Haig v. Canada; Haig v. Canada (Chief Electoral Officer), 1993 CanLII 58 (SCC), [1993] 2 SCR 995
Graham Haig, John Doe and Jane Doe Appellants
v.
The Chief Electoral Officer Respondent
and
The Attorney General of Canada Respondent
and
The Attorney General of Quebec Intervener
Indexed as: Haig v. Canada; Haig v. Canada (Chief Electoral Officer)
1993: March 4; 1993: September 2.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Right to vote ‑‑ Federal referendum held everywhere in Canada except Quebec ‑‑ Quebec separate referendum subject to provincial legislation ‑‑ Appellant who moved from Ontario to Quebec unable to vote in federal or Quebec referendum because of different residency requirements in federal and provincial legislation ‑‑ Whether appellant's exclusion from federal referendum infringing s. 3 of Canadian Charter of Rights and Freedoms ‑‑ Referendum Act, S.C. 1992, c. 30 ‑‑ Canada Elections Act, R.S.C., 1985, c. E‑2.
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Federal referendum held everywhere in Canada except Quebec ‑‑ Quebec referendum subject to provincial legislation ‑‑ Appellant who moved from Ontario to Quebec unable to vote in federal or Quebec referendum because of different residency requirements in federal and provincial legislation ‑‑ Whether appellant's exclusion from federal referendum infringing s. 2(b) of Canadian Charter of Rights and Freedoms ‑‑ Whether s. 2(b) includes a positive right to be provided with a specific means of expression ‑‑ Referendum Act, S.C. 1992, c. 30 ‑‑ Canada Elections Act, R.S.C., 1985, c. E‑2.
Constitutional law ‑‑ Charter of Rights -- Equality rights ‑‑ Equal benefit of the law ‑‑ New residents of a province ‑‑ Province of residence ‑‑ Federal referendum held everywhere in Canada except Quebec ‑‑ Quebec referendum subject to provincial legislation ‑‑ Appellant who moved from Ontario to Quebec unable to vote in federal or Quebec referendum because of different residency requirements in federal and provincial legislation ‑‑ Whether appellant's exclusion or Quebec's exclusion from federal referendum infringing s. 15(1) of Canadian Charter of Rights and Freedoms ‑‑ Referendum Act, S.C. 1992, c. 30 ‑‑ Canada Elections Act, R.S.C., 1985, c. E‑2.
Elections ‑‑ Federal referendum ‑‑ Interpretation of federal referendum legislation ‑‑ Powers of Chief Electoral Officer ‑‑ Federal referendum held everywhere in Canada except Quebec ‑‑ Quebec referendum subject to provincial legislation ‑‑ Appellant who moved from Ontario to Quebec unable to vote in federal or Quebec referendum because of different residency requirements in federal and provincial legislation ‑‑ Whether federal referendum legislation may be interpreted to extend entitlement to vote in federal referendum to appellant ‑‑ Whether Chief Electoral Officer had power to adapt Canada Elections Act so as to extend entitlement to vote in federal referendum to appellant ‑‑ Referendum Act, S.C. 1992, c. 30, ss. 3(1), 7(3) ‑‑ Canada Elections Act, R.S.C., 1985, c. E‑2, ss. 9(1), 53, 55(5) ‑‑ Regulation Adapting the Canada Elections Act, SOR/92‑430.
In September 1992, the federal government directed that a referendum be held on October 26, 1992 on a question relating to the Constitution of Canada in all provinces and territories, except Quebec. Quebec was to hold a separate referendum on the same date and on the same question but in accordance with the provincial legislation. As a result of the different requirements as to residency in the federal and provincial legislation, the appellant Haig, who had moved from Ontario to Quebec in August 1992, was not qualified to vote in the Quebec referendum because he had not resided in that province for six months prior to the referendum, or to vote in the federal referendum because, on the enumeration date, he was not ordinarily resident within one of the polling divisions established for the federal referendum. The appellant brought an application in the Federal Court, seeking a declaration that s. 3 of the federal Referendum Act included a resident who was ordinarily resident in a province at any time in the six‑month period prior to the referendum; or, in the alternative, a declaration that denying him a vote in the federal referendum violated his rights under ss. 3, 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms. He also sought a mandamus requiring the Chief Electoral Officer to make reasonable provisions to allow him and others in his situation to be enumerated. The court dismissed the application and the majority of the Federal Court of Appeal affirmed the judgment.
Held (Lamer C.J. and Iacobucci J. dissenting): The appeal should be dismissed. The federal Referendum Act and the Canada Elections Act are constitutional. The appellant's exclusion from the federal referendum did not violate his rights under ss. 2(b), 3 and 15(1) of the Charter.
Per La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Major JJ.: The federal Referendum Act and the Canada Elections Act did not grant the appellant an entitlement to vote in the federal referendum. The purpose of the Referendum Act is not to obtain the opinion of electors in all Canadian provinces at all times. Section 3(1) of that Act expressly provides that consultation by referendum may be carried out on a national, provincial or multi‑provincial basis. The appellant was ordinarily resident in Quebec on the enumeration date set for the federal referendum and since Quebec was not one of the provinces listed in the federal proclamation, no polling divisions were established in that province for the federal referendum. Therefore, while the appellant came within the definition of a qualified voter, he was not on the enumeration date ordinarily resident in an established polling division and had no entitlement to vote in the federal referendum. The appellant did not retain a right to vote in Ontario by virtue of s. 55(5) of the Canada Elections Act. This section merely states that a person cannot be without an ordinary residence and cannot be construed as meaning that the appellant could not lose his ordinary residence in Ontario for the purpose of voting in the federal referendum until he had qualified as an elector in Quebec, under the relevant Quebec legislation. Such an interpretation would go not only against the wording but also against the spirit of the federal Referendum Act, which clearly extends an entitlement to vote only to those people ordinarily resident in a jurisdiction specified by proclamation.
The Chief Electoral Officer did not have the power to extend the entitlement to vote in the federal referendum to the appellant. Though s. 7(3) of the federal Referendum Act gives the Chief Electoral Officer a discretionary power to adapt the Canada Elections Act in such a manner as he considers necessary for the purposes of applying that Act in respect of a referendum, this power does not extend to authorize a fundamental departure from the scheme of the Referendum Act. Residence is a pivotal feature of the referendum scheme as captured in both pieces of federal legislation and the Order‑in‑Council directed that a referendum be held in a number of clearly specified jurisdictions. The discretionary power of the Chief Electoral Officer could not be exercised to extend the entitlement to vote beyond the parameters established in the Order‑in‑Council. Section 9(1) of the Canada Elections Act only contemplates situations where the provisions of the legislation do not accord with particular needs arising out of any "mistake, miscalculation, emergency or unusual or unforeseen circumstance". The appellant's situation does not fall within these terms. The exclusion of electors not resident in the provinces in question on the enumeration date is the clear and unambiguous consequence of the legislative scheme adopted. Further, s. 9(1) is also restricted to adaptations designed to facilitate the execution of the intent of the Canada Elections Act. The object of this Act, as adapted for the referendum, is to ensure that those who are entitled to vote are given an opportunity to do so. The object is not to enfranchise those who are not entitled to vote.
Section 3 of the Charter does not guarantee Canadians a constitutional right to vote in a referendum. The wording of s. 3 is clear and unambiguous and guarantees only the right to vote in elections of representatives of the federal and the provincial legislative assemblies. The purpose of s. 3 is to grant every citizen of this country the right to play a meaningful role in the selection of elected representatives. Since a referendum is in no way such a selection ‑‑ a referendum is basically a consultative process ‑‑, the Canadian citizens cannot claim a constitutional right to vote in a referendum under s. 3. The appellant's s. 3 Charter rights were therefore not infringed.
In the context of the 1992 federal referendum, freedom of expression did not include a constitutional right for all Canadians to be provided with a specific means of expression. Though a referendum is undoubtedly a platform for expression, s. 2(b) of the Charter does not impose upon a government any positive obligation to consult its citizens through the particular mechanism of a referendum, nor does it confer upon all citizens the right to express their opinions in a referendum. In an other context, however, s. 2(b) could impose a positive governmental action. A referendum as a platform of expression is a matter of legislative policy and not of constitutional law. While s. 2(b) does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. Here, the federal government did not violate s. 2(b) either in holding its referendum or in holding it in less than all provinces and territories. The appellant was unable to vote simply because, on the enumeration date, he was not ordinarily resident in a province where the federal referendum was held, a limitation which does not infringe the appellant's freedom of expression as guaranteed in the Charter.
In providing a platform of expression to less than all Canadians, the federal government did not infringe the appellant's s. 15(1) Charter guarantee of equal benefit of the law. The new residents of a province do not constitute a disadvantaged group within the contemplation of s. 15(1). People moving to Quebec less than six months before a referendum date do not suffer from stereotyping, or social prejudice. Though its members were unable to vote in the Quebec referendum, the group is not one which has suffered historical disadvantage, or political prejudice. Nor does the group appear to be "discrete and insular". As well, the exclusion of one province from the federal referendum legislation does not violate s. 15(1). The decision of the Governor in Council to hold a referendum only in a specific number of provinces is a constitutionally permissible exercise of the discretion accorded to the government under s. 3(1) of the federal Referendum Act. Both the decision to hold a referendum and the decision as to the number of provinces in which a referendum will be held are policy decisions left entirely to governments and legislatures. In a federal system, province‑based distinctions do not automatically give rise to a presumption of discrimination. Section 15(1), while prohibiting discrimination, does not alter the division of powers between governments, nor does it require that all federal legislation must always have uniform application to all provinces.
Per McLachlin J.: The reasons of L'Heureux‑Dubé J. were generally agreed with. Parliament's decision to hold a referendum in only some areas of Canada, and thus to exclude the residents outside these areas from the federal referendum, is not contrary to the Charter. However, had the law enacted a truly national referendum, the appellant's freedom of expression would have been violated. But even with a broad and liberal reading of residency requirements aimed at enfranchising as many Canadians as possible in every situation where that result could be attained without infringing the law, there was no legal basis upon which the Chief Electoral Officer could have registered a Quebec resident in a referendum which by its terms excluded Quebec.
Per Cory J.: The right to vote is of fundamental importance to Canadians and to our democracy. In all enfranchising statutes, the provisions granting the right to vote should be given a broad and liberal interpretation and restrictions on that right should be narrowly construed. Every effort should be made to interpret the statute to enfranchise the voter. These principles applicable to the right to vote in elections should be applied in the same manner to the right to vote in a referendum. The Chief Electoral Officer thus has a duty to insure that as many Canadians as possible are enfranchised in every situation where that result can be attained without infringing the law. Flexibility must be given to the concept of residence, particularly in enfranchising statutes. The concept of residence as a requirement of exercising the right to vote was designed to facilitate the attainment of the principle of one person one vote and should not be used as a means of depriving a person of this right. It follows that the term "ordinarily resident" in an enfranchising statute should be interpreted broadly in the context of today's mobile society and in the light of the vital importance of the right to vote. There is no reason for departing from this approach and practice under the federal Referendum Act. Here, under the requisite flexible test of residency, it would be wrong to automatically hold that those who had moved to Quebec before the referendum enumeration date could, on that basis alone, be denied the right to vote in a federal polling division outside Quebec. Unfortunately, the appellant did not apply to be enumerated in his former riding and it is impossible to determine on the facts presented if there was a sufficient connection to a riding within the federal referendum to warrant his addition to the voter's list. Since the referendum is now long past, this is not a proper case in which to grant declaratory relief.
Per Iacobucci J. (dissenting): The appellant was entitled to vote in the federal referendum. The referendum contemplated by the federal Referendum Act was aimed at all Canadians citizens entitled to vote in a federal election; to accomplish that end, the federal referendum was coordinated with the Quebec referendum. While, in a formal sense, two referenda were held, to focus on the technicalities of separate referenda can only obscure the national character of the referendum. Appellant's right to express his political views by participating in a national referendum is guaranteed by s. 2(b) of the Charter. The right to express opinions in social and political decision‑making is clearly protected by s. 2(b). The referendum was an important expressive activity relating to constitutional change in this country and Parliament was apparently under a political obligation to follow the referendum's results. The effect of the federal Referendum Act, however, was to deprive the appellant and other recently arrived in Quebec of their rights to participate in the referendum. Accordingly, their s. 2(b) rights were violated. In the absence of any evidence on s. 1 of the Charter, the violation of the appellant's s. 2(b) rights has not been justified. The proper remedy would have been to expand the definition of "elector" in s. 3(1) of the Referendum Act. The Chief Electoral Officer, relying on s. 7(3) of the Referendum Act, could have used s. 9(1) of the Canada Elections Act to permit the appellant to vote.
Per Lamer C.J. (dissenting): Cory J.'s approach to the definition of residency for voting purposes and Iacobucci J.'s reasons concerning s. 2(b) of the Charter were agreed with.
Cases Cited
By L'Heureux‑Dubé J.
Referred to: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114; Reference re Provincial Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158; RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; BCGEU v. British Columbia (Attorney General), 1988 3 (SCC), 1988] 2 S.C.R. 214; Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General),1988 20 (SCC), [1988] 2 S.C.R. 790; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; Slaight Communications Inc. v. Davidson,1989 92 (SCC), [1989] 1 S.C.R. 1038; Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor,1990 26 (SCC), [1990] 3 S.C.R. 892; R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; Re Allman and Commissioner of the Northwest Territories (1983), 1983 2934 (NWT SC), 144 D.L.R. (3d) 467 (N.W.T.S.C.), aff'd (1983), 1983 2847 (NWT CA), 8 D.L.R. (4th) 230 (C.A.), leave to appeal to S.C.C. refused, [1984] 1 S.C.R. v; Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679; Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143; R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296; R. v. S. (S.), 1990 65 (SCC), [1990] 2 S.C.R. 254; Thorne's Hardware Ltd. v. The Queen, 1983 20 (SCC), [1983] 1 S.C.R. 106.
By Cory J.
Referred to: Cawley v. Branchflower (1884), 1 B.C.R. (Pt. II) 35; Re Lincoln Election (1876), 2 O.A.R. 316; In Re Provincial Elections Act (1903), 10 B.C.R. 114; Re Voters' List of the Township of Seymour (1899), 2 Ont. Elec. 69; Hipperson v. Newbury District Electoral Registration Officer, [1985] Q.B. 1060; Re Fitzmartin and Village of Newburgh (1911), 24 O.L.R. 102; Tenold v. Chapman (1981), 1981 3031 (SK QB), 9 Sask. R. 278; Fells v. Spence, 1984 5096 (NWT SC), [1984] N.W.T.R. 123.
By Iacobucci J. (dissenting)
R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; Native Women's Assn. of Canada v. Canada, 1992 8495 (FCA), [1992] 3 F.C. 192.
Statutes and Regulations Cited
Act respecting the process for determining the political and constitutional future of Québec, S.Q. 1991, c. 34, s. 32.
Act to amend the Act respecting the process for determining the political and constitutional future of Québec, S.Q. 1992, c. 47, s. 2.
Canada Elections Act, R.S.C., 1985, c. E‑2 [as adapted by SOR/92‑430], ss. 9(1), 50(1), 53(1), 55 to 59, 60, 62, 65(1), 68 (Sch. IV, r. 42 et seq.).
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 3, 4, 5, 6, 15(1).
Constitutional Amendment Approval Act, S.B.C. 1991, c. 2.
Constitutional Referendum Act, S.A. 1992, c. C‑22.25 [am. 1992, c. 36, s. 2].
Constitutional Referendum Amendment Act, 1992, S.A. 1992, c. 36, s. 2.
Election Act, R.S.Q., c. E‑3.3, ss. 1 [am. 1992, c. 38, s. 1 & adapted idem, s. 93], 2 [adapted idem, s. 93].
Federal Court Act, R.S.C., 1985, c. F‑7, ss. 2(1) "federal board, commission or other tribunal" [rep. & sub. 1990, c. 8, s. 1], 17 [idem, s. 3], 18 [idem, s. 4], 18.1 [ad. idem, s. 5], 48.
Referendum Act, R.S.Q., c. C‑64.1, ss. 7 [am. 1992, c. 38, s. 79], 8 [am. idem, s. 80], 9 [am. idem, s. 81], 13 [am. idem, s. 82], 16 [repl. idem, s. 84], 44 to 47 [am. idem, s. 92], App. 2 [am. idem, s. 93].
Referendum Act, S.B.C. 1990, c. 68.
Referendum Act, S.C. 1992, c. 30, ss. 3(1), 5(1), 6(1), 7.
Regulation Adapting the Canada Elections Act, SOR/92‑430.
Authors Cited
Beaudoin, Gérald‑A. "Democratic Rights". In Gérald‑A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2nd ed. Toronto: Carswell, 1989, 265.
Beckton, Clare. "Freedom of Expression". In Walter S. Tarnopolsky and Gérald‑A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell, 1982, 75.
Berlin, Isaiah. "Two Concepts of Liberty". In Four Essays on Liberty. London: Oxford University Press, 1969, 118.
Blais, Jean Jacques. "Freedom of Expression and Public Administration". In David Schneiderman, ed., Freedom of Expression and the Charter. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991, 446.
Boyer, J. Patrick. Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections, vol. 1. Toronto: Butterworths, 1987.
Emerson, Thomas Irwin. The System of Freedom of Expression. New York: Random House, 1970.
Fiss, Owen M. "Free Speech and Social Structure". In Jules Lobel, ed., A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution. New York: Monthly Review Press, 1988, 346.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented). Scarborough, Ont.: Carswell, 1992 (loose‑leaf).
House of Commons Debates, vol. 132, No. 144, 3rd sess., 34th Parl., May 19, 1992, at pp. 10854, 10889.
House of Commons Debates, vol. 132, No. 165, 3rd sess., 34th Parl., September 8, 1992, at p. 12732.
House of Commons Debates, vol. 132, No. 166A, 3rd sess., 34th Parl., September 9, 1992, at p. 12786.
Hutchinson, Allan C. "Money Talk: Against Constitutionalizing (Commercial) Speech" (1990), 17 Can. Bus. L.J. 2.
Lederman, W. R. "Democratic Parliaments, Independent Courts, and the Canadian Charter of Rights and Freedoms" (1985), 11 Queen's L.J. 1.
MacKay, A. Wayne. "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713.
Montigny, Yves de. "The Difficult Relationship Between Freedom of Expression and Its Reasonable Limits" (1992), 55 Law & Contemp. Probs. 35.
Qualter, Terence H. The Election Process in Canada. Toronto: McGraw‑Hill, 1970.
APPEAL from a judgment of the Federal Court of Appeal, 1992 14794 (FCA), [1992] 3 F.C. 611, 145 N.R. 233, 97 D.L.R. (4th) 71, dismissing the appellants' appeal from an order of Denault J. (1992), 1992 8576 (FC), 57 F.T.R. 1, 97 D.L.R. (4th) 64, and dismissing their appeal (except on a procedural point) from an order of Joyal J., 1992 14751 (FC), [1992] 3 F.C. 602, 57 F.T.R. 6. Appeal dismissed, Lamer C.J. and Iacobucci J. dissenting.
Philippa Lawson, for the appellants.
N. J. Schultz and H. McManus, for the respondent the Chief Electoral Officer.
Jean‑Marc Aubry, Q.C., and Richard Morneau, for the respondent the Attorney General of Canada.
Jean‑François Jobin and Dominique A. Jobin, for the intervener.
//Lamer C.J.//
The following are the reasons delivered by
Lamer C.J. (dissenting) -- I agree with Cory J. with respect to the proper approach to the definition of residency for voting purposes. I also agree with Iacobucci J. concerning s. 2(b) of the Canadian Charter of Rights and Freedoms and with respect to his proposed disposition of this appeal. I would, therefore, dispose of the appeal as proposed by Iacobucci J.
//L'Heureux-Dubé J.//
The judgment of La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Major JJ. was delivered by
L'Heureux-Dubé J. -- On October 26, 1992, two referenda were held in Canada, each concerning proposed amendments to the Canadian Constitution. Graham Haig was not able to cast a ballot in either. This was unfortunate. The only issue in the present appeal is this: Was Graham Haig entitled to cast a ballot in the federal referendum?
At that specific moment in Canadian history, there was a confluence of political pressures, concerns and events. Among these was the ongoing and often politically heated constitutional dialogue. In order to seek the views of Canadians on this crucial issue of constitutional change, the federal government and the provincial governments who so desired had available a variety of options: commissions, surveys, opinion polls, referenda, etc. Quebec had legally bound itself to hold a referendum on sovereignty, while British Columbia and Alberta had articulated the possibility that they would hold provincial referenda dealing with constitutional change, and that they would consider themselves bound by the results. It was in this context that the federal government undertook to hold a referendum in those provinces where a provincial referendum would not otherwise be held. This choice was in accord with the desire and the authority of the provinces to consult their own electors as they saw fit.
In the end, only two referenda were held: one in Quebec pursuant to Quebec's provincial referendum legislation, the other in the rest of Canada pursuant to the federal referendum legislation. The model chosen by the federal government was one which was open to them under the relevant legislation, which specifically allowed for referenda to be conducted in one or more provinces. The model chosen was, at the time, thought to be politically sound by both the federal and the provincial governments.
The mechanics of the two referenda were governed by the elections legislation of each government. The federal and the Quebec elections legislation, though similar in certain respects, are not mirror images of each other, but contain different provisions on a number of issues including: the preparation of electoral lists, methods of voting, financing, referendum publicity and spending, the roles and functions of the Chief Electoral Officers and their staff, and residency requirements. The residency provisions of the Quebec elections legislation, in particular, diverge from those in the federal legislation by requiring six months residency in order to be eligible to vote. It was this residency requirement which resulted in some Quebec residents, Mr. Haig in particular, not being able to cast their vote, and which is at the heart of this case.
Were the Quebec residents who were not entitled to vote in the Quebec referendum nonetheless entitled to vote in the federal referendum? To answer this question, it is essential to more fully refer to the political events and legislative context leading up to October 26, 1992.
Facts
On April 17, 1982, the Constitution Act, 1982 was proclaimed into force. The Meech Lake Accord, which proposed certain amendments to the Constitution Act, 1982, was not ratified by all provincial legislatures within the allotted time period, and failed on June 23, 1990. As a result of these events, Bill 150, An Act respecting the process for determining the political and constitutional future of Québec, S.Q. 1991, c. 34, s. 32, came into force on June 20, 1991. According to Chapter I of this Bill, the Government of Quebec was required to hold a referendum on the sovereignty of Quebec no later than October 26, 1992.
On June 23, 1992, the Referendum Act, S.C. 1992, c. 30, came into force. This Act provided a mechanism for the federal government to obtain the opinion of the electors of Canada, or the electors of one or more provinces, on issues related to the Canadian Constitution.
On August 28, 1992, the Prime Minister of Canada, the ten provincial premiers, the leaders of the territorial governments and representatives of four aboriginal associations, came to an agreement which has become known as the "Charlottetown Accord". This agreement proposed substantial amendments to the Constitution of Canada.
On September 3, 1992, as a direct result of the Charlottetown Accord, Bill 44, An Act to amend the Act respecting the process for determining the political and constitutional future of Québec, S.Q. 1992, c. 47, was introduced into the Quebec National Assembly. This Bill, which came into force on September 8, 1992, amended Bill 150 so that the Government of Quebec was still obligated to hold a referendum on October 26, 1992, but the subject of the referendum would be the Charlottetown Accord, rather than Quebec sovereignty. Similarly, on September 8, 1992, the Prime Minister of Canada announced that a referendum would be held on October 26, 1992, the subject of which would also be the Charlottetown Accord.
On September 9, the Premier of Quebec, pursuant to s. 8 of the Referendum Act, R.S.Q., c. C‑64.1, put before the National Assembly the proposed text of the question to be the subject of the October 26, 1992 Quebec referendum. The same day, pursuant to s. 5(1) of the Referendum Act (Canada), the proposed text of the question which was to be the subject of the federal referendum was put before the House of Commons. Both questions were identical. The House of Commons approved the text of the federal referendum question on September 10, and the Senate approved the text on September 15. The National Assembly, pursuant to ss. 8 and 9 of the Referendum Act (Quebec) approved the text of the Quebec referendum question on September 16.
On September 17, 1992, pursuant to s. 3(1) of the Referendum Act (Canada), a proclamation was issued by Order-in-Council P.C. 1992-2045 directing that a referendum be held to obtain the opinion of the electors of "the provinces of Ontario, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, Newfoundland, the Yukon Territory and the Northwest Territories" on a question relating to the Constitution of Canada. The referendum was to be held October 26, 1992, its conduct to be governed by the Canada Elections Act, R.S.C., 1985, c. E-2, as adapted for the purposes of the referendum. One of these provisions states that any Canadian citizen of 18 years of age who, on the enumeration date, was ordinarily resident within one of the polling divisions established for the referendum, would be entitled to cast a ballot.
On September 27, 1992, pursuant to s. 13 of the Referendum Act (Quebec), the Government of Quebec ordered Quebec's Chief Electoral Officer to hold a referendum on October 26, 1992, to be conducted in accordance with the provisions of the Election Act, R.S.Q., E-3.3, as adapted for the purposes of the referendum. According to one of these provisions, any Canadian citizen of 18 years of age who, on the polling day, had been domiciled in Quebec for six months, would be entitled to cast a ballot.
In August of 1992, Graham Haig moved from Ontario to Quebec. On the enumeration day for the federal referendum, Mr. Haig was no longer ordinarily resident in a polling division established for the federal referendum, and so, pursuant to the provisions of the Canada Elections Act, he was not included on the list of voters entitled to vote in the federal referendum. At the same time, having been domiciled in Quebec for less than six months, he did not meet the eligibility requirements under the Election Act (Quebec), and so was not included on the list of voters eligible to vote in the Quebec referendum. The result was, of course, that Mr. Haig was not enumerated and consequently could not vote in either referendum.
Proceedings
On September 30, 1992, Mr. Haig instituted proceedings in the Federal Court, Trial Division, filing an originating notice of motion under s. 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7. On behalf of himself and un-named others (represented by John Doe and Jane Doe), an application was brought against Her Majesty the Queen and the Chief Electoral Officer, seeking a declaration that s. 3 of the Referendum Act (Canada) included the applicants, and mandamus, requiring the respondents to make reasonable provisions to allow for the enumeration of the applicants. Notice was given to the Attorney General of Canada that the constitutional validity of the federal Order-in-Council would be challenged.
On October 7, 1992, counsel for Her Majesty the Queen made a preliminary application before Denault J. in the Federal Court, Trial Division, to have Her Majesty the Queen struck as a respondent on the basis that the court had no jurisdiction under s. 18.1 of the Federal Court Act to grant the remedies requested against the Queen. Denault J. granted the application, striking the Queen as respondent: (1992), 1992 8576 (FC), 57 F.T.R. 1, 97 D.L.R. (4th) 64. The applicants then brought an additional application to add the Attorney General of Canada as respondent. Both applications were heard before and dismissed by Joyal J. in the Federal Court, Trial Division: 1992 14751 (FC), [1992] 3 F.C. 602, 57 F.T.R. 6.
The appellants appealed the orders of Denault J. and Joyal J., and the respondent Chief Electoral Officer cross-appealed. The appeals and cross-appeal were joined and heard on October 19, 1992 before the Federal Court of Appeal, which added the Attorney General as a party, dismissed the appeal from the order of Denault J. as moot, dismissed the Chief Electoral Officer's cross-appeal, and also dismissed the original application on its merits: 1992 14794 (FCA), [1992] 3 F.C. 611, 145 N.R. 233, 97 D.L.R. (4th) 71. The appellants now appeal to this Court. The Chief Electoral Officer initially cross-appealed on an issue of jurisdiction related to parliamentary privilege, but that cross-appeal was discontinued on February 25, 1993.
Relevant Legislation
Referendum Act, R.S.Q., c. C-64.1
- The Government may order that the electors be consulted by referendum
(a) on a question approved by the National Assembly in accordance with sections 8 and 9, or
(b) on a bill adopted by the National Assembly in accordance with section 10.
As soon as the National Assembly is informed of the question or bill contemplated in the first paragraph, the Secretary General of the National Assembly shall notify the chief electoral officer thereof in writing.
The chief electoral officer shall send a copy of the notice to the returning officer of each electoral division.
- The lists of electors shall be established within the eighteen days following the day on which the National Assembly was informed of the question or bill comtemplated in section 7.
Election Act, R.S.Q., c. E-3.3 (as adapted pursuant to ss. 44 to 47 of the Referendum Act, R.S.Q., c. C-64.1)
- Every person who
(1) has attained eighteen years of age;
(2) is a Canadian citizen;
(3) has been domiciled in Québec for six months or, in the case of an elector outside Québec, for twelve months;
(4) is not under curatorship; and
(5) is not deprived of election rights, pursuant to section 568, is a qualified elector.
Every person registered in the registry of electors outside Québec is deemed to be domiciled in Québec.
- To exercise his right to vote, a person must be a qualified elector on polling day and be registered on the list of electors of the polling subdivision where his domicile is situated on the day of the notification provided for in section 7 of the Referendum Act, or be registered in the registry of electors outside Québec.
Referendum Act, S.C. 1992, c. 30
(1) Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada or of one or more provinces specified in the proclamation at a referendum called for that purpose.
(1) On the issue of a proclamation, the Chief Electoral Officer shall, in accordance with the proclamation, issue writs of referendum in the form set out in Schedule I for all electoral districts in Canada or in the province or provinces specified in the proclamation.
(1) Subject to this Act, the Canada Elections Act, as adapted pursuant to subsection (3), applies in respect of a referendum, and, for the purposes of that application, the issue of writs of referendum shall be deemed to be the issue of writs for a general election.
(2) The provisions of the Canada Elections Act referred to in Schedule II do not apply in respect of a referendum.
(3) Subject to this Act, the Chief Electoral Officer may, by regulation, adapt the Canada Elections Act in such manner as the Chief Electoral Officer considers necessary for the purposes of applying that Act in respect of a referendum.
(4) The Chief Electoral Officer may make regulations
(a) respecting the conduct of a referendum; and
(b) generally for carrying out the purposes and provisions of this Act.
Canada Elections Act, R.S.C., 1985, c. E-2 (as adapted for the purposes of a referendum, SOR/92-430)
(1) Where, during the course of a referendum, it appears to the Chief Electoral Officer that, by reason of any mistake, miscalculation, emergency or unusual or unforeseen circumstance, any of the provisions of this Act do not accord with the exigencies of the situation, the Chief Electoral Officer may, by particular or general instructions extend the time for doing any act, increase the number of referendum officers or polling stations or otherwise adapt any of the provisions of this Act to the execution of its intent, to such extent as he considers necessary to meet the exigencies of the situation.
(1) Every person who
(a) has attained the age of eighteen years, and
(b) is a Canadian citizen,
is qualified as an elector.
(1) Subject to this Act, every person who is qualified as an elector is entitled to have his name included in the list of electors for the polling division in which that person is ordinarily resident on the enumeration date for the referendum and to vote at the polling station established therein.
(1) The rules in this section and sections 56 to 59 and 62 apply to the interpretation of the expressions "ordinarily resident" and "ordinarily resided" in any section of this Act in which those expressions are used with respect to the right of a voter to vote.
(2) Subject to this section and sections 56 to 59 and 62, the question as to where a person is or was ordinarily resident at any material time or during any material period shall be determined by reference to all the facts of the case.
(3) The place of ordinary residence of a person is, generally, the place that has always been, or that the person has adopted as, the place of his habitation or home, and to which he intends to return when he is away from it.
(4) Where a person usually sleeps in one place and has his meals or is employed in another place, the place of his ordinary residence is where the person sleeps.
(5) A person can have only one place of ordinary residence and it cannot be lost until another is gained.
Order-in-Council P.C. 1992-2045, dated September 17, 1992
WHEREAS, pursuant to subsection 3(1) of the Referendum Act, the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on the question hereinafter set out relating to the Constitution of Canada;
WHEREAS, pursuant to section 4 of that Act, no proclamation may be issued before the text of the referendum question has been approved under section 5 of that Act;
AND WHEREAS the text of the referendum question hereinafter set out was approved by the House of Commons under section 5 of that Act of September 10, 1992 and was concurred in thereunder by the Senate on September 15, 1992;
THEREFORE, HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the recommendation of the Prime Minister, pursuant to subsection 3(1) of the Referendum Act, is pleased hereby to order that a proclamation do issue directing that the opinion of electors be obtained by putting to the electors of the provinces of Ontario, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta Newfoundland, the Yukon Territory and the Northwest Territories, at a referendum called for that purpose, the following question relating to the Constitution of Canada:
"Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?
Yes No
Judgments
Federal Court, Trial Division (Denault J.)
On the application by the respondent Her Majesty the Queen for an order striking her from the originating notice, Denault J. refused to hear the merits of the case, emphasising that the mandatory notice period for constitutional questions had not yet expired, and dealt only with the procedural issues.
Finding s. 18 of the Federal Court Act available only where the relief sought arises from a decision of a "federal board, commission or other tribunal", he held that the Crown does not come within the definition of "federal board, commission or other tribunal" set out in s. 2 of the Federal Court Act and, in addition, that the s. 18 procedure is not appropriate where the issues to be resolved are of a serious and complex nature. He concluded that ss. 17 and 48 applied and that an action against the Queen had to be commenced by statement of claim. As such, Denault J. granted the respondent's motion, and struck Her Majesty the Queen from the originating notice.
Federal Court, Trial Division (Joyal J.), 1992 14751 (FC), [1992] 3 F.C. 602
At the hearing on the amended Originating Notice, the Crown (appearing in an institutional capacity and not as a party respondent) argued that since the real issue was the constitutional validity of a federal statute, the court lacked any jurisdiction to consider the matter under s. 18 of the Federal Court Act. In view of the peculiar circumstances and in spite of the earlier order of Denault J., Joyal J. took the jurisdictional questions under advisement, and allowed the case to proceed on the merits.
In Joyal J.'s view, the right to vote embodied in s. 3 of the Canadian Charter of Rights and Freedoms relates only to elections to the federal Parliament and legislative assemblies, and does not include a right to vote in any other instance. Since the federal Order-in-Council did not include Quebec, the question of whether or not Quebec should have been included was a policy decision and not a justiciable issue. He concluded that the applicants had no right to vote in the federal referendum, and that their only recourse, if any, might be to resort to the Quebec courts. In his opinion, at p. 608, the predicament facing the applicants was one
which is often found when the political structure of a community is based on a federal system where both levels of authority enjoy their respective and exclusive jurisdictions.
While concluding that he had jurisdiction under s. 18 of the Federal Court Act, Joyal J. dismissed the applicants' Charter arguments, finding no violation of freedom of expression under s. 2(b), of mobility rights under s. 6, nor of equality rights under s. 15(1). Given this conclusion on the merits, he dismissed the application to add the Attorney General as a party.
Federal Court of Appeal, [1992] 3 F.C. 616 (Hugessen and Stone JJ.A., and Décary J.A. (dissenting))
On the jurisdictional question, Hugessen J.A., for the majority, found that the Chief Electoral Officer fell within the definition of `federal board, commission or other tribunal'. The appellants' complaint was that the Chief Electoral Officer had failed to exercise his power and jurisdiction to correctly apply and adapt the Canada Elections Act to the referendum. Such an allegation properly comes under s. 18 of the Federal Court Act, and the Attorney General of Canada is expressly authorized to be made a party to such proceedings. Since, in the context of a Charter challenge to federal legislation, the Attorney General is also a necessary party, the majority found that Joyal J. should have allowed the application to add the Attorney General of Canada.
The appeal from the decision of Joyal J. on the procedural point having been allowed, the appeal from Denault J.'s order on the related point was declared moot and quashed. With respect to the Chief Electoral Officer's cross‑appeal, Hugessen J.A. observed that, though courts have traditionally acted with restraint in matters relating to the conduct of elections, a Chief Electoral Officer has no historical privilege or statutory immunity against claims which are founded in the Charter. The cross‑appeal was accordingly dismissed.
On the merits, the majority held that Joyal J. had reached the right conclusion, finding that if there was any denial of the appellants' rights, it flowed exclusively from the operation of the provincial legislation (at p. 616):
While it is no doubt true that it is the federal order in council restricting the federal referendum to all provinces and territories other than Quebec which has created the background for the appellant's present situation, it remains that it is the Quebec legislation alone which is at the root of his complaint. He does not now reside in any province in which the federal referendum is being held and the federal legislation does not affect him one way or the other. As a resident of Quebec he is subject to that province's referendum legislation and it is solely that legislation which denies him the right to vote.
Commenting that the very scheme of the Referendum Act (Canada) and the Canada Elections Act is based upon questions of geography, the majority found no constitutional impropriety in the Order-in-Council which limited the number of provinces in which the federal referendum would be held (at p. 617):
. . . because a referendum is limited to constitutional questions, and because the amending formula (and indeed the Constitution itself) envisages processes and substantive rules which may differ according to the province or number of provinces involved, it is entirely normal that different questions may be put to the electors in one or more provinces or that a question may be put to the electors in some provinces but not others. [Footnote omitted.]
Décary J.A., dissenting, agreed that the Federal Court of Appeal had jurisdiction under s. 18 of the Federal Court Act, and that the Attorney General of Canada and the Chief Electoral Officer were properly made parties to the proceedings. However, he disagreed with the majority's conclusion on the merits. Taking judicial notice of "political realities", Décary J.A. was of the view that the federal referendum, though not being held in all ten provinces, was in reality a national referendum, and that Parliament had not intended that any citizen of Canada would be disenfranchised with respect to this important issue.
He asserted that if the appellants were denied the right to participate in the referendum, their freedom of expression guaranteed by s. 2(b) of the Charter would be infringed. He also found that their rights to the equal benefit of the law guaranteed in s. 15(1) of the Charter would be infringed, finding that in the circumstances of this case, province of residence could be a personal characteristic capable of constituting a ground of discrimination. Décary J.A. further commented at p. 622 that:
The source of the infringement, should the appellant be denied his rights, would not be the Quebec legislation but, rather, the federal legislation which would have failed to take into account for the purposes of a national referendum the existing differences in provincial legislation with respect to electors' qualifications.
Since Parliament is presumed to act in conformity with the Charter, Décary J.A. determined that the issue could be resolved through statutory interpretation without placing the holding of the referendum itself in jeopardy. He concluded at p. 623 that the term "elector of a province" could be interpreted to include:
in a particular province electors who are ordinarily resident of that given province on enumeration date and who do not qualify under the residency requirements of the latter, but who were ordinarily resident in that particular province at any time in the six‑month period prior to the referendum. . . .
He recognized that his interpretation was "somewhat stretched", but would have granted the declaratory relief sought on the ground that the Federal Court of Appeal was the "next-to-last" resort of people in the appellants' position.
Constitutional Questions
The following constitutional questions were phrased by the Chief Justice:
If the Referendum Act, S.C. 1992, c. 30, and the Canada Elections Act, R.S.C., 1985, c. E‑2, exclude from voting at the federal referendum Canadian electors who have moved to Quebec but who failed to meet Quebec's six months residency requirements for voting in the provincial referendum, do these Acts, in whole or in part, violate ss. 2(b), 3 or 15(1) of the Canadian Charter of Rights and Freedoms?
If the answer to the first constitutional question stated herein is in the affirmative, is such infringement justified under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit, demonstrably justified in a free and democratic society?
Does Order-in-Council P.C. 1992-2045, enacted pursuant to s. 3(1) of the Referendum Act, S.C. 1992, c. 30, infringe the rights or freedoms guaranteed the applicants under ss. 2(b), 3 or 15(1) of the Canadian Charter of Rights and Freedoms?
If the answer to the second constitutional question stated herein is in the affirmative, is such infringement justified under s. 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit, demonstrably justified in a free and democratic society?
Issues
The constitutional questions formulated above raise but one central issue: Did Mr. Haig and those persons in a similar situation have the right to cast a ballot in the federal referendum held on October 26, 1992, either as a matter of statutory interpretation, or due to the operation of the Charter? I would answer this question by examining the following issues:
The proper interpretation of the federal referendum legislation, in particular, s. 3(1) of the Referendum Act (Canada), and ss. 53 and 55 of the Canada Elections Act.
The powers of the Chief Electoral Officer under s. 7(3) of the Referendum Act (Canada) and s. 9(1) of the Canada Elections Act to modify the provisions of the Canada Elections Act.
The constitutionality of the Referendum Act (Canada) and the Order-in-Council made thereunder, with respect to alleged violations of ss. 3, 2(b) and 15(1) of the Charter.
Statutory Interpretation of the Referendum Legislation
The first question is whether the federal referendum legislation is capable of bearing an interpretation that would allow the appellants to vote in the federal referendum. The answer to this question lies in the scope that can be given to the phrase "electors of . . . one or more provinces specified in the proclamation" in s. 3(1) of the Referendum Act (Canada).
The appellants suggest that the Court should take a broad and purposive approach to this interpretative task. I agree. Following a number of authorities on the subject, the words of Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114, at p. 1134, support this proposition:
Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.
The purpose, then, of the Referendum Act (Canada) is encapsulated in s. 3(1) of that Act:
- (1) Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada or of one or more provinces specified in that proclamation at a referendum called for that purpose.
Section 3(1) expressly provides that consultation by referendum may be carried out on a national, provincial or multi-provincial basis. Clearly, the purpose is not to obtain the opinion of electors in all Canadian provinces at all times. There could not be clearer language. In order to achieve its purpose, the Referendum Act (Canada) fashions a mechanism for obtaining the opinion of electors on questions relating to the Constitution of Canada.
Section 7(1) of the Referendum Act (Canada) adopts the Canada Elections Act (as adapted) as the model to be used in seeking the opinion of electors, a model in conformity with the purpose of the Order-in-Council. In order to be qualified as an elector under this model, s. 50 specifies that a person must be 18 years of age and a Canadian citizen. Aside from this preliminary question of qualification, the Canada Elections Act model is one which is essentially founded on notions of geography. Once a referendum has been proclaimed, s. 6(1) of the Referendum Act (Canada) directs the Chief Electoral Officer to issue writs of referendum for the provinces specified in the proclamation. Writs are issued for these provinces, these provinces are divided into electoral districts, and the electoral districts are further divided into polling divisions. The entitlement to vote under this model is contingent upon a person being ordinarily resident in one of these established polling divisions. This entitlement is clearly is set out in s. 53(1), which bears repetition:
- (1) Subject to this Act, every person who is qualified as an elector is entitled to have his name included in the list of electors for the polling division in which that person is ordinarily resident on the enumeration date for the referendum and to vote at the polling station established therein. [Emphasis added.]
In short, in order to vote in a federal referendum, a person must be both qualified as an elector, and be ordinarily resident in an established polling division in one of the provinces or territories where the referendum is held. Mr. Haig, as a Canadian citizen over the age of 18 years, comes within the definition of a qualified voter under s. 50 of the Canada Elections Act. Did he also qualify, on the enumeration date, as "ordinarily resident" in one of the polling divisions established under the federal referendum legislation?
The interpretation of the expression "ordinarily resident" is governed by the rules set out in ss. 55 to 59 and 62 of the Canada Elections Act. The general rule is that a person is ordinarily resident in the location where that person makes his or her home. Making that determination can be complex, but s. 55(2), reproduced earlier, provides required flexibility, stating that a person's ordinary residence is to "be determined by reference to all the facts of the case".
In the case before the Court, however, that determination was simple. Mr. Haig's undisputed affidavit evidence is that he ceased to be ordinarily resident in Ontario in August of 1992, and was ordinarily resident in Quebec on the enumeration date set for the federal referendum. Since Quebec was not one of the provinces listed in the federal proclamation, no writ was issued, and no polling divisions were established in Quebec for the federal referendum. On the enumeration date, Mr. Haig was not ordinarily resident in an established polling division, and he thus had no entitlement to vote in the federal referendum. This would appear to be sufficient to dispose of the matter as far as the statutory interpretation of the Referendum Act (Canada) and the Canada Elections Act are concerned. Both the purpose and the language of the legislation are clear and unambiguous, and the facts are not contested.
Mr. Haig submits, however, that despite being a resident of Quebec on the federal enumeration date, he retained the right to vote in Ontario, relying on s. 55(5) of the Canada Elections Act which states:
- . . .
(5) A person can have only one place of ordinary residence and it cannot be lost until another is gained.
He argues that, according to this section, he could not lose his ordinary residence for the purpose of voting in the federal referendum until he had qualified as an elector in Quebec, under the relevant Quebec legislation. In my view, s. 55(5) cannot by any stretch of the imagination bear this meaning.
First, such an interpretation simply cannot be sustained on the wording of the section. Section 55(5) is clear, stating merely that a person cannot be without an ordinary residence. There was no allegation that Mr. Haig was without an ordinary residence at any time. On the contrary, and by his own admission, he had an ordinary residence, and that was in the province of Quebec. What he complains of is not that he lacked an ordinary residence. His complaint is that, though resident in Quebec, he had not yet met the six-month residency requirement set out in s. 1 of the Election Act (Quebec), and so was not entitled to vote in the Quebec referendum. Neither was he entitled to cast a ballot in the federal referendum held in Ontario, as he was no longer ordinarily resident in that province. Whether one adopts a plain or purposive reading, s. 55(5) of the Canada Elections Act provides no assistance to Mr. Haig.
Second, the interpretation proposed goes not only against the wording, but also against the spirit of the Referendum Act (Canada), which expressly allows for a consultation of less than all Canadians. Accordingly, the appellants rely on the incorrect assumption that all Canadians were entitled to vote in this federal referendum, and that the question of where one actually casts one's ballot was a purely technical matter. This is clearly not so. Two distinct referenda were held. The federal referendum was held in nine provinces, and two territories. The entitlement to vote in this referendum was tied to ordinary residence in one of these jurisdictions on the enumeration date. The spirit of the Act was clearly to extend an entitlement to vote only to those people ordinarily resident in a jurisdiction specified by proclamation. It would go directly against this spirit and intent to find otherwise.
It is critical to appreciate that residency is not a purely technical matter, but is a fundamental aspect of the referendum scheme itself. This is so for a number of reasons, not the least of which is the sheer mechanics of holding a referendum. The enumeration scheme provided for under the Canada Elections Act involves scrutineers going to the ordinary residence of each voter to place his or her name on the electoral roll. In order to apply this statutory structure to the appellants, the Chief Electoral Officer would have had two choices. The first would be to send enumerators into Quebec to find and enumerate those residents of Quebec who were not yet entitled to vote in the provincial referendum. In addition to the time and expense incurred in enumerating those residents who have been in Quebec for less than six months, this option would also require enumerators to operate extra-territorially in a province for which no federal referendum writ was issued. The second choice would be to attempt to enumerate the persons who had recently moved to Quebec in the polling division they left behind. Besides involving similar issues of time, difficulty and expense, this option leaves unanswered the question of how these people would even be located. It goes without saying that both of these options expressly conflict with the requirements of s. 53(1), by allowing for the enumeration of people who are not ordinarily resident in an established polling division. In addition to the difficulties involved in the mechanics of enumeration, there would also have been difficulties related to the mechanics of how these non-residents would be able to vote. It is clear that the interpretation proposed by the appellants would require a highly crafted administrative system, a system that is notably absent from the legislation. In my view, the interpretation of s. 55(5) proposed by the appellants would simply be unworkable, and it cannot be presumed that such an interpretation or result could have been foreseen, let alone intended, by Parliament.
Finally, I must add that the interpretative approach proposed by the appellants is one which would do violence to all cannons of interpretation as well as to legislative integrity. The appellants are asking the Court to conclude that ordinary residence under the Referendum Act (Canada) cannot be lost until one is entitled to vote under the Referendum Act (Quebec). To arrive at such a conclusion, the Court would be required to alter the clear meaning of provisions drafted by the federal government in order to accommodate exigencies arising from provisions drafted by a completely different legislative body, one over which the federal legislator has no authority whatsoever. To do this would be to cut away at the authority of legislative bodies to draft statutory instruments that they feel best reflect their specific purposes and goals. Such a conclusion would strike a blow at the autonomy and independence of legislative bodies in a federal system. It is clear that, carried in different settings, such an interpretative approach would have incredible and untenable consequences.
I conclude that the Referendum Act (Canada) and the Canada Elections Act could not properly be interpreted to extend an entitlement to vote to those Canadian citizens who, on the enumeration day, were not ordinarily resident in one of the jurisdictions where, pursuant to the Order-in-Council, the federal government held its referendum.
Powers of the Chief Electoral Officer
It was argued and it is the minority's view that, notwithstanding the clear and unambiguous terms of the legislation, the Chief Electoral Officer had, pursuant to s. 7(3) of the Referendum Act (Canada) and s. 9(1) of the Canada Elections Act, the discretion to adapt or interpret the Canada Elections Act so as to assist the appellants. Do these sections, then, confer upon the Chief Electoral Officer the authority to treat residents of Quebec as if they were residents of another province in order to enable them to vote in the federal referendum? In my view, they do not.
According to s. 7(3) of the Referendum Act (Canada), the Chief Electoral Officer may "adapt the Canada Elections Act in such a manner as [he] considers necessary for the purposes of applying that Act in respect of a referendum". Clearly, the discretion accorded the Chief Electoral Officer may be exercised only where adaptations of the Canada Elections Act are deemed necessary to facilitate the holding of a specific referendum. Though the Chief Electoral Officer is given a discretionary power to adapt the legislation, this power does not extend to authorize a fundamental departure from the scheme of the Referendum Act (Canada). In exercising his discretion, he must remain within the parameters of the legislative scheme.
As noted above, residence is a pivotal feature of the referendum scheme as captured in both pieces of federal legislation. The Order-in-Council directed that a referendum be held in a number of clearly specified jurisdictions. Where electors were not ordinarily resident in those jurisdictions, they had no entitlement to vote in that referendum. The discretionary power of the Chief Electoral Officer cannot be exercised to extend the entitlement to vote beyond the parameters established in the Order-in-Council. Were he to adapt the legislation in a manner that extended the reach of the underlying Order-in-Council, the Chief Electoral Officer would exceed the boundaries of his jurisdiction and, in my view, he would be exposed to having his decision quashed upon judicial review.
It was suggested that s. 9(1) of the Canada Elections Act, referred to earlier, provides more expansive remedial powers. This section bears repetition here:
- (1) Where, during the course of a referendum, it appears to the Chief Electoral Officer that, by reason of any mistake, miscalculation, emergency or unusual or unforeseen circumstance, any of the provisions of this Act do not accord with the exigencies of the situation, the Chief Electoral Officer may, by particular or general instructions extend the time for doing any act, increase the number of referendum officers or polling stations or otherwise adapt any of the provisions of this Act to the execution of its intent, to such extent as he considers necessary to meet the exigencies of the situation. [Emphasis added.]
Although the text of this section seems very broad, it only contemplates situations where the provisions of the legislation do not accord with particular needs arising out of any "mistake, miscalculation, emergency or unusual or unforeseen circumstance". The appellants argue that their situation, falling in the gap between the provisions of a provincial and a federal referendum, was just such an unusual and unforeseen occurrence. Clearly, it could not fall within the terms "mistake, miscalculation [or] emergency". In my view, Mr. Haig's situation is neither an unusual nor an unforeseen circumstance. The Referendum Act (Canada) expressly states that a referendum may be directed at the electors of specific provinces. The exclusion of electors not resident in those provinces on the enumeration date is the clear and unambiguous consequence of the legislative scheme adopted. It is entirely foreseeable and in no way unusual that those people who do not meet the minimal requirements set out in the legislation will not be entitled to vote, whether in a referendum or in an election.
Section 9(1) of the Canada Elections Act is also restricted to adaptations designed to facilitate the "execution of its intent". The object of the Canada Elections Act, as adapted for the referendum, is to ensure that those who are entitled to vote are given an opportunity to do so. The object is not to enfranchise those who are not entitled to vote. To invoke s. 9(1) in aid of the appellants would distort the fundamental voting scheme, in a manner contrary to the intent of both the Canada Elections Act and the Referendum Act (Canada). In my opinion, the conditions necessary for the exercise of the remedial discretion accorded the Chief Electoral Officer in s. 9(1) of the Canada Elections Act were simply not present in this case.
However, even if I were to conclude that the Chief Electoral Officer had the statutory authority to make arrangements to allow for the enumeration of the appellants, he was not required to make such arrangements. The power given the Chief Electoral Officer in s. 9(1) of the Canada Elections Act is a discretionary power. In the absence of a Charter violation, this discretion remained to be exercised by the Chief Electoral Officer as he saw fit, and he cannot be compelled by a court to exercise it in a specific fashion, unless, of course, such discretion was not exercised judicially, which is not the case here.
In short, I find that the Chief Electoral Officer could not, without acting outside his jurisdiction under the Order-in-Council, accommodate Mr. Haig's circumstances and in no way was he remiss in his duty on the basis that he neglected to use the discretionary and remedial powers accorded to him by s. 7(3) of the Referendum Act (Canada) and s. 9(1) of the Canada Elections Act. These provisions did not entitle nor require him to supersede or extend the purpose and intent, expressed in clear and unambiguous terms, of the legislation. The appellants' argument in this connection must fail.
After writing these reasons, I have had the opportunity to read the reasons of my colleague Cory J. and must emphasize that I find myself in total agreement with the principles he advances, particularly as to the importance to Canadians of the right to vote, in elections as well as referenda. I also agree that the Referendum Act (Canada) "encourages a very broad view of residence" (p. 000).
Since, however, Mr. Haig, in this case, never alleged nor even argued before us that he had an Ontario residence or any connection whatsoever to the province of Ontario on the enumeration date in Ontario, the question of the discretionary power of the Chief Electoral Officer to allow him to vote in the federal referendum on that basis was never raised. The only question raised in this appeal, as far as the Chief Electoral Officer is concerned, was his power to extend the federal referendum residing requirements to persons who were not residents on the enumeration date in a province or territory where the federal referendum was held. This, in my view, the Chief Electoral Officer has no power to do.
As my colleague suggests, however, had Mr. Haig, and others in the same position, applied to the Chief Electoral Officer for a determination of his right to vote in Ontario on the basis of a substantial connection with Ontario on the enumeration date, it would have been up to the Chief Electoral Officer to exercise his discretionary power. This, of course, would be a different case.
Constitutionality
It should be emphasized at this point that, though the Quebec referendum legislation did not allow the appellants to vote in the Quebec referendum, the Quebec legislation was never challenged by the appellants. This is hardly surprising since, in Canada's constitutional system, the provinces have and retain authority to establish rules governing voting within the province. Territorial exigencies, such as those present in the northern territories, may justify a host of rules particular to a given province, and the possibility of such divergence is woven into the very fabric of Canadian federalism itself. No one has challenged the residency requirements established in the Quebec legislation, nor argued that they are in any way unconstitutional.
The only enactments challenged are the Referendum Act (Canada), the Canada Elections Act and the Order-in-Council as infringing upon the Charter rights of the appellants. The appellants submit that, to the extent that they were unable to participate in the federal referendum, they were deprived of their constitutional right to vote (s. 3), of their freedom of expression (s. 2(b)), and of their right to equal benefit of the law (s. 15(1)). They set out two alternative sources of this Charter violation: first, they challenge the provisions of the Referendum Act (Canada) and the Canada Elections Act as constitutionally under-inclusive to the extent that they failed to make provision for the enumeration of the appellants in a "national" referendum; alternatively, they submit that the Order-in-Council itself violated the Charter by failing to include the province of Quebec.
Leaving aside for the moment the Charter issues, I am of the view that neither of these alternative arguments has any merit. I would make only the following two comments at this juncture. First, the argument that the legislation is constitutionally under-inclusive received some support in the dissenting reasons of Décary J.A. However, the argument rests upon the flawed fundamental assumption that there was a "national" referendum. There was in fact no such "national" federal referendum. There were two referenda held on October 26, 1992, both, it is true, concerning the Charlottetown Accord, but pursuant to separate and distinct legislative schemes. Though the federal government may well have taken note of the results of the Quebec referendum, it would be unfounded in law to suggest that the federal government "allowed" Quebec to administer part of what was really a "national" referendum. Quebec did not need the authorization of the federal government to hold its referendum, and the Quebec referendum legislation was not within federal control or authority. Had the federal government wished to hold a "national" referendum, it could have included Quebec in the proclamation. Though it had every right to do so, it chose not to, as it also had the right to do.
Second, the appellants challenge the constitutionality of the federal Order-in-Council itself. In this regard, I fully agree with Hugessen J.A. that "there is no constitutional impropriety in a federal order in council requiring a referendum to be held in some but not all of the provinces". In fact, there is nothing in the Canadian Constitution which relates to referenda, let alone anything that mandates or prevents this type of consultation by either the federal or provincial governments. The propositions of the appellants to the contrary simply cannot be sustained. The decision to hold a federal referendum in nine provinces and two territories was a constitutionally permissible one. It was a political choice, a choice open under the legislation, and a choice consistent with principles of federalism. What is left to consider, then, is whether this choice was also consistent with the obligations of the federal government under the Charter. It is to that issue that I now turn.
Section 3: The Right to Vote
Does s. 3 of the Charter guarantee to every citizen of Canada the right to participate in a federal referendum, independently of the terms of the federal referendum legislation? Section 3 of the Charter reads as follows:
- 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.
The wording of the section, as is immediately apparent, is quite narrow, guaranteeing only the right to vote in elections of representatives of the federal and the provincial legislative assemblies. As Professor Peter Hogg notes in Constitutional Law of Canada (3rd ed. 1992), vol. 2, at p. 42-2, the right does not extend to municipal elections or referenda.
In Reference re Provincial Electoral Boundaries (Sask.), 1991 61 (SCC), [1991] 2 S.C.R. 158, this Court had occasion to more fully consider the content of s. 3 of the Charter. Writing in the context of a provincial election, Cory J., dissenting but not on this point, articulated at p. 165 that "[t]he right to vote is synonymous with democracy". Clearly, in a democratic society, the right to vote as expressed in s. 3 must be given a content commensurate with those values embodied in a democratic state. For the majority of the Court, McLachlin J. concluded at p. 183 that it is the Canadian system of effective representation that is at the centre of the guarantee:
. . . the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". Ours is a representative democracy. Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one's grievances and concerns to the attention of one's government representative. [Emphasis in original.]
The purpose of s. 3 of the Charter is, then, to grant every citizen of this country the right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate.
The democratic rights contained in ss. 3, 4 and 5 of the Charter are quite explicitly articulated. In his discussion in "Democratic Rights", in G.‑A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 265, Professor Beaudoin summarizes these rights at p. 266 as:
The right to choose the government, the right to seek public office, the right to vote periodically, freely and in secret and the right for those elected to sit regularly are the bases of democratic rights.
The democratic rights guaranteed in the Charter are also positive ones. Federal and provincial governments have a mandate to hold regular elections to allow citizens to select their representatives. The failure to hold such regular elections would violate the Charter, would open the government to account for such constitutional infringements, and would undoubtedly provoke a constitutional crisis. Since the results of an election are clearly binding upon citizens in a democratic society, failure to act upon such results would entail a serious constitutional breach.
A referendum, on the other hand, is basically a consultative process, a device for the gathering of opinions. Voting in a referendum differs significantly from voting in an election. First, unless it legislatively binds itself to do so, a government is under no obligation to consult its citizens through the mechanism of a referendum. It may, as did Quebec under Bill 150, bind itself to conduct a specific referendum but, in the absence of such legislation, there is no obligation to hold this type of consultation. Second, though a referendum may carry great political weight and a government may choose to act on the basis of the results obtained, such results are non-binding in the absence of legislation requiring a government to act on the basis of the results obtained. In the absence of binding legislation, the citizens of this country would not be entitled to a legal remedy in the event of non-compliance with the results. Were a government to hold a referendum and then ignore the results, the remedy would be in the political and not the legal arena. These differences provide further evidence that the constitutionally guaranteed right to vote does not contemplate the right to vote in a referendum.
Section 3 of the Charter is clear and unambiguous as is its purpose: it is limited to the elections of provincial and federal representatives. Consequently, since a referendum is in no way such a selection, the citizens of this country cannot claim a constitutional right to vote in a referendum under s. 3 of the Charter. Accordingly, Mr. Haig's s. 3 Charter rights were not infringed because he could not cast his ballot in the federal referendum.
Section 2(b): Freedom of Expression
Mr. Haig also claims that the fact that he could not vote in the federal referendum infringed his freedom of expression. Expressing one's opinion on the Charlottetown Accord, according to Mr. Haig, is an attempt to convey meaning, the content of which relates to political discourse, which is at the core of s. 2(b) of the Charter and enjoys the highest degree of protection. The content of this expression, he says, cannot be meaningfully examined apart from its form, namely, participation in the referendum itself. Consequently, he urges the Court to find that the actual casting of a ballot in a federal referendum is a protected form of expression, asserting that s. 2(b) of the Charter mandates not only immunity from state interference, but also an affirmative role on the part of the state in providing this specific means of expression.
The Court has, on many occasions, considered the freedom of expression guaranteed in s. 2(b) of the Charter. (See RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; BCGEU v. British Columbia (Attorney General), 1988 3 (SCC), [1988] 2 S.C.R. 214; Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General), 1988 20 (SCC), [1988] 2 S.C.R. 790; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892; R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731). Both Canadian society and the courts have at all times recognized that freedom of expression is a fundamental value in Canada. This Court has abundantly discussed the values underlying freedom of expression, and since those values are not in dispute here, it is not necessary to delve into them at great length. Nor is it in dispute that the activity of casting a ballot is an expressive one. As Dickson C.J. and Lamer and Wilson JJ. noted in Irwin Toy, supra, at p. 968, "`Expression' has both a content and a form, and the two can be inextricably connected". Referenda are in fact an illustration of this phenomenon, and in this context, it would be artificial to separate the form of expression from its content. The casting of a ballot in a referendum is undoubtedly a means of expression, but again, this is not in dispute here.
At issue is whether s. 2(b) of the Charter guarantees to all Canadians the right to vote in a referendum. In failing to ensure that each Canadian was provided with the opportunity to vote in the federal referendum, did the federal government infringe upon their freedom of expression guaranteed in s. 2(b) of the Charter? Does freedom of expression include a positive right to be provided with specific means of expression?
As a starting point, I would note that case law and doctrinal writings have generally conceptualized freedom of expression in terms of negative rather than positive entitlements. In The System of Freedom of Expression (1970), T. I. Emerson, speaking of the United States Bill of Rights whose First Amendment provision is even more stringent than its Canadian Charter counterpart, observes at p. 627:
The traditional premises of the system [of freedom of expression] are essentially laissez-faire in character. They envisage an open marketplace of ideas, with all persons and points of view having equal access to the means of communications. In supporting this system, the First Amendment has played a largely negative role: it has operated to protect the system against interference from the government. Thus the issues have turned for the most part upon reconciling freedom of expression with other special interests that the government seeks to safeguard. The development of legal doctrine has been primarily in the evolution of a series of negative commands. [Emphasis added.]
Like its United States First Amendment counterpart, the Canadian s. 2(b) Charter jurisprudence has been shaped by these same foundational premises, focusing mainly on attempts by governments to place limitations on what can be expressed. The traditional question before courts has been: to what extent can freedom of expression be justifiably limited? The answer has been that individuals can expect to be free from government action the purpose or effect of which is to deny or abridge freedom of expression, unless the restraint is one that can be justified in a free and democratic society in accordance with s. 1 of the Charter.
It has not yet been decided that, in circumstances such as the present ones, a government has a constitutional obligation under s. 2(b) of the Charter to provide a particular platform to facilitate the exercise of freedom of expression. The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones. A case on point is Re Allman and Commissioner of the Northwest Territories (1983), 1983 2934 (NWT SC), 144 D.L.R. (3d) 467 (N.W.T.S.C.), aff'd (1983), 1983 2847 (NWT CA), 8 D.L.R. (4th) 230 (C.A.), leave to appeal to S.C.C. denied, [1984] 1 S.C.R. v. Mr. Allman challenged the constitutionality of a three-year residency requirement contained in a territorial Plebiscite Ordinance that prevented him from voting in an upcoming referendum. The trial judge made the following observation at p. 479:
The "freedom of thought, belief, opinion and expression" referred to in para. 2(b) of the Charter, on which the applicants rely, is therefore to be understood as recognition of a claim which anyone may make against the state . . . to non-interference in matters of thought, belief, opinion and expression. . . .
The applicants' complaint in these proceedings . . . falls instead into the class of a "demand for state intervention" to provide access to the means of expression available to those designated as voters by the Ordinance. . . .
The trial judge concluded that no such entitlement existed, and that Mr. Allman did not have a right to be provided with access to a specific means of expression. The Court of Appeal agreed with that conclusion at p. 236:
. . . the expression of opinion sought by a plebiscite under the Plebiscite Ordinance has nothing at all to do with the fundamental freedom of expression guaranteed by the Canadian Charter. It does not abridge or abrogate the fundamental freedom of expression previously enjoyed by the applicants as a guaranteed birthright. It is a supplementary forum created by the territorial government for its own information purposes. The fact that the applicants were denied the opportunity to participate in a public opinion poll did not detract from their fundamental right to speak out and express their views on the subject-matter, whether individually or through the media. [Emphasis added.]
The approach followed in Allman, supra, rests firmly on the traditional foundational premises outlined above. However, it is these very premises that are being challenged by the appellants. While the basic theoretical framework underlying freedom of expression has remained unchanged over the past two hundred years, the appellants point out that the political, economic and social conditions under which the theory must be applied have changed significantly. They urge that true freedom of expression must be broader than simply the right to be free from interference, referring to Emerson's claim in The System of Freedom of Expression, supra, at p. 4, that the state "has a more affirmative role to play in the maintenance of a system of free expression in modern society".
I would agree, and it is well understood, that a philosophy of non-interference may not in all circumstances guarantee the optimal functioning of the marketplace of ideas. Clare Beckton notes in "Freedom of Expression" in W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (1982), 75, at p. 76:
Generally the fundamental freedoms are guaranteed by placing limitations on the state's ability to abrogate or abridge them. While this can ensure that the state will not erode these guarantees, it does not ensure that freedom of expression will be fostered.
Owen M. Fiss, for his part, in "Free Speech and Social Structure" in J. Lobel, ed., A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution (1988), 346 at p. 352, writes that in modern society, freedom of expression "depends on the resources at one's disposal, and it reminds us that more is required these days than a soapbox, a good voice, and the talent to hold an audience." As he points out, speech often takes place under conditions of scarcity. Both the resources and the very opportunities for speech may tend to be limited, whether by time, lack of money, unavailability of space, or even by our capacity to digest and process information.
Does this inevitably lead to the conclusion that the constitutional guarantees of freedom of expression may import more than the absence of government interference? Some people have suggested that it might. Jean Jacques Blais, in "Freedom of Expression and Public Administration" in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 446, expresses the view that, for example, the concentration of media ownership in Canada may not be in the public interest, and that there may be a more positive role for government to play in diffusing ownership to ensure a more vigorous exercise of freedom of expression amongst the mass media. Along the same lines, Allan C. Hutchinson, in "Money Talk: Against Constitutionalizing (Commercial) Speech" (1990), 17 Can. Bus. L.J. 2, at pp. 31 and 33, observes that literature produced by striking Molson workers could not gain wide dissemination due to restrictions set by the mass media. Yves de Montigny, in "The Difficult Relationship Between Freedom of Expression and Its Reasonable Limits" (1992), 55 Law & Contemp. Probs. 35 expresses a similar view at p. 40:
While it is accurate to claim that government interference is very often inconsistent with individual freedom, it is equally accurate to say that genuine autonomy presupposes the legislature's active intervention if necessary.
In Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313, a case dealing with the boundaries of freedom of association, Dickson C.J. (dissenting) addressed this same concern at p. 361:
Section 2 of the Charter protects fundamental "freedoms" as opposed to "rights". Although these two terms are sometimes used interchangeably, a conceptual distinction between the two is often drawn. "Rights" are said to impose a corresponding duty or obligation on another party to ensure the protection of the right in question whereas "freedoms" are said to involve simply an absence of interference or constraint. This conceptual approach to the nature of "freedoms" may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms (e.g., regulations limiting the monopolization of the press may be required to ensure freedom of expression and freedom of the press). [Emphasis added.]
Although that case did not involve a request for government action, but dealt rather with legislative action alleged to interfere with a freedom, Dickson C.J. seems to imply that fundamental freedoms might, in some situations, impose affirmative duties on a state.
At this point, it is important to emphasize that, in talking about freedom of expression, a variety of vocabularies have been employed. People have sometimes used the language of negative and positive entitlements, sometimes focusing on distinctions between rights and freedoms, other times on distinctions between "liberty to" and "liberty of". (For example, see I. Berlin, "Two Concepts of Liberty", in Four Essays on Liberty (1969), at pp. 118-72; A. W. Mackay, Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713; and W. R. Lederman, "Democratic Parliaments, Independent Courts, and the Canadian Charter of Rights and Freedoms" (1985), 11 Queen's L.J. 1). There may be value to these conceptual distinctions as they provide frameworks which can assist in an analysis of the issues, interests and values that shape a conclusion that a right has or has not been violated.
However, as Dickson C.J. rightly observed, this language cannot be used in a dogmatic fashion. The distinctions between "freedoms" and "rights", and between positive and negative entitlements, are not always clearly made, nor are they always helpful. One must not depart from the context of the purposive approach articulated by this Court in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295. Under this approach, a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required. This might, for example, take the form of legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information.
In the proper context, these may perhaps be relevant considerations leading a court to conclude that positive governmental action is required. However, these considerations do not arise in our case. The context here is a referendum whose legality and legitimacy have been recognized. First, the provisions of the Referendum Act (Canada) allow for a referendum to be held in some provinces and not others, and that is what was done here. Second, as discussed earlier, s. 3 of the Charter does not guarantee Canadians a constitutional right to vote in a referendum. Third, the referendum itself, far from stifling expression, provided a particular forum for such expression.
The observations of Le Dain J. (Beetz and La Forest JJ. concurring) in Reference re Public Service Employee Relations Act (Alta.), supra, provide some insight. In the context of s. 2(d) of the Charter, he commented at p. 391:
What is in issue here is not the importance of freedom of association in this sense, which is the one I ascribe to s. 2(d) of the Charter, but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection is sought ‑‑ the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer are ‑‑ not fundamental rights or freedoms. They are the creation of legislation. . . . [Emphasis added.]
These comments find application to the issue before us. As I stated at the outset, there is no dispute concerning the importance of freedom of expression. Nor is it disputed that voting is a form of expression. Further, in the context of legislative elections, it is clear that voting as a means of expression is constitutionally entrenched in s. 3 of the Charter. However, there is just as clearly no constitutionally entrenched right to vote in a referendum.
A referendum is a creation of legislation. Independent of the legislation giving genesis to a referendum, there is no right of participation. The right to vote in a referendum is a right accorded by statute, and the statute governs the terms and conditions of participation. The Court is being asked to find that this statutorily created platform for expression has taken on constitutional status. In my view, though a referendum is undoubtedly a platform for expression, s. 2(b) of the Charter does not impose upon a government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum. Nor does it confer upon all citizens the right to express their opinions in a referendum. A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone. A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law.
The following caveat is, however, in order here. While s. 2(b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. The traditional rules of Charter scrutiny continue to apply. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion, and particularly not on ground prohibited under s. 15 of the Charter.
I would add that issues of expression may on occasion be strongly linked to issues of equality. In Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, the Court said that s. 15 of the Charter is indeed a hybrid of positive and negative protection, and that a government may be required to take positive steps to ensure the equality of people or groups who come within the scope of s. 15. It might well be that, in the context of a particular equality claim, those positive steps may involve the provision of means of expression to certain groups or individuals. However, despite obvious links between various provisions of the Charter, I believe that, should such situations arise, it would be preferable to address them within the boundaries of s. 15, without unduly blurring the distinctions between different Charter guarantees.
In short, I am of the view that, in the context of the federal referendum held in this case, freedom of expression did not include a constitutional right for all Canadians to be provided with a specific means of expression. Accordingly, the federal government did not violate s. 2(b) of the Charter either in holding its referendum or in holding it in less than all provinces and territories. The appellants were unable to cast their ballot simply because, on the enumeration date, they were not ordinarily resident in a province where the federal referendum was held, a limitation which does not infringe the appellants' freedom of expression as guaranteed in the Charter.
This leads us to the third alleged Charter violation. In providing a platform of expression to less than all Canadians, did the government infringe the appellants' s. 15(1) guarantee to the equal benefit of the law?
Section 15(1): Equality
Section 15(1) of the Charter guarantees the right to equality in the following terms:
- (1) 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.
To the extent that they were unable to vote in the federal referendum, the appellants allege that they were denied the equal benefit of the law. In their opinion, once the federal government decided to hold a "national" referendum on the Charlottetown Accord, it was compelled by s. 15(1) of the Charter to afford every qualified Canadian citizen the opportunity to participate in that vote. Since the appellants were not given this opportunity, they forward the proposition that the differential treatment they received was based on a prohibited ground of discrimination. They advance two arguments in this regard: first, that they were improperly denied equal benefit of the law as new residents of a province; alternatively, that all residents of Quebec were improperly denied equal benefit of the law as a result of the failure to include Quebec in the Order-in-Council.
At the outset, I would reiterate the earlier observation that there was in fact no "national" referendum. The appellants were not afforded an opportunity to vote in the federal referendum simply because they were not ordinarily resident in a polling division established under the Referendum Act (Canada). However, was this distinction, one made between the appellants and those Canadians who were ordinarily resident in one of those polling divisions, a distinction which was based on a prohibited ground of discrimination?
In Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, McIntyre J. at p. 174 defined prohibited discrimination under s. 15(1) as:
. . . a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
He also noted that not all distinctions and differentiations are discriminatory. A complainant under s. 15(1) must establish that he or she is a member of a discrete and insular minority group, that the group is defined by characteristics analogous to the enumerated grounds of discrimination set out in s. 15(1), and that the law has a negative impact. In determining whether a group is analogous to those that are enumerated within s. 15(1) of the Charter, Wilson J. in R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, at p. 1333, focused on the larger context by searching for indicia of discrimination such as "stereotyping, historical disadvantage or vulnerability to political and social prejudice".
Against this background, the appellants submit that a person's place of residence may be a personal characteristic which is analogous to those prohibited grounds listed in s. 15(1). Though this may well be true in a proper case, this case is not such a case. It would require a serious stretch of the imagination to find that persons moving to Quebec less than six months before a referendum date are analogous to persons suffering discrimination on the basis of race, religion or gender. People moving to Quebec less than six months before a referendum date do not suffer from stereotyping, or social prejudice. Though its members were unable to cast a ballot in the Quebec referendum, the group is not one which has suffered historical disadvantage, or political prejudice. Nor does the group appear to be "discrete and insular". Membership in the group is highly fluid, with people constantly flowing in or out once they meet Quebec's residency requirements. As they do not exhibit any of the traditional indicia of discrimination, I cannot find that new residents of a province constitute a group which merits the creation of a new s. 15(1) category.
The appellants' alternative argument was that not simply new residents, but rather all residents of Quebec suffered discrimination. That is, they state that the federal government discriminated against all residents of the province of Quebec by failing to include Quebec in the proclamation. It is clear that at the base of the appellants' complaint is the existence of a scheme which allows for one province to be exempted from the scope of federal legislation. Even had the appellants been entitled to vote in the Quebec referendum, the central question would remain: Does the exclusion of one province from a piece of federal legislation violate s. 15(1) of the Charter?
The appellants contend that the differential application of federal law to the provinces can only be tolerated if it is "legitimate" and advances the values of a federal system. In their view, the decision to hold a referendum in only nine provinces did not advance these values. The appellants thus ask the Court to assess the legitimacy of the political decision not to include Quebec in the federal referendum, and to find that this decision was based on the prohibited ground of province of residence, and that it thus violated the s. 15(1) rights of all citizens of Quebec to the equal benefit of the law.
In Turpin, supra, the Court considered a provision in the Criminal Code which allowed for murder trials by judge alone only in the province of Alberta. An accused outside of Alberta who wanted a trial by judge alone argued that his equality rights were violated. Wilson J., finding that province of residence did not form the basis of a claim in the case before her, clearly left open that possibility that in some situations it might. Residence based equality rights were more fully articulated by Dickson C.J. in R. v. S. (S.), 1990 65 (SCC), [1990] 2 S.C.R. 254. In that case, the Young Offenders Act permitted provinces to set up "alternative measures" programs to deal with young offenders. The Attorney General for Ontario made the decision not to implement such a program. The Court held that this was not a violation of s. 15(1), emphasizing at p. 285 the discretion of the Attorney General to implement such federal programs:
Once it is determined that there is no duty on the Attorney General for Ontario to implement a program of alternative measures, the non-exercise of discretion cannot be constitutionally attacked simply because it creates differences as between provinces. To find otherwise would potentially open to Charter scrutiny every jurisdictionally permissible exercise of power by a province, solely on the basis that it creates a distinction in how individuals are treated in different provinces. The Attorney General for Ontario was under no legal obligation to implement a program and, in my opinion, the decision is unimpeachable because, for the purposes of a constitutional challenge on the basis of s. 15(1) of the Charter, "the law" is s. 4, which grants the discretion. [Emphasis added.]
Dickson C.J. added at p. 286 his opinion that the result "would be no different had s. 4 of the Young Offenders Act been challenged directly".
These comments are apposite here. Section 3(1) of the Referendum Act (Canada) confers upon the Governor in Council a discretionary power to direct that a referendum be held in any number of provinces. Nowhere in the Canadian Constitution is there mention of an obligation on the Governor in Council to hold a referendum, or to see that a referendum is held in all provinces. Both the decision to hold a referendum, and the decision as to the number of provinces in which a referendum will be held are policy decisions left entirely to governments and legislatures. They involve matters of political consideration. Besides, the Governor in Council is not required to justify the reasons for any particular exercise of his discretion. As Dickson J. said in Thorne's Hardware Ltd. v. The Queen, 1983 20 (SCC), [1983] 1 S.C.R. 106, at pp. 112-13:
Governments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations.
Clearly, in a federal system, province-based distinctions do not automatically give rise to a presumption of discrimination. Section 15(1) of the Charter, while prohibiting discrimination, does not alter the division of powers between governments, nor does it require that all federal legislation must always have uniform application to all provinces. It is worth emphasizing that, as Dickson C.J. commented in R. v. S. (S.), supra, at pp. 289-92, differential application of federal law in different provinces can be a legitimate means of promoting and advancing the values of a federal system. Differences between provinces are a rational part of the political reality in the federal process. Difference and discrimination are two different concepts and the presence of a difference will not automatically entail discrimination.
The motives which might have guided the decision of the Governor in Council to hold a referendum are not here in dispute, and it is not the task of courts to second-guess the legislature on its political judgment. The decision to hold a referendum in a specific number of provinces is a constitutionally permissible exercise of the discretion accorded to the government under s. 3(1) of the Referendum Act (Canada). The fact that the legislature decided not to hold a referendum in the province of Quebec did not violate the constitutional guarantees contained in s. 15(1) of the Charter. The appellants had no constitutional right to an Order-in-Council directing that a federal referendum be held in all Canadian provinces and territories.
In conclusion, the provisions of the Referendum Act (Canada) and the Canada Elections Act are constitutionally valid and, properly interpreted, they did not grant the appellants an entitlement to vote in the federal referendum. In not enumerating the appellants, the Chief Electoral Officer did not err in the exercise of the discretionary and remedial powers accorded him by s. 7(3) of the Referendum Act (Canada) and s. 9(1) of the Canada Elections Act. Finally, the exclusion of the appellants from the federal referendum did not violate the appellants' constitutional rights under ss. 3, 2(b) or 15(1) of the Charter. In light of these findings, I would dismiss the appeal and answer the constitutional questions articulated by the Chief Justice as follows:
No.
Not necessary to answer.
No.
Not necessary to answer.
As in the courts below, I will make no order as to costs.
//Cory J.//
The following are the reasons delivered by
Cory J. -- I have read with great interest the excellent reasons of Justice L'Heureux-Dubé. However, with respect to residency requirements, I differ from her with regard to the authority, the duties and the nature of the role of the Chief Electoral Officer.
In this appeal consideration must be given to the nature of the right to vote and how statutes which enact that right should be interpreted.
The Approach to the Interpretation of Statutory Franchise Provisions
All forms of democratic government are founded upon the right to vote. Without that right, democracy cannot exist. The marking of a ballot is the mark of distinction of citizens of a democracy. It is a proud badge of freedom. While the Canadian Charter of Rights and Freedoms guarantees certain electoral rights, the right to vote is generally granted and defined by statute. That statutory right is so fundamental that a broad and liberal interpretation must be given to it. Every reasonable effort should be made to enfranchise citizens. Conversely, every care should be taken to guard against disenfranchisement.
The principle was captured by J. P. Boyer in Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections (1987), vol. 1, at p. 383:
Drawing two short lines to form an "X" is the simplest act imaginable. Yet the right to so mark a ballot is as profound as the act is simple. Such marks, systematically compiled, are transformed by our beliefs and our laws into the most eloquent voice the people have.
The right to cast a vote for those seeking public office is encircled by procedures and laws designed not to make the exercise of this right difficult (although someone frustrated at not being able to vote for a technical reason may feel this is the case), but rather to ensure that it cannot be easily swept away.
The courts have always recognized the fundamental importance of the vote and the necessity to give a broad interpretation to the statutes which provide for it. This traditional approach is not only sound it is essential for the preservation of democratic rights. The principle was well expressed in Cawley v. Branchflower (1884), 1 B.C.R. (Pt. II) 35 (S.C.). There Crease J. wrote at p. 37:
The law is very jealous of the franchise, and will not take it away from a voter if the Act has been reasonably complied with. . . . It looks to realities, not technicalities or mere formalities, unless where forms are by law, especially criminal law, essential, or affect the subject-matter under dispute. [Emphasis added.]
To the same effect in Re Lincoln Election (1876), 2 O.A.R. 316, Blake V.C. stated (at p. 323):
The Court is anxious to allow the person who claims it the right to exercise the franchise, in every case in which there has been a reasonable compliance with the statute which gives him the right he seeks to avail himself of. No merely formal or immaterial matter should be allowed to interfere with the voter exercising the franchise . . . .
It can be seen that enfranchising statutes have been interpreted with the aim and object of providing citizens with the opportunity of exercising this basic democratic right. Conversely restrictions on that right should be narrowly interpreted and strictly limited.
The Importance of the Right to Vote on the Referendum
During the course of the hearing an argument was advanced that a referendum was distinct from and less important than an election. It was argued that, as a result, the generous principles applicable to the right to vote in elections should not apply with the same force to a referendum. I cannot accept that contention. A vast amount of public study, effort and time was expended in drafting the terms of the Charlottetown Accord. Every effort was made to advise Canadians of the importance of the referendum pertaining to it and the significance of the vote of every citizen. The number of voters exercising their franchise in the referendum was comparable to the turnout in federal elections. In the minds of most Canadians, the referendum was every bit as important as an election. If it was not, then Canadians would be clearly justified in wondering what all the fuss was about. The same principles applicable to the right to vote in elections should be applied in the same manner to the right to vote in a referendum.
Residency Requirements and the Interpretation of "ordinarily resident"
It follows that it was the duty of the Chief Electoral Officer to insure that as many Canadians as possible were enfranchised in every situation where that result could be attained without infringing the law.
Let us review the legislation governing the referendum and the right to vote in that referendum.
Section 7 of the Referendum Act, S.C. 1992, c. 30, provides in part:
- (1) Subject to this Act, the Canada Elections Act, as adapted pursuant to subsection (3), applies in respect of a referendum, and, for the purposes of that application, the issue of writs of referendum shall be deemed to be the issue of writs for a general election.
(3) Subject to this Act, the Chief Electoral Officer may, by regulation, adapt the Canada Elections Act in such manner as the Chief Electoral Officer considers necessary for the purposes of applying that Act in respect of a referendum.
Sections 50(1), 53(1) and 55(1) to (5) of the Canada Elections Act, R.S.C., 1985, c. E-2 (as adapted for the purposes of a referendum by SOR/92-430) read:
- (1) Every person who
(a) has attained the age of eighteen years, and
(b) is a Canadian citizen,
is qualified as an elector.
(1) Subject to this Act, every person who is qualified as an elector is entitled to have his name included in the list of electors for the polling division in which that person is ordinarily resident on the enumeration date for the referendum and to vote at the polling station established therein.
(1) The rules in this section and sections 56 to 59 and 62 apply to the interpretation of the expressions "ordinarily resident" and "ordinarily resided" in any section of this Act in which those expressions are used with respect to the right of a voter to vote.
(2) Subject to this section and sections 56 to 59 and 62, the question as to where a person is or was ordinarily resident at any material time or during any material period shall be determined by reference to all the facts of the case.
(3) The place or ordinary residence of a person is, generally, the place that has always been, or that the person has adopted as, the place of his habitation or home, and to which he intends to return when he is away from it.
(4) Where a person usually sleeps in one place and has his meals or is employed in another place, the place of his ordinary residence is where the person sleeps.
(5) A person can have only one place of ordinary residence and it cannot be lost until another is gained.
Haig deposed that he resided in Ottawa from June 18, 1989 until August 1992 when he moved to Hull, Quebec. Thus he did not qualify to vote in the Quebec referendum because he had not been a resident of that province for the requisite statutory period of six months. It must be remembered that Haig did not seek to challenge the validity of the Quebec legislation. Rather he sought to be enfranchised pursuant to the provisions of the federal Act.
My colleague takes the position that Haig, when he moved to Hull, lost his Ontario residency for voting purposes. With respect, I think the Chief Electoral Officer could well have come to a different conclusion.
At the outset, it must be remembered that originally the right to vote was tied to ownership of property. A person owning property in several ridings could cast a vote in each of them. The provisions pertaining to residency were aimed at preventing "plural voting" by prohibiting property owners from voting in more than one riding. The residency requirement was designed to facilitate the attainment of the principle of one person one vote. It should not be used too readily as a means of depriving a person of any right to vote.
The residential requirement was considered in In Re Provincial Elections Act (1903), 10 B.C.R. 114 (S.C. en banc). This case was concerned with persons who were temporarily outside the province but who nonetheless wished to be sworn as voters. Walkem J. stated (at pp. 120-21):
It is a rule that franchise Acts should be liberally construed. The object of the Elections Act is to enfranchise and not disfranchise, persons who possess the necessary qualifications for being placed on the Voters' List; and hence the Act should, if possible, be so construed as to forward that object. . . .
This approach had been earlier affirmed by the Ontario Court of Appeal in Re Voters' List of the Township of Seymour (1899), 2 Ont. Elec. 69 where, with respect to harvesters, MacLennan J.A. held: ". . . temporary absence, even of very considerable duration, is not inconsistent with continuous residence, where the franchise is concerned" (pp. 74-75).
This repetition of the principle of enfranchisement coupled with a recollection of the historical object of the residency requirement provides a useful point of commencement for considering the key phrase "ordinarily resident". The Canada Elections Act deals specifically with various specific aspects of residency as well as the general rule to be applied in determining a voter's residence. For example, the residence of summer residents is determined by s. 57; that of students and migrant workers in s. 58; those in charitable missions by s. 59 and members of Parliament by s. 60. The general residency rule is expressed under s. 55(2). It provides that the ordinary residence of a voter "shall be determined by reference to all the facts of the case". Subsections 3 and 4 of the same section provide:
(3) The place of ordinary residence of a person is, generally, the place that has always been, or that the person has adopted as, the place of his habitation or home, and to which he intends to return when he is away from it.
(4) Where a person usually sleeps in one place and has his meals or is employed in another place, the place of his ordinary residence is where the person sleeps.
Subsection 3 uses the word "generally" and subs. 4 uses the word "usually". By the use of these words, it can be seen that the framers of the legislation expected that there would be exceptions to the usual residency rule. Human existence itself is transitory. The residence of human beings is even more so. It is seldom that a Canadian can now be referred to as "a lifetime resident of such and such a district". Ours is now a highly mobile society whose members will frequently move about the country. This mobility does not mean that the right to vote should be considered any less important than it was in earlier times. Indeed if a modern democracy is to function effectively the right is even more precious than before. Our whole concept of residency must be more flexible than ever before. It follows that the term "ordinarily resident" in an enfranchising statute should be interpreted broadly in the context of today's mobile society and in the light of the vital importance of the right to vote.
The case which in my view demonstrates the proper approach that should be taken to residency as it pertains to the right to vote is Hipperson v. Newbury District Electoral Registration Officer, [1985] Q.B. 1060 (C.A.). In that case the English Court of Appeal determined that the nuclear protesters who were camped outside the Greenham Common air base were residents of that district. The court came to this conclusion despite the obviously temporary nature of this town of tents. Sir John Donaldson M.R. found that the issue of the permanence of a settlement was a question of fact and degree. At page 1073 he wrote:
Permanence, like most aspects of residence, is a question of fact and degree. . . . All human affairs have a degree of impermanence, the precise degree being best forecast in the light of experience.
Another example of the flexibility which must be given to the concept of residence is presented by the much older case of Re Fitzmartin and Village of Newburgh (1911), 24 O.L.R. 102 (Div. Ct.). Fitzmartin lived on a farm. The farm was located partly in one municipality while the farmhouse was in another. Middleton J. sensibly held (at p. 104):
"Residence" is a word of very elastic meaning. . . . the "residence" required by the statute is not governed by such narrow considerations, but is such a residence as can be fairly regarded as giving the voter the right to be recognised as a citizen of the municipality in question. [Emphasis added.]
Turning to more recent Canadian cases, Tenold v. Chapman (1981), 1981 3031 (SK QB), 9 Sask. R. 278 (Q.B.), held that a person who had been living in Ottawa since 1974, first as an M.P. for a Saskatchewan riding and subsequently as a senatorial assistant was, for voting purposes, to be deemed ordinarily resident in Saskatchewan. The court balanced the facts presented. For example, although the applicant rented and maintained a small apartment in Ottawa, had a bank account in that city and obtained and used a province of Ontario health card, his relationship to Saskatchewan was such that he could properly be found to be ordinarily resident in that province.
In the case of Fells v. Spence, 1984 5096 (NWT SC), [1984] N.W.T.R. 123 (S.C.), the term "ordinarily resident" for electoral purposes was again considered. An application was brought to strike Spence as a candidate on the grounds that he did not meet the residency requirements. Spence had moved to the Territory with his family when he was ten years old. However he left to attend university, travel and work. In 1976 he declared himself a resident of Kingston, Ontario, in order to run for mayor. Later he worked as an assistant to a cabinet minister in Ottawa for three years. However he frequently travelled to Yellowknife and stayed with his parents on those occasions. He expressed the intention of returning to live permanently to Yellowknife. He held a territorial driver's licence and health insurance card. In those circumstances it was held that he complied with the residential requirement. Marshall J. appropriately held (at p. 130):
In my view, "ordinarily resident" under the Elections Ordinance of the Northwest Territories ought to be generously interpreted. . . .
If a man or woman can reasonably, on all the facts, fit within the statute, then let that person run. Democracy wants candidates.
These cases demonstrate the appropriate approach that courts should take to the concept of residence as a requirement of exercising the right to vote.
I note as well that it has been very sagely written that any scheme of enumerating voters should be drawn up with a view to insuring that the right to vote is given to the greatest possible number of eligible voters. T. H. Qualter in The Election Process in Canada (1970), at p. 21, observed that an ideal enumeration scheme is one administered so as to maximize eligibility. In Canada, the Chief Electoral Officer has been remarkably successful in this regard. In parliamentary elections approximately 98 percent of the eligible voters are registered and there would appear to be very little if any administrative disenfranchisement (Boyer, supra, at p. 426). I can see no reason for departing from this approach and practice under the Referendum Act.
The very nature of the Referendum Act encourages a very broad view of residence. In a parliamentary election, the location of votes can make a substantial difference in the election of a candidate in each riding. That is not true of a federal referendum where the exact location of any ballot is much less important. Further, the argument made in favour of residential requirements as providing an indication that the voter is reasonably acquainted with local issues and candidates is obviously not present in a referendum where all Canadians are called upon to vote on a question that transcends riding boundaries.
In my view, it would be wrong to automatically hold that those who had moved to Quebec before the referendum enumeration date could, on that basis alone, be denied the right to vote in a federal polling division outside Quebec. They could still properly exercise this franchise if it could possibly be said that they retained a substantial connection to a polling division within the federal referendum area. They could well be found to be "ordinarily resident" for the purpose of voting depending on the factual evidence placed before electoral officials. It can never be forgotten that the term "ordinarily resident" must be given a broad and liberal interpretation with a view to enfranchising the voter. It would be completely contrary to the objects of the Canada Elections Act and our concept of democratic government if rigid rules were applied too quickly and disenfranchised Canadians desirous of voting in a referendum without real justification. The connections of Haig to an Ottawa riding or any other riding within the federal referendum area should have been explored in this case. His move to Hull should not have had the automatic result of depriving him of his right to vote. However, it is impossible to determine the exact policy of the Chief Electoral Officer on this issue. The appellant chose to move directly before the courts without first seeking to be enumerated in a polling division within the federal referendum area where it could well have been found that he retained sufficient ties to enable him to vote.
The Referendum Act, through its incorporation of the provisions of the Canada Elections Act, provides that once an initial voter's list is drawn up citizens can then seek to have their names added to it. It is significant that this first list is referred to as "preliminary" (see s. 65(1)). The revision of the list takes place before a "revising officer" acting as a justice of the peace (s. 68 and Sch. IV, r. 42 et seq.). At this stage a person may apply to be included. The appellant did not avail himself of this procedure.
He undoubtedly took this course because of his intention to seek a ruling that would treat all persons who had moved to Quebec within six months of the referendum voting date as a class of voters entitled to enfranchisement. Unfortunately, this makes it impossible for the Court to determine whether, under the requisite flexible test of residency, the appellant was qualified to cast his vote in the federal referendum area. There is simply no evidence upon which a finding could be made that he retained the necessary connection to a federal polling division to enable him to vote. Had the referendum not been held it might have been appropriate to remit the matter to a revising officer for an examination of the facts. This no longer can be done.
Nor should declaratory relief be granted. It is true that often the judicial interpretation of a statute can lead to the granting of a declaratory order by the Court. Nonetheless, declaratory relief is a matter of discretion which should only be exercised in a clear case. The referendum is now long past and in the circumstances presented in this case declaratory relief should not be granted.
Summary
The following principles emerge from a consideration of the right to vote and the interpretation of the statutes providing that right, here the Canada Elections Act and the Referendum Act.
The right to vote is of fundamental importance to Canadians and to our Canadian democracy.
In the interpretation of all enfranchising statutes the provisions granting the right to vote should be given a broad and liberal interpretation. Every effort should be made to interpret the statute to enfranchise the voter.
Conversely every effort should be made to limit the scope of provisions which tend to disenfranchise the voter.
The concept of residency must be interpreted broadly in our mobile society. The term must be given a particularly broad and flexible meaning in statutes granting the right to vote. These statutes must be interpreted with the aim of enfranchising as many voters as possible. Further support for this approach can be derived from the historical purpose of enacting residency requirements which was to prohibit land owners from voting in each riding where they owned property. They were not enacted to completely deprive a person of the right to vote.
It follows that the specific term "ordinarily resident" should be interpreted broadly with a view to enfranchising as many voters as possible and to disenfranchising as few as possible.
There is still a further basis for giving the words "ordinarily resident" a very wide meaning in a referendum. Voting on a national question diminishes the strength of any argument that establishing the residence of a voter will give some indication of a voter's knowledge of local issues and candidates. As well, the exact location of each vote is less important than in a riding-by-riding parliamentary election.
A consideration of these principles could very well have led and perhaps should have led to his enfranchisement had Haig applied to be added to the list of voters in his former riding. Unfortunately, he did not seek to make such an application and it is impossible to determine on the facts presented if there was a sufficient connection to a riding to warrant his addition to the voter's list.
This is not a proper situation in which to grant declaratory relief.
Disposition
On the evidence presented, I find that I must come to the same result as Justice L'Heureux-Dubé but for different reasons. I would therefore dismiss the appeal and answer the constitutional questions in the manner suggested by my colleague.
//McLachlin J.//
The following are the reasons delivered by
McLachlin J. -- I have had the benefit of reading the reasons of L'Heureux-Dubé J., Cory J. and Iacobucci J. While I am in general agreement with L'Heureux-Dubé J.'s disposition of this appeal, I wish to add the following comments.
I agree with Iacobucci J. that the debates of the House of Commons evince an intent that the referendum include all eligible Canadian voters. The problem, as I see it, is that the proclamation which resulted did not provide for a referendum including all Canadian voters. It provided a referendum for nine provinces and two territories, excluding Quebec. The province of Quebec was already committed to a provincial referendum on the same day, posing the same question. Doubtless it would have seemed overzealous, for lack of a better word, for Parliament to overlap the federal referendum with the previously set Quebec referendum.
The appellants' case is that it is the legislative acts of Parliament which violated their rights under the Canadian Charter of Rights and Freedoms. Accordingly, it is to the acts of Parliament and not to the expressed intention of its members that we must look. The act impugned is the act of providing for a referendum in areas of Canada other than Quebec, without providing a means for persons recently resident in Quebec to vote in their referendum. It is not contrary to the Charter that Parliament should decide to hold a referendum in only some areas of Canada. Having chosen to do so, it is not contrary to the Charter that voters outside those areas be excluded. So the legal breach is not made out.
In order to carry though its expressed intention of holding a national referendum, Parliament should have made provision for persons such as Mr. Haig who, although Quebec residents, were ineligible to vote in Quebec because they had recently moved there. While, as discussed by L'Heureux-Dubé J., an enumeration of all such persons might have been difficult and costly, alternatives such as advertisements requesting such persons to step forward might have been attempted. But Parliament made no such provision. Instead it confined the right to vote in the federal referendum to the residents of provinces and territories other than Quebec, and failed to provide for the registration in its referendum of recently arrived Quebec residents. Had the law, as opposed to the speeches in Parliament, enacted a truly national referendum, then I would agree with Iacobucci J. that the result here violated the appellants' freedom of expression. The problem is that the law did not do this. Even with a broad and liberal reading of residency requirements aimed at enfranchising as many Canadians as possible "in every situation where that result could be attained without infringing the law" (per Cory J., at p. 000), there was simply no legal basis upon which the Chief Electoral Officer could have registered Mr. Haig, a Quebec resident, in a referendum which by its terms excluded Quebec.
In the result, while I see much force in the contentions of my colleagues Iacobucci J. and Cory J., I would dismiss the appeal for essentially the reasons given by L'Heureux-Dubé J.
//Iacobucci J.//
The following are the reasons delivered by
Iacobucci J. (dissenting) -- I have read the reasons of my colleagues, L'Heureux-Dubé J. and Cory J., and find myself in respectful disagreement with them, although my colleagues make many points with which I fully agree. My principal disagreement is that, in my view, the appellant's rights under s. 2(b) of the Canadian Charter of Rights and Freedoms were violated by the effect of the Referendum Act, S.C. 1992, c. 30 ("Referendum Act"), and such violation cannot, in the absence of evidence on the point, be saved under s. 1 of the Charter. In the result, I would allow the appeal.
In a technical or formal sense, it is correct to observe, as L'Heureux-Dubé J. does, that two referenda were held in the circumstances of this case: one by the province of Quebec and one by the federal government in the rest of Canada. Moreover, both British Columbia and Alberta require, under their legislation, that referenda be held in their respective provinces prior to the authorization of amendments to the Constitution of Canada. See the Referendum Act, S.B.C. 1990, c. 68, and the Constitutional Amendment Approval Act, S.B.C. 1991, c. 2; and the Constitutional Referendum Act, S.A. 1992, c. C-22.25 (as amended by S.A. 1992, c. 36). It appears that the federal referendum was to serve the purpose of a provincial referendum in those provinces. See the Constitutional Referendum Amendment Act, 1992, S.A. 1992, c. 36, s. 2. Technically, therefore, there were some four referenda being conducted: the federal referendum in nine provinces and two territories, the Quebec referendum, the federal referendum as applied to British Columbia, and the federal referendum as applied to Alberta.
In my opinion, focusing on the technicalities of separate referenda obscures the national character of the referendum. I agree with Décary J.A. that the reality was that Parliament intended the country to have a national referendum which would be conducted by the holding of a federal referendum in conjunction with one or more provincial referenda, and in which the federal referendum could be treated as a provincial referendum in certain provinces, as apparently was the case in British Columbia and Alberta.
That a national referendum involving all Canadians was intended is shown by the statement of Mr. Jim Edwards, then Parliamentary Secretary to the Minister of State and Leader of the Government in the House of Commons, speaking on the second reading of Bill C-81 (the Referendum Act (Canada)):
We would consult all Canadians in a national referendum. This referendum would be fair and give everyone an opportunity to express their opinion. It would be the culmination of the most extensive consultation exercise ever undertaken by a Canadian government.
(House of Commons Debates, vol. 132, No. 144, 3rd sess., 34th Parl., May 19, 1992, at p. 10889.)
In addition, then Prime Minister, the Right Honourable Brian Mulroney, P.C., in moving receipt of the Consensus Report on the Constitution, Charlottetown, August 28, 1992, stated:
This constitutional package provides a framework within which we are able to move ahead as a united nation, diverse and different it is true, yet one nation. And now the referendum ensures that every person of voting age in Canada will have an opportunity to express his or her preference.
(House of Commons Debates, vol. 132, No. 165, 3rd sess., 34th Parl., September 8, 1992, at p. 12732.)
It is also interesting to note that the Honourable Marcel Danis, then Minister of Labour, in describing the referendum emphasized the importance of adopting a process that was fair, democratic and consonant with the Charter:
The government's purpose in tabling this bill is also to ensure that the rules of the game for any consultation that takes place will be fair, open and transparent, in accordance with our democratic traditions and the Canadian Charter of Rights and Freedoms.
What are those rules, Mr. Speaker? Basically, they would be the same as for a general election. The referendum would be supervised by the Chief Electoral Officer and be subject to the provisions of the Canada Elections Act, already a guarantee of a fair process. Furthermore, the "yes" and "no" sides would have equal access to free air time, as determined by the arbitrator. The CRTC would also supervise the purchase of air time on radio and television networks for advertising purposes.
However, there are some differences because of the very nature of this kind of consultation and the implications of the Charter. First of all, the bill does not make so-called umbrella committees mandatory. Any obligation to take part in the referendum campaign under the aegis of such committees would be contrary to the Charter of Rights, according to the legal opinions we have received so far. In fact, such an obligation would not only be likely to violate freedom of expression, it would also force groups that may be for or against the question for entirely different reasons to operate under the same umbrella.
(House of Commons Debates, vol. 132, No. 144, 3rd sess., 34th Parl., May 19, 1992, at p. 10854.)
I would therefore conclude that the federal referendum contemplated by the Referendum Act was aimed at all Canadians entitled to vote in a federal election.
The majority of the Federal Court of Appeal, 1992 14794 (FCA), [1992] 3 F.C. 611, was of the view that, when the appellant Haig moved from Ottawa to Hull, he exempted himself from the scope of the Referendum Act by virtue of being a non-resident of every province and territory to which the Referendum Act applied. Therefore, Haig could not challenge the Referendum Act because it did not apply to him. Consequently, the only legislation that Haig could attack was the Quebec legislation which lies outside the jurisdiction of the Federal Court of Canada.
The trouble with this approach is that it ignores the very purpose of the Referendum Act as stated above: to permit those Canadians entitled to vote in a federal election to accept or reject the Charlottetown Accord. The Referendum Act sought to coordinate a national referendum with the Quebec referendum, for which the underlying legislation had already been enacted. The aim of the Referendum Act was to include all Canadian citizens. If as a result of the requirements of the Quebec legislation, someone in the position of the appellant Haig was left out of the process he could, for the sake of argument, have launched a claim against two possible defendants: the province of Quebec and the federal government. I say no more about whatever rights he may have had against the province of Quebec because they are irrelevant to this appeal.
I agree with the appellant's submission that the federal legislation was aimed at a national referendum; to accomplish that end, it was coordinated with the Quebec referendum. As my colleague L'Heureux-Dubé J. observes, the appellant unfortunately fell between the legislative cracks and was neither able to participate in the national referendum directly, nor was he able to participate indirectly through the Quebec referendum.
The question which then arises is whether his inability to participate in the referendum process amounts to a violation of his rights under the Charter, and it is to that question I now turn.
I agree with the view that the federal government is not legally obligated to hold referenda, nor is it legally bound by the results of any referenda it conducts. However, if the government chooses to conduct a referendum, it must do so in compliance with the Charter. The Referendum Act provided a legislative framework to allow Canadian citizens to express their political opinions. The referendum was an important expressive activity relating to constitutional change in this country.
The importance of the expressive activity in question was clearly evidenced by the statement of the Right Honourable Joe Clark, P.C., in moving the constitutional question to be put to Canadians in the referendum:
Three major steps remain. The first is to invite the judgement of the Canadian people in a national referendum on October 26. If Canadians vote yes, Parliament and legislatures would then act immediately to debate and, I expect, adopt the specific resolutions. Then we would seek the unanimous agreement of the provinces to shorten the period of final ratification, in a way that could have these major constitutional changes approved and ratified and effective in law within a matter of months. [Emphasis added.]
(House of Commons Debates, vol. 132, No. 166A, 3rd sess., 34th Parl., September 9, 1992, at p. 12786.)
Although Parliament was under no legal obligation to follow the results of the referendum, apparently a political obligation to do so had been assumed. Despite the absence of such a legal obligation, nevertheless, the referendum was exceedingly important expressive activity that is worthy of Charter protection, as was acknowledged by Minister Danis in his comments quoted above.
The right to express opinions in social and political decision-making clearly attracts the protection of s. 2(b) (R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731, and Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, at p. 976). In Native Women's Assn. v. Canada, 1992 8495 (FCA), [1992] 3 F.C. 192, Mahoney J.A. succinctly stated: "[c]ommunicating one's constitutional views to the public and to governments is unquestionably an expressive activity protected by paragraph 2(b)" (p. 211). I would agree. Casting a referendum ballot is an important form of expression which is worthy of constitutional protection. In my view, the appellant Haig's right to express his political views by participating in the referendum was guaranteed by s. 2(b) of the Charter. He was denied the right to participate and thus his s. 2(b) rights were violated.
Although the appellant Haig was free to express his views as he wished on the Charlottetown Accord prior to the vote, he was denied the ability to participate in the most important expressive activity, that of voting in the referendum. While the purpose of the Referendum Act was to include all voters, the effect was to deprive those residents of Quebec who were ordinarily resident in another province in the six-month period prior to the referendum of the ability to participate in expressive activity which is clearly protected under the Charter.
As the respondent Attorney General of Canada did not introduce any evidence on s. 1, the violation of the appellant's s. 2(b) rights has not been justified under s. 1.
Under the circumstances, as the referendum has already taken place, any remedy is more theoretical than real. However, like Décary J.A., I would have sought to expand the definition of "elector" in s. 3(1) of the Referendum Act. Relying on s. 7(3) of the Referendum Act, which states that the Canada Elections Act, R.S.C., 1985, c. E-2, may be adapted "in such manner as the Chief Electoral Officer considers necessary for the purpose of applying that Act in respect of a referendum", the Chief Electoral Officer could have used s. 9(1) of the Canada Elections Act to permit the appellant Haig to vote as Décary J.A. outlined. Hopefully, the Canada Elections Act or the Referendum Act provisions will be clarified if Parliament decides to hold a referendum in the future.
In sum, I would allow the appeal with costs here and in the courts below, set aside the order of the Federal Court of Appeal, and substitute therefor an order declaring that the appellant was entitled to vote in the October 26, 1992 federal referendum as outlined by Décary J.A. in the court below.
Appeal dismissed, Lamer C.J. and Iacobucci J. dissenting.
Solicitor for the appellants: Philippa Lawson, Ottawa.
Solicitors for the respondent the Chief Electoral Officer: Fraser & Beatty, Ottawa; Jacques Girard, Ottawa.
Solicitor for the respondent the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener: The Department of Justice, Ste‑Foy.
