Longley et al. v. The Attorney General of Canada [Indexed as: Longley v. Canada (Attorney General)]

88 O.R. (3d) 408

Court of Appeal for Ontario,

O'Connor A.C.J.O., Armstrong and Blair JJ.A.

December 6, 2007

Charter of Rights and Freedoms -- Democratic rights -- Political parties -- Restrictions on entitlement of political parties to direct public financing imposed by s. 435.01(1) of Canada Elections Act violating s. 3 of Charter -- Violation being justified under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, s. 3 -- Canada Elections Act, S.C. 2000, c. 9, s. 435.01(1).

Charter of Rights and Freedoms -- Equality rights -- Political parties -- Restrictions on entitlement of political parties to direct public financing imposed by s. 435.01(1) of Canada Elections Act not violating s. 15 of Charter -- Canadian Charter of Rights and Freedoms, s. 15 -- Canada Elections Act, S.C. 2000, c. 9, s. 435.01(1).

Charter of Rights and Freedoms -- Freedom of association -- Political parties -- Restrictions on entitlement of political parties to direct public financing imposed by s. 435.01(1) of Canada Elections Act not [page409] violating s. 2(d) of Charter -- Canadian Charter of Rights and Freedoms, s. 2(d) -- Canada Elections Act, S.C. 2000, c. 9, s. 435.01(1).

Charter of Rights and Freedoms -- Freedom of expression -- Political parties -- Restrictions on entitlement of political parties to direct public financing imposed by s. 435.01(1) of Canada Elections Act not violating s. 2(b) of Charter -- Canadian Charter of Rights and Freedoms, s. 2(b) -- Canada Elections Act, S.C. 2000, c. 9, s. 435.01(1).

Civil procedure -- Parties -- Legal capacity -- "Deemed person" provisions in s. 504(a) of the Canada Elections Act not infusing political parties with status of legal entitles entitled to sue or to be sued for all purposes -- Section 504(a) clothing political parties with that status only for purposes of proceedings under Act -- Canada Elections Act, S.C. 2000, c. 9, s. 504(a).

Section 435.01(1) of the Canada Elections Act restricts entitlement to direct public financing, in the form of quarterly allowances, to political parties which obtain more than 2 per cent of the vote nationally in a general election, or 5 per cent of the total votes cast in the constituencies where they run candidates. On an application by the individual and political party respondents attacking the constitutionality of the 2 per cent and 5 per cent thresholds in s. 435.01(1), the application judge found that s. 435.01(1) violates ss. 3 and 15 of the Canadian Charter of Rights and Freedoms, that the infringement is not justified under s. 1 of the Charter, and that the language of s. 435.01(1) should, by operation of the remedies of severance and reading in, be read to provide a minimum threshold of "one vote" for qualification for receipt of the quarterly allowances. Canada appealed.

Held, the appeal should be allowed.

The thresholds in s. 435.01(1) of the Canada Elections Act violate s. 3 of the Charter by exacerbating a pre-existing disparity in the capacity of the various political parties to communicate their positions to the general public, which in turn diminishes the capacity of the individual members and supporters of smaller parties to play a meaningful role in the electoral process. The thresholds violate Parliament's obligation not to enhance the capacity of one citizen to participate in the electoral process in a manner that compromises another citizen's parallel right to meaningful participation in the electoral process.

The violation of s. 3 is justified under s. 1 of the Charter. The objective of the impugned provision -- preserving the integrity of the Canadian electoral process and its public funding mechanisms by guarding against the misuse of public funds -- is pressing and substantial. There is a rational connection between that objective and the 2 per cent and 5 per cent thresholds because the thresholds help to ensure that groups which choose to register as political parties, but which have little intention of engaging in true electoral competition or in the political discourse of the day, are not able to access public funds to do so. The thresholds meet the minimum impairment test. They do not impede the right of political parties to be registered and thereby to become entitled to key public funding and informational benefits. Meeting the s. 435.01(1) thresholds merely entitles a political party to additional public funding benefits in the form of (a) reimbursement of 50 per cent of its electoral expenses following an election, and (b) an annual allowance of $1.75 for every valid vote received in the most recent general election. Parliament was constitutionally permitted to select the relatively modest voting threshold approach over the option of an audit regime designed to thwart the misuse of public funding by political parties. There was a reasonable apprehension [page410] that the audit option could have a significant deleterious effect on other values fundamental to the political process, namely, the need to preserve the independence and internal autonomy of political parties and the need to preserve the actual or perceived impartiality and integrity of the office of the Chief Electoral Officer. The salutary effects of the impugned thresholds outweighed their deleterious effects.

The application judge erred in finding that the thresholds violate s. 15 of the Charter. Only individuals may claim the protection of s. 15. Thus, the respondent political parties were not entitled to assert a claim that they had been subject to differential treatment vis-à-vis larger parties. Even if the s. 435.01(1) thresholds treat members or supporters of non- threshold achieving parties differently, they do not distinguish between smaller and larger parties, or their members or supporters, on the basis of personal characteristics. The differential treatment is based upon the number of votes a party obtains in a general election.

The thresholds do not infringe s. 2(b) or s. 2(d) of the Charter. They do not lead to any substantial interference with the ability of members or supporters of political parties to exercise their freedom of expression or their freedom of association. Diminished effectiveness in the ability to convey a message, or in the ability to associate, is not sufficient; there must be substantial interference with a fundamental freedom.

The "deemed person" provisions in s. 504(a) of the Act do not infuse political parties with the status of legal entities entitled to sue or to be sued for all purposes; rather, s. 504(a) clothes them with that status only for purposes of proceedings under the Act.

APPEAL from the judgment of Matlow J. (2006), 2006 36358 (ON SC), 82 O.R. (3d) 481, [2006] O.J. No. 4316 (S.C.J.), allowing an application attacking the constitutionality of s. 435.01(1) of the Canada Elections Act.

Cases referred to Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 53 O.R. (2d) 719n, 14 O.A.C. 335, 26 D.L.R. (4th) 200, 65 N.R. 87, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, apld Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 227 D.L.R. (4th) 1, 306 N.R. 70, 108 C.R.R. (2d) 66, 2003 SCC 37, consd Other cases referred to Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, [2007] S.C.J. No. 31, 283 D.L.R. (4th) 1; Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 100 B.C.L.R. (3d) 1, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 93 C.R.R. (2d) 189, 18 C.P.R. (4th) 289, 2002 SCC 42; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, [2007] S.C.J. No. 30, 281 D.L.R. (4th) 589; Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989, [1999] S.C.J. No. 43, 176 D.L.R. (4th) 513, 244 N.R. 33, 66 C.R.R. (2d) 14, 99 C.L.L.C. Â220-066; Dixon v. British Columbia (Attorney General), 1989 248 (BC SC), [1989] B.C.J. No. 583, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247, [1989] 4 W.W.R. 393, 3 C.R.R. (2d) D- 2 (S.C.); Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, [2001] S.C.J. No. 87, 207 D.L.R. (4th) 193, 279 N.R. 201, 89 C.R.R. (2d) 189, 2002 C.L.L.C. Â220-004, 2001 SCC 94, 13 C.C.E.L. (3d) 1; Gosselin v. Québec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, 221 D.L.R. (4th) 257, 100 C.R.R. (2d) 1, 2002 SCC 84; Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193 (sub nom. Haig v. Canada (Chief Electoral Officer), Haig v. Kingsley); Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, [2004] S.C.J. No. 28, 348 A.R. 201, 239 D.L.R. (4th) 193, 320 N.R. 49, 321 W.A.C. 201, [2004] 8 W.W.R. 1, 119 C.R.R. (2d) 84, 2004 SCC 33, 27 Alta. L.R. (4th) 1; [page411] Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, [1996] S.C.J. No. 82, 178 N.B.R. (2d) 161, 137 D.L.R. (4th) 142, 201 N.R. 1, 454 A.P.R. 161, 37 C.R.R. (2d) 189; Health Services and Support -- Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, [2007] S.C.J. No. 27, 283 D.L.R. (4th) 40; Jazairi v. Ontario (Human Rights Commission), 1999 3744 (ON CA), [1999] O.J. No. 2474, 175 D.L.R. (4th) 302, 68 C.R.R. (2d) 32, 99 C.L.L.C. Â230-024 (C.A.), supp. reasons 1999 7334 (ON CA), [1999] O.J. No. 3896, 68 C.R.R. (2d) 47 (C.A.) [Leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 448, 256 N.R. 197n]; Libman v. Québec (Attorney General), 1997 326 (SCC), [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 46 C.R.R. (2d) 234; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, [2000] S.C.J. No. 66, 83 B.C.L.R. (3d) 1, 193 D.L.R. (4th) 193, 263 N.R. 203, [2001] 2 W.W.R. 1, 79 C.R.R. (2d) 189, 150 C.C.C. (3d) 1, 38 C.R. (5th) 209, 2000 SCC 69; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, [2000] S.C.J. No. 36, 48 O.R. (3d) 735n, 188 D.L.R. (4th) 193, 255 N.R. 1, 75 C.R.R. (2d) 189 (sub nom. Ardoch Algonquin First Nation v. Ontario); M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, [1999] S.C.J. No. 23, 43 O.R. (3d) 254n, 171 D.L.R. (4th) 577, 238 N.R. 179, 62 C.R.R. (2d) 1, 46 R.F.L. (4th) 32; Newfoundland (Treasury Board) v. Newfoundland Assn. of Public Employees, [2004] 3 S.C.R. 381, [2004] S.C.J. No. 61, 242 Nfld. & P.E.I.R. 113, 244 D.L.R. (4th) 294, 326 N.R. 25, 719 A.P.R. 113, 125 C.R.R. (2d) 4, 2004 SCC 66, 24 Admin. L.R. (4th) 201; R. v. Daoust, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7, 235 D.L.R. (4th) 216, 316 N.R. 203, 180 C.C.C. (3d) 449, 2004 SCC 6, 18 C.R. (6th) 57; R. v. Mac, [2002] 1 S.C.R. 856, [2002] S.C.J. No. 26, 163 C.C.C. (3d) 1, 50 C.R. (5th) 50, 287 N.R. 75, 159 O.A.C. 33, 2002 SCC 24; Reference re Provincial Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158, [1991] S.C.J. No. 46, 94 Sask. R. 161, 81 D.L.R. (4th) 16, 127 N.R. 1, [1991] 5 W.W.R. 1, 5 C.R.R. (2d) 1 (sub nom. Provincial Electoral Boundaries (Re), Carter v. Saskatchewan (Attorney General), Provincial Electoral Boundaries (Sask.) (Re)); Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. Â210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour); RJR - MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, 127 D.L.R. (4th) 1, 187 N.R. 1, 31 C.R.R. (2d) 189, 100 C.C.C. (3d) 449, 62 C.P.R. (3d) 417; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, [2002] S.C.J. No. 66, 218 D.L.R. (4th) 577, 294 N.R. 1, 98 C.R.R. (2d) 1, 168 C.C.C. (3d) 449, 2002 SCC 68, 5 C.R. (6th) 203; Stevens v. Conservative Party of Canada, 2005 FCA 383, [2005] F.C.J. No. 1890, 262 D.L.R. (4th) 532 (C.A.); Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 38 O.R. (3d) 735n, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189; Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835, [2003] S.C.J. No. 32, 226 D.L.R. (4th) 1, 304 N.R. 201, [2003] 7 W.W.R. 391, 107 C.R.R. (2d) 277, 36 R.F.L. (5th) 429, 2003 SCC 34, 14 B.C.L.R. (4th) 12; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, [1998] S.C.J. No. 29, 67 Alta. L.R. (3d) 1, 156 D.L.R. (4th) 385, 224 N.R. 1, [1999] 5 W.W.R. 451, 50 C.R.R. (2d) 1, 98 C.L.L.C. Â230-021 Statutes referred to An Act to Amend the Canada Elections Act and Income Tax Act, S.C. 2004, c. 24 An Act to Amend An Act to Amend the Canada Elections Act and the Income Tax Act, S.C. 2006, c. 1, s. 1 Canada Elections Act, R.S.C. 1970, c. 49, s. 13(8) Canada Elections Act, S.C. 2000, c. 9, ss. 117(2) [as am.], 335 [as am.], 338, 345 [as am.], 348 [as am.], 366(2) [as am.], 368 [as am.], 435 [as am.], 435.01(1) [as am.], 473(2) [as am.], 504 [as am.] Canadian Charter of Rights and Freedoms, ss. 1, 2, 3, 15, 24(1) [page412] Constitution Act, 1982, s. 52 Election Expenses Act, S.C. 1974, c. 51 Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 127(3) Local Authorities Election Act, R.S.A. 2000, c. L-21 Authorities referred to Beatty, David, "Political Parties and Constitutional Reform" in T. Fleiner, ed., Five Decades of Constitutional Law: Reality and Perspectives (1945-1995) (Tokyo: International Association of Constitutional Law Fourth World Congress) Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue 13, Evidence (17 June 2003) at 3354, online: http: Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue 13, Evidence (17 June 2003) at 3372 online: http: Canada, Proceedings of the House Standing Committee on Procedure and House Affairs, No. 32 (8 April 2003) at 1901, online: http: Driedger, Elmer, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) House of Commons Debates (16 May 1995) at 12703 (Hon. Werner Schmidt), online: http: House of Commons Debates (16 May 1995) at 12708 (Hon. John Bryden), online: http: House of Commons Debates (15 May 1996) at 2836 (Hon. Paul Zed), online: http: House of Commons Debates (16 May 1995) at 12706 (Hon. Ron MacDonald), online: http: House of Commons Debates, No. 057 (11 February 2003) at 1535 (Rt. Hon. Jean Chrétien)

Gail Sinclair and Peter Hajecek, for appellant. Peter Rosenthal and Larissa Ruderman, for respondents.

The judgment of the court was delivered by

BLAIR J.A.: --

Part I -- Background and Facts

Introduction

[1] "Money is the mother's milk of politics", says the respondent Blair Longley, leader of the Marijuana Party of Canada. The individual and political party respondents want more of it from the public purse. They say that the current regime for the regulation and public support of registered political parties [page413] under the Canada Elections Act, S.C. 2000, c. 9 unconstitutionally deprives them of financial benefits available to larger political parties.

[2] Amongst the array of benefits available to registered political parties is the right of those that obtain more than 2 per cent of the vote nationally in a general election, or 5 per cent of the total votes cast in the constituencies where they run candidates, to receive direct public financing in the amount of $1.75 for every vote cast, indexed, and payable quarterly. The constitutionality of those thresholds -- found in s. 435.01(1) of the Act [^1] -- is the primary issue on this appeal. Additional issues involve the remedies imposed and rejected by the application judge (who found that the thresholds violated ss. 3 and 15 of the Canadian Charter of Rights and Freedoms), and his interpretation of s. 504 of the Act (which deems a political party or association, in certain circumstances, to be a "person").

[3] The Attorney General of Canada seeks to set aside the judgment of Matlow J., dated October 12, 2006. In that judgment Justice Matlow ruled that the provisions of s. 435.01(1) infringed ss. 3 and 15 of the Charter, that those infringements could not be saved by s. 1 of the Charter, and that the language of s. 435.01(1) should, by operation of the remedies of severance and reading in, be read to provide a minimum threshold of "one vote" for qualification for receipt of the quarterly allowances. He ordered the Receiver General for Canada to pay quarterly allowances to the six party respondents retroactively to January 1, 2004, plus prejudgment interest, in the total amount of $567,435.60. He also ruled that s. 504(a) of the Act gave political parties standing to sue in their own name and to claim s. 3 and s. 15 Charter rights on behalf of their individual members.

[4] Justice Matlow rejected the respondents' claims for (a) damages in the amount of $100,000 for each claimant for loss of political opportunities suffered as a consequence of the respondent political parties not receiving quarterly allowances, and (b) punitive damages in the amount of $500,000 for each claimant. The respondents cross-appeal from the dismissal of those claims.

[5] For the reasons that follow, I would allow the appeal and dismiss the cross-appeal. [page414]

Facts [^2]

Current public funding for registered political parties under the Act

[6] At the present time, the Act provides a measure of public funding to registered political parties on a two-tiered basis. [^3]

[7] First, once a party has been registered, it becomes entitled to an initial set of benefits of both an informational and financial nature. The party is recognized as a registered political party under the Act and its name and logo are protected. Its party affiliation is placed on the ballot beside the name of each candidate running for the party. The party is entitled to an allocation of free broadcasting time, and to an allocation of guaranteed broadcasting time at the lowest commercial rate. Importantly, it is able to raise funds through the political contribution tax credit regime by issuing receipts for contributions received throughout the year, and it is able to receive any surplus funds from election campaigns of its individual candidates following an election.

[8] Secondly, once a registered political party meets one of two measures of electoral success -- obtaining two per cent of the national vote or five per cent of the total of all votes cast in the constituencies in which it runs candidates -- it is entitled to an additional set of measures of public funding:

(a) reimbursement of 50 per cent of its electoral expenses following an election; and

(b) an annual allowance of $1.75, as indexed, for every valid vote received in the most recent general election, paid on a quarterly basis.

[9] The four principal requirements for status as a registered political party under the Act are modest. A political party must:

(a) provide the names of 250 electors who are members of the party and who support its application for registration; [page415]

(b) provide the names of its leader, chief agent, auditor and one other officer;

(c) provide a declaration by its leader that "one of the party's fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election"; and

(d) run at least one candidate.

Legislative history

[10] In 1974, the Election Expenses Act, S.C. 1974, c. 51, introduced unique measures of public funding for political parties, chiefly by amending the Act and the Income Tax Act. In exchange, parties and candidates were required to accept certain spending limits and new reporting obligations. At the time, measures of public funding for political parties were not provided on a tiered basis. Rather, once registered, a party was generally entitled to all measures of public funding then available. The threshold for becoming and remaining a registered political party was high, however, as, among other things, a party had to run at least 50 candidates in a general election unless it was represented in the House of Commons by 12 or more members. [^4]

[11] Once registered at that time, a political party was entitled to the following measures of public support:

(a) party recognition as a registered political party under the Act, with protection of its name and logo;

(b) party affiliation on the ballot adjacent to the name of each candidate running for the party;

(c) an allocation of free and paid broadcasting time;

(d) the ability to raise funds through the political contribution tax credit regime by issuing receipts for contributors provided during the year;

(e) reimbursement of one-half of their television and radio advertising expenses. [page416]

[12] These provisions remained in place, essentially, until the mid-1990s. Following the 1993 General Election, however, there was agitation for a change in the requirements relating to the reimbursement of election expenses. The primary catalyst for this development was the Natural Law Party.

[13] The Natural Law Party was part of an international transcendental meditation movement. It promoted, amongst other things, the benefits of transcendental meditation (or "yogic flying", as it was called). In the 1993 election, it fielded over 200 candidates, received approximately 85,000 votes (or, 0.6 per cent of the national vote), and was rewarded with a total of $717,000 in public funds as reimbursement for its election expenses. Parliamentarians and members of the public were dismayed. The perception was that the Natural Law Party had not participated in the election for the purpose of engaging in political discourse and enhancing the political process; rather, its purpose was to advertise its contemplative lifestyle, promote its fee-based meditation courses and enhance its commercial aims. It hired people to "run" on its behalf. People were naturally concerned about the use of public funds to support such a campaign.

[14] In response, Mr. Ian McClelland, MP (Reform Party of Canada) introduced a private members bill in the House of Commons with a view to establishing an eligibility threshold for partial reimbursement of a party's election expenses. It proposed that a registered party would have to receive two per cent of the national vote before it would be entitled to such a reimbursement. After consideration by the House of Commons Standing Committee on Procedure and House Affairs, the Bill was enacted in October 1996, with its threshold of two per cent of the national vote or five per cent of the votes cast in electoral districts in which the party ran candidates (the threshold that now applies, as well, to the payment of quarterly allowances). At the time, a party still had to run at least 50 candidates in an election to be registered.

[15] Some of the concerns underlying the push to introduce the threshold are illustrated by the following statements by Members of Parliament during the debates:

(a) "If a party deserves to be reimbursed because it has support among the people, it will be. If, however, a party is using the electoral system in this country as a soapbox for personal or questionable exposure and the people ignore it, then it should pay its own bills." [^5] (emphasis added); [page417]

(b) "If the Natural Law Party wants to run for election, that is fine. If it wants to field candidates, that is fine. If it wants to use an election as a platform for promoting its particular agenda of metaphysicalism or whatever it is, that is fine too. It becomes a problem when the public perceives it is funding that type of group. That is the difficulty.

It is the same with all of the other parties as well. If the public perceives a group as out promoting itself in a national election and does not have much support or trivial support, and the government funds its election expenses because it can afford to put the money out there, then we erode our political system and the faith people have in the process." [^6] (emphasis added);

(c) "Bill C-243 is a short bill which proposes amendments to only one subsection of the Canada Elections Act. However, it touches upon the important issue of financial controls for the electoral process. I believe that this is fundamental to representative democracy . . . We are familiar with the abuses of the last general election . . . Canadians wanted to know why their government handed out such sums to subsidize organizations whose objectives did not appear to be one of a political party." [^7] (emphasis added);

(d) "The Rhinoceros Party and some other regional parties form for the sole intention of trying to make some fun out of the very serious business of politics. It is difficult as a candidate when that happens." [^8]

[16] Further significant changes were made to the regime for public funding of political parties in 2003 with the enactment of Bill C-24. The modifications were in response to public concerns over the possible undue influence on elected officials stemming from large contributions from corporations, unions and wealthy individual donors. The new legislation imposed sweeping limits on all private financial contributions to political parties; it also introduced three measures of public funding: [page418]

(a) it doubled the amount of an individual's political contribution eligible for a 75 per cent tax credit at the lower end from $200 to $400, and increased the maximum tax credit at the higher end from $500 to $650 for a contribution up to $1,275, and allowed electoral district associations to issue tax receipts for the first time;

(b) it increased the potential reimbursement of a party's election expenses from 22.5 per cent to 50 per cent, with a temporary transitional boost of 60 per cent, and broadened the definition of "election expenses"; and

(c) it introduced annual allowances whereby parties can receive, on a quarterly basis, $1.75 (indexed) for every vote received in the preceding general election.

[17] This last measure -- the benefit at issue in this appeal -- was premised on the party meeting the same threshold that had previously been implemented in respect of the partial reimbursement of election expenses, namely that the party obtain two per cent of the national vote or five per cent of the total votes cast in the constituencies in which it runs candidates. It appears from the legislative history that Parliament, in employing the same threshold, adopted its previous rationale as applicable to the thresholds for partial reimbursement of election expenses in 1996. This is indicated by the statements of the Minister responsible for the introduction of Bill C-24 (Don Boudria) and the statements of the Chief Electoral Officer (Jean-Pierre Kingsley) before the House Standing Committee and the Senate Standing Committee dealing with the Bill. For example, Mr. Boudria told the Senate Standing Committee on Legal and Constitutional Affairs:

If taxpayers' dollars are dispensed for the purpose of giving a reimbursement after an election based on the 2 per cent and 5 per cent criteria, it stands to reason that the same criteria for dispensing of public dollars on the annual system of $1.75 should be based on the identical threshold. [. . .]

We had to establish a cut-off at some point. We made our choice based on the case we have currently before the Supreme Court [^9] and on the decisions of lower courts. The 2 per cent and 5 per cent is reasonable and proper in terms of getting the funding back after an election [in the context of expense reimbursement]. Therefore, it is equally reasonable and proper to get the funding back during, generally, non-election years when [page419] you use $1.75 for the continued sustenance of political parties. That is the logic under which we have operated for this. [^10]

The Chief Electoral Officer testified as follows before the two Committees: [^11]

The new allowances to political parties would be tied directly to the level of popular support they received in the most recent general election. At the same time, minimum thresholds for receiving public funding are required to help ensure that the system does not create incentives for groups to establish themselves as parties for the purpose of collecting the quarterly allowances. There will still be the thresholds to be met. [^12]

This is the same threshold as is currently used for reimbursement of registered parties' election expenses. There is no change. This is the way it has been for a while. [^13]

[18] Eight days after Bill C-24 received royal assent, the Supreme Court of Canada released its decision in Figueroa, supra, striking down, as an unjustified violation of s. 3 of the Charter, the 50-candidate threshold that had been a requirement for registered party status. It did so on the basis that the 50-candidate threshold unjustifiably infringed s. 3 of the Charter (the right to vote) by limiting the rights of Canadians to engage in meaningful participation in the electoral process through parties that did not meet the threshold. The declaration of invalidity was suspended to give Parliament one year to fix the problem.

[19] Parliament did so through An Act to Amend the Canada Elections Act and Income Tax Act, S.C. 2004, c. 24. The new law decreased the number of candidates that a party needs to run to be a registered party from 50 to one and increased the number of supporter signatures required from 100 to 250. It introduced for the first time a purpose-based definition of "political party", and required, as a condition of registration, that the party leader [page420] make a declaration that "one of the party's fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election".

[20] The foregoing provisions remain in effect today. They were made subject to a mandatory review provision in 2006, [^14] but no such review has ever taken place.

Other jurisdictions

[21] In Canada, three provinces support registered parties with public funding. The allowances are allocated based on the number of votes received. Prince Edward Island requires a party to have at least one representative in the Legislature before it will be eligible for the allowances. New Brunswick requires a party to either run at least 10 candidates (out of 55 electoral districts) or to have one representative elected to the Legislature. While Québec had a requirement that a party field at least 20 candidates, it eliminated that requirement following the decision in Figueroa. Québec now requires only that a party be registered.

[22] Many other jurisdictions around the world impose thresholds as a requirement for the receipt of public funding by political parties. Some do so on the basis of votes, or a combination of votes and candidates or party members. Others do so on the basis of number of seats attained in the Legislature. Australia, Austria, France, Germany, Hungary, Ireland, Norway and Sweden fall into the former category. The United Kingdom, Spain, Portugal and South Africa fall into the latter.

[23] The history in France is of some interest. Major amendments to France's public funding regime for political parties occurred in 1990. The 1990 regime called for a threshold requiring a party to run at least 75 candidates (out of 577 constituencies) and obtain at least five per cent of the vote in each. Before the provisions became operational, however, France's Constitutional Council ruled the latter threshold unconstitutional. Public funding became available with no vote-based threshold in place, and from 1990 to 2003 the number of registered political parties increased from 29 in 1990 to 244 in 2003. The number peaked at 316 in 1999. There was some concern that groups were being formed solely for the purpose of accessing public funding. Interestingly, the Natural Law Party was amongst the [page421] newly registered parties. Thresholds were re-introduced in 2003 to take effect in 2007. It requires parties to run a minimum of 50 candidates and to obtain at least one per cent of the vote in the constituencies in which candidates are run. France's Constitutional Council apparently took a different view of the new thresholds, raising no concern about them in a decision released in 2003.

Part II -- Issues

[24] The following issues arise on the appeal and cross- appeal:

(1) The Constitutionality of ss. 435.01(1)(a) and 435.01(1)(b) of the Act

(a) Do the impugned thresholds set out in s. 435.01(1) infringe ss. 2(b), 2(d), 3 and/or 15(1) of the Charter?

(b) To the extent that there are any infringements, can the impugned thresholds be saved under s. 1 of the Charter?

(2) Remedies

(a) Did the application judge err in issuing a declaration of invalidity, pursuant to s. 52 of the Constitution Act, 1982, combined with individual retroactive remedies pursuant to s. 24(1) of the Charter?

(b) Did he err in failing to suspend the s. 52 declaration?

(c) Are compensatory damages, on account of lost opportunities, an appropriate remedy pursuant to s. 24(1) in the circumstances of this case, and, if so, in what amount?

(d) Are punitive damages appropriate, and, if so, in what amount?

(3) Interpretation of s. 504 of the Act

(a) Did the application judge err in his interpretation of s. 504 in ruling that it (i) infuses political parties with legal personhood for all purposes; and (ii) confers on political parties the ability to invoke the individual Charter rights of their members without seeking public interest standing? [page422]

Part III -- Analysis

[Section 3](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) (the right to vote)

[25] Paragraphs 435.01(1)(A) and 435.01(1)(B) of the Act provide as follows:

435.01(1) The Chief Electoral Officer shall determine, for each quarter of a calendar year, an allowance payable to a registered party whose candidates for the most recent election preceding that quarter received at that election at least

(a) 2% of the number of valid votes cast; or

(b) 5% of the number of valid votes cast in the electoral districts in which the registered party endorsed a candidate.

[26] The respondents argue that these vote-based thresholds infringe s. 3 of the Charter and cannot be saved by s. 1.

[27] Section 3 of the Charter states:

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

[28] The Supreme Court of Canada has attributed to this right much more than simply the right to mark a ballot in an election or to run for office. In Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37 -- a decision that casts a long shadow over the disposition of this case -- the Supreme Court of Canada (at para. 19) adopted the statement of McLachlin C.J.B.C.S.C. (as she then was) that "[m]ore is intended [in the right to vote] than the bare right to place a ballot in a box": Dixon v. British Columbia (Attorney General), 1989 248 (BC SC), [1989] B.C.J. No. 583, [1989] 4 W.W.R. 393 (S.C.), at p. 403 W.W.R. The purpose of s. 3 is "effective representation", but the right includes more than simply the right to be represented effectively in Parliament and the Legislatures; it encompasses as well the very broad right to play a "meaningful role", and to participate meaningfully, in the electoral process. See generally Reference re Provincial Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158, [1991] S.C.J. No. 46 (the "Saskatchewan Reference"); Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84; Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, [1996] S.C.J. No. 82; Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44; Figueroa, supra; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] S.C.J. No. 28.

[29] The application judge concluded that the Supreme Court of Canada's decision in Figueroa was dispositive of the issues before him and that the impugned thresholds violated s. 3. He [page423] declined, on that basis, "to approach the issues raised with a new analysis" and ruled that "[i]ndeed, it would be improper for [him] to do so" (para. 18). The Attorney General of Canada argues that the application judge erred in failing to conduct his own fresh analysis of the s. 3 issue because the thresholds here are different -- "are based on a different measure, serve a different purpose, and are set at different levels" -- and because, in delivering the court's decision in Figueroa, Iacobucci J. said, at para. 91:

However, before I dispose of this appeal I think it important to stress that this decision does not stand for the proposition that the differential treatment of political parties will always constitute a violation of s. 3. Nor does it stand for the proposition that an infringement of s. 3 arising from the differential treatment of political parties could never be justified.

[30] I agree that the thresholds at issue here are somewhat different than the 50-candidate threshold for political party registration at issue in Figueroa. I also agree that the application judge erred in not conducting a fresh analysis based on the circumstances before him. However, he did consider the implications and effect of Figueroa and, in any event, my own analysis leads me to the conclusion that Figueroa and the Supreme Court of Canada's subsequent decision in Harper, supra, leave little doubt that the s. 435.01(1) thresholds contravene s. 3 of the Charter.

[31] The Attorney General submits that the vote-based thresholds at issue here are different than those that were considered in Figueroa for a number of reasons.

[32] First, the Act, unlike before, now provides public support and financing to political parties on a tiered basis. The candidate threshold for party registration has been reduced from 50 to one. All parties receive significant initial measures of public support. Meeting the thresholds simply opens the door to additional measures of support such as quarterly allowances.

[33] At the time of the Figueroa decision, the 50-candidate threshold determined whether an organization would have access to registered political party status, and to the benefits attending that status, on an all or nothing basis. Those benefits included the right to issue tax receipts for contributions made between election campaigns, the right to transfer unspent election funds from the candidate to the party, and the right to list party affiliation next to a candidate's name on the ballot paper. Here, on the other hand, under the new registration regime that has been established, there are very limited requirements for attaining registered party status -- principally, one candidate, 250 supporters, and a simple declaration from the party leader to the effect that one of the party's purposes is to participate in [page424] public affairs -- and the impugned thresholds screen only for the additional public funding benefits.

[34] Secondly, counsel for the Attorney General argue that the s. 435.01(1) thresholds are very low (two per cent and five per cent of voter support) as compared to the 50-candidate threshold (which required the party to run candidates in at least 50, or 16.6 per cent, of the 301 constituencies).

[35] Thirdly, the current thresholds are based upon an external measure of votes obtained, as opposed to an internal measure of party effort to run candidates.

[36] Finally, there was only one threshold at issue in Figueroa, whereas here there are two, rendering the funding regime sensitive to a party's national or regional characteristics.

[37] As noted, I agree that there are differences between the impugned thresholds in this case and the threshold at issue in Figueroa. However, in my opinion, given the present state of the jurisprudence, these differences are insufficient to warrant a different s. 3 outcome in this case.

[38] Iacobucci J. posed two questions for determination in Figueroa, at para. 38 (modified within the square brackets to reflect the circumstances of this case): [^15]

Consequently, the essential question to be determined is whether the [s. 435.01(1) thresholds] interfere[] with the capacity of individual citizens to play a meaningful role in the electoral process. In order to answer this question, the Court must answer two prior questions. First, do the members and supporters of political parties [that fail to meet the s. 435.01(1) thresholds] play a meaningful role in the electoral process? And if so, does the [legislative restriction on their receipt of quarterly allowances] interfere with the capacity of the members and supporters of political parties that [fail to meet the threshold] to play a meaningful role in the electoral process?

[39] No matter how it is assessed, the requirement that a party obtain two per cent of the national vote or five per cent of the total vote in constituencies in which it runs candidates, translates into fewer public resources being provided for smaller parties and [page425] comparatively more public resources for larger parties. This inevitably tilts the political playing field in favour of those who meet the thresholds to some extent, at least.

[40] Political parties are a central feature of the political life of this country. They provide the means by which individuals may make their voices heard in a collective way. Thus, public measures that disadvantage a political party similarly disadvantage those citizens who choose to express their political and social views through the medium of that party. This is an important characteristic of the Canadian polity, and is true whether parties are large or small. As Iacobucci J. observed in Figueroa, at paras. 40-41:

. . . [I]t is important to note that political parties have a much greater capacity than any one citizen to participate in the open debate that the electoral process engenders. By doing so in a representative capacity, on behalf of individual citizens and supporters, political parties act as a vehicle for the participation of individual citizens in the political life of the country. Political parties ensure that the ideas and opinions of their members and supporters are effectively represented in the open debate occasioned by the electoral process and presented to the electorate as a viable option. ...

Importantly, it is not only large political parties that are able to fulfil this function. . . . Large or small, all political parties are capable of introducing unique interests and concerns into the political discourse. Consequently, all political parties, whether large or small, are capable of acting as a vehicle for the participation of individual citizens in the public discourse that animates the determination of social policy.

[41] Resources are essential to the ability of a party and its supporters to communicate their message and views to the public, an area in which smaller parties are already disadvantaged in comparison to larger parties. Although their impact may be lesser than that of the 50-candidate requirement for registration as a political party, the vote-based thresholds for eligibility to receive quarterly allowances have a similar effect: they enhance the imbalance on an already tilted playing field as between larger and smaller parties and exacerbate the differences in the respective parties' ability to communicate their message. On the Figueroa analysis, this, in turn, has an effect on the ability of their supporters to participate meaningfully in the electoral process.

[42] I see no other tenable conclusion in light of the following observations by Iacobucci J. in Figueroa, at paras. 48-54:

. . . Section 3 prevents Parliament from interfering with the right of each citizen to play a meaningful role in the electoral process; it does not impose upon Parliament an obligation to enact legislation that enhances the capacity of political parties to raise funds for the purpose of communicating the ideas and opinions of its members and supporters to the general public. However, legislation that bestows a benefit upon some political parties, but [page426] not others, requires scrutiny. In this instance, it is only because Parliament has extended these benefits to political parties that satisfy the 50-candidate threshold that its consequent failure to extend these benefits to political parties that do not satisfy the threshold constitutes an infringement of s. 3.

The premise underlying this conclusion is a fairly simple one. Owing to the competitive nature of the electoral process, the capacity of one citizen to participate in the electoral process is closely connected to the capacity of other citizens to participate in the electoral process. The reason for this is that there is only so much space for political discourse; if one person "yells" or occupies a disproportionate amount of space in the marketplace for ideas, it becomes increasingly difficult for other persons to participate in that discourse. ...

It is thus my conclusion that s. 3 imposes on Parliament an obligation not to enhance the capacity of one citizen to participate in the electoral process in a manner that compromises another citizen's parallel right to meaningful participation in the electoral process. Where legislation extends a benefit to some citizens, but not to others, it is necessary to consider carefully the impact of that legislation on the citizens who have not received the benefit. If the legislation interferes with the right of certain citizens to play a meaningful role in the social discourse and dialogue that the electoral process engenders, it is inconsistent with s. 3 of the Charter.

Put differently, one might say that s. 3 imposes on Parliament an obligation not to interfere with the right of each citizen to participate in a fair election. As the Court observed in Libman [^16] . . . at para. 47, electoral fairness is a fundamental value of democracy: The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens . . . Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions . . .

Importantly, this requirement of fairness is not synonymous with formal equality: see the Saskatchewan Reference, supra, in which the Court determined that s. 3 does not require absolute voter parity. It is not enough to offend s. 3 that the legislation differentiates between one citizen and another, or one political party or another. It also is necessary that the differential treatment have an adverse impact upon the applicant's right to play a meaningful role in the electoral process.

The effect of the restriction on the right to issue tax receipts for donations received outside the election period is that parties that have satisfied the 50-candidate threshold are able to raise more funds than they would otherwise be able to raise. Similarly, the effect of the restriction on the right to transfer unspent election funds to the party rather than the Receiver General is that only parties that have satisfied the 50-candidate threshold are able to retain unspent election funds. In each instance, the effect of the threshold is that political parties that have satisfied the threshold requirement have more resources at their disposal for the purpose of communicating their ideas and opinions to the general public. The flip side of the coin is that it is even more difficult for a party that has not satisfied the 50-candidate threshold to publicize its own ideas and views. As the Court observed in Libman, supra, at para. 47, there already is reason to be concerned that the most affluent parties will [page427] dominate the public discourse and deprive their opponents of a reasonable opportunity to speak and to be heard. Legislation that augments this disparity increases the likelihood that the already marginalized voices of political parties with a limited geographical base of support will be drowned out by mainstream parties with an increased ability to both raise and retain election funds.

This, in turn, diminishes the capacity of the individual members and supporters of such parties to play a meaningful role in the electoral process. As discussed above, political parties act as a vehicle for the participation of individual citizens in the electoral process; they are the primary mechanism by which individual citizens introduce their own ideas and opinions into the public dialogue that elections spawn. Legislation that contributes to a disparity in the capacity of the various political parties to participate in that dialogue ensures that some persons have a more effective vehicle for their ideas and opinions than others. The 50-candidate threshold thus infringes s. 3 of the Charter by decreasing the capacity of the members and supporters of the disadvantaged parties to introduce ideas and opinions into the open dialogue and debate that the electoral process engenders.

The restriction on these benefits has a more general adverse effect as well. The right to play a meaningful role in the electoral process includes the right of each citizen to exercise the right to vote in a manner that accurately reflects his or her preferences. In order to exercise the right to vote in this manner, citizens must be able to assess the relative strengths and weaknesses of each party's platform -- and in order to assess the relative strengths and weaknesses of each party, voters must have access to information about each candidate. As a consequence, legislation that exacerbates a pre-existing disparity in the capacity of the various political parties to communicate their positions to the general public is inconsistent with s. 3. This, however, is precisely the effect of withholding from political parties that have not satisfied the 50-candidate threshold the right to issue tax receipts for donations received outside the election period and the right to retain unspent election funds. By derogating from the capacity of marginal or regional parties to present their ideas and opinions to the general public, it undermines the right of each citizen to information that might influence the manner in which she or he exercises the right to vote.

(Italics and underlining added)

[43] Returning to the present case -- although they may do so to a lesser extent than the 50-candidate threshold that was under consideration in Figueroa -- the two per cent and five per cent thresholds of s. 435.01(1) result in different levels of public resources being made available to smaller political parties than to larger ones. Thus, they "exacerbate[] a pre- existing disparity in the capacity of the various political parties to communicate their positions to the general public". This, in turn, "diminishes the capacity of the individual members and supporters of [smaller parties] to play a meaningful role in the electoral process". As a result, the thresholds violate Parliament's obligation "not to enhance the capacity of one citizen to participate in the electoral process in a manner that compromises another citizen's parallel right to meaningful participation in the electoral process". [page428]

[44] The thresholds violate s. 3 of the Charter.

Justification: The section 1 analysis

[45] Whether that violation may be justified under s. 1 is a thornier question. The application judge found that it could not be. Respectfully, I disagree.

[46] Section 1 provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[47] To justify an infringement of a Charter right under s. 1, the Government must demonstrate that the limitation is reasonable and that it can be demonstrably justified in a free and democratic society. This involves the application of the test formulated by the Supreme Court of Canada in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, at pp. 138-40 S.C.R. [^17] To meet this test the Government is required to establish (a) that the objective of the impugned legislation is sufficiently "pressing and substantial" to warrant overriding a Charter right and, if so, (b) that the infringement is "proportionate", i.e., (i) that the impugned legislation is "rationally connected" to the objective, (ii) that it "minimally impairs" the Charter right in question, and (iii) that there is "proportionality" between its salutary benefits and its deleterious effects.

Pressing and substantial objective

[48] The "pressing and substantial" analysis requires at the outset a search for the precise objective of the impugned legislation. Here, the Attorney General for Canada argues that the objective is two-fold, namely, (a) to preserve the integrity of the electoral process and (b) to preserve the integrity of the electoral process's public financing regime. The respondents reply that these objectives are too general to meet the s. 1 test. Secondly, and in any event, they say that Parliament simply applied to the quarterly allowances regime in 2003 the thresholds that were already in place since 1996 with respect to the reimbursement of election expenses, with little thought or consideration, and that the rationale for the latter does not apply to the former.

[49] Based on the legislative history of s. 435.01(1), however, I accept the Attorney General's argument, although with one [page429] refinement. I would describe the objectives of the s. 435.01(1) thresholds more precisely as preserving the integrity of the Canadian electoral process and its public funding mechanisms by guarding against the misuse of public funds. Misuse of public funds in this context is not a budgetary measure -- a rationale that would be suspect as a benchmark for justification [^18] -- but, rather, an integrity measure. Parliament is not saying it cannot afford to pay the quarterly allowances to smaller parties. It is saying that steps must be taken to ensure that political party funding is preserved for legitimate public discourse in order to safeguard the electoral process and its public funding regime. One of Parliament's most sacrosanct roles is to preside over and govern resort to the public purse. Maintaining public confidence in the integrity of the electoral process, including its public financing scheme, has already been determined to be a pressing and substantial objective in a free and democratic society: Harper, at paras. 102-03; Figueroa, at para. 72. Parliament has a legitimate interest in seeing that public funds are used to uphold those values and to ensure that funds are used in a manner consistent with the integrity of the electoral process and its financing regime.

Rational connection

[50] Nor can I accept -- as the application judge found -- that there is no rational connection between the objectives of the legislation and the two per cent and five per cent thresholds. In my view, there is.

[51] The rational connection test has been described as one that is "not particularly onerous": Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, [2000] S.C.J. No. 66, at para. 228, cited in Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835, [2003] S.C.J. No. 32, at para. 34; Health Services and Support -- Facilities Subsector Bargaining Assn. v. British Columbia, supra, at para. 148. The Attorney General must show that there is "a causal connection between the infringement and the benefit sought on the basis of reason or logic": RJR- MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, at para. 153; Harper, supra, at para. 104. However, government is not required to show a scientific or empirical connection between [page430] the impugned thresholds and the objectives of the legislation: Harper, at para. 104. Here, as I will explain, there is sufficient evidence on the record to demonstrate a rational connection between the s. 435.01(1) thresholds and the legislative objectives of safeguarding against the misuse of public funds and thus preserving the integrity of the electoral process and of its public funding regime.

[52] The application judge's sole treatment of the rational connection issue is contained in the following passage, at para. 20 of his reasons (substituting, as he said in para. 22, the quarterly allowance for the tax credit scheme referred to):

Just as in Figueroa at paragraph 68, I am not persuaded that the respondent has provided any persuasive evidence "to substantiate its claim that the threshold actually improves the cost-efficiency of the tax credit scheme. It is thus my conclusion that the rational connection test has not been met."

[53] Here, however, there is no argument that the two per cent and five per cent thresholds somehow improve the "cost- efficiency" of the quarterly allowance scheme or the electoral process's public financing scheme. The objective is to safeguard against the misuse of public funds, thus preserving the integrity of the process and its public financing mechanism.

[54] This objective is rationally connected with the s. 435.01(1) thresholds because the thresholds help to ensure that groups who choose to register as political parties, but who have little intention of engaging in true electoral competition or in the political discourse of the day -- for example, parties interested only in satirizing the political process (the Rhinoceros Party), or in using the process to promote their commercial interests (the Natural Law Party) -- are not able to access public funds to do so. As one of Canada's experts noted:

It doesn't interfere with democracy to have a lot of parties. My opinion is that it may not interfere with democracy, but reduce public confidence in the democratic process if there are parties making a mockery of the democratic process.

[55] That the Government of the day intended to link the rationale in support of the impugned thresholds to the rationale underlying the introduction of the same thresholds for reimbursement of election expenses is beyond doubt. As noted above, both the Minister responsible for the introduction of the Bill and the Chief Electoral Officer made that clear in their statements to the House and Senate Standing Committees considering the legislation. Contrary to the submissions of the respondents, the adoption of an already existing rationale for new legislation is not the equivalent of having no rationale for the new legislation. [page431]

[56] For the reasons I have articulated above, I am satisfied that there is a rational connection between the thresholds in question and the objectives of the legislation.

Minimal impairment

[57] The more difficult question is whether the thresholds meet the minimal impairment test. In my opinion, they do.

[58] Legislation that violates a Charter right will not be saved under s. 1 unless it "minimally impairs" that right. The following statement by McLachlin J. (as she then was) in RJR- MacDonald, supra, at para. 160, has been adopted on numerous occasions as setting the appropriate standard for assessing minimal impairment:

As the second step in the proportionality analysis, the 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 overbroad merely because they can conceive of an alternative which might better tailor objective to infringement: see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123, at pp. 1196-97; R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1340-41; Ramsden v. Peterborough (City), 1993 60 (SCC), [1993] 2 S.C.R. 1084, at pp. 1105-06. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.

(Emphasis added)

[59] RJR MacDonald and other authorities lead to the conclusion that to be reasonable and demonstrably justified in a free and democratic society, legislation that violates a Charter right or freedom must impair the infringed right or freedom as little as reasonably possible, but "need not be the least impairing option": Harper, at para. 110. Courts are to afford deference "to the balance Parliament has struck between [the right or freedom in question] and meaningful participation in the electoral process": Harper, at para. 111. See also Health Services and Support -- Facilities Subsector Bargaining Assn. v. British Columbia, supra, at para. 150.

[60] Given this framework, I am satisfied that the s. 435.01(1) thresholds meet the minimal impairment test.

[61] In introducing the thresholds Parliament was endeavouring to strike a delicate balance between, on the one hand, the right of Canadians to participate meaningfully in the electoral process (the s. 3 right), and, on the other hand, the need to safeguard against the abuse of public funding with a view to promoting the larger objectives of preserving the integrity of the [page432] electoral process and of its public financing system (the objectives of the legislation). In addressing whether it has done so in a fashion that minimally impairs the s. 3 right, it is useful to recall the overall public financing and support regime that Parliament has put in place, and the objectives of that regime, as described earlier in these reasons (see, in particular, paras. 6-20, supra).

[62] Unlike the situation under consideration in Figueroa, the s. 435.01(1) thresholds do not impede the right of political parties to be registered and thereby to become entitled to key public funding and informational benefits, including (i) the protection of its name and logo, (ii) the right to an allocation of free broadcasting time and to an allocation of guaranteed paid broadcasting time at the lowest commercial rate, (iii) the right to provide tax receipts to donors between election campaigns, (iv) the right to transfer surplus campaign funds from individual candidates to the party, and (v) the right to be named on the ballot. Parties are now entitled to those benefits upon satisfying the relatively modest requirements for registration provided for in s. 366(2) of the Canada Elections Act (see supra, at para. 33). Meeting the s. 435.01(1) thresholds merely entitles a political party to additional public funding benefits in the form of (a) reimbursement of 50 per cent of its electoral expenses following an election, and (b) the annual allowance of $1.75 (indexed) for every valid vote received in the most recent general election, paid quarterly. The two per cent and five per cent thresholds must be measured in the context of this regime, having regard to the fact that I have already determined the objectives of the thresholds to be pressing and substantial and the connection between those objectives and the thresholds themselves to be rational.

[63] The application judge concluded that the thresholds produce "no benefit to anyone except the parties [that] do meet the threshold[s] and do receive the statutory financial benefit that is not given to those [that] do not" (para. 23). This misapprehends the nature of the legislation, however: a party meeting the thresholds and receiving the quarterly allowances, receives those allowances not because of the thresholds but because of the legislation providing for the quarterly allowances. Moreover, it is not accurate to say that the thresholds benefit no one. The thresholds benefit the members of the public as a whole by advancing the objectives of the legislation, as outlined above. The application judge rejected the Attorney General's argument that the impugned provisions were justified on the basis that their overall objectives were to maintain public confidence in the integrity of the electoral process. He considered this argument to be "without merit" and concluded, instead, that the thresholds "diminish[][page433] public confidence in the electoral process and encourage[] a public perception that the threshold[s] exist[] only to benefit the major political parties who alternate, from time to time, in forming the government and are in a position to maintain it". Again, I respectfully disagree.

[64] First, as noted above, the Supreme Court of Canada has already acknowledged -- in the context of a threshold case in one instance, at least -- that preserving and maintaining public confidence in the integrity of the electoral process and its public financing regime is an important public value in Canada: Figueroa, at para. 72; Harper, at paras. 102-103. Secondly, the evidentiary record does not support the finding that the thresholds diminish public confidence in the electoral process. Indeed, the record, as well as reason and logic, suggest that the contrary is the case: the thresholds enhance public confidence by helping to ensure that frivolous parties with no interest in making a genuine contribution to the political discourse of the nation do not have access to direct public funding. Professor Lisa Young testified to this point on cross-examination:

My opinion is that it may not interfere with democracy, but reduce public confidence in the democratic process if there are parties making a mockery of the democratic process . . . We've seen the Canadian public become outraged that a public official wanted to be reimbursed for gum. This is less than a dollar, but it was the symbolic use of it . . . I think that point is that my concern about misuse is that any report that a political party is using its funds for something other than the intended public policy purposes throws public confidence in the system into question.

[65] Moreover, since the thresholds are designed to ensure that direct public funding is linked to true electoral endeavours, it follows logically that they enhance public confidence in the electoral process's financing regime. The Supreme Court has repeatedly held that courts are permitted to rely on "logic, reason and some social science evidence in the course of the justification analysis" where scientific proof is lacking: see Harper, supra, at paras. 77-78; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, [2002] S.C.J. No. 66, at para. 18.

[66] The application judge concluded, as well, that the s. 435.01(1) thresholds could not be saved under s. 1, in any event, because there were "more effective and less damaging means of achieving [the purpose of maintaining public confidence in the electoral process] such as required reporting and audits were [such] genuinely sought" (para. 28). The possibility of implementing an audit scheme to control access to the quarterly allowances was advanced as the major alternative for consideration in the minimal impairment analysis. The respondents submit the Attorney [page434] General has failed to demonstrate that such an alternative does not provide an equally adequate, but less infringing, mechanism for achieving the government's stated objectives such that the thresholds fail the minimal impairment test. I disagree.

[67] The notion of an audit mechanism as an alternative to a threshold approach to screening for genuine political parties draws some support from the comments of Justice Iacobucci in Figueroa. At para. 78 he said:

. . . [T]he government has failed to demonstrate that it could not achieve the same results without violating s. 3 of the Charter. Consider, for example, the auditors and other investigators that the government already has at its disposal. There is no reason to think that auditors would not be equally capable, if not more so, of detecting and thereby preventing, the misuse of funds raised pursuant to the electoral financing regime. The misuse of funds, after all, is precisely the sort of mischief that auditors are trained to uncover, and which the state can properly criminalize in order to preserve the integrity of the electoral financing regime. The logical inference is that precisely the same result could be achieved through strict spending rules and the use of auditors.

[68] I do not read this passage as determining that an audit regime will in all cases provide a less intrusive and equally effective alternative to a threshold system for screening public support, however. Justice Iacobucci cites it as an example only. In any event, there are at least two important concerns, from a public policy perspective, that the government is entitled to balance when deciding amongst these options. First, an audit regime creates serious potential for unwarranted interference in the internal affairs and policies of a political party. Secondly, such a scheme raises concerns in relation to the independence of the Chief Electoral Officer who is charged with the impartial and non-partisan task of maintaining the integrity of the electoral process.

[69] As the Attorney General submits, the introduction of an audit regime would require Parliament to put in place a set of statutory or regulatory provisions on how registered political parties can and cannot spend their public funds, thereby potentially constraining the political activities of those parties. Auditors would be required to monitor how parties spend their money to ensure they are used in accordance with the statutory or regulatory prescriptions. The office of the Chief Electoral Officer would, in turn, have to conduct compliance audits to verify these uses. In doing so, it would invariably be called upon to make judgment calls on how the parties are using their public funds, thus potentially jeopardizing the role of the Chief Electoral Officer as the impartial administrator of the Act. [page435]

[70] There is support in the record for Parliament's choice of this alternative. For example, in commenting on a regulatory alternative to thresholds, Prof. Peter Aucoin testified as follows:

If election administrators acted aggressively against perceived or alleged misuses of the public funding scheme, charges of partisanship, or at least of bureaucratic arbitrariness, would be bound to arise and thereby diminish public confidence in the integrity of the public funding scheme . . . If, on the other hand, officials were unwilling to intervene, . . . then the capacity to ensure that the Act's intended public policy purposes are being realized would be undermined. Both of these undesired outcomes are avoided by the vote-based threshold, which is clearly the better mechanism for limiting any restrictions on rights in defining political parties and their functions and for removing the need to oblige officials to exercise discretion.

. . . The . . . allowance schemes help political parties to perform their critical functions within the electoral and governance processes. However, these schemes do not intrude on the autonomy of political parties by defining, in the law itself . . ., the functions that are eligible to be publicly funded . . .

[71] Although political parties play a critical role in the democratic process, they remain independent, private organizations and their continued separation from the state is important to the proper functioning of that process. Their independence is fundamental. One constitutional scholar put it this way: [^19]

Political parties are something of an anomaly. They occupy a unique space in the governmental structure of constitutional democracies. On the one hand, they perform a variety of representative, participative, integrative etc. functions that are absolutely essential to the operation of systems of government which are grounded in the principles of democracy (popular sovereignty) and constitutionalism (rule of law). On the other, unlike all of the other major institutions that form part of the framework of government, political parties stand apart and quite separate from the state. Political parties live in a kind of "never never" land; betwixt and between; neither fish nor fowl.

Political parties provide a linkage between the state and civil society. . . .

However, although political parties perform a vital role operationalizing the legal structure of the state, they do so only by remaining at arm's length from the institutions of government. Their independence from the state is essential to their integrity and their effectiveness in promoting the ideals and values on which constitutional democracies are based. Though all of their energy (their raison d'être) is directed and is given over to the state, they remain unambiguously part of civil society.

(Emphasis added)

[72] It follows from this confluence of factors that any regulatory regime governing political parties must interfere as little as [page436] possible with the autonomy and internal affairs of political parties. For the reasons outlined above, an audit regime designed to thwart the misuse of public funding by political parties would run the risk of impinging on their autonomy and internal affairs. It would require the enactment of intrusive statutory and/or regulatory provisions prescribing the types of activities and expenditures in which political parties are permitted to engage. This is a valid consideration to be weighed when assessing Parliament's choice of options in the minimal impairment analysis.

[73] So, too, is the second consideration mentioned above, namely, the potential impact of an audit regime on the impartiality -- real or perceived -- of the Chief Electoral Officer and other electoral officials and administrators.

[74] The Chief Electoral Officer is the independent and neutral steward of the integrity of the electoral process. In the words of the Federal Court of Appeal, "the Chief Electoral Officer is, in a sense, the guardian of democracy in Canada and this democracy could be compromised by granting the person on the front line in charge of protecting it powers that are even slightly arbitrary": Stevens v. Conservative Party of Canada, 2005 FCA 383, [2005] F.C.J. No. 1890, 262 D.L.R. (4th) 532 (C.A.), per Décary J.A., at para. 19. Care should be taken to ensure that the impartiality of this critical public role is not unnecessarily compromised -- actually or potentially, in the eyes of the public -- by enacting a regime that would call upon the Chief Electoral Officer to make judgment calls on how a political party is conducting its internal affairs or spending its funds. This, too, is a valid consideration when addressing Parliament's choice of options.

[75] It may well be, as Iacobucci J. observed in Figueroa, that an audit regime would effectively safeguard the misuse of public funds and thereby address the objectives of the Act to preserve the integrity of the electoral process and its public financing system. It may or may not do so in a manner that is less intrusive than the s. 435.01(1) thresholds. However, that would not be the end of the matter in any event. Impugned legislation that violates the Charter may still meet the minimal impairment test, in my view -- even if it is possible to conceive of an effective alternative that may be less intrusive -- if both the impugned provision and the alternative measure form part of a reasonable range of policy options open to Parliament to choose from. The purpose of the minimal impairment analysis is not to encourage courts or litigants to create alternative measures that in their view are preferable and less intrusive; the purpose is to determine whether the impugned measure "falls within a range of reasonable alternatives": [page437] RJR-MacDonald, supra, at para. 160. [^20] To repeat what was said in that case, again at para. 160:

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 overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.

(Emphasis added)

[76] In my view, therefore, Parliament was constitutionally permitted to select the relatively modest voting threshold approach over the option of an auditing regime, here, in order to achieve the objectives of the legislation. Why? Because there is a reasonable apprehension that the audit option could have a significant deleterious effect on other values fundamental to the electoral process -- namely, the need to preserve the independence and internal autonomy of political parties and the need to preserve the actual or perceived impartiality and integrity of the office of the Chief Electoral Officer.

[77] Nor do the thresholds fail on the ground that they are overly broad, in my view. In some cases the thresholds may disqualify small political parties with genuine political goals from receiving the quarterly payments. They may therefore catch some political parties that do not fall within the scope of the mischief the thresholds are designed to address, i.e., the misuse of public funds in a way that reflects adversely on the integrity of the electoral system and its financing regime. However, given the level of electoral support for most of these parties, almost any threshold would have that impugned frailty.

[78] Legislation may be found to be overly broad if it goes too far and, on its face, catches more of the constitutionally protected activity or interest than is necessary to meet Parliament's objectives: Canada (Attorney General) v. JTI- Macdonald Corp., 2007 SCC 30, [2007] S.C.R. 610, [2007] S.C.J. No. 30, at para. 78. As McLachlin J. noted in RJR-MacDonald, supra, at para. 160, however, "[i]f the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement." That is the case here. I have already concluded that the objectives of the thresholds are pressing and substantial, and that there is a rational connection between the thresholds and those objectives. [page438] In spite of the foregoing concerns, and given Parliament's reasoned apprehension of the harm addressed, I am satisfied that it would not be appropriate for us to interfere with its choice of means in these circumstances, even though another reasonable alternative, not invoking a threshold, might be conceivable.

[79] The s. 435.01(1) thresholds meet the minimal impairment test.

Proportionality: Salutary benefits vs. Deleterious effects

[80] The final element of the Oakes test is to determine whether the impugned legislation is "proportionate" in the sense that its salutary benefits outweigh its deleterious effects. This element may appear to blend with the minimal impairment analysis just completed. However, as Chief Justice McLachlin has most recently pointed out, in Canada (Attorney General) v. JTI-Macdonald, supra, at para. 46:

Although cases are most often resolved on the issue of minimal impairment, the final inquiry into proportionality of effects is essential. It is the only place where the attainment of the objective may be weighed against the impact on the right. If rational connection and minimal impairment were to be met, and the analysis were to end there, the result might be to uphold a severe impairment on a right in the face of a less important objective.

[81] Here, there are two primary salutary effects of the impugned thresholds. First, they guard against the subversion of the electoral process by groups that register as political parties for commercial, satirical or other non-political purposes. The integrity of the electoral process and of its electoral financing regime is enhanced because public money is directed towards genuine electoral and political endeavours. Secondly, as the expert evidence suggests, public confidence in the electoral process is increased when these objectives are attained. In short, the two main salutary effects of the s. 435.01(1) thresholds serve to strengthen a core component of Canada's democratic process: free elections.

[82] The deleterious effects of the thresholds, on the other hand, are less compelling, in my view. The thresholds somewhat exacerbate a pre-existing disparity in the capacity of smaller political parties to communicate their messages in competition with larger parties, as I have concluded above. This impacts upon the ability of the individual respondents, and others who are also members of such smaller parties, to participate meaningfully in the electoral process. These party respondents, moreover, have been deprived of public funding in the form of the quarterly allowances, despite the fact that they genuinely seek to participate in the electoral process and have something to contribute to that process. [page439]

[83] The electoral regime, as I have noted, is a foundational aspect of Canada's democratic process. In my view, the goal of upholding the integrity of that regime overshadows the value of absolute equality in the treatment of all political parties in terms of access to public funding. I conclude that the salutary effects of the s. 435.01(1) thresholds outweigh their deleterious effects.

Conclusion with respect to section 3

[84] Accordingly, for all of the foregoing reasons, I conclude that the two per cent and five per cent thresholds found in s. 435.01(1) of the Act violate s. 3 of the Charter. Their constitutional validity is saved by s. 1, however, because they constitute "reasonable limits prescribed by law" that are "demonstrably justified in a free and democratic society".

[Section 15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[85] The respondents seek to rest their case of infringement on s. 15 of the Charter as well. Section 15 states:

15. 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.

[86] The application judge concluded that the s. 435.01(1) thresholds violated s. 15 of the Charter as well as s. 3. He did so, essentially, because in his view, "[t]he impugned provisions place smaller and weaker parties at a disadvantage in comparison with the major parties" and he could "find no rationale that would justify this approach" (para. 32). He conducted no further analysis. For the following reasons, I respectfully disagree.

[87] I begin with an observation that there is little need for a s. 15 analysis in this case. Even if I were to conclude -- as I do not -- that the thresholds violate the Charter on s. 15 grounds, I would conclude that the violation is saved under s. 1 for the same reasons already outlined in the course of the s. 3 analysis. I see no material differences here between the s. 1 exercise under s. 3 or s. 15. The objectives of the threshold provisions remain the same and are pressing and substantial. There continues to be a rational connection between the thresholds and those objectives. The minimal impairment considerations are identical and, although the right against which the infringement is weighed is different (the right to be free from discrimination, as opposed to the right to participate meaningfully in the electoral process), the balancing exercise as between salutary and deleterious effects remains in favour of upholding the thresholds.

[88] In any event, there is no s. 15 violation here. [page440]

[89] To the extent that he considered the question, the application judge appears to have based his analysis on the proposed analogous ground of "smaller and weaker parties" versus larger or "major" ones. The respondents seek to support this conclusion by arguing that a person's political beliefs can be fundamental to his or her personal dignity (which is undoubtedly true) and that membership in a political party signifies an individual's adherence to a certain system of beliefs and principles (also possibly true). They submit that a law providing a benefit to large parties while denying the same benefit to smaller parties discriminates against the members of the smaller parties and creates the impression that their belief system is less important and less worthy. Such a law therefore contravenes s. 15, they say.

[90] I would not give effect to this argument.

[91] Not every case of differential treatment between individuals or groups constitutes discrimination within the meaning of s. 15. A claimant must establish, on the basis of the civil standard of proof, that the impugned treatment falls within the analytical construct set out by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12. There, at para. 88, Iacobucci J. described the approach that courts are to take to the s. 15(1) analysis:

The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues:

(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;

(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and

(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics:

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and [page441]

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

See also Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, at para. 17.

[92] The s. 435.01(1) thresholds do not violate s. 15(1) of the Charter, in my view, because they do not engage either the first or the third Law inquiry. Before addressing those inquiries, however, I turn to the question of "comparators".

[93] When applying the three-pronged Law test, the courts are to identify and utilize a "comparator group" concept. In Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, [2000] S.C.J. No. 36, at para. 62, Iacobucci J. said:

Each of these inquiries proceeds on the basis of a comparison with another relevant group or groups, and locating the relevant comparison groups requires an examination of the subject-matter of the law, program or activity and its effects, as well as a full appreciation of the context.

[94] Taking those factors into account, there are two possible comparator groups here: (i) smaller political parties that do not achieve the two per cent or five per cent thresholds ("non-threshold achieving parties"), and larger political parties that do ("threshold achieving parties"); or, (ii) individuals who are members or supporters of such smaller or larger parties. Only the latter are entitled to claim that the thresholds infringe s. 15, however. Thus, the identification of the appropriate comparator groups helps to clarify the s. 15 analysis in this case.

[95] Quarterly allowances are paid to political parties. They are not paid to individuals. On the other hand, only individuals may claim the protection of s. 15. Thus the respondent political parties are not entitled to assert a claim under s. 15 that they, themselves, have been subject to differential treatment from larger parties. "Non-threshold achieving parties" versus "threshold achieving parties" is therefore not the appropriate comparator. The comparator must be "individuals who are members or supporters of non-threshold achieving parties" versus "individuals who are members or supporters of threshold achieving parties". Where, then, does that comparator take us in the Law analysis?

[96] The short answer is that the respondent's s. 15(1) claim fails on the first prong of the inquiry. Assuming it can be argued that the s. 435.01(1) thresholds treat members or supporters of non-threshold achieving parties differently than those of threshold achieving parties, they do not distinguish between smaller and [page442] larger parties, or their members or supporters, on the basis of personal characteristics. The differential treatment is based upon the number of votes a party obtains in a general election. Indeed, in substance the impugned thresholds treat the parties differently. Parties are not entitled to seek s. 15 relief.

[97] Some might argue that there is an indirect differential treatment between the comparator groups of individuals because -- as I have acknowledged in the s. 3 portion of these reasons -- "political parties act as a vehicle for the participation of individual citizens in the political life of the country . . . [and] . . . ensure that the ideas and opinions of their members and supporters are effectively represented in the open debate occasioned by the electoral process": Figueroa, para. 40. From this, it may be said, the indirect differential treatment is based on personal characteristics in the form of the political beliefs or party affiliation of members and supporters.

[98] I reject this notion, however. The s. 435.01(1) thresholds treat political parties differently by disqualifying those who do not meet them from receiving the quarterly allowances. The differential treatment is vote-based only, depending upon the amount of electoral support a party receives during an election. It has nothing to do with the personal beliefs or political affiliation of the individual members or supporters of those parties. There is simply no basis in the record for concluding that the purpose or effect of the thresholds is to control or affect in any way a person's political beliefs or affiliation or that quarterly relief funding is related to any such characteristics. Anyone is free to join or support whatever political party he or she wishes. Anyone is free to hold and espouse whatever political beliefs he or she chooses. Whether their preferred political party does, or does not, receive the quarterly allowance is an entirely separate matter, in my view. I conclude, then, that it is not necessary or appropriate to resort to s. 15 in the circumstances of this case. To the extent that a s. 15 analysis may be in order, however, I am satisfied that there has been no breach.

[99] This conclusion is sufficient to dispose of the respondents' s. 15 claim. The first prong of the Law test is not met.

[100] I would add, however, that in my view the respondents fail on the third prong as well. The human dignity of the individual respondents is not affected.

[101] In Jazairi v. Ontario (Human Rights Commission), 1999 3744 (ON CA), [1999] O.J. No. 2474, 175 D.L.R. (4th) 302 (C.A.), a university professor alleged that he was denied a promotion because of his political beliefs about the relationship between the State of Israel and the Palestinians. His claim under s. 15(1) was dismissed on the basis that his human dignity had not been engaged. For similar reasons to those I have just articulated with respect to the first [page443] Law inquiry, the s. 435.01(1) thresholds do not deny or affect the human dignity of the members or supporters of the non-threshold achieving parties or treat them as people who are less worthy of recognition as human beings.

[102] In arriving at these conclusions I need not consider the yet-undetermined question of whether membership in a political party or political affiliation or political beliefs may constitute an "analogous ground" within the meaning of s. 15(1) and the second prong of the Law analysis.

[103] I would not give effect to the respondents' s. 15 ground of appeal.

[Sections 2(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and [2(d)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[104] The respondents also assert that the s. 435.01(1) thresholds violate their right to freedom of expression, under s. 2(b) of the Charter, and their right to freedom of association, under s. 2(d). Although these issues were raised before the application judge, he did not deal with them in view of his determination that the thresholds infringed ss. 3 and 15. The respondents renew their arguments on appeal.

[105] I would not give effect to them, however.

[106] I begin with the same observation that I made in connection with the s. 15 claim: even if I were to conclude that the thresholds violated either s. 2(b) or 2(d) -- which I do not -- the violations would be saved by s. 1 of the Charter, for the same reasons articulated in the s. 1 analysis above.

[107] Nevertheless, I am satisfied that the thresholds do not infringe either s. 2(b) or 2(d). Although neither respondents' counsel nor appellant's counsel framed their arguments in terms of "under-inclusiveness", the essence of the respondents' position is that the s. 435.01(1) threshold regime is under- inclusive because it deprives non-threshold achieving parties of the positive right to public funding in the form of the quarterly allowances available to threshold achieving parties. The requirements for asserting any s. 2 claim are the same in such circumstances: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, [2001] S.C.J. No. 87.

[108] The Supreme Court of Canada has recently summarized the approach that is to be taken in cases of this nature in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, [2007] S.C.J. No. 31, at para. 30: [^21] [page444]

In cases where a government defending a Charter challenge alleges, or the Charter complainant concedes, that a positive rights claim is being made under s. 2(b), a court must proceed in the following way. First it must consider whether the activity for which the claimant seeks s. 2(b) protection is a form of expression. If so, then second, the court must determine if the claimant claims a positive entitlement to government action, or simply the right to be free from government interference. If it is a positive rights claim, then third, the three Dunmore factors must be considered. As indicated above, these three factors are (1) that the claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime; (2) that the claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with s. 2(b) freedom of expression, or has the purpose of infringing freedom of expression under s. 2(b); and (3) that the government is responsible for the inability to exercise the fundamental freedom ... If the three factors are satisfied then s. 2(b) has been infringed and the analysis will shift to s. 1.

(Emphasis added)

[109] Here, the respondents' ss. 2(b) and 2(d) claims fail for a simple reason: the s. 435.01(1) thresholds do not lead to any substantial interference with the ability of members or supporters of political parties to exercise their freedom of expression or their freedom of association. Diminished effectiveness in the ability to convey a message, or in the ability to associate, is not sufficient; there must be substantial interference with a fundamental freedom: Baier, supra, at para. 48; Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989, [1999] S.C.J. No. 43, at para. 41; Dunmore, supra, at para. 25.

[110] I can find nothing in the record to indicate that the thresholds interfere with the ability of anyone to associate with anyone else or with their ability to form any political party or group or pursue a collective goal: Dunmore, supra; Harper, supra, at paras. 125-26. Nor do I see anything to indicate that the exclusion of the respondent political parties from the receipt of quarterly allowances interferes with the ability of the individual respondents, or of other members and supporters of non-threshold achieving parties, to express themselves effectively in any substantial way. The respondents' argument confuses "freedom of expression" with "equal persuasiveness of that expression". There is no free-standing constitutional right to equal persuasiveness of expression.

[111] I reject the s. 2(b) and s. 2(d) grounds of appeal.

Part IV -- Remedies

[112] Having concluded that the thresholds established in s. 435.01(1) of the Act are constitutionally valid, it is not necessary to deal with the issues of remedies raised by Canada in the appeal and by the respondents in the cross-appeal. I do not propose to do so. [page445]

[113] In not addressing these issues, however, I would not want to be taken as commenting upon the application judge's decision to combine the s. 52 declaration of invalidity with individual retroactive remedies under s. 24 of the Charter or his decision not to suspend the operation of the declaration for a period of time to enable Parliament to respond in circumstances such as these. I leave an examination of the considerations arising out of those remedies for another day.

Part V -- [Section 504](https://www.canlii.org/en/ca/laws/stat/sc-2000-c-9/latest/sc-2000-c-9.html) of the [Canada Elections Act](https://www.canlii.org/en/ca/laws/stat/sc-2000-c-9/latest/sc-2000-c-9.html)

[114] The final issue concerns the scope of the "deemed person" provisions in s. 504(a) of the Act, which state:

504. In the case of judicial proceedings or a compliance agreement involving an eligible party, a registered party, a deregistered political party or an electoral district association,

(a) the party or association is deemed to be a person.

[115] Canada raised this issue early in the proceedings, as the original application was commenced in the name of the political parties only. Since all parties wished to have the issues determined on the merits -- although Canada was not willing to abandon its claim that the political parties lacked status -- it was agreed that the individual applicants would be added as party claimants, and that the s. 504(a) issue would be determined at the time of the hearing, along with the merits. The application judge determined it in favour of the political parties. Canada seeks to set aside that decision as well.

[116] The political parties here are unincorporated associations, and it is not disputed that at common law they do not have the status to sue or to be sued in their own name. Nor is it alleged that there is any federal or provincial statute providing such authority, other than s. 504(a) of the Act.

[117] The respondents argue that the language of the statute is clear and unambiguous on its face: in the case of judicial proceedings involving a political party, the party "is deemed to be a person". Canada submits, on the other hand, that the provisions of s. 504(a) do not infuse political parties with the status of legal entities entitled to sue or to be sued for all purposes; rather, s. 504(a) clothes them with that status only for purposes of proceedings under the Act, for example, those relating to enforcement, compliance or prosecution. It follows, according to the appellant, that the political party respondents do not have the status to bring the proceedings.

[118] Although this issue is not free from doubt, I would determine it in favour of the appellant and give effect to this ground of appeal. I say this for the following reasons. [page446]

[119] The governing principle regarding statutory interpretation is set out by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21. There he adopted the following statement by Elmer Driedger in Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983), recognizing that "statutory interpretation cannot be founded on the wording of the legislation alone":

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See also Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26, and cases cited therein.

[120] In the Act, Parliament has enacted a broad and detailed legislative scheme dealing with all manner of issues touching elections in Canada. These include, for example, electoral rights, the conduct of elections, the establishment of the office of the Chief Electoral Officer to oversee the process, election finances, the regulation and financing of political parties, a regime of offences relating to breaches of the Act, and a mechanism for enforcement and compliance. Section 504 is contained in Part 19 of the Act, dealing with "Enforcement".

[121] I would be more persuaded by the respondents' position if the "deemed person" provision had been placed in the portion of the Act regulating the registration and activities of political parties. Were that the case, it might suggest more strongly that Parliament intended to create a free-standing right on the part of political parties to sue and to be sued, thus abrogating the common law disability of a political party, as an unincorporated association, to do so. Placing the provision in Part 19 of the Act -- dealing with enforcement, offences and compliance -- signals a more limited intention on the part of Parliament, in my opinion, and bolsters the argument that the "deemed person" provisions of s. 504(a) are designed to give political parties the status of legal entities for purposes of proceedings under the Act only.

[122] This interpretation is also buttressed by the French language version of s. 504(a), in my view. The French and English versions of bilingual statutes are equally authoritative sources in terms of statutory interpretation. Moreover, where one of the two versions is broader than the other, their common meaning favours the more restricted or limited meaning. See R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7, at para. 26; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, [2002] S.C.J. No. 26, at para. 5. [page447]

[123] The French version of s. 504(a) states:

Dans le cas où . . . un parti enregistré . . . est partie à des procédures judiciaires . . . dans le cadre de la présente loi :

a) le parti . . . est reputé être une personne.

(Emphasis added)

[124] The words "dans le cadre de la présente loi" suggest that the text is intended to restrict the application of the phrase "judicial proceedings" to those that take place within the context or framework of the Act. Here, the respondent political parties are not engaged in a proceeding within the context or framework of the Canada Elections Act; they are mounting a constitutional and Charter-based challenge to certain provisions of the Act in a stand-alone proceeding. In my view, they do not have the capacity to do so in their own names.

[125] I would therefore give effect to this ground of appeal.

Part VI -- Disposition

[126] I would allow the appeal and set aside the order of the application judge,

(a) retroactively declaring that the provisions of ss. 435.01(1)(a) and (b) of the Canada Elections Act are null and void and of no force and effect; and

(b) declaring that the political party applicants are entitled to recover from the Receiver General the quarterly allowances provided by the Canada Elections Act from January 1, 2004.

[127] For the reasons outlined above, I am satisfied that the s. 435.01(1) thresholds are constitutional. Moreover, the political party respondents do not have the standing to bring this application.

[128] I would also dismiss the cross-appeal. In my view, the application judge was correct in dismissing the claims for compensatory and punitive damages.

Appeal allowed. [page448]

[^1]: Canada Elections Act, S.C. 2000, c. 9.

[^2]: A large part of the factual summary that follows was taken from the portions of the appellant's factum that were not in contention.

[^3]: Generally, the public funding regime for registered political parties is provided for under both the Act and the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 127(3). The provisions of the Act discussed below include ss. 117(2), 335, 338, 348, 345, 368(a), 435 and 473(2).

[^4]: Canada Elections Act, R.S.C. 1970, c. 49, s. 13(8)(b). In Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, the Supreme Court of Canada declared unconstitutional a similar 50-candidate registration threshold.

[^5]: House of Commons Debates (16 May 1995) at 12703 (Werner Schmidt, MP, Reform), online: http:.

[^6]: House of Commons Debates (16 May 1995) at 12708 (John Bryden, MP, Liberal), online: http:.>

[^7]: House of Commons Debates (15 May 1996) at 2836 (Paul Zed, MP, Liberal), online: http:.

[^8]: House of Commons Debates (16 May 1995) at 12706 (Ron MacDonald, MP, Liberal), online: http:.

[^9]: He was referring to Figueroa, supra, which at that point had not yet been released.

[^10]: Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue 13, Evidence (17 June 2003) at 3354, online: http:.

[^11]: The comments of the Chief Electoral Officer are of particular import in light of the fact that, upon introducing the Bill into the House of Commons for its second reading, the Rt. Hon. Jean Chrétien was clear that the government "was acting on the recommendations of the Chief Electoral Officer, Mr. Kingsley . . .": House of Commons Debates, No. 057 (11 February 2003) at 1535 (Rt. Hon. Jean Chrétien).

[^12]: Canada, Proceedings of the House Standing Committee on Procedure and House Affairs, No. 32 (8 April 2003) at 1901, online: http:.>

[^13]: Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue 13, Evidence (17 June 2003) at 3372 online: http:.

[^14]: An Act to amend An Act to amend the Canada Elections Act and the Income Tax Act, S.C. 2006, c. 1, s. 1. This statute repealed the sunset clause that was in place under the 2004 amendments and replaced it with a mandatory review provision.

[^15]: Where the first and second square brackets are inserted, the Figueroa text sets out, as follows, the threshold in question in that case: "the 50-candidate threshold" (first square brackets); "that nominate fewer than 50 candidates" (second square brackets). Where the third square brackets are inserted the text refers to the particular benefits available in that case upon registration as a political party: "the right to issue tax receipts for donations received outside the election period, to transfer unspent election funds to the party and to list their party affiliation on the ballot papers". I have substituted reference to the thresholds and benefits at issue in this case for purposes of demonstrating the parallels between Figueroa and the instant case.

[^16]: Libman v. Québec (Attorney General), 1997 326 (SCC), [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85.

[^17]: See also Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, [1998] S.C.J. No. 29; Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44; and M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, [1999] S.C.J. No. 23.

[^18]: See Health Services and Support -- Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, [2007] S.C.J. 27, at para. 147; Newfoundland (Treasury Board) v. Newfoundland Assn. of Public Emloyees, 2004 SCC 66, [2004] 3 S.C.R. 381, [2004] S.C.J. No. 61, at para. 72.

[^19]: David Beatty, "Political Parties and Constitutional Reform" in T. Fleiner, ed., Five Decades of Constitutional Law: Reality and Perspectives (1945-1995) (Tokyo: International Association of Constitutional Law Fourth World Congress) at 292-294.

[^20]: See also Harper, at para. 110; Health Services and Support -- Facilities Subsector Bargaining Assn. v. British Columbia, supra, at para. 150.

[^21]: In Baier, school teachers attacked the constitutional validity of amendments to the Local Authorities Election Act, R.S.A. 2000, c. L-21, which restricted school employees from seeking election as school trustees, unless they took a leave of absence and then resigned from their positions if elected. The challenge was mounted on s. 2(b) and s. 15 grounds. It was unsuccessful.