence of the Plaintiff's submissions with respect to s. 3 concern the informational component of the right to vote.
[117] In the trial decision of Thomson Newspapers Co. v. Canada (Attorney General) (1995), 24 O.R. (3d) 109 (Gen. Div.), Somers J. considered what effect the ban on publication of opinion polls had on the right to vote under s. 3. After reviewing the jurisprudence on this aspect of s. 3, he concluded at 137:
These cases are obviously persuasive, though not determinative, that a right to information exists under s. 3. However, this right is not explicitly found in s. 3. Rather it is inferred as part of the right to vote in free, open elections which is itself read into the words "right to vote in an election" contained in s. 3. It would be a mistake, therefore, even under a broad and purposive approach, to grant this implied "right to information" the same scope and standing as the right to vote in democratic elections that is at the core of s. 3's purpose. While the right to information gives substance to the right to vote, it remains ancillary to it. This means that under s. 3, the constitutional question is not directly whether the "right to information" was breached but whether a restriction placed on information has diminished or undermined the right to vote in a genuine election. It is therefore necessary to examine the information restriction in the context of the whole electoral process before finding s. 3 was violated. In other words, the farther away one travels from the core value of s. 3, the more the constitutional protection lessens, though it never disappears . The Supreme Court itself has resisted an overly broad expansion of s. 3.
[118] Justice Conrad of the Alberta Court of Appeal explored the meaning of s. 3 as it related to the informational aspect of that right in both Somerville , supra, and in Reform Party of Canada v. Canada (1995), 123 D.L.R. 4 th 366 (Alta. C.A.). She observed in Somerville that although the Supreme Court of Canada has not yet found specifically that s. 3 contains an informational component, that the concept is generally well accepted in Canadian jurisprudence. She approved of Somers J.'s formulation of the informational component of s. 3 as set out in Thomson Newspapers . Conrad J.A. opined at 345:
The significance of these right to vote cases strikes me as being twofold. First, they indicate that although the Supreme Court of Canada has not directly dealt with the issue of the relationship between the right to vote and the right to communicate and receive information relevant to voting, it is well accepted in Canada that the s. 3 right to vote does include a "right to sufficient information" component. Secondly, in light of the fact that none of the cases have found (and upheld on appeal) a violation of s. 3 on the basis of insufficient information, it remains unclear exactly how broad this aspect of the right is. Perhaps it is best described in the words of Somers J. as being a right ancillary to the right to vote.[Emphasis in the original.]
[119] (See also: Figueroa v . Canada (Attorney General) (1999), 43 O.R. (3d) 728 (Gen. Div.); varied on another point (2000), 50 O.R. (3d) 161 (C.A.); leave to appeal to S.C.C. granted, [2000] S.C.C.A. No. 511; Jolivet v. Canada (Attorney General) (1983) 7 C.C.C. (3d) 431 (B.C.S.C.); Barette v. Canada (Attorney General) (1994), 113 D.L.R. (4 th ) 623 (Que. C.A.)
[120] Justice Bastarache, writing for a majority of the Supreme Court of Canada in Thomson Newspapers , indicated at 936, that "to constitute an infringement of the right to vote, a restriction on information would have to undermine the guarantee of effective representation." (See also: Reference Re Provincial Electoral Boundaries (Saskatchewan) , [1991] 2 S.C.R. 158 at 188.) He did not apply this test to the ban on publication of opinion survey results at issue before him because he determined that it violated freedom of expression in any event.
[121] In Figueroa v. Canada , supra , the Ontario Court of Appeal dealt with the informational aspect of s. 3 in relation to a requirement in the Canada Elections Act that only candidates affiliated with registered political parties could have the name of their party appear on the ballot; nor could they describe themselves as "independent" on the ballot. Doherty J.A. stated the following at para. 194-195 with respect to the informational component of s. 3:
The right to vote encompasses more than the bare right to mark one's choice on a ballot. Effective representation, the purpose underlying the right to vote, requires that voters have the opportunity to make an informed choice among the various candidates. The voters' choice can only be an informed one if voters have access to information which is essential to the exercise of the franchise in an informed manner.
[122] The Ontario Court of Appeal agreed with the observations of the trial judge that the provision of information with respect to party affiliation is integrally connected to the core values protected by s. 3. Political parties play a key role in Canada's democratic system and party affiliation is a key piece of information for many voters.
[123] Thus, the existing jurisprudence with respect to the right to vote, suggests that while there is an ancillary informational component to the right to vote, that the heart of s. 3 is the right to effective representation. It is clear from the case law, that some restrictions on information are permissible without running afoul of s. 3. For example, in Somerville , the Alberta Court of Appeal held that a publication ban on advertising did not amount to a violation of the right to vote because there were other sources of information available to the voter. Thus, the ancillary informational component of the right to vote is a right to have sufficient information such that the right to effective representation is not undermined.
[124] The question then becomes whether effective representation is undermined by the sections challenged in the case at bar.
1. Spending Limits: Section 350
[125] Section 350 sets out the limitations on election advertising applicable to third parties. It provides, in part, that:
. a third party shall not incur election advertising expenses of a total amount exceeding $150,000; and
. not more than $3,000 of the $150, 000 shall be incurred to promote or oppose one or more candidates in an electoral district.
[126] The purpose of this section was the subject of much of the evidence presented in this trial and much of the argument made by counsel for the respective parties in this action. As I have stated previously when reviewing the evidence, I accept that the very general purpose of this section is to promote fairness in the electoral system. The spending limits ostensibly promote this objective by: supporting the candidate and registered party spending limits, preventing those with access to greater resources from monopolizing the election discourse and allowing more voices to be heard. (Whether these objectives are pressing and substantial for the purposes of s. 1, will be considered, infra .)
[127] The general legislative purpose of the third party spending limits - electoral fairness - lies at the core of the values protected by s. 3 of the Charter . However, this alone cannot determine the constitutionality of the spending limits, if the legislative purpose conflicts with or undermines other aspects of the right to vote, such as the need for sufficient information in order to cast a rational vote.
[128] The 1993 Canada Elections Amendment Act at issue in Somerville , limited third party advertising expenses to $1,000. Justice Macleod in the Court of Queen's Bench in Somerville , supra , found at para. 19 that "voters are effectively precluded from receiving third party views from other parts of the country." According to Macleod J., this amounted to a violation of s. 3 of the Charter . The Court of Appeal upheld Macleod J.'s finding that the $1,000 limit on third party election advertising contravened the informational component of s. 3 of the Charter . Conrad J.A. opined at 347:
The alternative to allowing third party advertising is that a so-called "informed vote" amounts to little more than a choice from amongst various candidates, where citizens are only as "informed" (or not) as the news media, the parties and the candidates themselves want the citizens to be. Insofar as these impugned provisions severely limit the ability of third parties to participate in the very communicative process which allows a citizen's vote to be " informed", they undermine the right of citizens to vote.
[129] In my view, the limits contained in the current Act do not deprive voters of their ancillary right to sufficient information as protected by s. 3 of the Charter . The current limits are considerably higher than those considered in Somerville . The evidence in this case convinces me that a third party can engage in a modest informational campaign within the limits set out in the Act . Professor Fletcher's expert report stated that:
[T]hird parties could, within the limits, run reasonable local and regional campaigns and modest national campaigns [Exhibit 33, paragraph 54].
[130] He further testified that this could be accomplished by using a mixture of media such as radio spots, community newspapers, daily newspapers and perhaps some television advertising. It is unlikely that a major persuasive , as opposed to an informational , campaign could be mounted within the prescribed limits. As noted by Professor Fletcher:
Within the advertising expenditure limits, individuals and groups have a reasonable opportunity to participate in partisan electoral discourse. What a single individual or advocacy group cannot do under the limits is to mount a partisan campaign comparable in scope to those that can be mounted by candidates and major parties [Exhibit 33, paragraph 34].
[131] Given that third parties can engage in a modest informational national advertising campaign and reasonable electoral district campaigns within the limits set out in the Act , I find that the ancillary right of voters to sufficient information is not breached. Unlike the $1,000 limit considered in Somerville , voters are not precluded from receiving the views of third parties in other parts of the country. Section 3 protects a right of sufficient information and does not, in my view, confer a right on third parties to mount a major persuasive advertising campaign. The current limits do not undermine the core of the s. 3 right - effective political representation. Therefore, I find that s. 350 of the Act does not violate s. 3 of the Charter .
[132] As will be discussed more fully, infra , and as conceded by the Defendant, s. 350 does constitute a prima facie violation of s. 2(b). However, this does not conflict with a finding that the same section does not contravene s. 3. In Somerville , Conrad J.A. stated at 346:
I am satisfied that a s. 3 analysis in determining a breach is different than that which governs the analysis of a s. 2(b) and s. 2(d) breach. Simply limiting freedom of expression ( however unacceptable that may be from a s. 2(b) and s. 2(d) standpoint) does not necessarily amount to restricting the right to vote. Thus, although the legislation may unjustifiably restrict the flow of election- related information on an expression and association standpoint, from a voter's perspective the relevant information may be available from other sources or at different, sufficiently long periods of time. If so, and if one can say that the information is available, then such restrictions do not unnecessarily undermine and diminish the right to vote, notwithstanding they may unjustifiably breach ss. 2(b) and 2(d). [Emphasis in the original.]
2. Polling Day Blackout: Section 323
[133] The blackout's effect is for a period of roughly 20 hours. It is directed at all of the primary election " players" (excluding the media): candidates, registered parties and third parties. In Somerville , the Alberta Court of Appeal held that a more restrictive ban (18 days after the election call and just prior to polling day) on election advertising did not violate s. 3 of the Charter . While Conrad J.A. expressed some greater difficulty with the black- out period at the end of the campaign, she nevertheless held at 346-347:
However, if information is critical and new, it could still be communicated through the news media, and so I am hard pressed to say that these sections prevent sufficient information reaching the voter. Moreover, s. 213(1) treats everyone equally, and simply prohibits advertising. It would not prohibit the publication of a newsworthy item by the press. In summary, I am not satisfied that s. 213(1) does infringe upon the "right to vote" in s. 3 of the Charter .[Emphasis in the original]
[134] The Plaintiff offered no submissions as to why that aspect of the Somerville decision is distinguishable from the case at bar. Since the Supreme Court of Canada in Thomson Newspapers, supra , declined to deal with the ban on the publication of opinion survey results during the last three days of an election campaign from a s. 3 perspective, I am bound by the decision of the Alberta Court of Appeal on this point. Even if I were not bound by Somerville , I find Madame Justice Conrad's reasoning highly persuasive. The ban contained in s. 323 is very minimal -- only 20 hours. It applies equally to candidates, registered parties and third parties. If there is information that voters must have in the time immediately preceding polling day, it can most likely be obtained through the media, who are not covered by the ban. It is difficult to envision that the ban could lead to a deprivation of information such that a voter could not cast a rational and informed ballot. I therefore find that s. 323 does not contravene s. 3 of the Charter .
3. Attribution, Registration and Disclosure Requirements: Sections 352 - 357; 359 - 360; 362
[135] I can see no basis for the Plaintiff's submission that these requirements constitute a violation of the rights protected by s. 3 of the Charter . I can find nothing in the case law or the Plaintiff's argument which supports the assertion that these sections of the Act violate the right to vote. Indeed, the requirement that a third party identify itself, along with the requirements to disclose information about contributions to election advertising expenses appear to enhance the right to vote by giving the voter information which he or she could use to evaluate the messages. The evidence presented in this case also supports the conclusion that these sections enhance, rather that restrict, the right to vote. For example, Professor Aucoin stated in his expert report that: "Information on who contributes to whom, how much they contribute and how money is spent constitutes information that supports the ideal of an informed vote." [Exhibit 72, at paragraph 36]
[136] These provisions do not infringe the ancillary right to sufficient information under s. 3 of the Charter . Viewed as an adjunct to the spending limits in s. 350, just as s. 350 does not infringe s. 3, neither do the attribution, registration and disclosure requirements. Viewed separately, these sections actually advance the informational component of s. 3. The requirement to provide information with respect to contributors and how the money is spent, enhances voter knowledge and information. I therefore find that none of the sections impugned by the Plaintiff which fall under this heading violate s. 3.
4. Ban on Use of Contributions from Off-Shore Sources: Section 358
[137] Section 358 of the Act states that third parties shall not use contributions from off-shore sources for election advertising purposes. The Chief Electoral Officer testified that the concern addressed by this section is "the Canadian electoral process, should be Canadian basically" (Transcript at 939). Professor Aucoin stated in his expert report:
Bans on contributions from foreign sources constitute an acknowledgement that elections are the occasions for the political communities [sic] citizens, and its citizens only, to elect their political representatives and their governments. In this view, there should be restrictions on who can contribute to the participants in an election campaign. The salience of this restriction has increased with the phenomenon of globalization. [Exhibit 72, at paragraph 37]
[138] It is difficult to conceive of how protecting the national character of Canadian elections could possibly violate s. 3 of the Canadian Charter . I therefore find that s. 358 does not contravene s. 3.
[139] In summary, I find that none of the provisions of the Act impugned by the Plaintiff constitute a violation of the right to vote as protected by s. 3 of the Canadian Charter of Rights and Freedoms .
B. Freedom of Expression
[140] The right of free expression is one of the core values of a free and democratic society such as Canada. In R. v. Keegstra , [1990] 3 S.C.R. 697, Dickson C.J.C. stated at 763-764:
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. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.
[141] This case raises issues of political expression. In Libman , supra , the Supreme Court of Canada opined at 591:
Political expression is at the very heart of the values sought to be protected by the freedom of expression guaranteed by s. 2(b) of the Canadian Charter.
[142] The test for establishing a violation of s. 2(b) is twofold. First, the court must ask whether the form of expression is protected by s. 2(b). Activity is expressive if it attempts to convey meaning. Second, the court must determine whether the purpose or effect of the impugned legislation is to restrict that form of expression ( Irwin Toy v. Quebec , [1989] 1 S.C.R. 927; Libman; supra ).
[143] I now turn to an analysis of the impugned provisions in light of the values sought to be protected by the freedom of expression guarantee of the Charter .
1. Spending Limits: Section 350
[144] It is clear from the case law that spending prohibitions and restrictions on third parties during an election contravenes s. 2(b) of the Charter (see: National Citizens' Coalition , supra ; Somerville , supra ; Libman, supra ). Limits on election advertising expenditures mean that a third party is restricted with respect to the manner and scope of the political speech that it can engage in. The connection between the exercise of free speech and the expenditure of money was succinctly stated by the United States Supreme Court in Buckley v. Valeo (1975), 424 U.S. 1 at 19:
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.
[145] Indeed, the Defendant has admitted that this section of the Act constitutes a prima facie breach of s. 2(b). Whether this prima facie breach can be saved by s. 1 of the Charter will be addressed later in these reasons.
2. Polling Day Blackout: Section 323.
[146] The Attorney General likewise admits a prima facie violation of s. 2(b) flowing from the prohibition on election advertising on polling day. A ban on the publication of survey results during the final three days of a federal election campaign - Canada Elections Act , R.S.C. 1985, c. E-2, s. 322.1 - was found to infringe s. 2(b) in Thomson Newspapers v. Canada (Attorney General) , supra . Bastarache J. for the majority stated at 938:
Section 322.1 clearly infringes on the guarantee in s. 2(b) of the Charter , in accordance with the test set out in Irwin Toy, supra . First, there can be no doubt that the publication of polling information, and more specifically opinion survey results, is an activity that conveys meaning and, therefore, falls within the ambit of s. 2(b). Second, s. 322.1 restricts freedom of expression by prohibiting the broadcasting, publication or dissemination of opinion survey results during the final three days of an election campaign. The freedom of expression is clearly infringed by this ban.
[147] A ban on election advertising is a prohibition of an activity intended to convey meaning and therefore violates s. 2(b). As was the case with the spending limits, whether this ban is saved by s. 1 will be discussed later.
3. Attribution, Registration and Disclosure Requirements: Sections 352 - 357; 359 - 360; 362
[148] The Attorney General has not admitted that any of these sections violate any of the constitutional rights at issue in this proceeding. The Plaintiff bears the onus of proving, with evidence, on a balance of probabilities, that the impugned provisions violate the Charter . In my view, the Plaintiff has not met this onus with respect to proving a violation of s. 2(b).
[149] The Plaintiff submits that these sections violate the s. 2(b) guarantee in a number of ways: onerous requirements (burdens and obligations) which make it more difficult for the Plaintiff or other third parties to engage in free speech; forced expression; and depriving third parties and their contributors of the privacy the Plaintiff says underlies freedom of expression.
[150] Employing the analysis set down by the Supreme Court of Canada, the first question which must be considered is whether the activities covered by these sections convey or attempt to convey a meaning. It is not evident, when each of these sections is considered separately, that the activity in question is an attempt to convey a meaning. For example, what is the meaning conveyed by the requirement to appoint a financial agent or an auditor? These activities may convey, or attempt to convey, a meaning only by their association with the spending limits and thus, political speech.
[151] If I accept that these sections are associated with political speech sufficiently to find that the activities covered by them convey meaning, the question then becomes whether the purpose or effect is to restrict freedom of expression. The Plaintiff says that the purpose of these sections is to limit freedom of expression, as the primary purpose is to enforce the spending limits. However, viewed apart from s. 350, it is again not evident that the purpose is to restrict political expression.
[152] The evidence in the case at bar satisfies me that enforcing the spending limits is only one of the purposes of these sections. Professor Young stated in direct examination:
I agree that if the Canada Elections Act is to include limits on spending for third parties, that does then create a need for disclosure of expenses, and certainly with the higher limits that are contained in Bill C-2 as compared to earlier attempts to regulate, the need for disclosure provisions for enforcement becomes clearer.
...
I think there's also an argument to be made that disclosure provisions...concerning the source of contributions as well as the amount of the expenses have a merit in themselves, separate from the enforcement function. [Transcript at 733]
[153] Again, in response to a question from the bench, Professor Young reiterated the utility of the disclosure requirements even in the absence of third party spending limits. That is how the regime in the U.S. works and the disclosure requirements have been upheld as constitutional ( Buckley v. Valeo, supra ). Professor Young stated:
[T]here is a merit in these limits - in the disclosure provisions aside from the necessity for enforcement, and those have to do with discouraging the undue influence and unethical behaviour that we've discussed today and also in enhancing public confidence in - essentially so that the public knows what's going on and who is spending money in the system. [Transcript at 825]
[154] Neither does the evidence convince me that these sections, taken on their own or cumulatively, have the effect of limiting free expression.
[155] In addition, the attribution, registration and disclosure requirements also provide information that voters may find important in casting a fully informed vote. The right to vote, and the values which inform the guarantee in s. 3, at times may overlap or conflict with the values enshrined in s. 2(b). Bastarache J. commented on this potential conflict in Thomson Newspapers Co. v. Canada (Attorney General) , supra , at 935:
[I]n 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.
[156] This is a case where it is necessary to find that appropriate balance. I now turn to a consideration of these sections in light of the three arguments advanced by the Plaintiff.
a. Onerous Requirements: Burdens and Obligations
[157] Citing R. v. Big M. Drug Mart , [1985] 1 S.C.R. 295, the Plaintiff submits that "freedom", here specifically freedom of expression, means the absence of any coercion or constraint. The Plaintiff contends that the requirements to appoint officers, agents and produce financial reports will create burdens which will have the effect of deterring third parties and their financial contributors from engaging in their constitutional right of free expression. The evidence, however, does not satisfy me that this is the case.
[158] The Plaintiff obtained a report from Dr. Filip Palda, wherein Dr. Palda asserted that the disclosure and reporting requirements are onerous and will deter third parties from exercising their freedom of expression. He relied on evidence from the U. S. to reach those conclusions. That report was marked as an exhibit for identification purposes only and used in the cross-examination of several of the Defendant's witnesses. Dr. Palda did not give viva voce evidence, his report was not entered in evidence, nor was he subjected to cross- examination. His report therefore cannot be relied upon for the truth of its contents.
[159] Dr. Young testified in both direct and cross-examination that she disagreed with Dr. Palda's conclusions. She stated:
In general terms, I would argue that Dr. Palda overstates the potential for disclosure requirements to discourage third parties' participation, and I think that the reason for that, in part, is that he relies very heavily on evidence from the United States; and as I've set out in my report for the court, the American disclosure provisions are considerably more demanding on independent groups' expenditures than the Canadian requirements are for third parties. [ Transcript at 739]
[160] Significantly, it was also Dr. Young's testimony that there is no evidence which suggests that registration and disclosure requirements with respect to political parties, candidates and their contributors have had the effect of discouraging participation in the political process. In fact, Dr. Young noted that since registration requirements have come into effect for political parties, the number of parties has increased from 4 in 1972 to 14 in 1993, with a decline to 10 in subsequent years. Similarly, the number of candidates has increased since disclosure requirements were put into effect. Finally Dr. Young observed:
[T]here's no compelling evidence that suggests that requiring disclosure of contributions to political parties or to candidates has discouraged individuals from contributing, either to political parties or to candidates, so I don't think there's any reason to think that these reporting requirements would discourage people from contributing to third parties. [Transcript at 741]
[161] These sections do not prohibit or constrain a third party's ability to engage in election advertising. If the requirements were so onerous so as to show that they had a significant potential limiting effect, a violation may have been made out. However, the Plaintiff has not adduced any evidence which suggests that this is the case. I therefore find that the Plaintiff has not met t