DATE: 20000816

DOCKET: C31902

COURT OF APPEAL FOR ONTARIO

DOHERTY, LASKIN and MOLDAVER JJ.A.

BETWEEN: )

) Peter A. Vita, Q.C.

MIGUEL FIGUEROA ) Gail Sinclair

) Peter Hajecek

Plaintiff/Respondent ) for the appellant

)

- and - )

) Peter Rosenthal

THE ATTORNEY GENERAL ) for the respondent

OF CANADA )

)

Defendant/Appellant ) R. Foerster

) for the intervener,

) The Chief Electoral Officer

) of Canada

)

) Heard: March 2-3, 2000

)

On appeal from the judgment of Molloy J. dated March 10, 1999, reasons reported at (1999), 170 D.L.R. (4^th) 647.

DOHERTY J.A.:

[1] The Canada Elections Act, R.S.C. 1985, c. E-2, as amended S.C. 1993, c.19 (the Act) provides for the registration of political parties involved in federal elections.[1] Registered political parties and their candidates enjoy certain benefits which other political parties, their candidates and independent candidates do not enjoy. Some of those benefits (e.g., the ability to issue income tax receipts for donations made at any time) accrue to all registered parties. Others (eg., partial reimbursement of election expenses) are available only to registered parties who meet additional requirements. Registered political parties are also subject to certain limits imposed by the Act (eg., election expense limitations) and must comply with numerous reporting and disclosure requirements. These restrictions and obligations do not apply to political parties that are not registered. The Act also provides for deregistration of registered political parties and attaches certain consequences to deregistration.

[2] Registration by a political party under the Act is voluntary. To be eligible for registration a political party must comply with various requirements, most of which can be described as administrative. The Act also requires, however, that a party must nominate at least 50 candidates in the election to qualify for registration. There are presently 301 federal constituencies. That requirement gives rise to the main issue on this appeal:

¨ Does the requirement that a political party nominate at least 50 candidates in an election before it can be eligible for registered party status, infringe the right of those candidates who are not endorsed by registered political parties to seek election to the House of Commons set out in s. 3 of the Charter, and, if so, is that limitation justified under s. 1?

[3] The second issue raised on this appeal arises out of the provisions in the Act referable to the identification of a candidate’s party affiliation on the ballot. When read together, several sections of the Act provide that only candidates of registered political parties may have their party affiliation shown on the ballot. Consequently, a party must nominate 50 candidates before the party affiliation of its candidates can appear on the ballot. The respondent submits that limiting party identification on the ballot to candidates of parties that nominate 50 candidates contravenes s. 2(b) and s. 3 of the Charter. The issue may be put in the following terms:

¨ Assuming that only parties which nominate 50 candidates can qualify for registered political party status, are the provisions limiting identification of party affiliations to candidates endorsed by registered political parties contrary to s. 2(b) or s. 3 of the Charter, and if so can they be justified under s. 1?

[4] I would hold that the 50-candidate requirement does not infringe the right of a candidate of a non-registered political party to run for election to the House of Commons. I would further hold, however, that the requirements limiting identification of party affiliation on ballots to candidates endorsed by registered political parties does infringe the right to vote in s.3 and cannot be justified under s. 1.

[5] The respondent, Miguel Figueroa, is the leader of the Communist Party of Canada (CPC). The CPC is a non-incorporated voluntary association of individual members. Mr. Figueroa has been a CPC candidate for election to the House of Commons. It is agreed that, for the purposes of this litigation, he represents the CPC and its members. The CPC was founded in 1921 and has been actively involved in Canadian politics since then. It was a registered political party in the election of 1974, the first election in which that status existed. The CPC ran 52 candidates in the federal elections of 1984 and 1988, thereby maintaining its status as a registered party. Its candidates received on average less than 150 votes per candidate in those elections. The CPC failed to nominate 50 candidates in the 1993 general election and under the terms of the Act lost its status as a registered party. The CPC again failed to nominate 50 candidates in the 1997 election. It has not regained its status as a registered party under the Act.[2]

[6] Mr. Figueroa commenced an action against the Attorney General of Canada in which he sought a declaration that several provisions of the Act infringed various sections of the Charter and were of no force and effect. He also sought a declaration that the CPC was a registered party under the Act and damages flowing from the loss of the status of a

registered party in 1993. In the course of the action, Mr. Figueroa brought a motion for summary judgment in relation to the declaratory relief sought in his claim.[3] Molloy J. granted summary judgment on parts of the declaratory relief sought by Mr. Figueroa.

[7] Broadly speaking, it was Mr. Figueroa’s position on the motion that a number of provisions of the Act taken in combination operated to the severe detriment of small political parties like the CPC, who wanted to run candidates in federal elections. His principal contention was that the disadvantages imposed on such parties meant that candidates for those parties were denied their right to seek election to the House of Commons as guaranteed by s. 3 of the Charter. He also alleged other Charter violations. The material filed by Mr. Figueroa on the motion made reference to several provisions in the Act, including the following:

¨ The 50-candidate threshold requirement for registration.

¨ The benefits available to registered parties, including income tax credits available to those who contribute to the party at any time, partial reimbursement of election expenses and access to free and paid broadcasting time on national networks.

¨ The requirement that candidates provide a $1000 deposit. Five hundred dollars was returnable if the candidates fulfilled certain reporting conditions. The remaining $500 was recoverable only if the candidate received 15 percent of the vote.

¨ The effects of deregistration, in particular, the prohibition against listing of party affiliation on the ballot and the mandatory liquidation of the assets of the deregistered party with any net proceeds from that liquidation payable to the Receiver General.

[8] Molloy J. delivered comprehensive and well-crafted reasons in which she addressed four aspects of the Act. She held that the section providing that 50 percent of the candidate’s $1000 deposit was refundable only if the candidate received 15 percent of the votes cast in the constituency infringed s. 3 of the Charter and was not justified under s. 1. Molloy J. struck down the offending provision (s. 84(3)(b)) and made consequential changes to other sections (s.81(1)(j), s.84(3)(a)). Consequently, candidates could recover the entire $1000 deposit if they complied with the reporting requirements in the Act regardless of how many votes they received in the election. This part of Molloy J.’s order is not under appeal.[4]

[9] Molloy J. also held that the provisions in the Act declaring that upon de-registration a political party was obliged to liquidate its assets, pay its debts and remit any balance to the Receiver General offended various provisions of the Charter and was not justified under s. 1. Molloy J. directed that the relevant provisions of the Act should be read so as to remove that consequence of de-registration (ss. 31(9), (11)-(15)). The Attorney General has not challenged this part of the order made by Molloy J.[5]

[10] Molloy J. next held that the provisions of the Act limiting eligibility for registration to those political parties who nominated 50 candidates in the election contravened a citizen’s right to seek election to Parliament as set out in s. 3 of the Charter. She further held that the contravention could not be justified under s. 1. Molloy J. ordered that the relevant provisions of the Act (s. 24(2)(a), s. 24(3), s. 28(2)) be amended by changing the word “fifty” to the word “two”. Molloy J. observed that the broadcast provisions in the Act and those dealing with partial reimbursement of election expenses which also applied only to registered political parties had not been challenged before her. She, therefore, held that the 50-candidate threshold for eligibility for registration as it applied to those benefits remained in force. Her order effectively created a two-tier registry under the Act. A party nominating two candidates could be registered for purposes other than those dealing with access to broadcast time and reimbursement of expenses. Those benefits were available only to registered parties who nominated 50 candidates.

[11] Molloy J.’s ruling had at least one very important practical effect. Parties nominating two or more candidates could be registered for tax purposes and could issue tax receipts for contributions made to the party at any time. Independent candidates and candidates nominated by non-registered political parties could issue such receipts only for contributions made to the candidate during the campaign.

[12] The Attorney General does challenge the finding of Molloy J. that the 50-candidate threshold is unconstitutional. Mr. Figueroa supports her decision, but does not seek to extend it. He contends that this court should uphold the two-tier registry created by Molloy J.

[13] Finally, Molloy J. held that if she was wrong in striking down the 50-candidate requirement as it related to registration, that requirement was unconstitutional when applied to the provisions prohibiting identification of party affiliation on the ballot where the candidate was not endorsed by a registered party. She held that the prohibition contravened s. 3 and could not be justified under s. 1. The Attorney General appeals from this holding.

[14] In the light of the limited scope of the Attorney General’s appeal, the legislative landscape against which this appeal must be determined is somewhat different than the Act itself. The $1000 deposit is fully refundable upon compliance with certain reporting conditions and deregistration does not result in the automatic liquidation and forfeiture of the party’s assets. Mr. Figueroa takes the position that the Act as “amended” by Molloy J. meets constitutional requirements. He relies on the reasons of Molloy J. and advances other arguments in support of her conclusion.

[15] The intervener, the Chief Electoral Officer of Canada, takes no position on the merits of the appeal, but does raise concerns with the remedy provided by Molloy J. It is the intervener’s position that the order of Molloy J. and, in particular, her redefinition of “registered party” as a party fielding two or more candidates, has ramifications in the Act far beyond those addressed by Molloy J. In response to the intervener’s submissions, Mr. Figueroa contends that Molloy J. clearly identified the sections of the Act affected by her decision and that apart from those sections, the 50-candidate threshold remains in place. He contends that the order of Molloy J. can be varied so as to more accurately reflect the content of her reasons for judgment.

III

The 50-Candidate Requirement

(i) Origins of the requirement

[16] Political parties dominate the national political scene. It is no overstatement to observe that Canada owes its early survival to the existence of strong national political parties. The vast majority of candidates are selected by political parties. Their campaigns are, to a large degree, structured and financed by political parties. The government, which emerges from the electoral process, is formed by the winning party, led by a Prime Minister chosen by that party and reflects the policies of that party. Canadians have traditionally voted for or against political parties as much as they have voted for or against individual candidates.

[17] Professor Peter Aucoin, in his affidavit filed in support of the Attorney General’s position, described the role played by political parties in Canadian politics and government in these terms:

Political parties are what the Royal Commission called “primary political organizations” in Canadian electoral democracy precisely because they provide for citizens the essential linkage between the processes of electoral democracy, on the one hand, and our institutions of representative and responsible parliamentary government, on the other. The constitutional principle that Canada’s constitutional system be “similar in principle to that of the United Kingdom” requires, among other things, that our parliamentary system of government be based on the principles of “responsible government”, namely that the Government have the confidence of the elected House of Commons. In practice, this has meant a tradition whereby these principles are secured through what is called “party government”. The Government thus consists of a political executive (Prime Minister and Cabinet) constituted on the basis of the structure of party formations in the House of Commons. Canada, of course, is not unique among the governance systems that adhere to the model of parliamentary government. Party government, in this sense, is the norm everywhere in parliamentary systems.

It follows from the structure and dynamics of our constitutional system that political parties, which first emerged in the evolution of the struggles for responsible government as formations consisting primarily of elected political representatives, inexorably became more than parliamentary parties. They did so as responsible government was secured in the British North American colonies, before Confederation, because these parliamentary formations were required to mobilize voters to their cause in order to elect party candidates as members of the legislature. The growth of the franchise over time required that these parties pay increasing attention to the development of organizational capacities necessary to mobilize voter support for their candidates at elections. These party organizations, in turn, became the organizational vehicles for interested citizens, as party members, to select party candidates and party leaders, and to participate in the formulation of the policy positions to be advocated by their parties on issues of public policy in election campaigns, in public debate generally, and especially in the governance process. They were therefore freely organized private organizations of political partisans engaged in public affairs. Yet how a particular party was structured, what political objectives it sought to promote, and who was selected as its candidates for elected office, remained private matters for a party to determine for and by itself.

Long before political parties became recognized in the election law, the practice had developed that candidates for election are nominated, almost exclusively, through local party constituency associations. By serving in this capacity, parties have explicitly structured the electoral choices for voters. By virtue of this structuring of electoral choice, voters have long been able to assess the consequences of their voting decisions for the prospects of competing parties in influencing the formation of the government. Parties thus perform important public functions for the practice of electoral democracy. [Emphasis added.]

[18] Despite the central role played by political parties in the electoral process, the laws governing that process prior to 1970 virtually ignored the existence of political parties.[6] The relevant statutes referred exclusively to candidates and their agents as actors in the electoral process. Each candidate through his or her agent was treated as an independent entity responsible for the conduct of the candidate’s campaign and the discharge of various obligations under the Act. Party affiliation was irrelevant. The conduct of political parties, particularly their role in raising and spending campaign funds, went unchecked. Measures introduced from time to time to limit donations to election campaigns and to require disclosure of election spending targeted individual candidates and were consequently largely ineffective: W.T. Stanbury, Money in Politics: Financing Federal Parties and Candidates in Canada: Royal Commission on Electoral Reform and Party Financing, Vol. I, Research studies at pp. 28-29.

[19] Calls for reform of the conduct and funding of national elections led to the formation of the Committee on Election Expenses (Barbeau Committee) in 1964. In 1966, the Committee delivered its report recommending sweeping changes to the electoral laws. Those proposals rested on six basic principles:

¨ Political parties should be recognized as distinct and separate entities in the electoral process and made accountable for their conduct through designated agents.

¨ Election expenditures by candidates and parties should be limited.

¨ Candidates and parties should be required to make full disclosure of monies raised and monies spent in the course of election campaigns.

¨ Some public subsidization of the election expenses of candidates and parties was warranted.

¨ Access to broadcasting media during election campaigns should be available but should be regulated.

¨ Individuals should be encouraged to participate in the political process by receiving a tax credit for contributions made to candidates or individuals: Report of the Advisory Committee on Election Expenses (Barbeau Committee) (Ottawa: Department of the Secretary of State, 1966), Part I, pp. 37-38.

[20] The Committee also realized that if political parties were to have legal status in the process, receive public benefits and be subject to regulation, there had to be some device in place for monitoring their conduct and ensuring compliance with the regulatory scheme. The Committee recommended that “national political parties” contesting federal general elections should be allowed to register under the Act, indicating at p. 39:

Failure of a party to register officially with the Registry should disqualify it from receiving any benefits recommended in this Report, and its candidates should be described on official ballots only as ‘independent’.

[21] In recommending that political parties should be required to register under the Act if they intended to claim the benefits available to political parties, the Committee addressed the administrative preconditions to registration (eg., the contents of applications filed by a party seeking registration), but did not consider what other criteria, if any, should be fixed as conditions precedent to eligibility for registration. It is noteworthy, however, that the Committee’s concept of political parties embraced what it referred to as “national political parties”. This description would suggest some significant level of participation in the federal electoral process.

[22] Parliament passed a new Canada Elections Act in the summer of 1970 (S.C. 1969-70, c.49). While that Act made important changes to the electoral law, it did not address the recommendations of the Barbeau Committee concerning election financing and spending controls. It did, however, for the first time, recognize political parties as discrete entities in the process. Section 13(1) of the Act authorized the Chief Electoral Officer to register political parties that filed applications containing the information required in the Act (eg., name of the party, name of leader). The Chief Electoral Officer could decline to register a party only if registration would cause confusion with the name of an existing party registered under the Act or represented in the House of Commons (s.13(4)).

[23] Registration of political parties under the Act was tied to the conduct of national elections. There was no attempt to regulate the conduct of parties outside of the national electoral process. If an application was filed after an election was called but before the enumeration date, registration was effective from the date of registration and the party was a registered party for the purposes of that election. If an application was filed at any other time, that is between elections, it could not become effective until the next election was called.

[24] Section 13(8)(b)(ii) of the 1970 Act introduced the 50-candidate threshold. It did so in the context of authorizing the Chief Electoral Officer to delete registered parties from the registry. The section provided:

(8) The Chief Electoral Officer may, at a general election,

(b) after the twenty-eighth day before polling day, delete from the registry any registered party that …

(ii) did not, on the twenty-eighth day before polling day at the election, have candidates officially nominated in at least fifty of the electoral districts of Canada.

[25] Under the 1970 Act, registration did not entitle a political party to any direct or indirect government benefits. Nor did it place any restrictions on the conduct of the political party during the election. The Act did, however, allow a candidate who had the endorsement of a registered party to be identified on the ballot as a candidate of that party (s. 23(2)(h), s. 31(1)(c)). The 1970 Act was silent as to the effect of deregistration on a candidate’s entitlement to have party affiliation indicated on the ballot.

[26] The 50-candidate requirement attracted considerable debate when the 1970 Act was introduced in Parliament. The government of the day envisioned party registration as being limited to parties that represented substantial political groupings that were prepared to seriously contest a national election.[7] The original bill introduced by the government required that a party nominate 75 candidates. The government saw the number of candidates as an indicator of a significant level of commitment to the process. At that time there were 246 seats in the House of Commons.

[27] Most of the members who spoke in opposition to the requirement of 75 candidates as a prerequisite to registration saw the need to limit registration to parties who ran some minimum number of candidates. They regarded 75 as too high, and favoured a lower requirement like that recommended by the Standing Committee (27 candidates, 10 percent of the total number of seats in the House). A few saw no need to limit registration for the purposes of identifying party affiliation on the ballot. Some who favoured a lower requirement than 75 candidates recognized that if and when the Act was amended to provide for direct or indirect public funding of political parties’ campaign expenses, that a higher number of candidates would be a suitable prerequisite to registration. For example, Mr. Les Benjamin, the NDP member from Regina Lake Centre, said:

I repeat that the principle of maximum access to the provisions of our election law should take top priority and the requirement in the bill with respect to 75 candidates is excessive. The minister and the government may feel that if any requirement with respect to the number of candidates constituting a registered party is too low there will be a danger when the question of election expenses is dealt with later that a host of minor and frivolous parties will enter into the election process. I submit that the safeguards with regard to the number of candidates which parties have contesting an election ought to be quite separate from the safeguards purportedly contained in this bill regarding the registration of political parties. I think it would be perfectly in order, if public funds are to be used in election campaigns, to require that a larger number of candidates be nominated in order that they may constitute a party.[8] [Emphasis added.]

[28] The requirement of 50 candidates, the number ultimately required in the Act, appears to have been the result of a compromise between the government’s initial proposal of 75 candidates and the recommendation of the Standing Committee that registration require the nomination of 27 candidates.

[29] In 1974, Parliament enacted the Election Expenses Act (S.C. 1973-4, c. 51). This Act, by making substantial amendments to the Elections Act and other legislation, set limits on campaign expenses of both political parties and candidates, restricted election spending by other individuals and groups, regulated paid media advertising, introduced tax credits for political contributions and provided for partial reimbursement of election expenses of both candidates and political parties. Only registered political parties were eligible for the benefits made available to political parties. Political parties that were able to and chose to register were subject to the regulatory scheme imposed by the 1974 amendments.

[30] The Election Expenses Act made some relatively minor changes in the provisions dealing with eligibility for registration. The requirement that the party nominate 50 candidates remained in place and does not appear to have been the subject of any debate when the amendments were introduced in the House.

[31] With one exception, I need not examine in detail either the various benefits provided to registered political parties or the limits and reporting conditions imposed on those parties by the Election Expenses Act. I will, however, describe briefly the tax deduction benefit put in place by those amendments. With certain modifications in detail, that benefit remains in effect and is by far the most significant benefit affected by the order of Molloy J.

[32] Section 19 of the Election Expenses Act amended the Income Tax Act to allow a taxpayer to deduct from tax otherwise payable, amounts contributed by the taxpayer in the taxation year to registered parties or candidates at an election for membership in the House of Commons. The Elections Expenses Act provided that a taxpayer could deduct 75 percent of any contribution under $100. Deductions for larger contributions were to be calculated according to the formula provided in the amended Income Tax Act. Under this amendment, a taxpayer who contributed to a registered political party at any time could claim the deduction in the appropriate taxation year. Contributions to candidates in an election were also deductible in that taxation year. Contributions to a non-registered party were not deductible. Consequently, after the CPC was deregistered, a taxpayer who contributed to that party could not claim a deduction. A taxpayer who wished to contribute to a campaign of a candidate endorsed by the CPC could do so during the campaign and claim a deduction.

[33] Studies undertaken by the Royal Commission on Electoral Reform and Party Financing (Lortie Commission) demonstrate that the tax credit significantly broadened the funding base of political parties and that funding by way of contributions which attract the tax credits accounts for a significant part of the total revenue of registered political parties: Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report (Lortie Commission) (Ottawa: Ministry of Supply and Services Canada, 1992), Vol. I., p. 312.

[34] The basic scheme in place after the 1974 amendments continues to this day. Political parties can choose to register and, if they do so, they must comply with the various requirements of the Act. They are eligible for certain benefits, subject to certain restrictions, and must comply with certain reporting conditions. The registry provisions remain now, as they were in 1974, a regulatory device aimed at making political parties accountable for their conduct in an election. They are unconnected to the policies of the parties or their ability to attract voter support: P. Boyer, Election Law in Canada (Toronto: Butterworths, 1987), Vol. 1, pp. 9-10. The 50-candidate requirement has remained in place. To my knowledge it has not attracted any comment in the House of Commons during debate over the various amendments to the Act since 1974.

(ii) The Relevant Provisions in the Act

[35] The Act contains detailed provisions dealing with registration of political parties, most of which are found in ss. 24-32 of the Act.[9] These provisions are somewhat complex. My understanding of the sections is set out below. The significant sections are found in Appendix A to these reasons.

[36] Section 24(1) requires that a party seeking registered party status apply to the Chief Electoral Officer and provide the information set out in s. 24(1). This information includes the identification of the party leader, officers, auditor, chief agent and the signature of 100 electors who are members of the party. The leader, auditor and chief agent have important reporting functions under the Act.

[37] Section 24(2) requires that the Chief Electoral Officer examine the application and make a preliminary determination of eligibility. Section 24(4) directs that the Chief Electoral Officer shall not register a party if the registration of the political party would cause confusion with another party that had already applied for or been registered under the Act. If the Chief Electoral Officer is satisfied that no such confusion will arise, he must advise the party that upon nomination of 50 candidates in accordance with the applicable provision, the party can be registered.

[38] The present Act does not contemplate registration between elections. Registration must be referable to a particular election. If a party applies for registration between the day following an election and 60 days before the calling of the next election, it is eligible for registration at that next election once it nominates 50 candidates (s. 24(3)(a)). If the application is made less than 60 days before the calling of an election, the party cannot be registered for that election but can be registered for the following election if it nominates 50 candidates at that election (s. 24(3)(b)).

[39] Section 28 sets out the circumstances in which the Chief Electoral Officer shall delete political parties from the registry. Section 28(2) states that if a registered party has not nominated 50 candidates at the close of nominations, that party shall be deregistered.

[40] Under the Act, registered parties’ election expenses are limited and failure to comply with that limitation can result in penal consequences for the registered party (s.39, s. 40).

[41] The benefits available to registered political parties under the Act include:

¨ the ability to receive from its candidates all excess funds after an election (s. 232(h));

¨ the ability to obtain partial reimbursement of “election expenses” as defined in the Act upon meeting certain conditions (s. 322(1));

¨ access to free broadcast time and access to reserved broadcast time for purchase (s.316(2), s. 307(1));

¨ the ability to issue income tax receipts for contributions made to the party at any time (s. 127(3) of the Income Tax Act).

[42] The benefits available to a registered party are significant as are the limitations on expenses incurred by those parties and the reporting conditions imposed on them.

[43] It is important to understand that the registration scheme has nothing to do with the entitlement of any person to vote in the election. Voting eligibility is dealt with in ss.50 through 54 of the Act. Nor are the registration provisions tied to a person’s eligibility to stand as a candidate for election. That topic is addressed in ss. 76.1 and 77 of the Act.

[44] The effect of the present registration scheme is accurately described by the Lortie Commission, at pp. 238-239:

…the Canada Elections Act provides a regulatory mechanism, in the form of a registration procedure, through which parties gain access to public funding in the form of income tax credits, partial reimbursement of election expenses and free broadcasting time. Through the same mechanism, they become accountable for reporting on their financial activities annually and after each election. The present registration procedure also provides a means for identifying the parties on the ballot, or for protecting the names and acronyms used by the parties, and for implementing each party leader’s obligation to confirm the party’s official candidate in each constituency.

Under the Canada Elections Act parties are generally treated as organizations whose exclusive function is electoral competition. Except for tax credits, registered parties receive public funding for election- related activities only. It is important to emphasize that the activities of parties between elections are not addressed in the current registration process; nor are the constituency associations of parties and the crucial functions they perform.

[45] In my view, the purpose underlying the registration of political parties under the Act is accurately identified by Professor Aucoin:

Given these benefits, and associated obligations, the registration of political parties is required in order to establish a set of impartial mechanisms to conduct effective elections in the following respects: (i) to identify the proper authorities to endorse the recognized candidates of a party; (ii) to assign authority, responsibility and accountability for the management of a party’s financial affairs, including the requirements of public disclosure and reporting on contributions and expenses; (iii) to identify those authorized to issue tax receipts on behalf of a party; and, among other things, (iv) to determine the election spending limits of each party, the reimbursement of election expenses to each party, and the allocation of broadcasting time to each party. The registration of parties, in short, constitutes the first requirement in an administrative regime that provides benefits under the law and regulates behaviour in the public interest.

(iii) The scope of this dispute

[46] Before testing the present statutory regime against s. 3 of the Charter, it is helpful to delineate more exactly the competing positions advanced on this appeal. Neither the Attorney General nor Mr. Figueroa take issue with the recognition of political parties as separate entities in the electoral process, or with Parliament’s right to impose limitations on the conduct, and particularly the spending, of political parties during elections. It is also common ground that Parliament may provide certain direct and indirect benefits to political parties; and that with those benefits must come obligations and a means of determining whether those obligations have been met. The parties also agree that a system of voluntary registration provides an appropriate means of determining which parties are eligible for various benefits and whether parties have complied with their obligations under the Act. Neither party takes issue with the proposition that political parties that choose not to register should not be entitled to the benefits or bear the burdens which accompany registration. Lastly, both parties accept all of the prerequisites to registration in the present Act as legitimate save the requirement that a party nominate candidates in at least 50 ridings.

(iv) Section 3 of the Charter

[47] Section 3 of the Charter reads:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

[48] Section 3 gives citizens of Canada two distinct rights:

¨ the right to vote in provincial and federal elections; and

¨ the right to seek election to the House of Commons or a legislative assembly.

[49] The rights enshrined in s. 3 are “at the heart of our constitutional democracy” and are not subject to the override provision in s. 33 of the Charter: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 at 975. Both of the s. 3 rights must be given a broad and purposive reading: Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at 897.

[50] Legislation which disqualifies or prohibits citizens from voting or seeking election infringes s. 3 and can only survive if found to be justifiable under s. 1 of the Charter: R. v. Harvey, supra, at 897-98; Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438, aff’g. Sauvé v. Canada (Attorney General) (1992), 7 O.R. (3d) 481 (C.A.). Similarly, legislative provisions which deprive a citizen of the substance of either right contained in s. 3 under the guise of imposing limits or qualifications on that right can only survive if justifiable under s. 1: Hoogbruin v. British Columbia (Attorney General), [1986] 2 W.W.R. 700 at 702-703 (B.C.C.A.). For example, if the Act tied eligibility to vote or to seek election to the House of Commons to membership in or support by a registered political party, the Act would infringe s. 3 and the government would be required to justify the legislation under s. 1.

[51] The registry provisions of the Act do not, however, prohibit or disqualify any citizen from voting or seeking election. Nor do they impose limits on either right so as to effectively deny the substance of those rights. The provisions do, however, clearly impact on those who choose to run for election to the House of Commons. Candidates nominated by registered parties obtain benefits that will not be available to other candidates. Parties who do not nominate 50 candidates cannot register, and their candidates, therefore, cannot be eligible for those benefits and must operate at a disadvantage compared to candidates of registered parties.

[52] The constitutional challenge to the 50-candidate requirement demands that I first determine whether the giving of a benefit to some but not all candidates constitutes a violation of the right to seek election to the House of Commons. If it is, then this case turns entirely on whether the Attorney General can justify the legislation under s. 1. If legislation which advantages some candidates over others is not in and of itself a violation of s. 3, I must still determine whether this particular advantage amounts to a violation of Mr. Figueroa’s s. 3 rights. If I conclude that it does, I must then proceed to s. 1.

[53] Molloy J. began her analysis by identifying the benefits available to registered parties, and therefore their candidates, but not to other political parties. She referred to two: the right to issue tax receipts for contributions made at any time to the parties; and the right to the return of surplus funds from the candidate at the end of the election. Surplus funds held by candidates for non-registered parties had to be remitted to the Receiver General. In addressing the constitutionality of the 50-candidate requirement, however, Molloy J. focussed almost exclusively on the tax benefit available to registered parties. It was this benefit which created the inequality that troubled Molloy J.

[54] Molloy J. identified fairness as the central value underlying electoral laws. She then went on to hold, at p. 685:

However, fairness requires that if the government decides to extend a financial benefit to assist some candidates in an election, that benefit must be equally available to all. Therefore, although there was no obligation on the government to provide indirect funding to all political parties through the tax credit incentive scheme, once that benefit was provided, fairness requires that it be provided equally. [Emphasis added.]

[55] Molloy J. equated fairness in the electoral process with equal treatment. Drawing on principles developed under human rights legislation and s. 15 of the Charter, she concluded that legislation which provided a benefit to some but not all candidates violated the right to stand for election of those candidates who did not receive the benefit and must be justified by the government under s. 1 of the Charter. Molloy J. ultimately concluded that the Attorney General had not met its burden under s. 1.

[56] Molloy J.’s holding that differential treatment of candidates amounts to a violation of s. 3 is contrary to the approach taken by the Quebec Court of Appeal in Barrette v. Canada (Attorney General) (1994), 113 D.L.R. (4^th) 623. There, the court held that the provisions of the Act respecting the refund of deposits (which gave preference to certain candidates over others) did not violate s. 3, but must be challenged under s. 15.

[57] Molloy J.’s approach also runs contrary to the majority analysis in Reform Party of Canada v. Canada (Attorney General), [1995] 4 W.W.R. 609 (Alt. C.A.).[10] In that case, the Reform Party attacked the provisions of the Act regulating access to broadcasting for political purposes during elections. Those provisions, among other things, gave established political parties more access to broadcasting than was allotted to new or smaller political parties. McFadyen J.A., for the majority, at p. 634, rejected the contention that, if Parliament decided to regulate access to broadcasting, s. 3 required that it do so in a way which provided everyone involved in the electoral process with equal access to that resource. In the context of her analysis under s. 15 of the Charter, she went on to say at p. 635:

Further, I do not accept that there is unfairness to or discrimination against individual members of political parties by unequal access by political parties to broadcast time. I do not accept that a political party, which enjoys limited support of a small number of individuals who wish to promote a specific interest or to ridicule the process, is the equal of a political party which has the support of a far greater number of voters and genuinely strives to provide information about its program for the governing of the country. Seen from the point of view of an individual member, such a scheme would result in discrimination against the individuals in the larger groups, by giving each individual in the smaller party greater access to broadcast time than that enjoyed by each individual of the larger party. Fairness is achieved, not by equal treatment of political parties, but by fair treatment measured by popular support with the objectives of the election process in mind.

[58] Like the Quebec Court of Appeal in Barrette v. Canada, supra, and the majority of the Alberta Court of Appeal in Reform Party of Canada v. Canada, supra, I have difficulty applying, without any modification or qualification, equality concepts developed under s. 15 of the Charter to claims made under s. 3. Section 15 targets government action which discriminates on prohibited grounds. Equality lies at the heart of the right protected under s. 15. No doubt, equality also informs the meaning to be given to other rights in the Charter. It is not, however, necessarily the rationale or purpose underlying each and every right. A claim alleging a violation of s. 3 cannot be determined by simply asking whether the law treats persons who are entitled to vote or entitled to run for office differently. The inquiry must go beyond that question to a determination of whether the distinctions drawn by the legislation undermine the purpose behind s. 3 of the Charter.

[59] Mr. Rosenthal, in his effective argument on behalf of Mr. Figueroa, argues that Harvey v. New Brunswick, supra, stands for the proposition that unequal treatment of candidates runs afoul of s. 3 and must be justified under s.1. He refers to the words of La Forest J., for the majority, at p. 897:

In interpreting the right to vote under s. 3 this Court, and Canadian courts in general, have taken the approach that the justification for limitations on the right must be grounded in s. 1 of the Charter. As I have earlier noted, I do not believe the wording in the second part of s. 3 justifies taking a different approach to the right to stand for election and become a member of Parliament or a legislative assembly. This is in accord with this Court’s well established approach of reading Charter rights broadly and putting the burden of justifying limitations upon the state.

[60] I cannot agree that Harvey v. New Brunswick, supra, supports the contention that any statutory provision bestowing a benefit on some but not all candidates for election to the House of Commons contravenes a citizen’s right to seek election. That case was not concerned with legislation which benefited some but not all candidates. Rather, it was concerned with legislation that prohibited citizens from seeking office. Mr. Harvey had been convicted of corrupt election practices. He was prohibited under the relevant legislation from seeking re-election to the provincial legislature for five years. There can be no doubt that this prohibition “limited” Mr. Harvey’s right under s. 3 to seek election. La Forest J. determined that the limitations had to be justified under s. 1. The passage from the reasons of La Forest J. relied on by Mr. Rosenthal and quoted above begs the essential question to be determined here: Do the impugned sections of the Act limit the s. 3 right?

[61] Unlike Harvey v. New Brunswick, supra, this is not a disqualification case. The impugned provisions of the Act do not prohibit or disqualify anyone from seeking election. Mr. Figueroa ran for election under this legislative scheme. Nor in my opinion can their effect be stretched to the point where it can be reasonably said that the provisions impose a condition or restriction on seeking election that amounts to a denial of the substance of that right.

[62] In my view, the decision of the Supreme Court of Canada in Reference Re Provincial Electoral Boundaries (Saskatchewan), [1991] 2 S.C.R. 158 is the more pertinent authority.[11] Although that case involved the right to vote and not the right to seek election, it did, like this case, concern state action which resulted in some inequality among those entitled to exercise a s. 3 right.

[63] The Saskatchewan Reference arose out of proposed changes to the electoral boundaries in Saskatchewan. Those changes created significant variances in the size of the voter population amongst the various constituencies. While those differences did not deny anyone the right to vote, they resulted in significant inequality of voting power. The votes of those who voted in smaller constituencies effectively counted for more than the votes of those who voted in the larger constituencies.

[64] The Saskatchewan Court of Appeal (in a decision reported at (1991), 78 D.L.R. (4^th) 449), applying an analysis similar to that adopted by Molloy J., held that equality of voting power was a component of the right to vote. Constituency boundaries which resulted in variances in the populations of those constituencies, therefore, infringed on the right to vote and had to be justified under s. 1.

[65] McLachlin J., for the majority in the Supreme Court, took a different view of s. 3. She framed the debate between the competing points of view as follows, at p. 182:

… Those who start from the premise that the purpose of the section is to guarantee equality of voting power support the view that only minimal deviation from that ideal is possible. Those who start from the premise that the purpose of s. 3 is to guarantee effective representation see the right to vote as comprising many factors, of which equality is but one. …

[66] McLachlin J. looked to the purpose underlying the right to vote as the key determinate of the scope of that right. Two passages from her judgment summarize her conclusion:

It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to ‘effective representation’. Ours is a representative democracy. Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one’s grievances and concerns to the attention of one’s government representative … [ p. 183]

…

In summary, I am satisfied that the precepts which govern the interpretation of Charter rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation. The concept of absolute voter parity does not accord with the development of the right to vote in the Canadian context and does not permit a sufficient flexibility to meet the practical difficulties inherent in representative government in a country such as Canada. In the end, it is the broader concept of effective representation which best serves the interests of a free and democratic society. [p. 188]

[67] In holding that effective representation was the purpose underlying the right to vote in s. 3, McLachlin J. did not suggest that equality of voting power was irrelevant. To the contrary, she indicated that it was of prime importance in ensuring effective representation. It was not, however, the only consideration. Other factors (eg., geography, community history) were also important in achieving effective representation through the exercise of the right to vote. Referring to her earlier decision in Dixon v. British Columbia (Attorney General), [1989] 4 W.W.R. 393 (B.C.S.C.), she said at p. 185:

It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen’s vote as compared to another’s should not be countenanced. I adhere to the proposition asserted in Dixon, supra at p. 414 that ‘only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed.’

[68] I think the purpose identified by McLachlin J. as underlying the right to vote applies equally to the right to seek election. That right and the right to vote are two sides of the same coin. Both seek to promote and protect effective representation within the context of the scheme of parliamentary representative democracy as it has developed and operates in Canada. Our Constitution protects the right of citizens to run for election for the same reason it protects the right of citizens to vote in elections. Both are integral to the effective operation of a representative democracy.

[69] Having set the framework for the constitutional analysis, the question then becomes whether the 50-candidate threshold serves the interest of effective representation and thereby promotes the purpose underlying s. 3. That inquiry has two parts:

¨ Does the favoured treatment of political parties and their candidates over others enhance effective representation?

¨ If the favoured treatment of political parties does enhance effective representation, does limiting that favoured treatment to political parties who participate at a certain level in the electoral process enhance effective representation?

[70] The answer to the first part of the inquiry is not controversial. The material relied on by both the Attorney General and Mr. Figueroa leaves no doubt that political parties play an important and positive role in the electoral process. Legislation which recognizes that role and gives certain benefits to candidates of political parties over other candidates promotes effective representation. As Molloy J. said, at p. 679, after reference to some of the material tendered on the motion:

Thus, ordinary Canadians as well as political scientists agree that political parties play a fundamental important role in Canadian democracy.

[71] Mr. Figueroa fully supports this conclusion. Indeed, his position is predicated on the value political parties bring to the process. He fully supports distinctions between candidates of political parties and others. He disputes, however, the distinction among the various political parties based on the number of candidates the party nominates.

[72] In acknowledging the importance and value of political parties in the Canadian democracy, it is essential that one understand why they are so important. In addressing that question, I focus exclusively on their significance in the electoral process. While there can be no doubt that political parties have important purposes outside that process, the Act is directed to the electoral process and not to broader roles played by political parties.

[73] The Lortie Commission characterized political parties as “primary political organizations” in the Canadian democracy and identified three important functions served by political parties. Political parties:

¨ structure electoral choice and thus make the vote meaningful;

¨ provide mechanisms for political participation and thus enhance democratic self government; and

¨ organize elected representation in Parliament and thus contribute to the effective operation of responsible government (Lortie Commission Final Report, supra, at Vol. 1, p. 209).

[74] Political parties structure voter choice at two levels. They structure voter choice at the constituency level by nominating individual candidates. The vast majority of candidates are nominated by a political party. Political parties also structure voter choice at the national level. They run slates of candidates connected by a party platform and under the leadership of a person selected by the party. By voting for or against the party, a voter has his or her say in the ultimate government of the country. Professor Aucoin, in a passage from his affidavit quoted above, makes the point succinctly and clearly. For convenience, I repeat the relevant part of that passage:

[75] Political parties also provide the opportunity for individuals to participate in the electoral process both at the local and national level. Individuals can become involved in campaigns to choose and support a particular candidate and they can become involved in the broader national campaign to elect a particular government through support of a party.

[76] The third purpose served by political parties, the organization of the government is, of course, very closely tied to the electoral process. Although self-evident, it is worth emphasizing that the primary reason for elections is to choose a government, or as the European Commission put it in Bowman v. United Kingdom (1996), 22 E.H.R.R. C.D. 13, at 18, “to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will.” Under our scheme of representative parliamentary democracy, the government is formed by the party which is able to secure the confidence of the House. The government reflects party policy rather than the positions of individual candidates. Once again, Professor Aucoin makes the point very well, and I will repeat the relevant extract from his affidavit.:

The constitutional principle that Canada’s constitutional system be “similar in principle to that of the United Kingdom” requires, among other things, that our parliamentary system of government be based on the principles of “responsible government”, namely that the Government have the confidence of the elected House of Commons. In practice, this has meant a tradition whereby these principles are secured through what is called “party government”. The Government thus consists of a political executive (Prime Minister and Cabinet) constituted on the basis of the structure of party formations in the House of Commons. Canada, of course, is not unique among the governance systems that adhere to the model of parliamentary government. Party government, in this sense, is the norm everywhere in parliamentary systems.

[77] Each of the three purposes served by political parties in the electoral process assumes that the political party will take on a significant level of involvement in that process. A political party that runs only a handful of candidates cannot structure voter choice at the national level, nor can it offer citizens an opportunity to become involved in the process of choosing a government. Most significantly, political parties who run only a few candidates are not seeking to organize elected representation in Parliament. Those parties no doubt have valid purposes for running some candidates, and their participation in the process no doubt enhances the democratic nature of that process, but the fact remains that they do not participate with a view to forming a government or with a view to constituting a sufficient membership in Parliament so as in the usual course of events to have any role in the governance of the country after the election.

[78] The purposes served by political parties in the electoral process which enhance effective representation, and thereby promote the goal underlying s. 3 of the Charter, become operative only where political parties assume a meaningful level of participation in the electoral process.

[79] The number of candidates fielded in an election is one measure of a political party’s level of participation in that particular election. Political parties who are prepared to extend the energy and resources necessary to run candidates in a significant number of constituencies can be taken as being more involved and committed to that process and the eventual government of the country than can a party that nominates only a handful of candidates. Two extracts from the cross-examination of Professor Aucoin draw the connection between participation and the number of candidates nominated:

… The point flows from our constitutional system of responsible government, which operates on the assumption that the government must have the confidence of the House of Commons. The way in which this emerged and the way in which it has always worked and the way in which it works in every political system is that political parties, as freely formed associations of citizens and their representatives, is an integral part of that system. Political parties that want to participate in the processes of responsible government require them to offer candidates for election. They participate in the processes of parliamentary government to the extent that they are elected.

If they run ten candidates and elect all of them, under our system they cannot possibly either constitute the government or the official opposition. So the parties that wish to be able to play a major role in our parliamentary democracy have to aspire (even if, as you put it, it takes some time for them to develop) to be parties that can compete in a sufficient number of constituencies to be able to perform that role, other things being equal, if their candidates are elected.

…

Number of candidates is an indication of the extent to which a party is seeking to participate in Canadian political life. Parties participate in our process as coalitions of citizens by nominating candidates and attempting to have voters support them for elected office. That’s the business that parties are in; therefore, the number of candidates a party nominates in an election is the extent to which it is seeking to participate. That’s what parties are about. They’re not interest groups, they’re not pressure groups, they’re not voluntary associations simply promoting civic education. They are integral parts of the process and the process depends on the nominated candidates. [Emphasis added.]

[80] Effective representation is the desired end product of the electoral process. Political parties who choose to participate in the electoral process enhance the goal of effective representation if their participation is at a level which can effectively serve the functions performed by political parties in that process. Consequently, statutory provisions which bestow benefits on political parties as a means of encouraging the involvement of political parties in the electoral process and thereby promoting the goal of effective representation properly distinguish between parties whose commitment to the process is sufficient to serve that goal and parties whose commitment is so minimal as to be incapable of serving that goal. The number of candidates nominated in an election is one way of gauging whether the necessary level of involvement has been achieved.

[81] My conclusion is supported by that of the Lortie Commission.[12] After an extensive review of the process, the Commission concluded, at p. 249:

A political party that nominates candidates in 50 constituencies would demonstrate serious intent to engage in the rigours of electoral competition at a level that indicates relatively broad appeal for its program and ideas. Moreover, experience since 1974 shows that this level is neither unduly onerous nor too lenient for registration. We believe that this threshold should continue to serve as a benchmark in determining which parties may be registered under the Canada Elections Act.

[82] Even Professor Fletcher, whose affidavit was relied on by Mr. Figueroa, accepted that some level of participation in the process was necessary to justify direct or indirect public financing of political parties. It was his view, however, based primarily on a comparison with other jurisdictions, that the 50-candidate requirement was too high. His opposition to the present legislation was, therefore, not based on the distinction drawn in the legislation based on the number of candidates nominated, but rather on the number chosen by Parliament for making that distinction.

[83] I have considered the various comparisons referred to by Professor Fletcher. In my view, the most appropriate comparison is between the Act and the various provincial election statutes. The 50-candidate requirement means that a political party must nominate candidates in 16.61 percent of the total constituencies. This percentage is consistent with similar requirements in provincial legislation.[13]

[84] Nor can I accept that the present requirement has proven to be a significant bar to the registration of what, by any definition, would be considered small political parties. The CPC maintained its registered party status for some 20 years despite the fact that its popular support was virtually non-existent. The number of registered political parties climbed steadily from 4 in 1970 to 14 in 1993. The number dropped to 10 in 1997, but I do not think this decline can be attributed to the 50-candidate requirement which had been in place for almost thirty years in 1997. In the 1993 election, of the 14 registered parties, five elected members to Parliament. The remaining 9 registered parties garnered only 2.8 percent of the total popular vote. In the 1997 election, the five registered parties that did not elect a member of Parliament received slightly over 1 percent of the popular vote.

[85] Finally, I see no merit in the argument that the fact that political parties whose platforms might be regarded as “frivolous” have qualified for registration demonstrates that the registry provisions do not further effective representation. In my view, the fact that such parties can become registered makes it clear that the registration scheme does not attempt in any way to judge the merits of the policies advocated by a political party. It is concerned only with the level of participation in the process. Political parties who are prepared to participate at the required level are eligible for the benefits regardless of the policies they espouse. The merits of those policies are left to the voters. I see this as a positive feature of the scheme and not as any indication that it does not promote effective representation.

[86] In concluding that the 50-candidate requirement affords an appropriate distinction between political parties who by seeking to play a meaningful role in the electoral process enhance effective representation and those parties who do not seek to play such a role, I do not suggest there is any magic in the number 50. I hold only that some meaningful participation in the process is properly a condition precedent to eligibility for the benefits available to registered political parties under the Act and that the number of candidates nominated is a legitimate means of measuring that participation.

[87] Reasonable people can disagree as to how to measure that participation, and the point at which participation becomes sufficiently meaningful. Within the bounds of reason, however, it must be left to Parliament to draw the line. The requirement that a party field 50 candidates is within the bounds of reasonableness.

[88] To summarize, I conclude that:

¨ Political parties serve important purposes in the electoral process. Those purposes enhance effective representation and thereby serve the purpose underlying the constitutional right to seek election to the House of Commons.

¨ Those purposes are served where a political party is prepared to assume a meaningful level of participation in the electoral process.

¨ Legislation which recognizes the value of political parties in the electoral process and promotes that participation by way of benefits available to political parties who play a meaningful role in the process serves the purpose underlying s. 3 of the Charter and does not infringe s. 3.

¨ The requirement that a party nominate 50 candidates in an election is a reasonable method of distinguishing between parties whose involvement reaches the appropriate level of participation and parties whose involvement does not.

[89] As I am satisfied there is no violation of s. 3, I need not address s. 1. However, much of what I have said in my analysis of s. 3 could also be factored into a s. 1 analysis and would compel the conclusion that any violation of s. 3 occasioned by the 50-candidate requirement was justified within the meaning of s. 1.

(v) Alternative Charter Arguments

[90] Mr. Rosenthal raised two additional Charter arguments on which he relied should the court conclude that the 50-candidate requirement did not contravene s. 3 of the Charter. Mr. Rosenthal submitted that the requirement infringed s. 15 and s. 2(d) of the Charter. Both arguments were raised on the motion, but Molloy J. did not find it necessary to address the merits of either given her conclusion that the 50-candidate requirement infringed s. 3.

[91] Section 15(1) of the Charter provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[92] Section 15 applies to an “individual”. The registration system in the Act is directed at political parties. To the extent that it bestows benefits on some and denies those benefits to other political parties, it does not target individuals. Nor does it deny any individual “the equal protection and equal benefit of the law”. Section 15, therefore, has no application: R. v. Paul Magder Furs Ltd. (1989), 69 O.R. (2d) 172 (C.A.), leave to apply to S.C.C. refused (1989), 70 O.R. (2d) x.

[93] In so far as s. 15 could have application vis-à-vis individual candidates, I would find no violation of its terms. The distinction drawn in the Act between political parties is based on those who nominate 50 candidates and those who do not. It is not predicated on any ground enumerated in s. 15 or on any analogous ground. The distinction drawn in the Act has nothing to do with the personal characteristics of individual candidates. Those denied the benefits accruing from registration under the Act have nothing in common save their nomination by parties that have failed to run 50 candidates in the election. The registration scheme in the Act does not in any way run afoul of s. 15.

[94] Section 2(d) of the Charter provides:

Everyone has the following fundamental freedoms:

(d) freedom of association.

[95] The purpose of s. 2(d) is to guarantee that activities and goals may be pursued in association with others. Persons who share the policies and aims of the CPC are entitled to come together to pursue and promote those policies and aims.

[96] The 50-candidate requirement imposes no limitation on Mr. Figueroa’s right to associate with others who share his political views generally or on his right to associate with like-minded persons in the electoral process. Mr. Rosenthal contends, however, that the 50-candidate requirement means that those who choose to associate in support of the policies of the CPC are denied benefits extended by statute to others who choose to associate in support of political parties that nominate 50 candidates and, therefore, can register under the Act. It is his position that the denial of these benefits by legislation infringes Mr. Figueroa’s freedom of association.

[97] This contention rests on the assertion that a s. 15 equality analysis is appropriate when testing a s. 2(d) claim. This assertion runs aground on the authority of Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989. In Delisle, the appellant claimed that his exclusion from a statutory scheme governing labour relations infringed his right to freedom of association. The majority rejected that position stating at pp. 1014-15:

However, while the letter and spirit of the right to equality sometimes dictate a requirement of inclusion in a statutory regime, the same cannot be said of the individual freedoms set out in s. 2, which generally requires only that the state not interfere and does not call upon any comparative standard. In this case, the state has not restricted the appellant’s freedom of association by creating a statutory regime which does not apply to him. The fact that Mr. Delisle cannot invoke the protection of the PSSRA has no impact on his freedom of association under the Charter. [Emphasis added.]

[98] The rationale underlying the majority position in Delisle applies to Mr. Figueroa’s s. 2(d) claim. The exclusion of the CPC from the registry scheme does not affect Mr. Figueroa’s ability to associate with like-minded persons, although it does mean that certain benefits extended to other associations are not available to the CPC. As Bastarache J. said, for the majority, in Delisle, supra, at 1015:

It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance.

[99] I would find no violation of s. 2(d).

Identification of Party Affiliation on the Ballot

(i) The Act

[100] A reading of the Act reveals the following:

¨ A candidate shall prepare a nomination paper under oath indicating, among other things, the candidate’s “political affiliation”: s. 81(1)(a)(i).

¨ If a candidate has the endorsement of a registered political party and the leader of that party has filed the appropriate endorsement of that candidate, the political affiliation of the candidate shall be stated on the nomination paper as being the registered political party: s. 81(1)(h), s. 81(3)(a).

¨ A registered party can only endorse one candidate per riding: s. 82(1)

¨ If a candidate does not have the endorsement of a registered political party the candidate must indicate on the nomination paper whether he or she wishes to be referred to as “independent” or to have nothing shown in the election documents: s.81(1)(i), s. 81(3)(b).

¨ The political affiliation of each candidate, if any, as indicated on the nomination paper as prescribed by s. 81, shall be set out on the ballot after or under the name of the candidate: see s.100(1)(b).

¨ Where a candidate has filed the appropriate documentation indicating he or she has the endorsement of a registered political party and that party is deregistered before the election, neither the word “independent” nor any other political affiliation shall appear after or under the name of the candidate on the ballot: s. 100(2).

[101] Consequently, where a candidate has the endorsement of a registered political party, that party’s name will appear on the ballot after or under the name of the candidate. Candidates who have political affiliations other than with registered political parties may describe themselves as “independent” or have nothing appear on the ballot after or under their names. Candidates who are endorsed by a registered political party which is deregistered prior to the election have no choice. There will be no indication of their political affiliation on the ballot and they cannot use the word “independent” to describe themselves.[14]

(ii) The s. 2(b) argument

[102] The Attorney General conceded before Molloy J. that the provisions limiting the identification of party affiliation on the ballot infringed freedom of expression as guaranteed in s. 2(b) of the Charter. The Attorney General argued that the infringement was justified under s. 1. Molloy J. found that the prohibition did infringe s. 2(b) and rejected the Attorney General’s s. 1 argument.

[103] I will not address the s. 2(b) argument. It may be that the s. 2(b) issue would require a determination of the extent to which the right to freedom of expression can compel the state to include certain information in a document prepared under the auspices of the state (a ballot). This issue was not explored in argument before this court. In any event, I believe that the s. 3 right is the more directly implicated Charter right and, as such, the claim should be addressed first on that basis.

(iii) Section 3 of the Charter

[104] Molloy J. held that the prohibition against identification of party affiliation on the ballot by candidates who were not endorsed by registered political parties infringed both the right to vote and the right to seek election (pp. 699-702) and that the infringements could not be justified under s. 1 (pp. 702-707). I need only address the submission that the prohibition infringes on a citizen’s right to vote.

[105] The right to vote encompasses more than the bare right to mark one’s choice on a ballot. Effective representation, the purpose underlying the right to vote, requires that voters have the opportunity to make an informed choice from among the various candidates. The voters’ choice can only be an informed one if voters have access to information which is essential to the exercise of the franchise in an informed manner.

[106] This court recognized that the right to vote has an informational component in Thomson Newspapers Company Ltd. v. Canada (Attorney General) (1996), 30 O.R. (3d) 350 at 358:

We accept that, as a general principle, the right to cast an informed ballot carries with it the right to information necessary to permit electors to vote rationally and in an informed manner: …

[107] The court went on to hold that a ban on the publication of opinion polls in the three days preceding a federal election did not deny voters information that was essential to the casting of an informed ballot.

[108] When Thomson Newspapers Company Ltd. reached the Supreme Court, the majority held that the ban on opinion polls infringed s. 2(b) of the Charter and could not be justified under s. 1: see [1998] 1 S.C.R. 877. Although the court did not find it necessary to decide whether the ban also infringed the right to vote, Bastarache J., speaking for the entire court on this issue, acknowledged the informational component in s. 3, stating at p. 936:

… Accordingly, to constitute an infringement of the right to vote, a restriction on information would have to undermine the guarantee of effective representation.

[109] The boundaries of the informational component of the right to vote remain largely unmarked by judicial interpretation. In my view, identification of party affiliation on the ballot lies at the very core of the information needed to “permit electors to vote rationally and in an informed manner.” For many voters, party affiliation is as important as the candidate’s name. I agree entirely with the observations of Molloy J., at p. 701:

The restricted information in this case is the information which appears on the ballot paper upon which each voter will mark his choice of candidate. It is difficult to imagine a context in which the provision of information is more integrally connected to the core value of the right to vote. This is the last piece of information which a voter receives before casting his or her vote, and indeed may be the only information which the voter receives about a particular candidate. Most of us will recall at least one occasion when we looked at a ballot in a polling booth and discovered for the first time the existence of one or more candidates we had previously not heard about. One of the reasons Parliament decided to place party identifiers on the ballot was to provide a means of distinguishing between voters with similar names and thereby avoid voter confusion. Further, it is well recognized that political parties play such a prominent role in our democratic system that the choice of candidates by some voters is based largely, if not exclusively, on party affiliation. The fact that Parliament saw fit to include party affiliation or the designation “independent” as the only information on the ballot apart from the candidate’s names is testimony to the importance of that information and its close connection to the right to vote. In my opinion, this is sufficient to bring the right to this information within the s. 3 guarantee of the right to vote.

[110] Under the present scheme, voters are told on the ballot that certain candidates are endorsed by political parties. These are the candidates of the registered political parties. Candidates for other political parties that are not registered must describe themselves as “independent”, thereby misleading the voter, or leave the appropriate space on the ballot blank, leaving the voter uninformed or perhaps misled into thinking that the candidate has no political affiliation. Candidates of deregistered political parties have no choice. The space beside their name must remain blank.

[111] I am satisfied that the provisions limiting identification of a candidate’s party affiliation on the ballot to candidates endorsed by registered political parties infringes the right to vote.

[112] Having found a violation of s. 3 of the Charter, I must now address s. 1. The analytical framework by which the constitutionality of limitations on Charter rights is to be determined was first set out in R. v. Oakes, [1986] 1 S.C.R. 103 and is now well established (eg., see Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 at 595). To successfully shelter legislation under s. 1, the government must demonstrate, first that the objective or purpose of the impugned provision is sufficiently pressing and substantial to warrant the infringement of a Charter right, and second, that the objective or purpose of the legislation is proportional to the means used to achieve that objective or purpose: Harvey v. New Brunswick (Attorney General), supra, at 900.

[113] The first stage of the s. 1 inquiry demands that the objective or purpose of the impugned legislation be identified with some precision. The overall purpose of the legislative scheme within which the challenged provisions are found provides context and may elucidate the purpose behind the specific provision, but the ultimate constitutionality of that provision must be measured against its specific purpose or objective: Thomson Newspapers v. Canada, supra, at 948; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at 335. Consequently, when determining whether the limit imposed on s. 3 by the challenged provisions is justified under s. 1, the court cannot look only to the purpose underlying the Act as a whole or even to the purpose of the registry scheme as applied to other parts of the Act (e.g., as a basis for determining eligibility for direct or indirect government benefits), but must hone in on the purpose as it relates to the limit imposed on the identification of party affiliation on the ballot.

[114] In my opinion, the purpose underlying the scheme which limits identification of party affiliation on the ballot to candidates of registered political parties is to prevent voters from being confused or misled by the information on the ballot. The scheme, in effect, seeks to promote the casting of an informed ballot by prohibiting the listing of party affiliation where that listing could confuse or mislead.

[115] Voters could be confused if faced with a ballot identifying candidates said to be affiliated with two political parties that have very similar names. The impugned legislation prevents that source of confusion from arising by denying registration, and therefore identification on the ballot, to political parties whose names could be confused with parties that are already registered or have representation in the House of Commons.

[116] Voters could also be confused if confronted with a ballot showing two or more candidates endorsed by the same political party. The challenged provisions prevent this source of confusion by requiring that registered political parties have a leader, that the leader designate the candidate that has the endorsement of his or her party, and that each party endorse only one candidate in each riding.

[117] Finally, voters could also be misled if a ballot indicated a candidate was affiliated with a political party that was in fact not a political party in any real sense of the word. Political parties are understood to be organizations with members, a leader and a platform. Reference to a political affiliation on the ballot which is in reality no more than a name selected by an individual candidate is potentially misleading. The ballot is among the most cherished symbols of our democracy. It should not be a forum in which individual candidates, under the guise of listing party affiliation, are allowed to place information on the ballot that could hold the electoral process up to ridicule or advance some purely personal agenda. By limiting identification of party affiliation on the ballot to registered political parties, the Act ensures that party affiliations listed on the ballot will be limited to those organizations that have the indicia normally associated with a political party (eg., a minimum number of supporters, a leader, officers, an agent and an office), and are prepared to submit to the significant regulatory and reporting conditions established under the scheme.

[118] The objective of preventing voters from being confused or misled by information on the ballot is a pressing and substantial one. Indeed, it is essential if voters are to make an informed choice.

[119] Having cleared the first hurdle in the s. 1 analysis, the government must now satisfy the proportionality component of the s. 1 inquiry. The first branch of that component requires that the government demonstrate a rational connection between the objective of the impugned legislation and the means chosen by Parliament to achieve that objective: Harvey v. New Brunswick (Attorney General), supra, at p. 903. In this case, the Attorney General must show a rational connection between the limitation of identification of party affiliation on the ballot to candidates of registered political parties, and the objective of preventing voters from being confused or misled by information on the ballot.

[120] I need not engage in a separate analysis of this aspect of the proportionality component. For the reasons set out when outlining my understanding of the objective of the Act, I am satisfied that there is a rational connection between that objective and the provisions which limit identification of party affiliation on the ballot to candidates who are endorsed by registered political parties.

[121] The second stage of the proportionality component is referred to as the “minimal impairment” test and was described by McLachlin in J. in RJR-MacDonald, supra, at p.342, in these terms:

… [t]he government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it over broad merely because they can conceive of an alternative which might better tailor objective to infringement. …

[122] I think that the impugned legislation impairs the information component of the right to vote to an extent which goes well beyond that which is reasonably necessary to achieve the objective of the legislation.

[123] By linking identification of party affiliation on the ballot to registration of a political party under the Act, Parliament has limited identification of party affiliation on the ballot to candidates endorsed by parties who run at least 50 candidates. In doing so, Parliament has extended the prohibition against identification of party affiliation on the ballot to situations where that identification could not possibly confuse or mislead the voter, and has thereby overshot the objective on which it relies to justify the limitation on s. 3. While, as indicated earlier in these reasons, the 50-candidate requirement has value in other contexts, I see no link between that requirement and the goal of preventing voters from being misled or confused by information on the ballot. It does not follow that the listing of the party affiliation of those candidates nominated by a political party that nominates 49 or fewer candidates will somehow confuse or mislead voters. To the contrary, an argument could be made that identification of party affiliation on the ballot is particularly important where small parties are concerned. These parties usually have very limited resources and the candidates may be virtual unknowns to many of the voters. An indication of party affiliation on the ballot may provide the voter with the only information he or she has about that particular candidate.

[124] The fact that candidates of the CPC are denied the right to list their party affiliation on the ballot demonstrates that the 50-candidate requirement extends the prohibition against the listing of party affiliation on the ballot well beyond that needed to achieve the objective of the legislation. The CPC is a recognized political party within the common understanding of that concept. It has a leader, officers, a membership, a platform and it chooses and supports candidates for election. The CPC is prepared to register and thereby to subject itself to the various provisions which regulate the identification of party affiliation on the ballot. By denying candidates of the CPC the right to show their party affiliation on the ballot, the legislation does nothing to avoid confusing or misleading voters. To the contrary, it denies them information which could assist in determining how to cast their ballot. Some, and history suggests only a few, will want to cast their ballot in favour of a candidate because he or she is endorsed by the CPC. Others, and history suggests the vast majority, would never vote for a candidate endorsed by the CPC. In either case, the voter will be assisted in making an informed choice if the candidate’s affiliation with the CPC appears on the ballot.

[125] The extensive record tendered by the parties offers little, if any, support for the position that the 50-candidate requirement is a necessary component of a scheme aimed at preventing voters from being confused or misled by the identification of party affiliation on the ballot.

[126] Professor Aucoin, in his affidavit, accepted that the purpose of the identification of party affiliation on the ballot was to “avoid voter confusion and enhance voter information.” After setting out ways in which the present scheme avoided voter confusion (some of which are outlined above), Professor Aucoin goes on to say:

… Finally, and most importantly, a party must justify its claim to ballot identification in terms that Canadians recognize and acknowledge in ordinary political practice and discourse as applied to elections. This condition means that a political formation that wishes to be recognized and acknowledged as a party for electoral purposes must nominate candidates in more than one constituency. Ballot identification for a party that nominated only a single candidate would not serve the purposes of avoiding voter confusion and enhancing voter information for the simple reason that Canadian voters regard parties as political organizations that nominate candidates for election. [Emphasis added.]

[127] Professor Aucoin was cross-examined at length on this assertion. He maintained his position that if a political party ran only a single candidate, voters would be misled if that candidate’s political affiliation was shown on the ballot. I have read and re-read the cross-examination and I confess that it is not apparent to me why Canadians would draw any conclusion as to the number of candidates being endorsed by a political party from the endorsement of a particular candidate on a particular ballot. To me, a reference to a party affiliation suggests that the candidate has the support of a political organization but says or implies nothing about the level of that organization’s participation in the election. In any event, Professor Aucoin’s perception that reference to a political party connotes a party with more than one candidate could not justify a limit which excludes all political parties who run 49 or fewer candidates.

[128] The Lortie Commission also addressed the 50-candidate requirement in the context of ballot identification of party affiliation. The Commission observed that 77 candidates in the 1983 election who were affiliated with political parties were not allowed to show their party affiliation on the ballot because the parties were not registered. The Commission concluded, at pp. 255-56:

The absence of unregistered parties’ names from the ballot has two consequences. First, these parties lose the opportunity to present clear choices to voters, because the public is unaware that the parties have nominated candidates to act as standard bearers for their ideas and policies. Second, voters are deprived of the opportunity to make a full assessment of the choices they are offered. If the smaller parties had their names on the ballot, voters would be better informed about candidates’ ideas and policies, as expressed through their parties. The electoral law can be amended to allow the smaller parties to have their names on the ballot, while retaining procedures to ensure that parties applying for this privilege have some measure of public support and are committed to electoral competition. These parties would not be able to issue tax receipts for financial contributions, nor would they qualify for reimbursement of election expenses; however, during the election period, their candidates would. In sum, the electoral law should be amended to recognize the legitimacy of these smaller parties in the electoral process.

[129] The Commission recommended that political parties that fulfilled the administrative requirements of registration and nominated 15 candidates (ie., candidates in 5% of the total ridings) should be entitled to have their party affiliation listed on the ballot even though they would not be entitled to the other benefits available to a registered political party.

[130] The Lortie Commission, like Professor Aucoin, concluded that a reference to political affiliation on the ballot implied that the party was running a slate of candidates and not simply one candidate. It would seem that the Commission believed that any indication of party affiliation referable to parties who will run less than 15 candidates would somehow mislead the voter. Although, as indicated above, I do not necessarily accept this view, the Commission’s conclusion that the present 50-candidate requirement placed the bar well above that needed to avoid any potential confusion offers support for my conclusion that the present scheme does not minimally impair the voter’s right to make an informed choice when casting his or her ballot.

[131] The fundamental problem with the present scheme for determining entitlement to list party affiliation on the ballot lies in Parliament’s use of criteria, without any modification, that while entirely appropriate in another context (eg., the determination of eligibility for government funds), impose restrictions that go well beyond those needed to achieve the objective underlying the limit placed on identification of party affiliation on the ballot. I am satisfied that the 50-candidate requirement produces an unjustifiable limitation on a voter’s right to make an informed choice when casting his or her ballot. As such, the requirement violates s. 3 of the Charter and cannot be saved by s. 1.

(iv) The appropriate remedy

[132] Section 52 of the Constitution Act, 1982 declares that any law which is inconsistent with a provision of the constitution is, to the extent of that inconsistency, of no force and effect. I have identified the “inconsistency” between s. 3 of the Charter and the Act as arising out of the requirement that a political party nominate 50 candidates before the candidate of that party can show his or her political affiliation on the ballot. None of the other prerequisites to party registration and hence to identification of party affiliation on the ballot are unconstitutional.

[133] Section 52 of the Constitution Act, 1982 has been interpreted as providing an assortment of potential remedies. A court may simply strike down the offending legislation or it may sever the offending part of the legislation, strike that part down and leave the rest intact. A court may also “amend” legislation by subtraction (reading down) or addition (reading in) or a combination of the two. Furthermore, having selected the appropriate remedy, a court may suspend the operation of that remedy for a fixed period of time to allow Parliament an opportunity to address the constitutional infirmity in the legislation: Schachter v. Canada, [1992] 2 S.C.R. 679 at 695; M. v. H., [1999] 2 S.C.R. 3 at 84; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at 225-26; R. v. Parker, [2000] O.J. 2787 (C.A.) at para. 195-209.

[134] Molloy J., at pp. 724-726, approached the question of remedy having concluded that the 50-candidate requirement for political parties seeking registration under the Act contravened s. 3 both as it related to eligibility for certain benefits and as it related to the identification of party affiliation on the ballot. She employed a combination of “reading out” and “reading in” to change the requirement of 50 candidates to a requirement that a party nominate 2 candidates to be eligible for registered political party status. That remedy is inappropriate given my finding that the 50-candidate requirement is not unconstitutional as it applies to the registration of political parties under the Act for purposes other than party identification on the ballot.

[135] Molloy J. also addressed the possibility that the 50-candidate requirement was unconstitutional only to the extent that it limited a candidate’s right to have his or her party affiliation listed on the ballot. She said, at p. 729:

… However, even if the 50-candidate threshold were to remain in place, I would still be of the view that the party affiliation provisions are unconstitutional. There is no valid reason why the same threshold must apply with respect to all benefits. The administrative requirements for registration under the Act are reasonable and necessary and it is likewise reasonable that those conditions be met before a party identifier appears on a ballot so that the Chief Electoral Officer is able to verify accuracy. However, once those conditions are met, there is no compelling reason not to provide the party affiliation information for any candidate of a political party who wishes to be so identified. This would enhance the overall fairness of the election as well as provide more information to voters. [Emphasis added.]

[136] I take Molloy J. to indicate that if, as I have found, the 50-candidate requirement was unconstitutional only as it applied to identification of party affiliation on the ballot, she would read into the legislation a provision which defined registered political party for the purpose of listing party affiliation on the ballot as including all of the criteria set out in the Act for registration except the requirement that the political party nominate 50 candidates.

[137] The remedy devised by Molloy J. would cure the constitutional defect. I am not, however, inclined to rewrite the legislation. I think there are various ways Parliament could address the present constitutional deficiency in the legislation. Parliament could choose to use the established registry system absent a requirement that a party nominate 50 candidates.[15] Parliament might also choose to devise criteria for identification of party affiliation on the ballot that was totally separate and apart from those applicable to registration of political parties under the Act for other purposes.

[138] In Schachter v. Canada, supra, Lamer C.J.C. cautioned against judicial pre-emption of Parliament’s role when various alternatives are available to remedy constitutional defects in legislation. He said:

… In some cases, the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis. In such a case, it is the legislature’s role to fill in the gaps, not the court’s. [at p. 705]

… [t]he court should not read in in cases where there is no manner of extension which flows with sufficient precision from the requirements of the Constitution. In such cases, to read in would amount to making ad hoc choices from a variety of options, none of which was pointed to with sufficient precision by the interaction between the statute in question and the requirements of the Constitution. This is the task of the legislature, not the courts. [at p. 707]

[139] The Chief Justice’s cautionary words have application here. The Act is a comprehensive, lengthy, complicated piece of legislation. Many of the provisions are interrelated, and a change in one may have unforeseen effects on other sections of the Act. Parliament, especially with the benefit of the many studies and reports which have been made, is in a much better position than this court to determine exactly how the Act should be changed to overcome the violation of s. 3 flowing from the present limit imposed on identification of party affiliation on the ballot: see R. v. Parker, supra, at para. 204.

[140] On balance, I conclude that a declaration declaring that the offending parts of the Act have no force and effect is the appropriate remedy. I would hold that s.81(1)(i), s. 81(3)(b) and s. 100(2) are of no force and effect to the extent that they deny a candidate of a non-registered or deregistered political party the opportunity to have his or her party affiliation listed on the ballot solely on the basis that the political party has failed to nominate 50 or more candidates in the election.

[141] A declaration of invalidity standing alone would, however, leave a significant gap in the legislation. There would be no provision governing the listing on the ballot of party affiliation for candidates of political parties that were not registered. This gap could lead to administrative difficulties were an election to be called before Parliament could make the necessary amendments to bring the Act in compliance with s. 3. Consequently, I would suspend the operation of the declaration of invalidity for a period of six months to allow Parliament a reasonable opportunity to amend the legislation to bring it in line with the requirements of s. 3. In doing so, I follow the example of McLachlin C.J.C. in Dixon, supra, at pp. 427-432.

[142] For the reasons set out above, I would allow the appeal, and vary the judgment of Molloy J. to accord with these reasons.

[143] Although the Attorney General has been partially successful on this appeal, I see no reason to alter the costs order made by Molloy J. Indeed, I do not understand the Attorney General to have submitted that any variation in that order should be made whatever the outcome of this appeal. As success on the issues raised on this appeal was divided, I would order no costs on the appeal.

(signed) “D. Doherty J.A.”

(signed) “I agree John Laskin J.A.”

(signed) “I agree M. J. Moldaver J.A.:

Released: August 16, 2000

APPENDIX “A”

24. (1) The Chief Electoral Officer shall maintain a registry of political parties and subject to this section and sections 25 to 32 shall register therein any political party that files with him an application for registration signed by the leader of the party, setting out

(a) the full name of the party,

(b) the short form of the party name or the abbreviation, if any, of the party name to be shown in any election documents,

(d) the address of the office of the party where records are maintained and to which communications may be addressed,

(e) the names and addresses of the officers of the party,

(f) the name and address of the person who has been appointed auditor of the party,

(g) the name and address of the chief agent of the party, and

(h) the names, addresses and signatures of one hundred electors who are members of the party,

and accompanied by a statement in writing signed by the person named pursuant to paragraph (f) stating that he has accepted the appointment as auditor of the party.

(2) On receipt of an application for registration of a political party pursuant to subsection (1), the Chief Electoral Officer shall examine the application and determine whether the party can be registered under this section and

(a) where he determines that, on the nomination by the party of fifty candidates in accordance with paragraph (3)(a) or (b), whichever is applicable, the party could be registered, so inform the leader of the party; or

(b) in any other case, inform the leader of the party that the party cannot be registered.

(3) Where the leader of a political party has been informed by the Chief Electoral Officer pursuant to paragraph (2)(a) that, on the nomination of fifty candidates in accordance with paragraph (a) or (b), whichever is applicable, the political party could be registered, the party shall be registered

(a) if the application for registration is filed within the period commencing with the day following polling day at one general election and terminating on the sixtieth day before the issue of writs for the next general election, on the date after the party has officially nominated candidates in fifty electoral districts at the next general election, or

(b) if the application for registration is filed within the period commencing with the fifty-ninth day before the issue of writs for a general election and terminating on polling day at that election, on the day after the party has officially nominated candidates in fifty electoral districts at the general election next following the general election falling within that period,

and if the political party fails to nominate fifty candidates in accordance with paragraph (a) or (b), whichever is applicable, the Chief Electoral Officer shall inform the leader of the party that the party cannot be registered.

(4) The Chief Electoral Officer shall not register a political party where, in the case of any application for registration,

(a) the Chief Electoral Officer is of the opinion that the name, the short form or the abbreviation of the name or the logo of the party so nearly resembles the name, the short form or the abbreviation of the name or the logo, as the case may be, of

(i) a registered party, or

(a)(ii) another political party the application for registration of which was made first in time and the leader of which has not been informed that the party cannot be registered,

as to be likely to be confused with the registered party or the other political party; or

(b) (b) the name of the party includes the word “independent”.

(c)

27. At a general election, every registered party that has been registered prior to that election shall, not later than ten days after the date of the issue of the writs, file with the Chief Electoral Officer a statement in writing signed by the leader of the party

(a) confirming or bringing up to date the information contained in the application for registration of the party; and

(b) where the leader wishes to designate representatives to endorse candidates at the election, designating those representatives.

28. (1) The Chief Electoral Officer may delete from the registry

(a) at a general election, on or after the eleventh day after the date of the issue of the writs, any registered party that has not complied with section 27; or

(b) at any time, any registered party that has failed to comply with subsections 26(1), 31(3), 33(2), 34(1), 42(1), 44(1) and 46(1).

(2) The Chief Electoral Officer shall, on the close of nominations at a general election, delete from the registry referred to in subsection 24(1), any registered party that did not at the close of nominations on that day have candidates in at least fifty of the electoral districts.

(3) For the purposes of this section, a political party is deemed not to have been represented in the House of Commons at a particular time unless at that time it was represented therein by twelve or more members.

31. (1) Where the leader of a political party that has made application for registration pursuant to subsection 24(1)

(a) has been informed by the Chief Electoral officer pursuant to paragraph 24(2)(a) that, on the nomination of fifty candidates in accordance with paragraph 24(3)(a) or (b), whichever is applicable, the party could be registered, and

(b) has not been informed by the Chief Electoral Officer pursuant to subsection 24(3) that the party cannot be registered,

that political party shall be deemed to be a registered party for the purposes of sections 25 and 26, paragraph 27(a), subsection (3) of this section and subsections 33(2) to 34(2) and 42(1) and those provisions apply to that political party with such modifications as the circumstances require, but where the political party fails to comply with section 26, paragraph 27(a), subsection (3) of this section or subsections 33(2) to 34(2) and 42(1), the Chief Electoral Officer shall inform the leader of the party that the party cannot be registered.

…

(9) Where the Chief Electoral Officer has, pursuant to subsection 28(2), 30(1) or subsection (7) of this section, deleted a registered party from the registry referred to in subsection 24(1), the Chief Electoral Officer shall publish a notice of the deletion in the Canada Gazette and send a copy of the notice to the leader, to the chief agent and to all other officers of the party set out in the registry.

…

(11) The chief agent of a registered party that is deleted from the registry referred to in subsection 24(1) shall, within three months after the expiration of the period referred to in subsection (10), provide for the transmittal of the return, liquidate the assets of the party, pay the debts of the party and remit any remaining balance to the Chief Electoral Officer who shall transmit that balance to the Receiver General or, where there is no balance remaining, so inform the Chief Electoral Officer by a notice in writing.

(12) Where the assets of a registered party are sold pursuant to subsection (11), the chief agent shall file in the form prescribed by the Chief Electoral Officer an accounting of the sale of those assets.

(13) Where a registered party is deleted from the registry referred to in subsection 24(1), all contributions received between the date the notice referred to in subsection (9) is published and the date of the remittance of any balance to the Chief Electoral Officer pursuant to subsection (11) shall be included in the balance to be remitted to the Chief Electoral Officer.

(14) The chief agent of every registered party that is deleted from the registry referred to in subsection 24(1) is responsible for the disposal of the assets of the party and, if any of those assets are disposed of for less than market value, the chief agent is personally liable for the difference between the market value and any proceeds received from the disposal of the assets.

(15) Where a registered party is deleted from the registry referred to in subsection 24(1), the deletion is effective on the date the Chief Electoral Officer receives the balance or the notice referred to in subsection (11).

[1] A new Canada Elections Act, S.C. 2000, c. 9, received royal assent on May 31, 2000. The appellant has taken the position that the new Act has not changed the relevant provisions under appeal in any material way.

[2] The record indicates that there were two reasons for the failure of the CPC to run 50 candidates. First, the deposit required from each candidate was increased from $200 to $1000 thereby increasing the cost of running 50 candidates. Second, disputes within the party significantly weakened the party and undermined its ability to mount campaigns in many ridings. In the 1993 election, the CPC nominated 8 candidates. In 1997, it nominated 13 candidates.

[3] The procedural history of this action is somewhat convoluted. For present purposes, it need not be detailed.

[4] The new Act conforms with Molloy J.’s order (see s. 468).

[5] The new Act provides that a suspended party shall remit the amount of any net balance of its assets over liabilities, unless the party re-applies to be registered. There is no obligation to liquidate assets (see ss. 392-399).

[6] The one notable exception was legislation governing political broadcasts. The Canadian Broadcasting Act, 1936 gave the Canadian Broadcasting Corporation the power to allot political broadcast time “on an equitable basis to all parties and rival candidates.”

[7] Speaking for the government during the debate on the Bill, the Honourable Donald Macdonald stated that the registry was meant for “national” parties with “some expression of a very substantial political position.” (Hansard, June 23, 1970 at p. 8509)

[9] In the new Act, the registration provisions are found in ss. 366-403.

[10] Molloy J.’s approach is, however, consistent with that taken by Conrad J.A., in her dissent, in Reform Party of Canada v. Canada, supra, at 671-2.

[11] This case was cited as a leading authority on s. 3 in both Thomson Newspapers Co., supra, at 936, and Haig v. Canada, [1993] 2 S.C.R. 995 at 1031. In Harvey, LaForest J. described the Saskatchewan Boundaries case as “[t]he fullest treatment of the right to vote.” However, because Harvey was a disqualification case, LaForest J. took a different approach and relied on s. 1 of the Charter to justify the limitation on the s. 3 right. The majority judgment in the Saskatchewan Reference has not escaped criticism: see R.E. Charney, “Saskatchewan Election Boundary Reference: One Person – Half a Vote” (Nov. 1991) 1 N.J.C.L. 225.

[12] The Lortie Commission did not address the constitutionality of the 50-candidate requirement.

[13] Three of the provinces require a significantly higher percentage, four require a percentage which is about the same and three require a percentage which is significantly lower.

[14] The new Act contains similar provisions, albeit in much clearer terms. Section 117 of the new Act provides for party affiliation to be listed on the ballot, and offers only three choices: the name of a registered party; the word “independent”; or nothing at all. Candidates of suspended or non-registered parties cannot have any political affiliation listed on the ballot (s. 117(4)(b)).

[15] If Parliament pursued that course, it would have to explore whether any limit based on the number of candidates, albeit one much smaller than 50, could be justified on the basis that it avoided voter confusion.