Libman v. Quebec (A.G.) and the
Administration of the Process of
Democracy under the Charter:
The Emerging Egalitarian Model
Colin Feasby”
This article contends that in Libman v. Quebec
(A.G.), the Supreme Court of Canada rejected the lib-
ertarian reasoning of the Alberta courts in National
Citizens’ Coalition and Somerville in favour of an
egalitarian theory of electoral regulation. The egalitar-
ian model adopted by the Court provides a justification
for spending and expression limits that mitigate the
disproportionate effects of wealth in the election proc-
ess. The egalitarian model, it is argued, draws upon the
Canadian tradition of “fairness” in electoral regulation
and the liberal philosophy of John Rawls. The egali-
tarian model is suggested to be, in large part, a reaction
to the deleterious effect of big money on the United
States political process made possible by the United
States Supreme Court’s decision in Buckley v. Valeo
that struck down controls on election spending. The
possibility that Libman represents a reconception of
electoral expression as a distinct genre of expression-
termed “institutionally-bound” expression by C. Edwin
Baker-akin to Parliamentary or other context-specific
speech is raised. Such a conclusion is argued to be
plausible, but premature. This article also considers the
Supreme Court of Canada decision in Thomson News-
papers. Thomson Newspapers, it is suggested, shows
that the egalitarian theory does not justify limits on
forms of expression such as opinion polls that can dis-
tort the electoral process, but does not do so in a pre-
dictable way that contributes to political inequality.
la
Cet article soutient que dans Libman c. Quibec
(PG.), la Cour supreme du Canada a rejet6 le raison-
nement libertin des tribunaux de l’Alberta dans Natio-
nal Citizens Coalition et Somerville eta privildgi6 une
thorie dgalitaire de la r~glementation dlectorale. Le
module 6galitaire adopt6 par Ia Cour permet de justifier
les limites qui sont impos es aux dapenses et a
l’expression afin de mitiger les effets disproportionn~s
de Ia richesse sur le processus 6lectoral. Le module
tradition canadienne
6galitaire est inspir6 de
d’impartialit6 et d’&luitd (fairness) dans la rdglementa-
tion 61ectorale mais aussi de la philosophie libdrale de
John Rawls. II est sugg~rd que le module dgalitaire se-
rait, en grande partie, une reaction A l’impact nuisible
des fortunes sur le processus politique aux ttats-Unis.
Cet impact a 6td facilit6 par la dteision de la Cour su-
pr~me des ttats-Unis dans Buckley c. Valeo qui a aboli
le contr6le des d6penses 61ectorales. I est propos6 que
l’affaire Libman
l’expression 6lectorale
comme 6tant un genre d’expression distinct que C.
Edwin Baker appelle vinstitutionally-boun&d. Ce genre
serait comparable bk un discours parlementaire ou A tout
autre discours donn6 dans un contexte particulier. Une
telle conclusion est plausible mais prmamrte. Cet arti-
cle examine 6galement ]a dteision de ]a Cour supreme
du Canada dans Thompson Newspapers. Ce jugement
demontre que la thdorie 6galitaire ne saurait justifier
des restrictions aux formes d’expression comme les
scnmtins populaires qui, bien qu’ils puissent nuire au
lectoral, ne nuiraient pas de fagon prdvisible
processus
et donc ne contribueraient pas A l’in~galit6 politique.
redafinit
. B.A. (Bishop’s), M.A. (U.W.O.), LL.B. (Alta.) I would like to thank David Schneiderman for his
helpful comments on an earlier draft of this article.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill W. 5
Mode de rtf&ence: (1999) 44 R.D. McGill 5
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
[Vol. 44
Introduction
I. The Egalitarian Model
A. Rawls’ Goal of Equality of Political Influence
B. Dworkin and Problems with the Egalitarian Model
C. Accounting for Criticisms: Modifying the Egalitarian Model
D. The Development of the Egalitarian Model in Canada
II. Libertarian Democracy: Election Law and the Charter Before Libman
A. Buckley v. Valeo and the American Problem
B. The Canadian Experience
1. National Citizens’Coalition v. Canada (A.G.)
2. Somerville v. Canada (A.G.)
Ill. Libman v. Quebec (A.G.)
A. Quebec Superior Court
B. Quebec Court of Appeal
C. Supreme Court of Canada
IV. Libman and an Emerging Post-Charter Theory of the Administration
of Democracy
A. Libman and the Modified Egalitarian Approach to Election Regulation
1. “Fairness” and Equality
B. “Institutionally Bound”Expression
C. The Supreme Court’s Hierarchy of Interests in Democracy
Conclusion
1999]
C. FEAsBY – THE EMERGING EGALITARIAN MODEL
The principle of electoral fairness flows directly from a
principle entrenched in the Constitution: that of the po-
litical equality of citizens. If the principle offairness in
the political sphere is to be preserved, it cannot be pre-
sumed that all persons have the same financial re-
sources to communicate with the electorate.
Libman v. Quebec per curiam
Introduction
Since the introduction of the Canadian Charter of Rights and Freedoms’ in 1982,
the regulation of expression in Canadian elections has been under seige. A series of
decisions in Alberta, the jurisdiction of choice for libertarian opponents of the Can-
ada Elections Act,2 casts serious doubt on the sustainability of controls over non-
participant activities’ and, by extension, the integrated system of spending controls
during elections. The uncertainty created by these decisions was dispelled by Libman
v. Quebec (A.G.),’ the first case after the Charter’s entry into force where the Supreme
Court of Canada had the opportunity to contemplate the constitutionality of the ad-
ministration of democracy. Unlike the Alberta decisions which contested federal elec-
tion regulations, Libman took place in the context of a provincial referendum law.!
Libman was a watershed decision because it emphatically demonstrated that the
Charter guarantee of freedom of expression and the Canadian tradition of regulating
democracy can live together. Moreover, Libman indicated that the Supreme Court is
developing a coherent theory of election and referendum regulation based on Charter
values and a common sense understanding of representative democracy as it has de-
veloped in Canada. Subsequent to Libman in Thomson Newspapers v. Canada
(A.G.),’ the Supreme Court revisited the subject of freedom of expression in elections
in the context of opinion poll restrictions. Thomson clarified some elements of the
egalitarian theory and revealed that there is a division between members of the Court
as to the scope of the theory.
American political philosopher Frederick Schauer argues that, broadly defined,
there are two conceptions of democracy: libertarian and egalitarian.’ The libertarian
‘Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
2 R.S.C. 1985, c. E-2.
3 For the sake of clarity, the term “non-participant” will be used instead of “third party” to describe
individuals and groups not standing for election or fielding candidates.
[1997] 3 S.C.R. 569, 151 D.L.R. (4th) 385 [hereinafter Libman cited to D.L.R.].
The terms “referendum” and “election” will- be used interchangeably to reflect the Supreme
Court’s obvious intention that the principles outlined in Libman apply equally to elections.
6 [1998] 1 S.C.R. 877, 159 D.L.R. (4th) 385 [hereinafter Thomson Newspapers cited to S.C.R.].
F. Schauer, “Judicial Review of the Devices of Democracy” (1994) 94 Colum. L. Rev. 1326 at
1340.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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conception eschews State controls and permits those with greater resources or abilities
to express themselves disproportionately in the so-called “marketplace of ideas”. This
conception of democracy has, for the most part, prevailed in the United States where
the Supreme Court struck down a central pillar of election finance regulations in the
landmark decision of Buckley v. Valeo.’ Many of the American campaign excesses and
controversies in the last twenty years can be blamed, to one degree or another, on
Buckley. In contrast, the egalitarian conception of democracy is an extension of the
“one person-one vote” principle which stands for the proposition that each person’s
voice in the democratic process is of equal worth. John Rawls, a leading proponent of
the egalitarian approach, argues that a just political procedure is only possible where
political liberties are fairly valued. He concludes that a just electoral procedure re-
quires that the wealthy be prevented from controlling the electoral process to the det-
riment of others with less economic power.’ This article argues that an egalitarian con-
ception of democracy informed by the ideas of Rawls and other liberal theorists has
been adopted by the Supreme Court of Canada in Libman under the guise of the elu-
sive idea of “fairness”.
The Supreme Court seems to have recognized, at least implicitly, that elections
and referenda operate in a sui generis context and, despite acknowledging the impor-
tance of political expression, freedom of expression is Janus-faced and only one of
several competing interests within this context. The majority judgment in Thomson
Newspapers, written by Bastarache J., neither accepted nor rejected this interpretation,
whereas the minority judgment, written by Gonthier J., explicitly adopted this view.
Therefore, it can be argued that at least some members of the Supreme Court have ac-
cepted the premise that democracy is analogous to other institutional forms of politi-
cal expression where, in order for there to be effective deliberation, it is necessary that
there be regulation of expression to some degree. Implicit in such a view is that some
speakers and some subjects are more important or relevant than others and should be
given priority. In Libman, the Supreme Court effectively created a hierarchy, placing
the interests of voters and participants above those of non-participants.” This decision
has important ramifications for many areas of election regulation.
Part I of this article discusses John Rawls’ egalitarian theory of electoral regula-
tion, Ronald Dworkin’s criticisms of the theory, C. Edwin Baker’s conception of “in-
stitutionally bound” expression, and the adoption of the egalitarian model in Canada.
In Part II, the libertarian conception of electoral regulation as expressed by the United
States Supreme Court and the courts of Alberta is reviewed. The practical implica-
tions of the libertarian conception in the United States and Canada are considered.
The context of Libman and the decisions of the lower courts and the Supreme Court
of Canada are outlined in Part III. Part IV critically examines the Supreme Court deci-
‘424 U.S. 1, 96 S.Ct. 612 (1976) [hereinafter Buckley cited to U.S.].
‘J. Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 360.
‘0 Following Thomson Newspapers, it can be argued that the media falls outside this hierarchy,
rather than being treated as non-participants.
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
sion and evaluates the principles outlined against the theoretical basis of the egalitar-
ian model.
I. The Egalitarian Model
The egalitarian model is a synthesis of the arguments for campaign finance re-
strictions proposed by liberal American scholars. These arguments for limits on cam-
paign expenditures have developed in response to the perception that American poli-
tics is dominated by monied interests and that an unhealthy amount of elected repre-
sentatives’ time is spent on fund-raising. While it is true that discussions of the prob-
lems of the United States First Amendment are not always applicable to the Canadian
constitutional protection of freedom of expression, the arguments advanced in favour
of an egalitarian approach to election regulation are clearly relevant to the considera-
tion of any justification of government actions under section 1 of the Charter. Two
features of the egalitarian model are of particular concern to any consideration of the
merits of electoral restrictions. First is the notion of equality of political influence as
elaborated by John Rawls. Second is the reconception of electoral expression as “in-
stitutionally bound” expression that is, by its very nature, both a product of and sub-
ject to restrictions. The former value constitutes a potentially pressing interest and the
latter provides an intelligent guide to the exercise of judicial deference.
A. Rawls’Goal of Equality of Political Influence
The egalitarian model has been expressed in different forms,” but the most influ-
ential expression of the principles of this model can be found in the work of John
Rawls.’ 2 Rawls’ idea of “justice as fairness” is predicated on a hypothetical idea of
original equality; in essence it is based on a social contract model. This principle of
equality, according to Rawls, should specify “the kinds of social cooperation that can
be entered into and the forms of government that can be established.'”‘ From this basic
idea he extrapolates that individuals should have an equal opportunity to exercise their
liberty to participate in the political life of the State. This is exemplified in the idea of
“one person-one vote” and the creation of relatively equal electoral districts in terms
of population.” Equal opportunity in this sense is -not a mere absence of controls so
” See e.g. 0. Fiss, The Irony of Free Speech (Cambridge, Mass.: Harvard University Press, 1996);
and C. Sunstein, Democracy and the Problem of Free Speech (Toronto: Maxwell Macmillan, 1993). It
has even been expressed by members of the United States Senate: see Senator R.D. Feingold, “Repre-
sentative Democracy Versus Corporate Democracy: How Soft Money Erodes the Principle of ‘One
Person, One Vote’
(1998) 35 Harv. J. on Leg. 377.
12 j. Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972); and Political Liberalism, supra
note 9. Rawls’ ideas are relied upon in Sunstein, ibid., and in Canada, Royal Commission on Electoral
and Party Financing, Final Report: Reforming Electoral Democracy, vol. 1 (Ottawa: Canada Com-
munications Group, 1991) (Chair- Pierre Lortie) [hereinafter Final Report].
A Theory of Justice, ibid at 13.
Ibid. at 223.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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that all individuals have the opportunity to express themselves as much as they want;
it takes account of each individual’s ability to influence and participate in the political
process. The main obstacle to equal opportunity to participate in the political process
is private wealth:
The liberties protected by the principle of participation lose much of their value
whenever those who have greater private means are permitted to use their ad-
vantages to control the course of public debate. For eventually these inequali-
ties will enable those better situated to exercise a larger influence over the de-
velopment of legislation. In due time they are likely to acquire a preponderant
weight in settling social questions, at least in regard to those matters upon
which they normally agree, which is to say in regard to those things that sup-
port their favored circumstances.’ 5
In his most recent book, Political Liberalism,” Rawls outlines in greater detail
guiding principles for election regulations restricting freedom of speech. Although
Rawls writes with the American First Amendment in mind, his points are sufficiently
general to make sense in the Canadian context. Rawls states that election laws should
be essentially “rules of order for elections and are required to establish a just political
procedure in which the fair value of the equal political liberties is maintained.””
Rawls’ primary concern is the protection of the “fair value” of equal political liberties
of citizens which includes a roughly equal ability to influence the outcome of elec-
tions. An ideal electoral procedure, in Rawls’ eyes, would mitigate the influence of
wealth and give each citizen a relatively equal opportunity to influence an election or
ascend to elected office. Rawls’ view is echoed and expanded upon by Cass Sunstein
in Democracy and the Problem of Free Speech.” Sunstein adds a wrinkle to the argu-
ment by suggesting that the decision not to regulate speech is in fact a regulatory
choice in itself-one that favours the wealthy. He argues that “a system of unlimited
expenditures [as presently exists in the United States] should be seen as a regulatory
decision to allow disparities in resources to be turned into disparities in political influ-
ence!”‘ 9 Furthermore, Sunstein suggests that attempts to change the regulatory struc-
ture to mitigate disparities “should not been seen as impermissible redistribution.'””
The positions of Rawls and Sunstein can be reduced to three basic premises:
(1) equality of liberty is more important than absolute liberty;
(2) equality of liberty may only be achieved by limiting freedoms of the
wealthy; and
this may only be achieved through State action.
(3)
5Ibid. at 225.
‘6Supra note 9.
Ibid. at 357.
“Supra note 11.
9Ibid. at 98.
20Ibid.
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
These premises ineluctably lead to the conclusion stated by Owen Fiss in The Irony of
Free Speech:
[In some situations] the state may have to act to further the robustness of public
debate in circumstances where powers outside the state are stifling speech. It
may have to allocate public resources-hand out megaphones–to those whose
voices would not otherwise be heard in the public square. It may even have to
silence the voices of some in order to hear the voices of the others. Sometimes
there is simply no other way.2’
In his explication of the principles of the regulation of electoral speech, Rawls
also contends that “the instituted arrangements must not impose any undue burdens
on the various political groups in society and must affect them all in an equitable
manner.”‘ This raises the question of what an undue burden is. For Rawls, the issue of
defining an undue burden comes back to the question of what it takes to be heard on a
roughly equal basis to other citizens. According to Rawls, the prohibition of large ex-
penditures by wealthy individuals and groups would not constitute an undue burden.
Indeed, “[s]uch a prohibition may be necessary so that citizens similarly gifted and
motivated have roughly an equal chance of influencing the government’s policy and
attaining postions of authority irrespective of their economic and social class.”‘ An
example of an undue burden, from Rawls’ point of view, would be a restriction on ex-
pression in certain public places as that would preclude the expression of poor
groups.”
Rawls is careful to underscore the fact that while egalitarian objectives are im-
portant, regulations must not be allowed to limit freedom of speech merely because
they serve such an end:
Finally, the various regulations of political speech must be rationally designed
to achieve the fair value of the political liberties. While it would be too strong
to say that they must be the least restrictive regulations required to achieve this
end-for who knows what the least restrictive among equally effective regula-
tions might be-nevertheless, these regulations become unreasonable once
considerably less restrictive and equally effective alternatives are both known
and available.5
This limiting principle is reminiscent of the proportionality test under section 1 of the
Charter. Like the proportionality element of the Oakes test,26 Rawls’ statement is an
expression of common sense to the effect that individual freedoms should only be
limited in so far as is necessary and by reasonable means.
2″ Supra note 11 at 4. For an elaboration of Fiss’ ideas on campaign finance reform, see 0. Fiss,
“Money and Politics” (1997) 97 Colum. L. Rev. 2470.
2 Political Liberalism, supra note 9 at 357.
Ibid. at 358.
24 Ibid.
2 Ibid.
“, R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 at 227 [hereinafter Oakes].
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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Related to this notion of proportionality is Rawls’ proviso that regulations not
dictate the content of electoral expression and not favour any group or idea over an-
other. Content neutrality is an obvious point-clearly regulations should not directly
dictate the content of electoral expression short of a prohibition on violence.’ The
question of whether or not this is accomplished indirectly through regulations fa-
vouring one group over another is more problematic. Most likely, this condition
should be interpreted as a requirement to prevent laws that target a discrete group or
idea. For example, laws prohibiting a specific group like the Progressive Conservative
Party from using television or prohibiting opposition to a specific policy such as the
Goods and Services Tax would fall afoul of this principle. In the United States, it has
been argued that the practical effect of spending restrictions is to favour the Demo-
cratic Party over the Republican Party because historically, the Republicans have been
more effective fund raisers.’ While this argument is generally true, the purpose of
Rawls’ proviso is not to protect the quantity of speech, it is to protect the quality or
integrity of the content of speech. If a ceiling is to be imposed on spending, it will ob-
viously affect one party more than another unless they are equally funded. Parties,
although clearly important players and deserving of fair treatment, are clearly subor-
dinate to the overriding concern of fairly valuing the political liberties of citizens.
B. Dworkin and Problems with the Egalitarian Model
The libertarian critique of the Rawlsian approach to the regulation of electoral
speech is essentially a devaluing or denial of the place of equality in the consideration
of free speech. This view is expressed by the United States Supreme Court in Buckley
and will be discussed in Part II, below. Libertarians, however, are not the only source
of criticism of the egalitarian model. Ronald Dworkin, although he has recently an-
nounced that he considers Buckley to be wrongly decided, ‘ has argued that equality of
7 It should be noted, though, that there are Canadian jurisdictions that impose content restrictions
on the basis of “fraud”: see e.g. the British Columbia Election Act, R.S.B.C. 1996, c. 106, s. 256(2)
that purports to prohibit the persuasion of voters by “fraudulent means” to cast their vote in favour of
or against a particular candidate or political party. Indeed, an action based on the 1996 election has
been initiated: Friesen v. Hannel, [1997] 4 W.W.R. 268, 28 B.C.L.R. (3d) 354 (S.C.).
8 This situation is glibly characterized in B. Neuborne, “One Dollar-One Vote: A Preface to De-
bating Campaign Finance Reform” (1997) 37 Washburn L. I at 1 where “The ABCs of Campaign
Finance Reform” are said to consist of three principles and two corollaries:
PRINCEILE A: Money Helps Win Elections.
PRINCrPLE B: Rich People Have More Money.
PRINcnPLE C: Republicans Have More Rich People.
COROLLARY I: Republicans oppose campaign finance reform, unless the reform is guar-
anteed to hurt Democrats more.
COROLLARY II: Democrats favor campaign finance reform, but are more likely to bend
the rules because they are always playing financial catch-up.
See infra note 36 and accompanying text.
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
political influence-the goal of Rawls’ scheme-is both unattainable and undesir-
able.”
In a 1987 article discussing the nature of political equality, Dworkin criticizes the
use of restrictions on expression in the name of equality of influence in a truly egali-
tarian society as inappropriate and unjustifiable.’ Dworkin divides political influence
into vertical and horizontal influence. Vertical influence is the ability to affect the de-
cision-making of elected officials. Horizontal influence, the influence citizens have
over each other, is different from vertical influence and more closely analogous to the
type of influence that concerned John Rawls. Although Dworkin admits that equality
of horizontal influence is superficially attractive, he argues that it is unattainable and,
when examined closely, is undesirable-even “perverse’. Dworkin bases his argu-
ment on the premise that wealth is not the only source of political influence in modem
society. The educated, eloquent, and experienced as well as the charismatic and moti-
vated are all likely to have a disproportionate political influence in society.2 To
Dworkin, the source of inequality of influence is irrelevant: why should someone who
has acquired wealth all one’s life have less influence than someone who has spent as
much time nurturing political skills? A recent libertarian critique of efforts for Ameri-
can campaign finance reform cynically encapsulates this point: “Although reformers
suggest that the elimination of monetary contributions will help make all citizens po-
litically equal, it remains an Orwellian sort of equality where ‘[a]ll … are equal but
some … are more equal than others.’33 Similarly, it can be argued that campaign fi-
nance restrictions are inherently flawed as the influence of wealth is manifested in
other ways than simply through campaign donations or expenditures. For example,
the owner or editor of a newspaper may express his or her opinion on an entirely dis-
proportionate scale to that of the ordinary citizen. Finally, Dworkin suggests that
spending limits may not be desirable because in a truly egalitarian society, a commu-
nal goal is political activity and limits on expression forestall the maximal exercise of
such an ambition.’
Dworkin’s view of the place of restrictions on expression in his hypothetical
egalitarian society seems to be in conflict with his recent public advocacy of cam-
paign finance reforms.” Dworkin has joined over forty leading scholars, including
John Rawls, in calling on the United States Senate to implement campaign finance re-
form:
We believe that the Buckley decision is wrong and should be overturned. The
decision did not declare a valuable principle that we should hesitate to chal-
30 R. Dworkin, “What is Equality? Part 4: Political Equality” (1987) 22 U. San Francisco L. Rev. 1.
31 bid
32Ibid. at 14.
33 B. Smith, ‘Money Talks: Speech, Corruption, Equality, and Campaign Finance” (1997) 86 Geo.
L.J. 45 at 93.
3Supra note 30 at 17.
3’ L. Wayne, ‘After the Election: Campaign Finance: Scholars ask Court to Backtrack, Shutting
Floodgates on Political Spending” The New York 7imes (10 November 1996) 1/30.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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lenge. On the contrary, it misunderstood not only what free speech really is but
what it really means for free people to govern themselves. 6
From this statement it is possible to conclude that he has rethought his earlier position
and now concurs with Rawls’ view. However, it is more likely that he considers the
United States as requiring restrictions on electoral expression to stop the wealthy from
dominating the political process and preventing progress toward a more egalitarian
society. This latter view is consistent with a recent article by Dworkin in The New
York Review of Books in which he offers an alternative theoretical basis for reforming
the approach to electoral expression.”
Instead of accepting Rawls’ idea of equality of influence as the theoretical basis
for the regulation of electoral expression, Dworkin proposes an alternative candidate-
based theory. He implicitly rejects the extension of the “one person-one vote” princi-
ple to equality of influence as a basis for electoral regulation, maintaining, instead,
that citizens as voters have an interest in an absence of restrictions on expression so
that they may become maximally informed. In contrast, citizens as candidates have a
powerful interest in having a fair opportunity to be heard that balances the voters’
right to the maximum amount of information. Since candidates of meagre means have
little prospect of being heard under the existing electoral regime in the United States
(and arguably in Canada too), he concludes that some campaign subsidies and restric-
tions on expression are required for the improvement of democracy. Dworkin recom-
mends the banning of television advertising during regular programming and the pro-
vision of free television time for extended political broadcasts at the expense of the
State.”
Dworkin’s rationale for electoral regulation is less ambitious than Rawls’ sweep-
ing theory. His more modest basis for justifying regulation-the candidate’s right to
be heard-circumscribes the rhetorical power of his argument. Perhaps more impor-
tant than his theory of electoral regulation is his earlier point about the influence of
individuals such as the owners of newspapers (which are excepted from most controls
on electoral expression) who are excepted from restrictions. The inevitable and
seemingly unjustifiable exclusion of some individuals and groups from the purview of
electoral regulation is one of the most potent criticisms that can be made against lim-
iting electoral speech. This apparent inconsistency goes to the heart of the equality
and fairness argument.
‘6 Testimony of Gene Karpinski, Executive Director, United States Public Interest Research Group
(U.S. PRIG), House Judiciary Constitution Free Speech and Campaign Finance Reform Committee
(27 February 1997) at 7 (NEXIS Federal Document Clearing House Congressional Testimony).
” R. Dworkin, “The Curse of American Politics” The New York Review of Books 43:16 (17 October
1996) 19.
“Ibid. at 24.
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
C. Accounting for Criticisms: Modifying the Egalitarian Model
Dworkin’s critique of the rationale behind the regulation of electoral expression
poses three challenges. First, it accepts the notion that electoral expression is the epit-
ome of political expression and is consequently precious to voters. This establishes a
significant obstacle to any limitation on the flow of information during an election.
Commensurately, Dworkin’s recommendations for regulation are relatively benign.
Second, Dworkin’s argument points out the apparent inconsistency between regulat-
ing the expression of the wealthy, but not those wealthy individuals who happen to
control the media. Third, Dworkin’s argument that candidates have the right to be
heard equally justifies the right of non-participants to be heard.” Each of these chal-
lenges may be met by attaching the egalitarian rationale for regulating elections to a
practical understanding of elections and a reconception of electoral expression.
Electoral expression is inherently different from other forms of political expres-
sion. It is different in the same sense that political expression in Parliament is different
from political expression outside of Parliament. Expression in Parliament is both
more limited and more privileged than political expression in the public realm; it is
subject to different rules that correspond to the nature of the forum. Parliamentary ex-
pression is restricted to a particular location, refereed by the Speaker, and it is often
limited in time. At the same time, however, in the interests of vigorous debate and the
full discussion of public issues, expression in Parliament is protected from the com-
mon law of defamation. ‘ C. Edwin Baker contends that parliamentary expression is
an example of “institutionally bound” expression. He further argues that “‘institution-
ally bound’ speech normally and properly only receives protection consistent with the
institution of which it is a part'”‘ Moreover, Baker suggests that, like parliamentary
debate,
elections are part of a formal, legally structured realm of the governmental ap-
paratus. Campaign speech is a central part of this electoral realm. For this rea-
son, campaign speech must be distinguished from the much broader category
of political speech or speech about public issues. 2
The success of the egalitarian model requires that it not be viewed as an assault on
liberty; rather, that it be viewed as augmenting liberty. Rawls correctly highlights the
importance of equality, but he only refers to the flaws of the argument for laissez-faire
elections in passing, noting that “the democratic political process is at best a regulated
rivalry; it does not even in theory have the desirable properties that price theory as-
39 Ibid. at 23.
4 P. Milmo & W.V.H. Rodgers, eds., Galley on Libel and Slander (London: Sweet & Maxwell,
1998) at 13.27.
41 C.E. Baker, “Campaign Expenditures and Free Speech” (1998) 33 Harv. C.R.-C.L. L. Rev. 1 at 2.
’21bid. at 3. See C. Feasby, “Public Opinion Poll Restictions, Elections, and the Charter” (1997) 55
U.T. Fac. L. Rev. 241 at 260. I have argued that expression in the electoral context is qualitatively dif-
ferent from expression generally. In my view, a distinction should be made on the basis that elections
are an artificial context created for a specific purpose and dependent on State action.
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In addition to the rejection of market-place
cribes to truly competitive markets.”
analogies, it is important to understand that elections are an artificial end-driven proc-
ess designed to select representatives of the people. Baker suggests that a preferable
analogy is that of a hiring process where the electorate is the employer and the candi-
date is the applicant. In a hiring process:
Applicants are often required to speak–to take tests, write essays, or give il-
lustrative performances of their abilities. Their speech is also limited. Each
candidate is often given the same fixed time for the test. Applicants that get to
the interview stage are often each given roughly the same amount of time, as
determined by their potential employer, in which to charm the employer and to
present their case for being chosen. Each is typically prohibited from getting
outside help during these tests or interviews.”
When electoral expression is separated-conceptually, if not formally-from political
expression generally, it becomes easier to comprehend restrictions. Restrictions on
electoral expression, when viewed through alternative analogies such as the hiring
process, no longer seem to be an affront to a pivotal democratic value but a necessary
incident of the political process. Under such a conception of electoral expression, re-
strictions that enhance the democratic process, including those that promote the
egalitarian quality of elections, are justifiable.
Baker suggests that expression that might legitimately be subject to regulation can
be determined by pragmatically applying this approach. The expression of candidates
and parties obviously falls under the heading of electoral expression. The question of
non-participant involvement is more problematic as it only falls into the category of
electoral expression in some circumstances. Baker suggests that “independent expen-
ditures that involve interventions unique to the campaign or at least directed specifi-
cally at the election … can be subject to regulation or prohibition”‘ Although cam-
paign-related advertisements by non-participant groups would clearly be character-
ized as “unique to the campaign:’ a large portion of political expression during a
campaign could not be so characterized. Baker argues that any expression in the pub-
lic sphere during a campaign that is not directed at influencing the outcome of an
election cannot be a legitimate subject of regulation. Similarly, non-commercial per-
son to person communication on the subject of an election cannot be legitimately re-
stricted. He goes even further to suggest that the press (not including media specifi-
cally created to influence election) should be permitted to cover elections without re-
strictions on content, comment, or endorsements. Moreover, Baker argues that the
day-to-day operations of political groups including regular newsletters should not be
subject to restriction nor should such groups be prohibited from identifying whom
they support through their regular means of communication.’ Only expression that
can be identified as manifestly “electoral” is a legitimate subject of restriction; expres-
43A Theory of Justice, supra note 12 at 226.
“Baker, supra note 41 at 26.
,S Ibid. at 50.
4” Ibid. at 49.
1999]
C. FEASBY- THE EMERGING EGALITARIAN MODEL
sion that can be considered customarily part of the public sphere should be afforded
the respect usually accorded to political expression.
D. The Development of the Egalitarian Model in Canada
“Fairness” is a concept that has long been said to be the guiding purpose of Cana-
dian election legislation.” In the early days of Canadian electoral history, “fairness”
was construed as meaning merely the absence of the most transparent forms of cor-
ruption such as intimidation and trading alcoholic beverages for votes. Perhaps as
early as the 1930s, however, the idea of fairness began to take on a more expansive
and egalitarian meaning. McKenzie King’s comments as leader of the opposition in
1934 seem to indicate an egalitarian view of the regulation of election broadcasting:
I think there ought to be some definite understanding that radio, where it is to
be used for political purposes, will be used in a manner which will not give to
one party which may happen to have more in the way of financial backing than
other parties, a larger use of that national instrument.’
In the 1966 Barbeau Committee Report,” this nascent view of fairness gained accep-
tance and was manifested in many of the recommendations to reform the Canada
Elections Act. Among the recommendations of the Barbeau Committee were:
*
the government should reimburse a portion of the expenses of candidates
receiving at least 15% of the votes cast;
* broadcasters should be required to provide free advertising time to political
*
*
*
*
parties;
the aggregate amount of broadcast time allowed to political parties should
be limited;
any free time provided by broadcasters must be divided equally among can-
didates;
campaign expenditures on purchases of media time should be limited; and
non-participant groups should be prohibited from purchasing print or
broadcast media advertising’
” See e.g. J. LaCalarita, “The Equitable Campaign: Party Political Broadcasting Regulation in
Canada” (1984) 22 Osgoode Hall W. 543 which argues that from the days of McKenzie King on-
ward, there has been a concern for fairness in election broadcasting. See also Royal Commission on
Electoral Reform and Party Financing, Money in Politics: Financing Federal Parties and Candidates
in Canada by W.T. Stanbury, vol. 1 (Toronto: Dundum Press, 1991) at c. 2, “Evolution of the Regu-
latory Regime” which descibes the history of efforts to create a fair electoral system.
House of Commons Debates (30 June 1934) at 4511.
Canada, Report of the Committee on Election Expenses (Ottawa: Queen’s Printer, 1966) (Chain.
Alphonse Barbeau).
‘0 Stanbury, supra note 47 at 31-33.
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These recommendations lay dormant until the early 1970s when the expense of pro-
vincial elections in Ontario and Quebec, as well as the United States Presidential
election of 1972 and the ensuing Watergate crisis, generated public concern about the
effect of high-priced campaigns on democracy.” The 1974 Election Expenses Act,”
approved by all but three members of a minority Parliament, incorporated many of the
recommendations of the Barbeau Committee Report.3 The 1974 Act can be said to
have three basic elements:
(1) limits on the election expenses of candidates and registered political parties;
(2) restrictions on the independent election spending of all other individuals and
groups; and
(3) broadcasting regulations on when, how and to what extent political
parties and candidates can advertise on television and radio.”
Prime Minister Trudeau later remarked that the legislation was “written for a specific
purpose, which was to destroy the inequality which arose from the power of money.
We think it was a very progressive piece of legislation, putting every citizen and every
candidate on an equal footing in so far as election expenses are concerned” The en-
actment of the 1974 Election Expenses Act signalled general acceptance of the evolu-
tion of the Canadian concept of electoral fairness from an absence of corruption to a
rough political equality.
The view of fairness as a derivative of equality was strongly endorsed by the
Royal Commission on Electoral Reform and Party Financing created by the Conser-
vative government after the 1988 election and chaired by Pierre Lortie. The “promo-
tion of fairness” was identified as one of the six objectives of electoral reform.” The
Final Report describes “fairness” as “the central value that must inform electoral
laws.” Furthermore, the Final Report states that for “fundamental equality of oppor-
tunity to be realized in the electoral process, our electoral laws must also be fair. In
other words, the Charter establishes the equality of citizens; only if electoral proc-
esses themselves have the property of fairness, however, can this outcome be achieved
Ibid. at 635, n. 12.
“3S.C. 1974, c. 51.
” Notable recommendations not followed include: (i) broadcasters were not mandated to provide
half of the political advertising allotment for free; (ii) the government was not required to pay for
broadcasting; (iii) the publication of opinion polls was not prohibited; and (iv) total expenditures,
rather than broadcasting expenditures, were limited. In addition, some structural recommendations
were not followed and the precise amounts permitted to be spent by parties were adjusted.
54Final Report, supra note 12 at 326.
“Stanbury, supra note 47 at 44.
36 The six objectives were: (i) securing the democratic rights of voters; (ii) enhancing access to
elected office; (iii) promoting the equality and efficacy of the vote; (iv) strengthening political parties
as primary political organizations; (v) promoting fairness in the electoral process; and (vi) enhancing
public confidence in the integrity of the electoral process.
” Final Report, supra note 12 at 322.
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
in practice.”” The Commission’s understanding of “fairness” was the resultof a care-
ful reading of Canadian history and public opinion, but interestingly, the Commission
also acknowledged its debt to the thought of John Rawls by quoting from A Theory of
Justice.” The Final Report, in turn, formed the basis of the May 1993 amendments to
the Canada Elections Act,’ some of which were challenged in Somerville v. Canada
(A.G.)” and commented upon by the Supreme Court in Libman.
II. Libertarian Democracy: Election Law and the Charter Before
Libman
The libertarian view, which is called the “individual-choice” argument by
Dworkin,” holds that the citizen as voter has a right to uncontrolled access to infor-
mation. Only the voter can decide what is or is not relevant to that voter’s decision.
Any manipulation of the flow of information affects the ability of the electorate to be
sovereign. This is encapsulated by the United States Supreme Court in Buckley: “In
the free society ordained by our Constitution it is not the government, but the peo-
ple-individually as citizens and candidates and collectively as associations and po-
litical committees-who must retain control over the quantity and range of debate on
public issues in a political campaign.”‘ Central to this conception of electoral regula-
tion is distrust of the government to set rules for the election of future governments.
In Canada, the libertarian individual-choice argument has been aggressively made
by Canada’s “national” newspaper and interest groups like the National Citizens’
Coalition (NCC).” Indeed, it is very evident in a study done on Canadian electoral
regulations published by the Fraser Institute. The author of the study argues:
I suggest that constituents may be better served by free races in which candi-
dates can spend as much as they wish. At the heart of this argument is the idea
that money enables valuable information to flow between candidates and con-
stituents. … Advertising lowers the cost to voters of making an intelligent
choice. Political competition flourishes when challengers can advertise mis-
takes or misdeeds that incumbents have made in office. A competitive political
system is one in which the threat of being unseated is great enough to keep the
1Ibid at 322.
59 The Commission quotes the following passage:
Those similarly endowed and motivated should have roughly the same chance of at-
taining positions of political authority irrespective of their economic and social classes.
… The liberties protected by the principle of participation lose much of their value
whenever those who have greater means are permitted to use their advantage to control
the course of public debate (ibid. at 326).
0An Act to Amend the Canada Elections Act, S.C. 1993, c. 19.
“(1996), 184 A.R. 241, 136 D.L.R. (4th) 205 (C.A.) [hereinafter Somerville cited to A.R.].
,2 ‘ofhe Curse of American Politics”, supra note 37 at 22.
“Buckley, supra note 8 at 57.
“See e.g. “Ottawa’s gag law struck down” The Globe andMail (7 June 1996) A16.
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ruler honest and attentive to the needs of constituents. Campaign spending
maintains this threat.’
The libertarian individual-choice argument was accepted in two Alberta cases’ and,
prior to Libman, seemingly formed the foundation of Charter election jurisprudence.
Before the effect of the libertarian individual-choice argument on the interpreta-
tion of the Charter guarantee of freedom of expression in election cases is discussed,
it is important to canvass the American experience. The story of American electoral
regulation is one of the almost complete triumph of the libertarian conception of de-
mocracy. The seminal United States Supreme Court decision in Buckley endorses the
libertarian view that free speech is the pre-eminent concern in a democratic society
and allows only the limitation of speech where corruption is a demonstrable risk. This
has had the unfortunate result of precluding meaningful containment of.the cost of the
American democratic process and has contributed to the recent controversies over
campaign fundraising.
A. Buckley v. Valeo and the American Problem
The traditionally laissez-faire approach to electoral regulation in the United States
was challenged by the 1972 United States Presidential election. The 1972 Republican
campaign was one of the most sordid in the modem era, giving rise to the Watergate
scandal and the eventual resignation of President Richard Nixon. In response to the
public outcry against corruption in the electoral process and the increasing cost of
campaigns,” Congress enacted amendments to the Federal Election Campaign Act of
1971, restricting contributions to candidates and parties by individuals and Political
Action Committees (PACs), and limiting campaign expenditures by candidates and
parties.” Contributions by individuals were limited to $1,000 and contributions by
PACs were limited to $5,000. The Act further limited expenditures by individuals and
PACs to $1,000 and $5,000 respectively “relative to a clearly identified candidate.”
Expenditures by presidential candidates were limited to $10 million for the primaries
and $20 million for the election and lesser limits were imposed on Congressional
candidates.”0
F. F Palda, Election Finance Regulation in Canada: A Critical Review (Vancouver: Fraser Institute,
1991) at 25-26. See also F. Palda & K. Palda, Campaign Spending and Finance Issues (Working Pa-
per 91-06) (Kingston: Queen’s University School of Business, 1991).
6 See Part liB., below. A libertarian understanding also formed the heart of a strongly worded dis-
sent per Conrad J.A. in a third Alberta case: Reform Party of Canada v. Canada (A.G.) (1995), 165
A.R. 161,123 D.L.R. (4th) 366 at 397 (C.A.).
7 Spending on Presidential elections increased from $27.2 million in 1960 to $94.4 million in 1972
1
(Buckley v. Valeo, 519 E2d 821″at 837, 171 U.S.App.D.C. 172 (D.C. Cir. 1975)).
‘s Federal Election Canpaign Act Amendments of 1974, Pub. L. No. 93-443,88 Stat. 1263.
69Ibid. at 101(e)(l).
‘0 Ibid. at 101(c)(1).
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
These restrictions were considered by the United States Supreme Court in Buck-
ley in 1976. The Court upheld the contribution restrictions because the measures did
not prevent an individual or group from expressing support for a candidate-despite
limiting the quantity of that support-and the limits did not promise to prevent the
raising of sufficient funds for campaigning. Moreover, the Court found the prevention
of corruption a compelling justification for the abridgement of free speech citing “the
deeply disturbing examples [of corruption] surfacing after the 1972 election.'” i,
contrast, the expenditure limits on individuals, groups, candidates, and parties were
found to be unconstitutional. The Court stated the problem as follows:
The expenditure limitations contained in the Act represent substantial rather
than merely theoretical restraints on the quantity and diversity of political
speech. The $1,000 ceiling on spending “relative to a clearly identified candi-
date:’ would appear to exclude all citizens and groups except candidates, politi-
cal parties, and the institutional press from any significant use of the most ef-
fective modes of communication. 2
Unlike the contribution limit, however, the expenditure limit did not address the ac-
knowledged evil of corruption. It was argued that the expenditure limits were de-
signed to further the government “interest in equalizing the relative ability of indi-
viduals and groups to influence the outcome of elections'” To this the Court curtly
replied, “the concept that government may restrict the speech of some elements of our
society in order to enhance the relative voice of others is wholly foreign to the First
Amendment”‘ and concluded that the expenditure limits were “restrictions that the
First Amendment cannot tolerate.”
Although it upheld the contribution limits, Buckley was an emphatic statement of
the United States Supreme Court’s estimation of the importance of free speech. More
significantly, Buckley stands for the proposition that equality is an irrelevant consid-
eration in the limitation of political speech. Buckley made it clear that in the United
States, the only justifiable restrictions of political speech are those that go to the heart
of the electoral process-namely, corruption.
The Buckley decision spawned a generation of law review articles and has been
widely discussed in the popular press.” More importantly, Buckley is the spiritual fa-
” Buckley, supra note 8 at 27.
“2Ibid. at 19-20 [footnotes omitted].
“Ibid. at48.
7’ Ibid. at 48-49.
” Ibid. at 59.
71 See e.g. J. Skelly Wright, “Politics and the Constitution: Is Money Speech?” (1976) 85 Yale L. J.
1001; J. Skelly Wright, “Money and the Pollution of Politics: Is the First Amendment an Obstacle to
Political Equality?” (1982) 82 Colum. L. Rev. 609; D. Cole, ‘First Amendment Antitrust: The End of
Laissez-Faire in Campaign Finance” (1991) 9 Yale L. & Pol’y Rev. 236; K.J. Levit, “Campaign Fi-
nance Reform and the Return of Buckely v. Valeo” (1993) 103 Yale L.J. 469; and FJ. Sorauf, “Poli-
tics, Experience, and the First Amendment: The Case of American Campaign Finance” (1994) 94
Colum. L. Rev. 1348.
MCGILL LAW JOURNAL – REVUEDEDROITDEMCGILL
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ther of the American electoral morass that we witness from a comfortable distance.
By striking down a central provision of the regulatory framework, Buckley has created
a situation where candidates must raise money in small amounts, but are allowed to
spend an infinite sum.” This paradox dictates that candidates commit ever more time
raising money so that they will have more to spend. One commentator has suggested
that the amount of time that members of Congress are required to spend raising
money, as opposed to doing their jobs, may be a justification for the argument for
spending limits of analogous importance to the need to limit corruption.’
Since Buckley, the cost of American elections has spiralled out of control. The
combined expenses of the major candidates and parties for the 1996 presidential elec-
tion were approximately $800 million.” Individual candidates for United States Sen-
ate seats routinely raise $3 to $6 million per campaign. The problem, however, is not
merely the cost of elections, but where the money is coming from and to whom it is
going. Contributions from PACs are now a substantial portion of total donations and
are disproportionately directed toward incumbents. In the 1996 election, House of
Representatives incumbents received six times as much money from PACs as did
challengers while incumbent Senators only received five times as much money as
their challengers.”0 Indeed, of the twenty Senate candidates that received the most
money from PACs, fifteen were incumbent Senators, four were members of Congress
seeking empty seats, and one did not occupy a federal elected office.” The lack of
spending limits has clearly favoured established politicians over challengers.
Buckley has also given rise to an “eccentric billionaire” problem. The restrictions
on the supply of money combined with the absence of any ceiling on the expenditure
of money has created a situation where extraordinarily wealthy individuals may out-
spend their competitors with funds from their own pocket. Candidates of modest
means simply cannot raise enough money through piecemeal donations of $1,000 or
less to off-set the personal wealth of the super-rich. The United States has the dubious
distinction of having had two of the richest men in the world-Steve Forbes and Ross
Perot (twice)-attempt to “buy their way” into the Presidency by outspending their
opponents using their personal fortunes. Candidates have also attempted to use their
personal riches as a vehicle to a Senate seat. In the 1994 Califomia race for the United
” This is roughly the same situation that prevails in Alberta provincial elections. See “Alberta Tories
make most of lax electoral spending laws” Canadian Press Wire Service (23 February 1997), online:
QL (CPN) where Alberta’s Chief Electoral Officer is quoted as saying: “We have only limits on con-
tributions, so you’re free to spend what you can raise. … It’s basically a free market politically.” The
Alberta Conservative Party spent more than all other participants in the 1997 provincial election put
together.
” V. Blasi, “Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits
May Not Violate the First Amendment After All” (1994) 94 Colum. L. Rev. 1281.
” “Financing of Campaign ’96: One More Cause for Reform: Once Again the Current System’s
Injustice is Made Obvious” The LosAngeles imes (13 November 1996) B8.
‘0Ibid.
a “Big Money for Big Senate Races” The Washington Post (15 August 1996) A17.
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
States Senate, Michael Huffington spent $27 million of his own money in an attempt
to defeat incumbent Diane Feinstein.’
Meaningful campaign finance reform in the United States can only be achieved if
Buckley is overturned or circumvented. Despite the assertion of constitutional scholars
that Buckley was wrongly decided, 3 the prospect of the United States Supreme Court
overturning Buckley is remote. The Supreme Court reaffirmed the principles in Buck-
ley when considering limits on PAC expenditures under the Presidential Election
Campaign Fund Act’ in its decision in Federal Election Commission v. National Con-
servative Political Action Committee’ and again when considering party and PAC ex-
penditures in Colorado Republican Federal Campaign Committee v. Federal Election
Commission.’ The Court’s faithful adherence to Buckley suggests that campaign fi-
nance reform initiatives, such as the proposed McCain-Feingold Bill,” might fall afoul
of the First Amendment. The Court’s interpretation of the First Amendment in Buck-
ley is so formidable an obstacle that some legislators have concluded that a constitu-
tional amendment is required before effective regulation of campaign finance is pos-
sible.”
B. The Canadian Experience
1. National Citizens’ Coalition v. Canada (A.G.)
Only two years after the introduction of the Charter, the National Citizens’ Coali-
tion (NCC) successfully challenged the constitutionality of the restrictions on non-
participant expenditures and advertising in the Alberta Court of Queen’s Bench.” In
his decision, Medhurst J. referred to Buckley, but was careful to note the differences
between the constitutional frameworks existing in Canada and the United States.” In
his informal, pre-Oakes analysis of section 1 of the Charter, Medhurst J. noted the ar-
guments founded on the practical hazard of disproportionate non-participant interfer-
ence in the electoral process and the principle of equality.9′ He dismissed the former
argument as lacking a factual basis, pointing out that in the United States PACs were
82 G. Lefevre, “Feinstein and Huffington Run for Senate”, online: CNN San Francisco Newsvault
” See supra note 36 and accompanying text.
‘426 U.S.C.A. 9001ff. (West 1998).
‘5470 U.S. 480, 105 S.Ct. 1459 (1985).
6 518 U.S. 604, 116 S.Ct. 2309 (1996) [hereinafter Colorado cited to S.Ct.].
“H. Dewar, “Campaign Finance Bill Buried For Year” The Washington Post (11 September 1998)
A4.
u(1997) 105th Cong., 1st Sess., S.J. Res. 18.
‘9 National Citizens’Coalition v. Canada (A.G.) (1984), 32 Alta. L.R. (2d) 249, 11 D.L.R. (4th) 481
(Q.B.) [hereinafter National Citizens’Coalition cited to Alta. L.R.].
9Ibid at 262.
9′ Ibid. at 263.
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only responsible for “alleged mischief’.” While the latter argument was not rejected
outright, it was held that the importance of freedom of speech outweighed any com-
peting interests. In so ruling, Medhurst J. specifically rejected the idea that fairness
was a relevant concern: “In my opinion the limitation must be considered for the pro-
tection of a real value to society and not simply to reduce or restrain criticism no
matter how unfair such criticism may be.”9
The judgment in National Citizens’ Coalition was delivered shortly before the
1984 federal election. The Liberal government chose not to appeal the decision. The
relevant sections of the Canada Elections Act were not re-enacted or replaced in the
first term of the succeeding Conservative government led by Brian Mulroney. Con-
veniently, the Conservatives waited until after the 1988 election-an election that was
characterized by heavy non-participant spending in favour of free trade, an issue
strongly identified with the Conservative party-to re-enact restrictions on non-
participant advertising.’
2. Somerville v. Canada (A.G.)
The restrictions on non-participant spending and advertising, re-enacted after be-
ing struck down in National Citizens’Coalition, were challenged by David Somerville
on behalf of the NCC. In addition, the prohibitions on all advertising in the initial
phase of an election and the final two days of a campaign (“blackout” periods) were
challenged. At trial, McLeod J. found that the restriction of non-participant spending
and advertising as well as the blackout periods were unjustifiable restrictions of free-
dom of expression. Central factors in his decision were:
(1) that the entire scheme-namely limits on party spending and advertising,
which these sections were aiming to protect-was based on restrictions of
freedom of expression;
(2) the apparent lack of concern of the Chief Electoral Officer about non-
(3)
participant spending;
the lack of consideration of the Attorney General of the effect of the lack of
restrictions on democracy and the cavalier ignorance of both the Attorney
General and his experts of the fact that there were no such restrictions in
Alberta provincial elections; and
(4) inconclusive social science evidence on the question of the necessity of
restrictions.”
92 Ib .
“Ibid, at 264 [emphasis added].
9″ R. Johnston et aL, Letting the People Decide: Dynamics of a Canadian Election (Montreal &
summarized in Somerville, supra note 61 at 249.
Kingston: McGill-Queen’s University Press, 1992) at 128-29.
” Somerville v. Canada (A.G.) [1993] A.J. No. 504 at paras. 25-32 (Q.B.), online: QL (AJ) and
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
On appeal, Conrad J.A., writing for the majority, upheld the trial decision.
Conrad J.A.’s analysis is predicated on the view that unfettered free speech is inher-
ently good. Though not explicit, Conrad J.A. is clearly working from an assumption
that the libertarian model of election regulation is the regulative ideal. She makes it
clear that any tampering with expression in the electoral context must be treated with
suspicion: “A manipulated communication system favouring the political parties is, in
my view, one of the evils from which the constitutional guarantee provides protec-
tion””‘ In the same spirit, Conrad J.A. characterized the purpose of the non-participant
spending restrictions:
[O]ne is led to conclude that the very aim or purpose of this legislation is to en-
sure 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 freedom[s], which can never
be justified.97
Conrad J.A.’s characterization of the purpose of the legislation is not a deferential
or generous interpretation of the motive of Parliament. Instead of such a negative
characterization, it was clearly open for Conrad J.A. to invalidate the legislation on the
grounds that the means employed by Parliament did not satisfy the minimal impair-
ment aspect of the Oakes test and, therefore, had the effect of unjustifiably restricting
non-participant activities. Nevertheless, for Conrad J.A., the regulation of electoral
speech was not an issue of proportionality, it was more properly one of whether the
government had a defensible interest in the administration of the voting process be-
yond the minimum required to ensure the civility of elections.
As a consequence of circumstance and government decisions not to appeal these
cases in the first fifteen years after the introduction of the Charter, no significant con-
sideration of the Canada Elections Act nor of any provincial referendum or elections
law occurred in the Supreme Court of Canada.” Before Libman, it was unclear
whether the egalitarian vision of election regulation was compatible with the Charter.
The ultimate fate of election regulation could not be known and one could be forgiven
after the Alberta cases for mistaking the fate of election regulation in Canada for that
of the United States following the landmark decision Buckley. The striking down of
restrictions on non-participant expenditures in Somerville had the effect of destroying
the balance of the regulatory scheme.” Moreover, the reasons offered by the Court of
96 Supra note 61 at 266.
9 IbidL
9’ The Supreme Court had the chance to consider whether or not the funding provisions of the
Manitoba Elections Finances Act, S.M. 1982-83-84, c. 45 infringed freedom of expression in MacKay
v. Manitoba, [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385. In that case, however, the Court declined to
consider the merits of the case due to a lack of evidence.
“This opened the way for non-participant advertising in the 1997 federal election and led British
Columbia to cease enforcing the provisions of the British Columbia Election Act restricting non-
participant spending.
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Appeal in Somerville, if they had been left to stand, would have been a significant ob-
stacle to reconstructing anything but a laissez-faire model of election regulation. After
National Citizens’Coalition, but before Somerville, the apparent effect of the Charter
on the Elections Act moved one British observer to remark, “rather than protect and
promote democratic principles, the Charter, like the [United States] Bill of Rights,
could serve ultimately to frustrate them.” ”
III. Libman v. Quebec (A.G.)
Libman arises out of the unique tensions and circumstances of Canadian and
Quebec politics. After the embarassing failure of the Meech Lake Accord, Quebec
premier Robert Bourassa committed his government to holding a referendum on any
proposed constitutional amendments in the future. In 1992, the provincial premiers
and the federal government reached a provisional agreement to amend the constitu-
tion known as the Charlottetown Accord. True to Bourassa’s commitment, Quebec
decided to hold a referendum on the Charlottetown Accord. Subsequent to Quebec’s
decision, the federal government chose to hold a Canada-wide referendum under the
newly enacted Canada Referendum Act.'”‘ Despite the decision to hold a national ref-
erendum, in Quebec the Charlottetown Accord was put to a vote under the provincial
Referendum Act.’2
The Quebec Referendum Act was designed in 1978 by the Parti Quebecois gov-
ernment to administer a vote on the sovereignty of Quebec. The Quebec referendum
law was written carefully to ensure that during votes there is strict equality between
the options so that the outcome of the vote is “clean, clear and fair”” The drafters
recognized that the appearance of fairness would be necessary so that the result would
have legitimacy in the eyes of those called upon to recognize Quebec’s sovereignty.
The even-handedness of the referendum law is a source of pride for many people in
Quebec and has been affectionately called by some “l’heritage de LUvesque”.’ The
historical connection to Ren6 .,vesque and the practical effect of spending restric-
tions-keeping money from the rest of Canada out of any referendum campaign-
dictate that any legal challenge to the law is politically sensitive.
Robert Libman, the plaintiff, was at the time of the commencement of litigation
the leader of the Equality Party, a provincial political party that fights for “English
rights” and against such things as Quebec’s French language sign laws. To him,
L6vesque’s vaunted referendum law was not fair at all. Libman was dissatisfied with
‘ K. Ewing, Money, Politics, and Law: A Study of Electoral Campaign Finance Reform in Canada
(Oxford: Clarendon Press, 1992) at 231.
‘t S.C. 1992, c. 30.
’02 R.S.Q., c. C-64.1.
“‘ L. Fitterman, “Quebec Court of Appeal upholds decision against Libman’s challenge to referen-
dum law” The [Montreal] Gazette (4 August 1995) A10.
“‘ See e.g. P. Gravel, “Uheritage de Lvesque” La Presse (I1 October 1997) B2; and D. Moni~re,
G. Bouthillier & P. de Bellefeuille, “Leur democracy et la n6tre” Le Devoir (28 October 1997) A7.
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
both of the alternatives in the referendum and wanted to conduct an independent
campaign promoting abstention from voting. The referendum law, however, prevented
him from doing this. The “fairness” elements of the referendum procedure, imple-
mented largely through the creation of a “national” umbrella committee for each op-
tion, effectively deny funding to and prohibit the spending of unaffiliated individuals
and groups. Only the national committees and affiliated groups are allowed by the law
to incur “regulated expenses”. Regulated expenses include the “cost of any goods or
services used during the referendum period to promote or oppose,- directly or indi-
rectly, an option “‘” Groups or individuals wanting to independently promote one op-
tion or another must, if they want to be permitted to incur “regulated expenses”, be-
come affiliated with the respective national committee.'” Individuals like Libman who
do not favour either option are faced with the choice of affiliating with either of the
national committees promoting options that they do not believe in, or forgoing the
ability to make “regulated expenses”. The expenses that fall within the exceptions to
regulated expenses are inconsequential in the context of modem campaigning.” An
unaffiliated third party like Libman is effectively precluded from mounting any sort of
meaningful campaign.
A. Quebec Superior Court
In the Quebec Superior Court, Libman and the Equality Party challenged all of
for (i) lim-
the sections of the Quebec Referendum Act and the Quebec Election Act
iting political donations and expenditures, (ii) requiring that “regulated expenses” be
incurred through national committees, and (iii) restricting the spending of unaffiliated
individuals and groups supporting neither option, on the basis that these sections vio-
lated the freedoms of expression and association and the right to equality as protected
by the Charter.” Libman also argued that these sections were contrary to similar
rights protected by the Quebec Charter of Human Rights and Freedoms.”‘ In response
to Libman’s challenge to the general limits on political donations and expenditures,
Michaud J. found that these restrictions violated freedom of expression but were justi-
fiable:
,5Quebec Referendum Act, s. 402.
o6Ibid., s. 416.
’07 Exceptions are outlined in ibid., s. 404. Exceptions include (i) news, editorials, and other cover-
age in regularly published newspapers or periodicals; (ii) previously planned books; (iii) public affairs
programming on television or radio; (iv) reasonable out of pocket meal and lodging expenses; (v) rea-
sonable out of pocket transportation expenses; (vi) objective explanation of the Act; (vii) day to day
expenses of maintaining two offices; (viii) interest on any loan to an official agent; and (ix) costs of a
meeting up to $600.
’08R.S.Q., c. E-3.3.
” The impugned sections include Referendum Act, ss. 22, 25, 36-38; and Election Act, ss. 91,402-
405, 406(l)-(3), 412-417,426,430.
“o R.S.Q., c. C-12.
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I1 n’est pas contest6 que la limitation des dpenses rfrendaires par le gou-
vemement a td drcrte dans un but louable, soit celui de tenter de donner aux
deux options des moyens comparables de s’exprimer et d’empacher que les
plus puissants, par un barrage publicitaire, s’approprient un rsultat favorable.”‘
Michaud J. was less impressed with Libman’s argument that the national committee
framework violated freedom of expression and association. He concluded that, as-
suming the by-laws set out by the national committees were constitutional, the general
principles of affiliation laid out in the Referendum Act were consistent with both free-
doms because they allow for independent activity, albeit regulated. Libman’s third ar-
gument, that the freedom of expression and association of individuals and groups not
supporting either option was violated, was accepted by Michaud J. He found, how-
ever, that the violation was justifiable under section 1 of the Charter. In this conclu-
sion he seems to have been influenced by the Quebec government’s expert witness
Professor Aucoin, whose report praised the Referendum Act.
The Quebec law … stands as a model of democratic process to other jurisdic-
tions in Canada and to political democracies abroad. Quebec is a pioneer in this
regard as Quebec and other Canadian electoral laws have been in other re-
spects. … The interest of other jurisdictions in the Quebec and Canadian mod-
els indicates that we are leading the [pack] with “best practices” and that oth-
ers, in time, will likely follow. 2
B. Quebec Court of Appeal
At the Quebec Court of Appeal, Libman dropped his challenge to the overall re-
strictions on donations and expenditures and instead focused on the sections outlining
who could incur regulated expenses.”‘ In the context of election jurisprudence, this
was an important concession in that it amounted to an acknowledgement that the gov-
emnment has a genuine interest in limiting private donations and campaign spending
generally. Consequently, the question before the Quebec Court of Appeal was a much
more limited one, namely, whether the restriction of the expenditures of unaffiliated
individuals and groups violated Charter rights and, if so, whether such a violation was
justifiable.
In separate judgments, Delisle and Brossard JJ.A. agreed that the restrictions in
question violated Libman’s freedom of expression and association, while Bisson J.A.
only found that the impugned sections violated his freedom of expression. All three
judges concluded that the government’s objective in limiting regulated expenses to
national committees and affiliated groups was pressing and substantial. In separate
reasons, both Delisle and Bisson JJ.A. decided that the means employed by the refer-
“. Libman v. Quebec (A.G.), [1992] RJ.Q. 2141 at 2147 (S.C.), online: QL (AQ) [hereinafter cited
“2 Ibid at 2158.
” Libman v. Quebec (A.G.), [1995] R.J.Q. 2015 (C.A.), online: QL (AQ) [hereinafter cited to
to R.J.Q.].
RJ.Q.].
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
endum law were proportional to the objectives and therefore constitutional. Accepting
Michaud J.’s conclusion that any independent campaign would directly or indirectly
benefit one of the options, Delisle J.A. found that the legislature’s choices were rea-
sonable:
Si le l6gislateur prend la peine de rglementer les comit~s nationaux dans leurs
d6penses et leur financement afin que chacun puisse se retrouver sur un pied
d’6galit6, il serait iliogique que certains groupes, d6sirant faire bande Apart,
puissent faire une campagne . leur guise. Us avantageraient ou d6savantage-
raient une option en permettant de plus importantes d6penses en sa faveur.”‘
Brossard J.A., however, differed from his colleagues and found that the limits were
not justifiable because they did not satisfy the minimal impairment element of the
Oakes test. In his view, there was nothing to stop the National Assembly from pro-
viding a reasonable limit on expenses for independent individuals and groups that
would be consistent with the overall objectives of the legislation.”‘
C. Supreme Court of Canada
At the Supreme Court, Libman’s fortunes took a turn for the better. The Supreme
Court held, per curiam, that the contested sections of the referendum law violated
Libman’s freedoms of expression and association. The Court, as is now customary in
freedom of expression adjudication, established that what the appellant was prevented
from doing amounted to expression-as does any communicative effort short of vio-
lence-and found that the impugned law did, indeed, restrict that expression.”‘ In the
course of this perfunctory analysis, the Court reaffirmed that political expression was
of “paramount importance” to Canadian democracy.”‘ In one short paragraph it was
also noted that “[f]reedom of association is … infringed for similar reasons.””8
From this benign conclusion, the Court moved on to its section 1 Charter analy-
sis-the meat of any freedom of expression case. The court began by adopting a def-
erential stance,”‘ accepting the Quebec government’s interpretation of the objective of
the Referendum Act and affirming its importance.'” In considering the rational con-
nection of the chosen means to the objective of the Referendum Act, the Supreme
Court adopted the analysis of the Lortie Commission and the opinion of the Quebec
government expert Professor Aucoin’2’ to the effect that the limitation of spending by
independent individuals and groups is necessary to maintain the fairness of elections.
Despite holding the government’s objective to be worthwhile and the means chosen to
I” Ibid at 2051.
“, Ibid at 2043.
“‘Supra note 4 at 406.
1” Ibid at 404.
“‘Ibid at 406.
“Ibid at 408.
‘” Ibid at 407-408.
,’ Ibid. at 414.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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be rationally connected to the objective, the Court found that the section restricting un-
regulated expenses allowed to unaffiliated groups did not satisfy the minimal impair-
ment element of the Oakes test.’22 The Court was swayed by the fact that unregulated ex-
penses were limited to such things as transportation costs and the costs of a public
meeting. Such a limited scope for expenditure precluded unaffiliated groups from print-
ing and distributing flyers, pamphlets, or posters–the customary means available to
cash-poor campaigns. Consequently, the Court declared the offending sections of no
force or effect. This was a personal victory for Robert Libman in his struggle.” It was
also, despite the result, a defeat for those who promote a libertarian conception of de-
mocracy and value freedom above fairness in election regulation.”
IV. Libman and an Emerging Post-Charter Theory of the
Administration of Democracy
Elections and referenda are related, but clearly different, processes. As such, it
would have been quite easy for the Supreme Court to treat referenda as a discrete subject
matter and attempt to limit the interpretive scope of its decision as is often done. While
the decision would likely have taken its rightful place in the canon of Canadian election
jurisprudence regardless of the Supreme Court’s feelings on the matter, Libman is a re-
markable decision precisely because the Court makes it very clear that the principles
outlined in the decision are intended to apply to elections as well. The Court notes that
“[a]lthough the referendum system is different from the electoral system … the same
principles underlying election legislation should in general be applicable to referendum
legislation.”‘ This is followed by a statement that the Lortie Commission’s justification
for regulating election spending should apply mutatis mutandis to referendum con-
trols. ‘ Such comparisons are inevitable given the paucity of referendum jurisprudence;
however, the comparisons made by the Court are not couched or qualified. Indeed, given
the the blatant nature of the comparison, the Supreme Court seems almost to be scolding
the lower courts responsible for the earlier line of election cases. This is most evident in
the way that the Court went out of its way to point out its admiration for the object of a
piece of legislation not in issue, the Canada Elections Act, which it describes as “highly
laudable”,'” and its explicit disagreement with the Alberta Court of Appeal’s decision in
Somerville.’2’ Although arguments can be made for different treatment of referenda and
elections,” the Supreme Court intends that they be considered together.
2 Ibid. at 425.
‘ J. Dion, “Robert Libman savoure sa victoire” Le Devoir (10 October 1997) A7.
’24 G. Fraser, “‘Gag Law’ ruling infuriates citizens coalition” The Globe andMail (13 October 1997)
A4.
, Supra note 4 at 409.
12 Ibid. at 413.
127 Ibid. at 414.
12 Ibid. at 414, 427.
,2 See e.g. J.R. Saul, Reflections of a Siamese Twin: Canada at the End of the Twentieth Century
(Toronto: Viking, 1997) at 48-52 where it is argued that referenda are tools of demagogy and artifi-
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
A. Libman and the Modified Egalitarian Approach to Election
Regulation
1. “Fairness” and Equality
The immediate question before the Supreme Court in Libman was the constitu-
tionality of the restrictions on non-participants in the Quebec Referendum Act, but the
transcendant issue was whether the conception of “fairness” as it has developed in
Canada was compatible with the Charter In its characterization of the purpose of the
Quebec legislation, the Court implicitly indicated that these two questions were re-
lated by affirming the Quebec government’s interpretation of the goals of the Refer-
endum Act:
mhe objective of the Act is, first, egalitarian in that it is intended to prevent the
most affluent members of society from exerting a disproportionate influence by
dominating the referendum debate through access to greater resources. What is
sought is in a sense an equality of participation and influence between the pro-
ponents of each option. Second, from the voters’ point of view the system is
designed to permit an informed choice to be made by ensuring that some posi-
tions are not buried by others. Finally, as a related point, the system is designed
to preserve the confidence of the electorate in a democratic process that it
knows will not be dominated by the power of money.30
This is, if nothing else, a classic statement of the objective of fairness as it has come to
be understood in the context of the Canada Elections Act. The identical nature of the
notion of fairness as it is expressed in the Canada Elections Act and in the Quebec
Referendum Act was underlined and endorsed by the Court when it said, “it is our
view, that the objective of Quebec’s referendum legislation is highly laudable, as is
that of the Canada Elections Act”‘ 3’
Perhaps more important than the Court’s affection for the idea of fairness is the
theoretical justification for the concept that is offered. Following the lead of the Lortie
Commission, the Court firmly anchored the principle of electoral “fairness” in the
Charter guarantee of equality. The Court held, in very Rawlsian terms, that the demo-
cratic value of fairness “is related to the very values the Canadian Charter seeks to
protect, in particular the political equality of citizens that is at the heart of a free and
democratic society”‘ 2 Grounding fairness in equality is an important rhetorical shift
that changes the analysis from that of justifying the infringement of an important
freedom to one of balancing competing rights. The equality referred to by the Court,
however, was not section 15 Charter equality, it was merely an interpretive concept.
As the Court suggested, political equality referred to the right of each voter to have a
cially simplify complex decisions into simple yes or no options. Indeed, Saul argues, referenda are the
antithesis of democracy.
3 Supra note 4 at 408:
” Ibid. at 414.
1 Ibid. at 416.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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roughly equal influence on the electoral process irrespective of each individual’s
wealth:
Elections are fair and equitable only if all citizens are reasonably informed of
all the possible choices and if parties and candidates are given a reasonable op-
portunity to present their positions so that election discourse is not dominated
by those with access to greater financial resources.’
Distilled to its essence, the argument for equality can be seen to be rooted in the
idea that in a democracy, the government is chosen by the people where each individ-
ual has only one vote. In Canada, however, it is now settled that a dogmatic approach
to equality of voting power is not required by the constitutionally guaranteed right to
vote. McLachlin J. expressed this view in Reference re Electoral Boundaries Commis-
sion Act (Saskatchewan)”‘ where she noted that the idea of “effective representation”
that lies at the heart of the right to vote is made up of two elements which, arguably,
can be viewed as different aspects of equality: (i) relative parity of the voting power,
and (ii) other factors such as geography, community history, and minority representa-
tion.’35 McLachlin J.’s view of voting equality-that is, formal equality tempered by
practical and social concerns-is compatible with the version of equality that is em-
bodied in the notion of “fairness” expressed by the Supreme Court in Libman. In the
abstract, the concept of fairness would seem to be akin to Rawls’ notion of the “fair
value” of political liberties.
Libman clearly indicates that fairness is rooted in equality, but it is silent as to
whether there are other apsects to fairness that might justify election laws aimed at re-
fining the electoral process but not at limiting inequality. In Thomson Newspapers, the
majority clarified the meaning of fairness as it is expressed in Libman and limited its
scope of application. Fairness, it would seem, only applies to the mitigation of the in-
fluence of wealth and does not extend to the limitation of other influences. In other
words, it is likely that fairness can only be successfully invoked when equality inter-
ests are at stake. The majority in Thomson Newspapers felt that the publication of
opinion polls in the latter stages of elections did not pose a sufficient threat to the
electoral process to justify the degree of deference accorded to Parliament in Libman.
Central to this conclusion was the fact that the alleged harm came from random errors
in polls and not from a concerted effort to deceive the public.
Using a contextual approach, Bastarache J. found that the harm caused by the in-
fluence of opinion polls was not as great as that posed by the influence of wealth and,
therefore, Parliament was not allowed the same latitude to control the harm. In order
for limitations to be justifiable under this approach, the harm that is sought to be con-
trolled must be a form of social injustice stemming from a systemic cause. Bastarache
J. drew a comparison between the rationale for limiting pornography, hate speech, and
advertising directed at children and the influence of wealth in elections: “In each of
‘” Ibid. at 410.
[1991) 2 S.C.R. 158,81 D.L.R. (4th) 16 [hereinafter cited to D.L.R.].
‘” Ibid. at 36.
1999]
C. FEASBY- THE EMERGING EGALITARIAN MODEL
these cases [R. v. Butler,’36 R. v. Keegstra'” and Irwin Toy Ltd. v. Quebec (A.G.)”], the
type of speech involved systematically and consistently undermined the position of
some members of society”‘ Furthermore, Bastarache J. stated:
Libman is not dissimilar to Irwin Toy in the sense that, under certain circum-
stances, the nature of the interests (i.e., a single party or faction with a great
preponderance of financial resources) of the speakers could make the expres-
sion itself inimical to the exercise of free and informed choice by others. The
government does not suggest that there is any such systematic or structural
danger in the case of opinion surveys.'”
The connection made by Bastarache J. to Butler, Keegstra, and Irwin Toy suggests
that in order for electoral speech to be limited under the guise of “fairness”, the
speech must be the source of genuine harm to the electoral process and serve an iden-
tifiable interest. Bastarache J. emphasized this point by distinguishing the case of
opinion poll restrictions from advertising restrictions: “Unlike the advertising cases,
this is not a case in which the government is intervening against a powerful interest to
prevent expression from being a means of manipulation and oppression'””
B. “Institutionally Bound” Expression
The Supreme Court’s acceptance of Rawls’ rationale for the regulation of elec-
toral speech in Libman was unequivocal. Whether Libman can be interpreted as en-
dorsing a reconception of electoral expression is less certain. At the very least, it may
be said that the decision is not inconsistent with Baker’s idea of “institutionally
bound” expression. Indeed, if it can be inferred that the Court has adopted such a no-
tion, it becomes easier to reconcile the statement that “[p]olitical expression is at the
heart of the values sought to be protected by … s. 2(b)”‘
and the Court’s emphatic
conclusion that fairness is essential to the electoral process and that “protecting fair-
ness of referendum compaigns is a laudable objective that will necessarily involve
certain restrictions on freedom of expression.”4
It would seem that in the considera-
tion of laws or regulations related to elections or referenda where fairness is a relevant
concern, the Court will adjust its expectations accordingly. In Libman, the Court’s tra-
ditional hostility to restrictions of political expression seems to be neutralized by the
realization that fairness is a complicated concept that “presupposes that certain rights
or freedoms can legitimately be restricted in the name of a healthy electoral democ-
racy?”” This is an acknowledgement, at least implicitly, that the idea of fairness com-
[1992] 1 S.C.R. 452, 89 D.L.R. (4th) 499 [hereinafter Butler].
[1990] 3 S.C.R. 697, 1 C.R. (4th) 129 [hereinafter Keegstra].
[1989] 1 S.C.R. 927,58 D.L.R. (4th) 577 [hereinafter Irwin Toy].
,9 Thomson Newspapers, supra note 6 at 945.
‘ Ibid.
“‘ Ibid at 958.
“‘Supra note 4 at 403-404.
‘Ibid. at 428 [emphasis in original].
‘”Ibid at 410.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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prises a balancing of competing rights rather than representing merely a State interest.
The importance of political expression and its restriction is not devalued; rather, the
competing interests are of one and the same nature–effective political expression-
and thus are equally deserving of the Court’s protection. When fairness is involved,
the discovery that a right or freedom has been restricted is not significant-it is
expected.
Whether the acknowledgement that the idea of fairness inevitably entails restric-
tions can be interpreted as a reconception of expression in the electoral realm or not is
open to question. Thomson Newspapers, unfortunately, does little to clarify this issue.
The majority judgment does not address the matter explicitly. Bastarache J.’s use of
contextual interpretation seems to suggest that the timing of the expression–during
an election-is significant. His emphasis of the fact that political expression lies at the
core of freedom of expression without any reference to the inevitability of restrictions
of expression in the electoral context, however, suggests otherwise. This omission can
perhaps be understood as an effect of his finding that, because of its random nature,
the harm posed by opinion polls is of a different type than that posed by advertising or
spending. Essentially, in Bastarache J.’s view, there are no inevitable or concomitant
restrictions in the case of opinion polls as the principle of fairness is not engaged be-
cause of the lack of systemic inequality or oppression.
Support for the view that electoral speech is indeed institutional speech as con-
ceived by Baker, however tenuous, may be inferred from the distinction made by
Bastarache J. between the media as reporter of information and as advertiser.’ 5 Such a
distinction is consistent with Baker’s assertion that any expression in the public realm
during an election that is not aimed at influencing the result of the election falls out-
side the bounds of the institution and cannot be a legitimate subject of regulation.
Further support for the view that electoral speech is institutionally bound speech can
be found in the dissenting judgment of Gonthier J. In his judgment, Gonthier J.
clearly indicated that electoral expression should be understood differently than typi-
cal political expression: “[Existing Canadian electoral laws] are strong evidence that
elections constitute, in our society, a unique event which calls for special treatment in
order to promote voter autonomy and rational choice.”” Despite these indications, it
is premature to say that the Supreme Court has endorsed Baker’s idea of electoral ex-
pression as institutionally-bound speech.
C. The Supreme Court’s Hierarchy of Interests in Democracy
The idea of fairness is rooted in equality, but it is not equality in a systemic sense.
Though it may seem paradoxical, under the rubric of fairness, Libman set out a de
facto hierarchy of interests in the electoral system. Voters’ interests are foremost; can-
didate and party interests are secondary; non-participant interests are tertiary. Among
the freedoms that the Court suggests must necessarily be limited in the pursuit of fair-
, Thomson Newspapers, supra note 6 at 971.
” Ibid. at 899-900.
1999]
C. FEASBY- THE EMERGING EGALITARIAN MODEL
ness are those of non-participant groups and, to a lesser extent, candidates and politi-
cal parties. Can this be reconciled with the value of equality that underlies fairness?
For the most part, this hierarchy is based on a common sense analysis of the
structure of Canadian electoral democracy. Rawls’ argument for the regulation of
electoral expression is based upon the basic principle of one person, one vote. Fol-
lowing from this it can be argued that if sovereignty can be seen to reside ultimately
with the people, then the most basic expression of the people’s will-the vote-is of
paramount importance and must inform the regulation of elections. Similarly, the right
to stand for election is an essential characteristic of citizenship; therefore, the expres-
sion of candidates has a greater claim to protection than that of non-participants. As
Dworkin suggests, if the right to be a candidate is to have meaning, regulations must
further the ability to be heard.”‘ These principles and the idea of a hierarchy of inter-
ests in elections is consistent with the Lortie Commission’s goals of “promoting the
equality and efficacy of the vote'”” and “strengthening political parties as primary po-
litical organizations”‘ 9 Moreover, in Libman it is noted that “laws limiting spending
are needed to preserve the equality of democratic rights”‘”-democratic rights under
the Charter being the right to vote and the right to be a candidate.
If it is accepted that candidates have a greater interest in elections than non-
participants, then it is arguable that this premise may be extended to political parties
which are vehicles for the collective exercise of the right to stand for election. The
unique role of political parties in the electoral process was emphasized by the Lortie
Commission. 1 This was also recognized by Kennedy J. of the United States Sur-
preme Court in his concurrence and partial dissent in Colorado where the constitu-
tional status of party to candidate contributions was in issue. Kennedy J. wrote:
A political party has its own traditions and principles that transcend the inter-
ests of individual candidates and campaigns; but in the context of particular
elections, candidates are necessary to make the party’s message known and ef-
fective, and vice versa.’ 2
He continued by emphasizing the unity of interests between candidates and their par-
ties:
We have a constitutional tradition of political parties and their candidates in
joint First Amendment activity; we also have a practical identity of interests
between the two entities during an election. 3′
In Libman, the language used by the Court suggests that the idea of the identity of in-
terests between candidates and parties is assumed: “It is … important to limit inde-
“The Curse of American Politics”, supra note 37 at 23.
Final Report, supra note 12 at 9-11.
1,’ Ibid at 11-13.
“0 Supra note 4 at 410.
,5′ Final Report, supra note 12 at 11-13.
’33Supra note 86 at 2322.
, Ibid. at 2323.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
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pendent spending more strictly than spending by candidates or political parties.”‘
While the preference given to candidates and political parties over non-participants
may not be justifiable in terms of equality, it is consistent with the conventions of rep-
resentative democracy.
The place of non-participants at the bottom of the electoral hierarchy does not
mean that their contribution is irrelevant or valueless. Quite the opposite: if the gen-
eral premise that political expression is central to democracy is accepted, then the
voices of non-participants should not be silenced; they should be allowed to speak at a
volume that is proportionate to their stake in the process. The Court outlined this view
of the position of non-participants by noting that “[w]hile we recognize their right to
participate in the electoral process, independent individuals and groups cannot be
subject to the same financial rules as candidates or political parties and be allowed the
same spending limits.””‘ The Court elaborated on this in the context of the Quebec
referendum law by stating that “limits on spending by third parties … are necessary
and must be far stricter than those on spending by the national committees in order to
ensure that the system of limits and a balance in resources is effective.””
Despite Libman’s affirmation of the validity of the objective of controlling non-
participant expenditures, the important question of the proper level of spending to be
allowed to non-participants will remain a volatile issue as long as the amount permit-
ted effectively precludes access to the mass media. In obiter, the Court suggested that
the $1,000 limit recommended by the Lortie Commission and imposed by the Can-
ada Elections Act is a practical limit on non-participant spending.’ With respect, if
the Court were to be true to the spirit of a voter-based egalitarian model, non-
participant spending should be restricted, but not to the degree permitted by the Can-
ada Elections Act. Limits on non-participants should be proportional to both the cost
of the means to be heard (i.e., media advertising) and the limits imposed on parties,
candidates, or, in the case of referenda, national committees. In a national election,
spending limits should allow non-participants to conduct a viable, but modest, cam-
paign that can be heard across the country. Future cases concerning the role of non-
participants in elections will likely occur in the context of provincial elections legisla-
tion rather than the Canada Elections Act as the provisions affecting non-participant
spending were not enforced in the 1997 federal election as a result of the Somerville
decision. Indeed, at least two challenges to the British Columbia Election Act” on
such a basis have been contemplated.”‘
“4 Supra note 4 at 411.
“‘Ibid. at 412.
“‘ Ibid. at 425.
“‘ Ibid. at 425-26.
,’Supra note 27.
‘See H.E. Maconachie, ‘The New B.C. Election Act: Promoting a Fair Democracy or Stifling De-
bate?” (1996) 54 Advocate 221 at 225; and J. Kavanagh, ‘Tax Accountant Challenges Election Gag
Law” Canadian Press Wire Service (24 November 1997), online: QL (CPN).
1999]
C. FEASBY – THE EMERGING EGALITARIAN MODEL
Conclusion
If National Citizens’ Coalition and Somerville were to be heard by the Supreme
Court today, there is little question that the results would be reversed. This is bluntly
pointed out in Libman where the Court stated that “we cannot accept the Alberta
Court of Appeal’s point of view because we disagree with its conclusion regarding the
legitimacy of the objective of the provisions”‘ The difference between the ap-
proaches of the two courts, however, goes far beyond a mere difference in result as to
the legitimacy of the objective of limiting non-participant spending. What separates
Libman from Somerville is that the Supreme Court has embraced an egalitarian theory
of democracy whereas the Alberta Court of Appeal’s decision was informed by liber-
tarian
the Supreme Court’s specific disavowal of
Somerville was surely motivated by an awareness of the impact of Buckley on the
electoral system in the Unfed States. In Libman, the Supreme Court demonstrated
that it will not be an impediment to the reasonable regulation of electoral expression.
ideals. Although unstated,
Libman stands for the proposition that State regulation of spending during elec-
tions and referenda to limit the influence of the wealthy is a legitimate objective.
Moreover, Libman demonstrates that it is possible–even desirable-to place different
limits on different groups. The hierarchy of interests in the electoral process that may
be gleaned from Libman appears to give Parliament room to forge a regulatory
scheme that places the interests of.citizens as voters and candidates above those of
non-participants. A plain reading of the attitude of deference to Parliament found
throughout Libman also suggests that the range of alternatives open to Parliament
may be very wide. Too much emphasis, however, should not be put on this deference
as it can largely be attributed to the fact that Parliament followed the carefully consid-
ered recommendations of the Lortie Commission. Where Parliament chooses to act
without such support, the Court may not be so ready to defer to its wisdom. This is
especially the case where the measures adopted can be viewed as favouring the gov-
eming party. In Libman, the Court noted that the National Assembly had gone “to
considerable lengths” studying the proposals and had acted “in good faith” in crafting
its referendum law.”‘ Libman should be taken as an invitation to create an egalitarian
electoral system and not as a licence to silence unpopular views or political oppo-
nents. This conclusion is underscored by the decision in Thomson Newspapers where
the majority ruled that electoral regulations not founded on egalitarian principles will
be accorded little deference.
The egalitarian theory espoused by the Supreme Court involves not only an ac-
ceptance of the relevance of political equality as a consideration, but an implicit rec-
ognition that the compromising of some rights is inevitable in the context of elections.
This approach is encapsulated in the Court’s definition of “fairness”. The idea of fair-
ness in elections is important and has the potential to blossom into a theoretical
‘6 Supra note 4 at 427.
“‘ Ibid. at 417.
MCGILL LAW JOURNAL – REVUE DE DROIT DE MCGILL
[Vol. 44
framework for the judgment of all electoral regulations. Indeed, after Libman, the
challenge before the courts is to flesh out the meaning of fairness in consideration of
other aspects of electoral regulation. In the first post-Libman elections case–Thom-
son Newspapers-the Supreme Court was divided over the extent of the acceptable
regulation of opinion polls, with the majority finding that the regulations could not be
justified under the rubric of fairness. This divide suggests that the boundaries of the
idea of fairness remain to be defined. Although Thomson Newspapers seems to limit
the scope of fairness to equality, the fact that the Court uses the term “fairness” in-
stead of equality throughout Libman suggests that the idea may have greater interpre-
tive scope. Tests of other aspects of the Canada Elections Act such as the preferential
reimbursement of campaign expenses based on a percentage of the popular vote may
be developed in future case law.”2 Moreover, the ideas that inform the Court’s egali-
tarian approach are closely allied to the idea of deliberative democracy-a kinship
that perhaps hints at an evolving conception of Canadian democracy as a whole.
The recent case of Hebert v. Quebec (A.G.), [1998] A.Q. No. 3675 (S.C.), online: QL (AQ),
where preferential reimbursement of political candidates under Quebec electoral law was challenged
under the voting rights in s. 3 of the Charter, may provide another forum for the consideration of the
egalitarian model as it moves up through the court hierarchy. This case is particularly interesting be-
cause it provides the opportunity to consider what is fundamentally a matter of expression under the
rubric of the right to vote.
