Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876

Fred Harvey Appellant

v.

The Attorney General for New Brunswick, the Minister of Municipalities, Culture and Housing, Dennis Cochrane and Hazen Myers Respondents

and

The Attorney General of Canada, the Attorney General for Ontario and the Attorney General of Quebec Interveners

Indexed as: Harvey v. New Brunswick (Attorney General)

File No.: 23968.

1996: February 19; 1996: August 22.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for new brunswick

Constitutional law ‑‑ Charter of Rights ‑‑ Right to be qualified for membership in legislature ‑‑ Member of provincial legislature convicted of illegal practice and expelled from legislature pursuant to provincial elections legislation ‑‑ Legislation also disqualifying anyone convicted of illegal practice from holding electoral office for five years ‑‑ Whether disqualifications infringe s. 3 of Charter ‑‑ If so, whether infringement justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 3 ‑‑ Elections Act, R.S.N.B. 1973, c. E‑3, s. 119(c).

Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual treatment or punishment ‑‑ Member of provincial legislature convicted of illegal practice and expelled from legislature pursuant to provincial elections legislation ‑‑ Legislation also disqualifying anyone convicted of illegal practice from holding electoral office for five years ‑‑ Whether disqualifications infringe s. 12 of Charter ‑‑ Canadian Charter of Rights and Freedoms, s. 12 ‑‑ Elections Act, R.S.N.B. 1973, c. E‑3, s. 119(c).

The appellant was elected to the New Brunswick Legislative Assembly in 1991. Following that election he was convicted of committing an illegal practice under the Elections Act and was expelled from the legislature under s. 119(c). He had induced a 16‑year‑old female to vote in the election, knowing that she was not eligible to vote. The trial judge allowed the appellant’s constitutional challenge in part, holding that ss. 119(a) and 119(c) of the Elections Act violated the appellant's rights guaranteed by s. 3 of the Charter. Section 119(a) disqualifies anyone convicted of an illegal practice from voting in an election for a period of five years. The trial judge further held that s. 119(a) and the first part of s. 119(c), which prevented the appellant from seeking re‑election for a period of five years, were not justified under s. 1 of the Charter, but that the second portion of s. 119(c), which required a sitting member to vacate his seat on conviction for a corrupt or illegal practice, was a reasonable limit under s. 1. The judge then proceeded to sever the invalid provisions of s. 119 from the remainder. The Court of Appeal dismissed the appellant's appeal and, in a majority decision, allowed the cross‑appeal with respect to the trial judge's finding that the five‑year disqualification provision of s. 119(c) was unconstitutional.

Held: The appeal should be dismissed.

Per La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: There is no question that the appellant’s actions amounted to an attack on the integrity of the electoral process which is at the heart of a free and democratic society and constituted a breach of trust deserving of censure. Given that the parties have chosen not to ground their argument on the basis that the expulsion and disqualification are privileges of the Legislative Assembly, and given that there were no submissions by any party on the point, it will be assumed that the provisions of s. 119(c) are subject to the Charter. The provisions of s. 119(c) are prima facie unconstitutional as violating the appellant’s rights under s. 3 of the Charter. While the English version of s. 3, which provides for a “right . . . to be qualified for membership” in a legislative assembly, is somewhat ambiguous, the French version is straightforward and indicates that the right to be a candidate and to sit as a member of Parliament or a legislative assembly should be read in a broad manner. In interpreting the right to vote under s. 3, this Court, and Canadian courts in general, have taken the approach that the justification for limitations on the right must be grounded in s. 1 of the Charter, and there is no justification in the wording for taking a different approach to the right to stand for election and become a member of Parliament or a legislative assembly.

Section 119(c) of the Elections Act is a justified infringement upon the right to be qualified for membership in the Legislative Assembly under s. 1 of the Charter. The primary goal of the impugned legislation, which is to maintain and enhance the integrity of the electoral process, is always of pressing and substantial concern in any society that purports to operate in accordance with the tenets of a free and democratic society. There is also a rational connection between the means employed in s. 119(c) and the section’s objective. The requirement that an elected MLA vacate his seat on being convicted of a corrupt or illegal election offence logically furthers the objective of preserving the integrity of the election process, and the five‑year disqualification acts as a strong deterrent and helps to promote confidence in the electoral system. Section 119(c) is not arbitrary in that it applies only to a specified group of individuals who are convicted of specified offences. That part of s. 119(c) that requires convicted individuals to vacate their legislative seat is an appropriate response and in no way overreaches the target when the objective of maintaining the integrity of the electoral process is considered. The imposition of the five‑year disqualification also meets the minimal impairment test. In settling on a five‑year disqualification the legislature has ensured that the appellant is ineligible to run in the next general election. In addition, a five‑year disqualification provides for a time of cleansing, allowing the integrity of the electoral process to be renewed both in real terms and in the mind of the electorate. Finally, the effects of s. 119(c) are proportional to its objective of ensuring, preserving, and protecting the integrity of the electoral process, subject to the caveat that the five‑year disqualification would cease to apply if a member’s conviction was overturned on appeal.

The provisions of s. 119(c) do not amount to cruel and unusual punishment contrary to s. 12 of the Charter. Even if the disqualifications are properly classified as “punishment”, a given punishment is cruel and unusual only if it is so excessive as to outrage standards of decency or if it is grossly disproportionate to the offence. On the basis of these tests, the disqualifications imposed by s. 119(c) do not violate s. 12 of the Charter, either with regard to the particular offence committed by the appellant or with regard to the range of offences under the Elections Act to which s. 119(c) can apply.

Since no appeal was taken in respect of the trial judge’s ruling that s. 119(a) is unconstitutional, that ruling must stand but the provision can be severed from the remainder of the section.

Per Lamer C.J.: Since the parliamentary privilege at issue is embodied in, or being exercised pursuant to, legislation enacted by the legislature, the Charter clearly applies in this case and the appeal should be dismissed for the reasons given by La Forest J.

Per L’Heureux‑Dubé and McLachlin JJ.: The disqualification for office raised in this case falls within the historical privilege of the legislature and is hence immune from judicial review. Parliament and the legislatures of Canada have the power to regulate their procedures both inside and outside the legislative chamber. The preamble to the Constitution Act, 1867 affirms a parliamentary system of government, incorporating into the Canadian Constitution the right of Parliament and the legislatures to regulate their own affairs. It also incorporates the notion of the separation of powers, which precludes the courts from trenching on the internal affairs of the other branches of government. Because parliamentary privilege enjoys constitutional status it is not subject to the Charter. The necessary reconciliation of parliamentary privilege and s. 3 of the Charter is achieved by interpreting the democratic guarantees of s. 3 in a purposive way. The purpose of the democratic guarantees in the Charter must be taken to be the preservation of democratic values inherent in the existing Canadian Constitution, including the fundamental constitutional right of Parliament and the legislatures to regulate their own proceedings. Since express words would be required to overthrow such an important constitutional principle as parliamentary privilege, s. 3 of the Charter must be read as being consistent with parliamentary privilege. This does not leave s. 3 without meaning, however, since it still operates to prevent citizens from being disqualified from holding office on grounds which fall outside the rules by which Parliament and the legislatures conduct their business, such as race and gender. The courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege. If it does not, they may proceed with Charter review. If it does, they must leave the matter to the legislature.

Expulsion from the legislature of members deemed unfit is a proper exercise of parliamentary privilege. It is clear that had the New Brunswick legislature simply expelled the appellant, that decision would fall squarely within its parliamentary privilege and the courts would have no power to review it. Disqualification may be argued to fall within parliamentary privilege on two grounds: first, as a means of making expulsion effective; and second, as a privilege in its own right. Disqualification is necessary to prevent the person from simply seeking re‑election in the first available by‑election, often in the very riding vacated by the expulsion order. Disqualification may also fall within parliamentary privilege in its own right. It serves the same purposes as expulsion for acts committed outside the legislature, which has long been recognized as privileged. The legislature should be permitted to determine in advance of the person taking office whether he or she is fit to serve, rather than being required to wait until the person assumes office. Since the appellant’s disqualification was a legitimate exercise of parliamentary privilege, that disqualification must stand.

Cases Cited

By La Forest J.

Referred to: Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319; Reference Re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Sauvé v. Canada (Attorney General), 1993 CanLII 92 (SCC), [1993] 2 S.C.R. 438; Canadian Disability Rights Council v. Canada, 1988 CanLII 9443 (FC), [1988] 3 F.C. 622; Muldoon v. Canada, 1988 CanLII 9407 (FC), [1988] 3 F.C. 628; Re Hoogbruin and Attorney‑General of British Columbia (1985), 1985 CanLII 335 (BC CA), 24 D.L.R. (4th) 718; MacLean v. Nova Scotia (Attorney General) (1987), 1986 NSSC 19, 76 N.S.R. (2d) 296; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315; Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825; R. v. Miller (1988), 1988 CanLII 4685 (ON CA), 65 O.R. (2d) 746; Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045; United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469; R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211; RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713.

By Lamer C.J.

Distinguished: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319.

By McLachlin J.

Referred to: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 3, 4, 12, 15, 32, 33.

Commonwealth Electoral Act 1918 (Aus.), No. 27 of 1918.

Constitution Act, 1867, preamble, s. 39.

Elections Act, R.S.N.B. 1973, c. E‑3, ss. 111(1), 118(2), 119(a), (b), (c).

Electoral Act 1993 (N.Z.), 1993, No. 87.

Legislative Assembly Act, R.S.N.B. 1973, c. L‑3, s. 24.

Parliamentary Papers Act, 1840 (U.K.), 3 & 4 Vict., c. 9.

Representation of the People Act 1983 (U.K.), 1983, c. 2.

Authors Cited

American Jurisprudence, vol. 26, 2d ed. Rochester: Lawyers Cooperative, 1996.

Bourinot, John George, Sir. Parliamentary Procedure and Practice in the Dominion of Canada, 2nd ed. Montreal: Dawson Bros., 1892.

Dawson’s The Government of Canada, 6th ed. Toronto: University of Toronto Press, 1987.

Heard, Andrew. “The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights” (1995), 18 Dalhousie L.J. 380.

Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992 (loose-leaf).

Maingot, Joseph. Parliamentary Privilege in Canada. Toronto: Butterworths, 1982.

May, Thomas Erskine, Sir. Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, 5th ed. London: Butterworths, 1863.

Nouveau Petit Robert. Paris: Le Robert, 1994, “éligible”.

Pelletier, Marcel R. “Privilege in the Canadian Parliament” (1973), 54 Parliamentarian 143.

APPEAL from a judgment of the New Brunswick Court of Appeal (1993), 1993 CanLII 3048 (NB CA), 141 N.B.R. (2d) 117, 361 A.P.R. 117, 109 D.L.R. (4th) 371, varying a judgment of the Court of Queen’s Bench (1993), 1993 CanLII 6591 (NB QB), 133 N.B.R. (2d) 181, 341 A.P.R. 181, declaring certain provisions of the New Brunswick Elections Act unconstitutional. Appeal dismissed.

E. J. Mockler, Q.C., for the appellant.

Bruce Judah, Q.C., for the respondents the Attorney General for New Brunswick and the Minister of Municipalities, Culture and Housing.

Graham Garton, Q.C., and Stephen Zaluski, for the intervener the Attorney General of Canada.

Robert E. Charney and Alan Stewart, for the intervener the Attorney General for Ontario.

Written submissions only by Dominique A. Jobin, for the intervener the Attorney General of Quebec.

The following are the reasons delivered by

[1] The Chief Justice -- I have had the benefit of reading the reasons of my colleagues and agree with Justice La Forest that s. 119(c) of the New Brunswick Elections Act, R.S.N.B. 1973, c. E-3, constitutes a reasonable and demonstrably justified restriction on s. 3 of the Canadian Charter of Rights and Freedoms. My colleague Justice McLachlin reaches the same conclusion by way of a different line of reasoning. In her view, the expulsion and disqualification provisions of s. 119(c) are immune from Charter review because they fall within the valid exercise of parliamentary privilege. My colleague La Forest J. has decided not to address this issue because it was raised by an intervener, who must take the case as he or she finds it, and given the fact that there were no submissions by any party on the point. I feel it necessary to discuss briefly how this case differs, at least in my view, from the one before us in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, and, therefore, why it is not necessary for me to consider the line of reasoning proposed by McLachlin J. in addition to those reasons given by La Forest J.

[2] In the New Brunswick Broadcasting case, a majority of this Court was of the view that the Charter did not apply to the exercise of the inherent privilege of members of the House of Assembly to exclude strangers as this privilege enjoyed constitutional status as part of the Constitution of Canada. I concurred in the result, but for a very different reason. I was of the view that the first question to be addressed in this context is to look at whether the parliamentary privilege at issue is embodied in, or being exercised pursuant to, legislation enacted by the legislature, on the one hand, or pursuant to the internal and inherent "rules" or "resolutions" of a House of Assembly to govern its proceedings on the other. In the case of the former, the Charter clearly applies as the action falls within the meaning of the words "legislature" or "government" in s. 32 of the Charter. In this regard, I held (at p. 364):

There is no doubt that [privileges are clearly "matters within the authority of the legislatures of each province"] . . . in the sense that the provincial legislatures have the power to legislate in relation to privileges. The legislation that the provinces have enacted with respect to privileges will be reviewable under the Charter as is all other legislation. [Emphasis added.]

In the context of internal and inherent "rules" or "resolutions", I was of the view in New Brunswick Broadcasting that s. 32 is not triggered and therefore the Charter does not apply. I therefore did not need to decide whether the parliamentary privilege at issue in that case had achieved constitutional status by reason of the preamble to the Constitution Act, 1867. I was, however, unconvinced by the reasons of the majority, in that case, that those privileges not dependent on statute for their existence had been granted a constitutional status by the preamble of the Constitution Act, 1867 and remain so today. However, I will leave it to another day when the issue is properly before this Court.

[3] As the Charter clearly applies in this case, for the reasons I gave in New Brunswick Broadcasting, I would dismiss the appeal for the reasons of my colleague La Forest J.

The judgment of La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by

[4] La Forest J. -- At issue in this appeal is whether the provisions of s. 119(c) of the New Brunswick Elections Act, R.S.N.B. 1973, c. E-3, violate s. 3 or s. 12 of the Canadian Charter of Rights and Freedoms and, if so, whether they are saved by s. 1. These provisions prescribe that on being convicted of an illegal or corrupt practice pursuant to the Elections Act, a member’s seat shall be vacated and he or she shall be disqualified from running as a candidate for five years.

Facts

[5] The appellant, Harvey, was elected in September 1991 to represent the electoral district of Carleton North in the Legislative Assembly of New Brunswick. Following that election he was charged with and convicted of an offence under ss. 111(1) and 118(2) of the Elections Act, which read:

111 (1) Every person who induces or procures any other person to vote at an election, knowing that such other person is for any reason not qualified to vote at the election, is guilty of an illegal practice.

118 (2) Any person who commits an illegal practice is guilty of an offence against this Act and on summary conviction is liable to a fine not exceeding five hundred dollars.

The appellant had induced a 16-year-old female to vote in the election, knowing that she was not eligible to vote. The appellant’s conviction was upheld on appeal and his application for leave to appeal to this Court was dismissed on May 19, 1994: [1994] 2 S.C.R. vii.

[6] By letter dated January 6, 1993, the respondents Cochrane and Myers, who at the time were both members of the Legislative Assembly, certified to the respondent Minister pursuant to s. 24 of the Legislative Assembly Act, R.S.N.B. 1973, c. L-3, that the seat for the constituency of Carleton North was vacant. They informed the Minister that the vacancy resulted from the appellant's disqualification under s. 119(c) of the Elections Act, by reason of his conviction of an illegal practice. On January 14, 1993, the Minister reported the notification to the Lieutenant-Governor in Council. Section 119 reads:

119 Any person who is convicted of having committed any offence that is a corrupt or illegal practice shall, during the five years next after the date of his being convicted, in addition to any other punishment by this or any other Act prescribed, be disqualified from and be incapable of

(a) being registered as an elector or of voting at any election,

(b) holding any office in the nomination of the Crown or of the Lieutenant-Governor in Council, or

(c) being elected to or sitting in the Legislative Assembly and, if at such date he has been elected to the Legislative Assembly, his seat shall be vacated from the time of such conviction.

[7] On January 13, 1993, the appellant commenced proceedings to challenge the constitutionality of s. 119 of the Elections Act and certain sections of the Legislative Assembly Act. The trial judge allowed the application in part, holding that ss. 119(a) and 119(c) of the Elections Act violated the appellant's rights guaranteed by s. 3 of the Charter: (1993), 1993 CanLII 6591 (NB QB), 133 N.B.R. (2d) 181, 341 A.P.R. 181. Section 119(b) was not in issue. The trial judge further held that s. 119(a) and the first part of s. 119(c), which prevented the appellant from seeking re-election for a period of five years, were not justified under s. 1 of the Charter, but that the second portion of s. 119(c), which required a sitting member to vacate his seat on conviction for a corrupt or illegal practice, was a reasonable limit under s. 1. The judge then proceeded to sever the invalid provisions of s. 119 from the remainder.

[8] On March 10, 1993, the appellant appealed to the Court of Appeal, and the respondents the Attorney General for New Brunswick and the Minister of Municipalities, Culture and Housing cross-appealed the trial judge's finding that the five-year disqualification provision of s. 119(c) was unconstitutional. Pending the hearing of the appeal the appellant sought, but was refused, interim relief in the form of a stay of proceedings with respect to the operation of s. 119(c). As a result, on June 28, 1993, a by-election was held in Carleton North in which the appellant was not a candidate. On November 10, 1993, the Court of Appeal dismissed the appellant's appeal and, Rice J.A. dissenting, allowed the cross-appeal: (1993), 1993 CanLII 3048 (NB CA), 141 N.B.R. (2d) 117, 361 A.P.R. 117, 109 D.L.R. (4th) 371. Since the appellant’s conviction, one general election has been held in New Brunswick on September 11, 1995. Pursuant to the provisions of s. 119(c), the appellant was ineligible to stand as a candidate in that election.

[9] Leave to appeal to this Court was granted on June 2, 1994: [1994] 2 S.C.R. vii.

Judicial History

New Brunswick Court of Queen’s Bench (1993), [1993 CanLII 6591 (NB QB)](https://www.canlii.org/en/nb/nbqb/doc/1993/1993canlii6591/1993canlii6591.html), 133 N.B.R. (2d) 181

[10] The trial judge, Dickson J., found that the disqualification in respect of holding public office imposed by s. 119(b) of the Elections Act was of little relevance and could be ignored for the purposes of the case. He also dismissed the appellant's arguments based on ss. 12 and 15 of the Charter. Section 12, he held, is not concerned with civil disabilities resulting to a person on conviction for an illegal election offence, and s. 119 of the Elections Act “does not treat nor does it purport to treat the applicant in any fashion different from that in which any other individual is treated” (pp. 194-95).

[11] Turning to ss. 119(a) and (c) of the Elections Act, Dickson J. found these violated the appellant's democratic rights guaranteed by s. 3 of the Charter. After referring to the relevant cases regarding the application of s. 1 of the Charter, he concluded that s. 119(a) and the first portion of s. 119(c), the five-year disqualification from being a candidate in a provincial election, did not represent reasonable limits demonstrably justified in a free and democratic society. He stated (at pp. 198-99):

Those disqualifications represent, in my view, too great a departure from the rights guaranteed by s. 3 of the Charter to be recognized as valid. Their prescription accomplishes little which could not be accomplished by other valid means, for instance by merely providing some more appropriate scale of penalties under the Elections Act for electoral offences.

However, Dickson J. held that the second portion of s. 119(c) of the Elections Act, the requirement that a elected member vacate his or her seat if convicted of an illegal practice, was a justified limit under s. 1 of the Charter. He thus put it (at pp. 199-200):

It would in my view be patently ridiculous for a member guilty of an illegal practice and so found to be able to continue to hold his or her seat. Such could only bring the whole democratic electoral process and indeed the reputation of the Legislative Assembly and its other members into deep disrepute. Quite obviously the Legislature so felt in imposing that disqualification and the objective is as valid today as it was when the statutory provision was enacted, and notwithstanding enactment of the Constitution Act in 1982 and the Charter in the interim.

Any degree of misgiving I may have in concluding as I have done in upholding the provision that a sitting member vacate his or her seat is prompted only by the somewhat harsh, but in my view necessary, provision that the vacancy occurs on entry of the conviction and does not await the expiry of an appeal period or the hearing of any appeal. One must recognize that an appeal could drag on for months or even much longer. Suspension of operation of the disqualification pending resolution of the appeal could serve only to leave the affected member in a state of suspended and useless animation in the interim, and of no real worth either to the Assembly, to the constituents in the electoral district concerned, or to advancement of respect for the democratic system.

[12] Finally, Dickson J. applied the test set forth in Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, and severed the invalid provisions of s. 119 from the remainder of the section.

Court of Appeal (1993), [1993 CanLII 3048 (NB CA)](https://www.canlii.org/en/nb/nbca/doc/1993/1993canlii3048/1993canlii3048.html), 141 N.B.R. (2d) 117 (Ayles and Ryan JJ.A., Rice J.A. dissenting in part)

[13] The Court of Appeal unanimously dismissed the appellant's appeal, and by majority allowed the cross-appeal filed by the respondents, the Attorney General for New Brunswick and the Minister of Municipalities, Culture and Housing, with respect to the constitutionality of the five-year disqualification provision of s. 119(c). Ryan J.A., speaking for the court, agreed with the respondents’ submissions that rights under the Charter are not absolute and that s. 3 of the Charter could not have been intended to protect behaviour “inimical to a free and democratic society” (p. 133). Nonetheless he appears to have found that s. 119(c) violated s. 3 of the Charter but was saved by s. 1.

[14] Ryan J.A. addressed each of the tests for determining whether s. 1 of the Charter could be invoked. First, he found that the objectives of s. 119(c) were of pressing and substantial importance in that the provision was designed to maintain the confidence of citizens in the integrity of the electoral process. Secondly, he considered that s. 119(c) met the test of proportionality in that it struck a reasonable balance between the objectives of maintaining the integrity of the legislative body and its means in depriving the appellant of his right to continue to sit or to seek re-election. Thirdly, he held that there was a rational connection between the maintenance and integrity of the electoral process and bringing about an immediate vacancy and a five-year disqualification from seeking political office for an elected member convicted of an electoral offence. He noted (at p. 140):

This type of short-term disqualification was accepted by the common law and has been in place for centuries in civilized societies. Unfortunately, it has not eradicated corrupt or illegal practices but it has made it more difficult to carry them out successfully.

[15] With respect to the minimal impairment test, Ryan J.A. recognized that the legislature was forced to strike a balance between competing interests and held that the disqualification for five years was reasonable and accorded with s. 4 of the Charter, which provides a five-year maximum period for the life of a particular legislature. Finally, he concluded that the challenged legislation did accomplish an overall balance between its effects and objectives. The disqualifications were proportional to offences involving the intentional undermining of the electoral process. He observed (at pp. 141-42):

The disabilities are not permanent and are, therefore, not subversive of the rights of electors. They are for a reasonable time and they apply to a member upon whom the community rightly places a higher degree of responsibility.

Section 119(c) achieves an overall balance between the rights guaranteed by the Charter. It represents a legitimate exercise of legislative power designed solely to obtain desirable democratic objectives without placing undue or unreasonable limits on the constitutionally protected rights of the individual.

[16] Given his conclusions regarding the validity of s. 119(c) it was not necessary for Ryan J.A. to consider the issue of severance. Nonetheless, he expressed the view that severing subsections as the trial judge had done was proper where the court was not creating “new legislation of a different character from that before it” (p. 143).

[17] Though he agreed with the majority on the appeal, Rice J.A. dissented on the cross-appeal. After having stated that s. 3 of the Charter “is cast in clear and unambiguous terms and goes to the very foundation of a free and democratic society” (p. 130), he dismissed the respondents' arguments on the cross-appeal in the following terms (at pp. 130-31):

The societal importance alluded to by counsel for the Attorney General is the prevention of the subversion and undermining of the electoral process as well as the preservation of the integrity of the Legislative Assembly. To allow Mr. Harvey to seek re-election, it was submitted, would provide something of a “revolving door response” and hold the process up to ridicule and contempt.

I fail to see section 119(c) as having that societal importance and as being “pressing and substantial” when Mr. Harvey's right to a seat in the Legislative Assembly will be resolved and decided by the electorate in a democratic election in the exercise of their fundamental right to vote under s. 3 of the Charter. The measures taken are not necessary to the attainment of the objectives put forth by the respondent on the cross-appeal.

In my view, that part of s. 119(c) is also arbitrary in its application to any person who is convicted of a corrupt or illegal practice and is punitive as the words “in addition to any other punishment” implies. It is not aimed at the objectives the Attorney General suggests.

In the result Rice J.A. found that the five-year disqualification from seeking election found in s. 119(c) of the Elections Act violated s. 3 of the Charter and was not saved by s. 1.

Issues

[18] The Chief Justice stated the following constitutional questions for consideration by the Court:

1. Do the disqualifications prescribed by s. 119(c) of the Elections Act, R.S.N.B. 1973, c. E-3,

(a) relating to the right to be elected to or to sit in the Legislative Assembly,

(b) relating to the vacation of the seat of a convicted member,

infringe or deny in whole or in part the rights and freedoms guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms?

2. Do the disqualifications prescribed by s. 119(c) of the Elections Act

(a) relating to the right to be elected to or to sit in the Legislative Assembly,

(b) relating to the vacation of the seat of a convicted member,

infringe or deny in whole or in part the rights and freedoms guaranteed by s. 12 of the Charter?

3. If the answer to question (1) or (2) is in the affirmative, does the infringement or denial constitute a reasonable limit within the meaning of s. 1 of the Charter?

The appellant also raised the following issue:

4. Are those portions of s. 119 which are inconsistent with the Charter severable from the remaining portions of that section?

Analysis

[19] Before discussing the constitutional questions, it is appropriate to address two preliminary issues. The first was raised by counsel for the appellant and constituted an underlying thread throughout his argument before us. Simply put, it was his position that although the appellant was convicted of an offence under s. 111(1) of the Elections Act, all it amounted to in essence was an innocent mistake that in no way affected the outcome of the election. While it is true that the one vote in issue would not have changed the outcome, the appellant was convicted (and the conviction was upheld on appeal) of knowingly procuring the vote of a minor. The conviction itself rules out any possibility that the appellant’s actions were simply an “innocent mistake”. In my view there is no question that the appellant’s actions amounted to an attack on the integrity of the electoral process which is at the heart of a free and democratic society and constituted a breach of trust deserving of censure.

[20] The second preliminary issue relates to whether the expulsion and disqualification imposed by s. 119(c) escape Charter scrutiny because of their status as privileges of the Legislative Assembly. The issue was appropriately brought to our attention by counsel for the intervener the Attorney General of Canada. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, a majority of this Court held that, at a minimum, the inherent privileges of Canada’s legislative bodies that are necessary to their proper functioning are constitutional privileges and therefore immune from Charter challenge. However, the issue was not seriously argued before us. In fact it was willingly conceded that it was appropriate to judge the provisions of s. 119(c) in light of the Charter. Given that the parties to the present appeal have chosen not to ground their argument on the basis that expulsion and disqualification are privileges of the Legislative Assembly, and given that there were no submissions by any party on the point, it is not necessary to decide that issue here. I will therefore proceed on the basis that the provisions of s. 119(c) are subject to the Charter.

Section 3 of the Charter

[21] The first question arising on the appeal is the scope of the right of a citizen to run for elected office guaranteed by s. 3 of the Charter, which provides:

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

The appellant’s position is straightforward. Section 3 of the Charter, he maintained, provides an unqualified right for every citizen of Canada to vote and to seek public office. In support of this position the appellant relied on the fact that the rights protected by s. 3 are “preferred” rights in that they are not subject to the notwithstanding clause found in s. 33 of the Charter. In short, he insists that any restriction on the rights contained in s. 3 must be justified under s. 1 of the Charter.

[22] The competing viewpoint, urged on the Court both by the respondents and by the Attorney General of Canada, is that the rights guaranteed by s. 3 are not absolute but contain inherent limitations that need not be justified under s. 1 of the Charter. More specifically, they argue, when a contextual approach is applied to s. 3, and the specific language used in the section is taken into account, the validity and consistency of s. 119(c) become clear.

[23] In order to choose between these two fundamentally different viewpoints, the logical place to start is with this Court’s previous treatment of s. 3 of the Charter. While the Court has not yet examined the right to be an elected member found in the second part of s. 3, it has on several occasions had the opportunity to consider the right to vote enshrined in the first part of the section. The fullest treatment of the right to vote appears in McLachlin J.’s majority reasons in Reference Re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158. At issue there was whether the purpose of the right was to guarantee equality of voting power or effective representation. Beginning at p. 179, McLachlin J. first considered the manner in which the content of a Charter right is to be determined. She identified the general principle, emerging from R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, as being that Charter rights should be interpreted in a broad and purposive manner having regard to the appropriate historical and social context. From this general principle she identified three particular considerations that were relevant to the interpretation of the right to vote: (1) that the Charter is part of the living tree that is the Canadian constitution and that as such, “the past plays a critical but non-exclusive role” (p. 180) in determining the scope of Charter rights; (2) that practical considerations should be borne in mind when undertaking constitutional interpretation; and (3) that the Court must be guided by the ideal of a “free and democratic society” as enunciated by Dickson C.J. in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

[24] Applying these considerations to the first part of s. 3, McLachlin J. concluded that the right enshrined by the right to vote was the right to effective representation. She stated, at pp. 188-89:

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

Based on this interpretation, McLachlin J. went on to find that the electoral boundaries in question did not violate s. 3 of the Charter since they could be justified on the grounds of effective representation and did not need to be justified under s. 1.

[25] In contrast to this approach is that used by this Court and others in dealing with particular statutory disqualifications of voters. In Sauvé v. Canada (Attorney General), 1993 CanLII 92 (SCC), [1993] 2 S.C.R. 438, the Court found that the voting disqualification for inmates found in the Canada Elections Act, R.S.C., 1985, c. E-2, violated s. 3 and could only be justified under s. 1 of the Charter. Similarly, the federal disqualifications of mentally incompetent persons and federally appointed judges, and a provincial disqualification of absentee citizens have all been found to be prima facie unconstitutional; see Canadian Disability Rights Council v. Canada, 1988 CanLII 9443 (FC), [1988] 3 F.C. 622 (T.D.); Muldoon v. Canada, 1988 CanLII 9407 (FC), [1988] 3 F.C. 628 (T.D.); and Re Hoogbruin and Attorney-General of British Columbia (1985), 1985 CanLII 335 (BC CA), 24 D.L.R. (4th) 718 (B.C.C.A.).

[26] Professor Peter Hogg in Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)) would apply the same logic to disqualifications in respect of the candidacy right in the second part of s. 3. He states in vol. 2 at s. 42.2:

The qualifications of a member of the House of Commons or a legislative assembly are prescribed by statute in each jurisdiction, and various citizens are disqualified. . . . All disqualifications of citizens are, of course, now contrary to the Charter, unless they can be justified under s. 1.

In support of this position Professor Hogg cites the Nova Scotia Supreme Court Trial Division case of MacLean v. Nova Scotia (Attorney General) (1987), 1986 NSSC 19, 76 N.S.R. (2d) 296. There Glube C.J.T.D. held that a provincial statute which retroactively imposed a five-year disqualification on running in a provincial election violated s. 3 of the Charter. She arrived at this result on what she saw as the clear wording of s. 3 (at p. 305):

On the plain meaning of the words in s. 3 of the Charter, I find that an attempt to put limits on membership qualification violates Mr. MacLean’s right as a citizen to be qualified for membership in the House of Assembly of Nova Scotia.

[27] This then becomes a central question: what is meant by the expression found in s. 3 of the Charter that “[e]very citizen of Canada has the right to vote in an election of members of . . . a legislative assembly and to be qualified for membership therein”, and what is the purpose behind the right? The respondents argue that the right to effective representation is at the heart of the right to be qualified for membership in a legislative assembly. Since the disqualification provisions of s. 119 of the Elections Act exist to preserve the integrity of the electoral process, and thereby help to ensure effective representation, they are in accord with s. 3 of the Charter. Similarly, the Attorney General of Canada focuses first on the language of s. 3, arguing that the use of the word “qualified” indicates that inherent in the right to be a candidate are limitations that are necessary to ensure effective representation. He goes on to argue that regard must be had to the appropriate historical context underlying the right. In particular, he notes that there has been a continual evolution of candidate eligibility requirements and disqualifications throughout Canadian history; that disqualifications such as those found in s. 119 have their origin in the widespread election corruption that was prevalent in the early years of confederation; and that disqualifications for corrupt or illegal election practices are to be found in many foreign jurisdictions.

[28] While these arguments may initially appear persuasive, I agree with the appellant that the provisions of s. 119(c) are prima facie unconstitutional as violating his rights under s. 3 of the Charter. My reasons are twofold. First, there is the language of s. 3. Admittedly in the English version the words “right to be qualified” are somewhat ambiguous. The use of the word “qualified” suggests that certain criteria must be met before a citizen can run for office. However, since there exists a right to be qualified, it would appear that qualification is automatic regardless of any criteria set out by statute. If it was Parliament’s intent to confer on every citizen the right to be a candidate, clearer language should have been used. But we are not left in doubt. A more precise statement of the right appears in the equally authoritative French text, which uses the phrase “Tout citoyen canadien . . . est éligible aux élections . . .”. The word “éligible” translates as “eligible” in English and is defined in Le Nouveau Petit Robert (1994), at p. 733, as one who has met the relevant conditions so that they can be chosen. This suggests that the English version of s. 3 should be read as “[e]very citizen . . . is qualified for membership therein”. In short, while the English version is somewhat lacking in clarity, the French version is straightforward and indicates that the right to be a candidate and to sit as a member of Parliament or a legislative assembly should be read in a broad manner.

[29] Secondly, and in my view this is decisive, to accept the respondents’ position would be to remove the balancing of interests from s. 1 and incorporate it in s. 3 of the Charter. In their oral submissions counsel for both the respondents and the Attorney General of Canada argued that any given qualification or limitation should first be weighed against the interests represented by s. 3 to determine if there was a violation of that section. Such an approach runs counter to the recent practice of this Court.

[30] In interpreting the right to vote under s. 3 this Court, and Canadian courts in general, have taken the approach that the justification for limitations on the right must be grounded in s. 1 of the Charter. As I have earlier noted, I do not believe the wording in the second part of s. 3 justifies taking a different approach to the right to stand for election and become a member of Parliament or a legislative assembly. This is in accord with this Court’s well established approach of reading Charter rights broadly and putting the burden of justifying limitations upon the state. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, at pp. 383-84, in the context of freedom of religion under s. 2(a) of the Charter, I emphasized the importance of carrying out any required balancing of rights under s. 1:

This Court has consistently refrained from formulating internal limits to the scope of freedom of religion in cases where the constitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under s. 1 of the Charter; see R. v. Jones, supra, and R. v. Edwards Books and Art Ltd., supra. A similar approach was taken in the context of s. 2(b) of the Charter, freedom of expression. In R. v. Keegstra, supra, Dickson C.J., writing for the majority, stated that s. 1 was better suited than s. 2(b) to facilitate the necessary balance between state and individual interests. . . .

In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity or hesitation should be resolved in favour of individual rights. Not only is this consistent with the broad and liberal interpretation of rights favoured by this Court, but s. 1 is a much more flexible tool with which to balance competing rights than s. 2(a).

Similarly in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, at para. 74, the Court again stated that a broad interpretation of the right in question, followed by a balancing of the relevant conflicting values under s. 1, is analytically preferable since it allows for the most comprehensive and contextual judicial review under the Charter. I can see no reason why a similar approach should not be adopted with respect to the rights guaranteed by s. 3. In this way the societal interests represented by the infringing provision, s. 119(c), can be weighed against the s. 3 interests using the well developed analytical framework found in Oakes, supra.

[31] That is not to say that there can never be limitations or qualifications on the right to stand for election that do not violate s. 3 of the Charter. An obvious example is the limitation found in s. 39 of the Constitution Act, 1867, that prohibits a Senator from being elected to, sitting, or voting in the House of Commons. However, rather than not violating s. 3 it is more accurate to say that such a limitation is not subject to the Charter as it is a well accepted principle that one part of the Constitution cannot be used to invalidate a provision in another part. Similarly, there is a strong argument that the legislative provisions disqualifying judges from being elected to Parliament or a legislative assembly are not in violation of s. 3 by reason of the separation of powers mandated by our constitution. However, I emphasize that these issues do not arise here.

[32] I conclude that the disqualifications prescribed by s. 119(c) of the Elections Act infringe a citizen’s right under the Charter to qualify for membership in the New Brunswick House of Assembly. However, before deciding if this infringement is justifiable under s. 1 of the Charter, I shall address the issue of whether the disqualifications infringe the rights and freedoms guaranteed by s. 12 of the Charter.

Section 12 of the Charter

[33] The appellant attempts to argue that the provisions of s. 119(c) amount to cruel and unusual punishment contrary to s. 12 of the Charter. To succeed, however, the appellant must first show that the provisions of s. 119(c) amount to “treatment or punishment”. The trial judge summarily dismissed the s. 12 argument on the basis that the consequences arising from the operation of s. 119(c) amounted to no more than civil disabilities. In R. v. Miller (1988), 1988 CanLII 4685 (ON CA), 65 O.R. (2d) 746, the Ontario Court of Appeal arrived at a similar conclusion, finding that the automatic suspension of a driver’s licence amounted to no more than a civil sanction and was not a “punishment” within the meaning of s. 12, but no analysis was offered for this assertion. In contrast, Sopinka J. in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 610, suggested that a penalty was a punishment when it arose out of the commission of a particular offence. Following that reasoning, the disqualifications imposed by s. 119(c) would amount to “punishment” within the meaning of s. 12 as they arise upon the conviction of an accused for an offence pursuant to the Elections Act.

[34] I need not decide this threshold question because, even if the disqualifications are properly classified as “punishment”, they do not amount to cruel and unusual punishment. In R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072, the Court approved several tests under s. 12 for determining if a given punishment was cruel and unusual. These included whether the prescribed punishment was so excessive as to outrage standards of decency and whether the punishment was grossly disproportionate to the offence. On the basis of these tests, I am unable to conclude that the disqualifications imposed by s. 119(c) violate s. 12 of the Charter, either with regard to the particular offence committed by the appellant or with regard to the range of offences under the Elections Act to which s. 119(c) can apply.

Section 1 of the Charter

[35] Having found that the provisions of s. 119(c) violate s. 3 of the Charter, it remains to determine whether they can be justified as reasonable limits under s. 1. The approach to be used in carrying out this analysis was set out by this Court in Oakes, supra. First, it is necessary to establish that the objective of the impugned legislation is of a pressing and substantial nature in a free and democratic society. Secondly, there must be proportionality between the objective and the means used to achieve it.

[36] As a corollary to the approach of reading Charter rights in a broad fashion, the Oakes methodology has been applied in a flexible manner. This is in keeping with the balancing of societal and individual interests that are most often at the core of any s. 1 analysis. In the following passage in United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, at pp. 1489-90, I noted:

In the performance of the balancing task under s. 1, it seems to me, a mechanistic approach must be avoided. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature.

This passage was adopted by Dickson C.J. in his majority reasons in R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, at pp. 737-38, where he said:

From the discussion so far, I hope it is clear that a rigid or formalistic approach to the application of s. 1 must be avoided. The ability to use s. 1 as a gauge which is sensitive to the values and circumstances particular to an appeal has been identified as vital in past cases . . . The sentiments of La Forest J. correctly suggest that the application of the Oakes approach will vary depending on the circumstances of the case, including the nature of the interests at stake.

[37] In the present case the right in issue is the very embodiment of democracy -- the right of citizens to elect their government and the right of each individual to attempt to become part of that government. The value at the heart of s. 119(c) is in many ways an extension of this right, the expectation of citizens to have a fair electoral process so that the right found in s. 3 does not become a hollow and empty one, devoid of meaning or substance. As was stated by the majority in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1056:

The underlying values of a free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights.

It is within this context that the Oakes criteria must be applied in the present case.

A Pressing and Substantial Concern

[38] The respondents submit that the objective of both provisions of s. 119(c), the five-year disqualification and the mandatory vacating of a seat, is to preserve the integrity of the electoral process, thereby enhancing the existence and operation of a free and democratic society. On the other hand, so far as the five-year disqualification is concerned the appellant, echoing the dissenting reasons of Rice J.A. in the court below, argued that no pressing and substantial concern exists since the electorate is free to reject the offending candidate at a subsequent election. In my view, this argument misses the mark, and this for two reasons. First, the argument is really not concerned with the importance of the objective, but with the rational connection between the measures chosen and the objective. Secondly, it fails to take into account the interest of society in deterring activity that subverts the very electoral process upon which a free and democratic society is founded. As the respondents put it in their factum, “the individual elected to the legislative assembly holds a position of great trust and responsibility and it is important that such representatives and those seeking such high office be in no doubt that their participation in the proscribed conduct attracts precise and grave consequences”. I have no doubt that the primary goal of the impugned legislation is to maintain and enhance the integrity of the electoral process. Nor do I doubt that such an objective is always of pressing and substantial concern in any society that purports to operate in accordance with the tenets of a free and democratic society.

[39] The intervener Attorney General for Ontario also points out that candidates in certain Canadian jurisdictions possess considerable influence in determining the structure of an election administration. Specifically, a candidate may effectively control who becomes an enumerator, a poll official, or a scrutineer. Regulating the influence an individual convicted of an Elections Act offence may exercise on the electoral machinery is of itself of pressing and substantial concern going as it does to the integrity of the electoral process.

Rational Connection

[40] The first branch of the proportionality inquiry requires us to determine whether there is a rational connection between the means employed in s. 119(c), the five-year disqualification and the vacating of a legislative seat, and the objective of the section of preserving the integrity of the electoral process. In Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, at p. 291, Wilson J. thus enunciated the standard that must be met in performing this task:

The Oakes inquiry into “rational connection” between objectives and means to attain them requires nothing more than a showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt.

In my view, both the impugned provisions of s. 119 meet this requirement. The requirement that an elected MLA vacate his seat on being convicted of a corrupt or illegal election offence logically furthers the objective of preserving the integrity of the election process. It is a straightforward method whereby the electorate is assured that the voting process will be fair. By requiring a sitting member to vacate his seat his tainted election is voided and a new election process undertaken. To argue, as the appellant does, that one less vote would not have changed the outcome of the election is to misunderstand the concept of integrity.

[41] I am also of the view that the five-year disqualification is rationally connected to the objective. A mandatory disqualification acts as a strong deterrent and helps to promote confidence in the electoral system. Again, the appellant’s contention that the disqualification displays paternalism on the part of the legislature misses the point. The provision is meant to protect the public not only from a particular offender, but from offenders in general. In other words the legislature is aiming at both general and specific deterrence.

[42] I would also reject the appellant’s contention that the operation of s. 119(c) is arbitrary because it is mandatory in nature and applies to everyone convicted of a corrupt or illegal practice. While the section is mandatory, it only comes into play when an individual has been convicted of one of a number of prescribed offences each of which involves an attack on the integrity of the democratic process, albeit some may be more serious than others. If a Member of the Legislative Assembly is convicted of any of these offences the whole of the electoral process may be brought into disrepute. The argument that the penalty is arbitrary is also weakened by the fact that it is only imposed after a conviction in a court of law. Finally, the fact that the trial judge has no discretion with respect to this part of the penalty is no more arbitrary than any minimum sentence found in the Criminal Code or any other penal statute.

[43] I conclude, therefore, that s. 119(c) is rationally connected to the objective of preserving the integrity of the electoral process and is not arbitrary in that it applies only to a specified group of individuals who are charged with and convicted of specified offences.

Minimal Impairment

[44] In considering the minimal impairment requirement under the Oakes approach it is important to keep in mind the standard that the limitation in question must meet. I dealt with this issue in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at p. 305, where, though I was in dissent, the following expressed the views of the majority as well:

. . . the minimal impairment requirement does not impose an obligation on the government to employ the least intrusive measures available. Rather, it only requires it to demonstrate that the measures employed were the least intrusive, in light of both the legislative objective and the infringed right. [Emphasis in original.]

As I have already noted, the infringed right in the present case is one of the most fundamental in the Charter, going as it does to the very heart of a free and democratic society -- a representative and responsible government. At the same time, however, the objective of the limitation is equally fundamental to ensuring the effective exercise of that right.

[45] With respect to that part of s. 119(c) that requires convicted individuals to vacate their legislative seat, I agree with the respondents that such a response is appropriate and in no way overreaches the target when the objective of maintaining the integrity of the electoral process is considered. As is evident from the material before the Court, expulsion of a sitting member from his or her seat in the legislature is the historical response to corrupt and illegal election practices. Such a penalty indicates that activity that is ultimately inimical to the goal of effective representation and the electoral process underlying our free and democratic society cannot be tolerated.

[46] The imposition of a five-year disqualification raises a more difficult issue. Accepting, as I do, that there is a rational connection between some term of disqualification and the desired objective, the question is reduced to what period of disqualification represents a minimal impairment of the appellant’s s. 3 Charter rights. It clearly makes sense that the appellant should not be allowed to run in the by-election that arises from him vacating his seat, but how much further should it go? In settling on a five-year disqualification the legislature has ensured that the appellant is ineligible to run in the next general election. While it is true that there could be several elections within that time, the legislature has chosen a fixed term, presumably because of its added certainty. In addition, a five-year disqualification provides for a time of cleansing, allowing the integrity of the electoral process to be renewed both in real terms and in the mind of the electorate.

[47] This Court has on several occasions asserted its unwillingness to second-guess the legislature in choosing between acceptable options. In R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, at p. 782, Dickson C.J. indicated that “[t]he courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line”, and in RJR-MacDonald, supra, McLachlin J. had this to say, at p. 342:

The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement. . . .

In the present instance I can see no reason why this Court should interfere with the balancing engaged in by the Legislature. A degree of deference is especially appropriate in this case where the impugned legislative provisions are aimed at transgressing members of the New Brunswick Legislative Assembly. Surely the members of that body are in the best position to choose between available options when it comes to deterring other members from breaching the trust that exists between them, the electorate, and the House as a whole.

Proportionality Between Effects and Objective

[48] The final step in the Oakes analysis is to determine if the effects of s. 119(c), the removal of the appellant as the member for Carleton North and his five-year disqualification from running as a candidate, are proportional to the section’s objective of ensuring the integrity of the electoral process. In this regard the appellant drew attention to the following as showing that the effects are not proportional to the objective: that s. 119(c) applies before any appeal of a conviction can be heard, and that the five-year disqualification would continue regardless of the outcome of an appeal. In particular, he argued, it was inappropriate that a sitting member would be required to give up his seat and be denied an opportunity to run in a by-election when the possibility still existed that his conviction would be overturned on appeal.

[49] Clearly if an appeal was successful it would be difficult to undo the damage imposed by s. 119(c) by the removal of the member from the Legislative Assembly. However, the issue of what happens pending an appeal is not in itself determinative of the s. 1 analysis. While suspending the removal of an elected member pending an appeal could have been an option chosen by the Legislature, as has been done with some election-related statutes in other provinces and even in New Brunswick itself, it would have the effect of leaving both the convicted member and his constituents in a state of suspended animation that would do nothing to enhance respect for the democratic system or further the goal of effective representation.

[50] Given that there is no stay of the operation of s. 119(c) pending an appeal, the issue was raised both before the trial judge and before this Court regarding the consequences flowing from a successful appeal of a conviction under the Elections Act. In particular, counsel for the appellant argued that the five-year disqualification would apply to an individual even if the conviction was subsequently overturned on appeal. In support of this proposition, he referred us to the trial judge who had proceeded with his analysis on the assumption that once a sitting member had been forced to vacate his or her seat such member could not be restored to it. I take this to mean that the vacancy created by the operation of s. 119(c) could not be set aside even if the conviction was overturned on appeal before a by-election was held. However, I see nothing in the trial judge’s reasons or in the statute itself to suggest that the five-year disqualification would not cease to apply upon a successful appeal by a convicted member. Thus he or she would be eligible to run in the by-election if it had not yet been held, or to run in the next general election.

[51] In my view, the effects of s. 119(c) are proportional to its objective of ensuring, preserving, and protecting the integrity of the electoral process, subject to the caveat given above that the five-year disqualification would cease to apply if a member’s conviction was overturned on appeal. Consequently, s. 119(c) of the Elections Act is a justified infringement upon the right to be qualified for membership in the Legislative Assembly.

Severance of the Offending Provisions

[52] At trial, s. 119(a) of the Elections Act was found to be unconstitutional and the trial judge severed it from the remaining provisions of the section. No appeal of the constitutional finding was brought by the Crown, but both in the Court of Appeal and before this Court the appellant argued that severance was not appropriate in this instance and that s. 119 as a whole should be struck down as being unconstitutional. It is well established that the test that must be met in order to sever an offending provision is that the legislature would have enacted the surviving portion without enacting the offending provision (Schachter v. Canada, supra, at p. 697). In my view, when looking at s. 119 as a whole it is clear that each of its three provisions is separate from the others and that there would be no change in the intent or character of the legislation if s. 119(a) were severed from the rest. Such a result is in keeping with the established practice of Canadian courts in severing unconstitutional limitations on the right to vote found in both provincial and federal legislation.

Conclusion

[53] To summarize, assuming the application of the Charter, the provisions of s. 119(c) of the Elections Act violate the rights guaranteed under s. 3 of the Charter but do not constitute cruel and unusual punishment under s. 12 of the Charter. However, s. 119(c) is saved under s. 1 as it is a reasonable limit demonstrably justified in a free and democratic society. Since no appeal was taken in respect of the trial judge’s ruling that s. 119(a) is unconstitutional, that ruling must, of course, stand but the provision can be severed from the remainder of the section.

[54] Accordingly, I would dismiss the appeal with costs and, assuming the Charter applies, I would answer the constitutional questions as follows:

Question 1. Do the disqualifications prescribed by s. 119(c) of the Elections Act, R.S.N.B. 1973, c. E-3,

(a) relating to the right to be elected to or to sit in the Legislative Assembly,

(b) relating to the vacation of the seat of a convicted member,

infringe or deny in whole or in part the rights and freedoms guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms?

Answer: Yes.

Question 2. Do the disqualifications prescribed by s. 119(c) of the Elections Act

(a) relating to the right to be elected to or to sit in the Legislative Assembly,

(b) relating to the vacation of the seat of a convicted member,

infringe or deny in whole or in part the rights and freedoms guaranteed by s. 12 of the Charter?

Answer: No.

Question 3. If the answer to question (1) or (2) is in the affirmative, does the infringement or denial constitute a reasonable limit within the meaning of s. 1 of the Charter?

Answer: Yes.

The reasons of L’Heureux-Dubé and McLachlin JJ. were delivered by

[55] McLachlin J. -- I have read the reasons of Justice La Forest and agree with him that the disqualification of Mr. Harvey from sitting in the New Brunswick legislature for five years from the date of his conviction for corruption must stand. My colleague proceeds on the assumption that the courts have the power to review the legislature's rule disqualifying Mr. Harvey. He goes on to find that the disqualification provision infringes s. 3 of the Canadian Charter of Rights and Freedoms but is saved under s. 1 as a reasonable limitation demonstrably justified in a free and democratic society. I would approach the matter differently. I am of the view that the disqualification for office raised in this case falls within the historical privilege of the legislature and is hence immune from judicial review.

[56] La Forest J. declines to address this argument on the ground that it was raised by an intervener -- the Attorney General of Canada -- rather than the parties. I arrive at a different conclusion on this preliminary point for three reasons. First, I see no reason to decline to entertain an argument merely because an intervener, rather than the parties, raises it. The very point of permitting interventions is to obtain alternative arguments which may shed new light on a problem. Second, it seems to me that before questioning whether the New Brunswick legislature has violated the Charter, it behooves the Court to ask whether it has the right to question at all. Third, convinced as I am that the courts must defer to the Legislative Assembly on a matter within its privilege, I prefer not to engage in a hypothetical analysis of the Charter issues in this case. The discomfort in doing so is heightened for me by the fact that it requires the Court to postulate that a statutory provision which is necessary to the proper functioning of democracy (see La Forest J.'s s. 1 analysis) in fact violates the democratic guarantees of the Charter. For me, the issue is not whether the Charter “prevails over” particular exercises of parliamentary privilege. The Charter and parliamentary privilege are both constitutional principles of fundamental importance. Our object should be to reconcile them in such a way as will preserve both meaningful legislative privilege as well as the fundamental democratic values guaranteed by the Charter.

The Facts

[57] Fred Harvey was elected in the 1991 general election to represent the electoral district of Carleton North in the New Brunswick legislature. After the election, he was convicted under the New Brunswick Elections Act, R.S.N.B. 1973, c. E-3, and fined $100 for having induced a minor to vote in the election, knowing that she was ineligible to vote. Section 119 of the Act disqualifies anyone “convicted of having committed any offence that is a corrupt or illegal practice” from holding electoral office for five years from the date of conviction. Mr. Harvey was consequently expelled from the legislature. Mr. Harvey then sought a court declaration that the disqualification provisions of the Act violated s. 3 of the Charter, which provides that “[e]very 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 trial judge granted the declaration with respect to the portion of s. 119(c) which imposes a five-year bar to sitting, but upheld under s. 1 of the Charter the portion of s. 119(c) which requires a sitting member to vacate his or her seat on conviction for a corrupt or illegal practice: (1993), 1993 CanLII 6591 (NB QB), 133 N.B.R. (2d) 181, 341 A.P.R. 181. The Court of Appeal dismissed the appeal and allowed the cross-appeal, Rice J.A. dissenting, holding that both of the prescriptions of s. 119(c) of the Act were justified under s. 1 of the Charter: (1993), 1993 CanLII 3048 (NB CA), 141 N.B.R. (2d) 117, 361 A.P.R. 117, 109 D.L.R. (4th) 371. In the result, Mr. Harvey was unable to stand as a candidate in the 1993 by-election in his riding or in the 1995 general elections.

The Legislation

[58] Section 119(c) of the New Brunswick Elections Act, R.S.N.B. 1973, c. E-3:

119 Any person who is convicted of having committed any offence that is a corrupt or illegal practice shall, during the five years next after the date of his being convicted, in addition to any other punishment by this or any other Act prescribed, be disqualified from and be incapable of

(c) being elected to or sitting in the Legislative Assembly and, if at such date he has been elected to the Legislative Assembly, his seat shall be vacated from the time of such conviction.

Sections 1 and 3 of the Canadian Charter of Rights and Freedoms:

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

2. 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.

Analysis

[59] Mr. Harvey does not deny that he engaged in a corrupt practice contrary to the Elections Act. Nor does he deny that having been convicted of the practice, the Act disqualifies him from sitting in the legislature and from standing for office for five years from the conviction date. His sole argument is that both his expulsion and the law which requires it violate s. 3 of the Charter, which provides that every citizen has a right to be qualified for membership in the legislature.

[60] This argument raises at the outset the issue of what power the courts have to question a rule of the legislature as to the consequences of electoral corruption. More particularly, are the courts empowered to interfere with the constitutional privilege of the legislature to bar persons convicted of corrupt electoral practices from sitting in the Assembly? This Court in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, held that while rules of the legislature are subject to review by the courts to determine whether they fall within the protected sphere of parliamentary privilege, the courts have no power to review decisions made within the privileged domain. It follows that if the disqualification of Mr. Harvey may be properly characterized as an exercise of parliamentary privilege, the courts have no power to review it.

Parliamentary Privilege and the Courts

[61] If democracies are to survive, they must insist upon the integrity of those who seek and hold public office. They cannot tolerate corrupt practices within the legislature. Nor can they tolerate electoral fraud. If they do, two consequences are apt to result. First, the functioning of the legislature may be impaired. Second, public confidence in the legislature and the government may be undermined. No democracy can afford either.

[62] When faced with behaviour that undermines their fundamental integrity, legislatures are required to act. That action may range from discipline for minor irregularities to expulsion and disqualification for more serious violations. Expulsion and disqualification assure the public that those who have corruptly taken or abused office are removed. The legislative process is purged and the legislature, now restored, may discharge its duties as it should.

[63] Expulsion and disqualification for corruption could be left to be dealt with as the need arises. However, the Canadian Parliament and the legislatures of Canada have thought it better to set out rules in legislative form. They have passed statutes like the New Brunswick Elections Act which spell out what will happen if, for example, a candidate is convicted of corrupt electoral practices. These statutes impose sanctions not only of expulsion, but also of disqualification so as to preclude the ejected member from sterilizing the disciplinary process by immediately standing for re-election and re-entering the legislative assembly. The legislative assemblies of most democracies have, through legislation, promulgated rules regulating expulsion and disqualification. See Representation of the People Act 1983 (U.K.), 1983, c. 2; Commonwealth Electoral Act 1918 (Aus.), 1918, No. 27, as amended; Electoral Act 1993 (N.Z.), 1993, No. 87; and similar legislation in most American states: 26 Am. Jur. 2d at § 381 (1996)

[64] The history of the prerogative of Parliament and legislative assemblies to maintain the integrity of their processes by disciplining, purging and disqualifying those who abuse them is as old as Parliament itself. Erskine May, writing in 1863, stated this in his Treatise on the Law, Privileges, Proceedings, and Usage of Parliament (5th ed. 1863), at p. 54:

Another important power peculiar to the Commons, is that of determining all matters touching the election of their own members. This right has been regularly claimed and exercised since the reign of Queen Elizabeth, and probably in earlier times. . . .

[65] Prior to Confederation, the scope of privileges enjoyed by colonial legislative assemblies was circumscribed in accordance with their status as dependants of the mother Parliament in Westminster. Colonial assemblies were deemed to lack many of the privileges which full-fledged legislative bodies possess, such as the right to require testimony under oath and the right to punish transgressions committed outside the legislative assembly. The common law accorded to colonial legislative bodies only those “inherent” privileges necessary to their most basic functioning. See Dawson’s The Government of Canada (6th ed. 1987), at pp. 113-17; A. Heard, “The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights” (1995), 18 Dalhousie L.J. 380, at pp. 400 ff.; and J. Maingot, Parliamentary Privilege in Canada (1982), at pp. 2-4. This Court in New Brunswick Broadcasting, supra, held that even these limited inherent powers over internal proceedings would be sufficient to permit the Speaker of the Nova Scotia Legislative Assembly to ban cameras from the Legislative Chamber.

[66] Since Confederation, however, the privilege of Parliament and the legislatures is no longer limited to the inherent privileges possessed by the colonial legislative bodies. Since 1867, Canadian legislatures have possessed the power to legislate privileges for themselves. The history of how they acquired this power is detailed by Heard, supra, at pp. 401-2:

With the passage of the Colonial Laws Validity Act in 1865, colonial assemblies were generally able to legislate for themselves what privileges they wished, unless limited by other statutes. While the Canadian Parliament came into being with the powers of the British House of Commons in 1867, it was limited to those powers. As a result its 1873 Oaths Act was disallowed, since the British Commons only acquired this power to compel testimony under oath in 1871. Consequently, the limiting provision of the Constitution Act, 1867 was amended in 1875 to provide express statutory authority to the Canadian Parliament to grant itself additional privileges. The Canadian House of Commons enjoys the privileges of the British House of Commons, but this link to Britain is now entirely discretionary. It is based on s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act, but this British foundation is plainly within the competence of the Canadian Parliament to amend or sever under s. 44 of the Constitution Act, 1982. The general authority under the Colonial Laws Validity Act was used after Confederation by provincial legislatures, which also found the former powers of colonial assemblies to be inadequate but were not expressly limited to the British powers of 1867. This authority to expand the base of privileges was explicitly upheld in a Privy Council case dealing with Nova Scotia's statutory adoption of broader privileges. Nova Scotia claimed in 1876 the privileges of the Canadian House of Commons following a court decision denying the Assembly the power to punish for contempt under its original, inherent privileges. For their own part, the provincial legislatures may change their legislative privileges through the authority they have under s. 45 to amend their own “provincial constitutions”; the Privy Council ruled in 1896 that legislative privileges were squarely within the jurisdiction of a provincial legislature to amend the “provincial constitution” found at the time in s. 92(1) of the Constitution Act, 1867. [Footnotes omitted.]

[67] It is thus clear that Parliament and the legislatures of Canada are not confined to regulating procedure within their own chambers, but also have the power to impose rules and sanctions pertaining to transgressions committed outside their chambers. The disqualification provisions of s. 119(c) of the New Brunswick Elections Act may be seen as an expression of this power. The legislature, in order to ensure the integrity of, and public confidence in, its processes has stipulated that those who abuse its electoral rules cannot sit in the Assembly for a period of five years thereafter.

[68] The power of Parliament and the legislatures to regulate their procedures both inside and outside the legislative chamber arises from the Constitution Act, 1867. The preamble to the Constitution Act, 1867 affirms a parliamentary system of government, incorporating into the Canadian Constitution the right of Parliament and the legislatures to regulate their own affairs. The preamble also incorporates the notion of the separation of powers, inherent in British parliamentary democracy, which precludes the courts from trenching on the internal affairs of the other branches of government. As I wrote in New Brunswick Broadcasting, supra, at p. 389:

Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.

[69] Because parliamentary privilege enjoys constitutional status it is not “subject to” the Charter, as are ordinary laws. Both parliamentary privilege and the Charter constitute essential parts of the Constitution of Canada. Neither prevails over the other. While parliamentary privilege and immunity from improper judicial interference in parliamentary processes must be maintained, so must the fundamental democratic guarantees of the Charter. Where apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them.

[70] The necessary reconciliation of parliamentary privilege and s. 3 of the Charter is achieved by interpreting the democratic guarantees of s. 3 in a purposive way. The purpose of the democratic guarantees in the Charter must be taken to be the preservation of democratic values inherent in the existing Canadian Constitution, including the fundamental constitutional right of Parliament and the legislatures to regulate their own proceedings. Express words would be required to overthrow such an important constitutional principle as parliamentary privilege. It follows that s. 3 of the Charter must be read as being consistent with parliamentary privilege. However, this does not leave s. 3 without meaning. Expulsions and disqualification from office may, if found to fall within the scope of parliamentary privilege, be beyond the purview of s. 3. But s. 3 still operates to prevent citizens from being disqualified from holding office on grounds which fall outside the rules by which Parliament and the legislatures conduct their business; race and gender would be examples of grounds falling into this category. Viewed from this perspective, s. 3 may be seen as reflecting, in the democratic context, the values enshrined in the equality guarantee of s. 15 of the Charter. This approach gives full value to the purpose, the content and the place of s. 3 in the context not only of the Charter, but the Constitution as a whole.

[71] This is not to say that the courts have no role to play in the debate which arises where individual rights are alleged to conflict with parliamentary privilege. Under the British system of parliamentary supremacy, the courts arguably play no role in monitoring the exercise of parliamentary privilege. In Canada, this has been altered by the Charter’s enunciation of values which may in particular cases conflict with the exercise of such privilege. To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As this Court made clear in New Brunswick Broadcasting, the courts may properly question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies.

[72] British jurisprudence distinguishes between privileges asserted by resolution and privileges effected automatically by statute. In respect of privileges asserted by resolution, British courts have developed a doctrine of necessity, enabling them to inquire whether the action taken by resolution is necessary to the proper functioning of the House. The necessity inquiry does not ask whether the particular action at issue was necessary, and hence does not involve substantive judicial review. Rather, it asks whether the dignity, integrity and efficiency of the legislative body could be maintained if it were not permitted to carry out the type of action sought to be done, for example to expel a person from the legislature or disqualify a person from seeking office on grounds of corruption. Following this rule, this Court in New Brunswick Broadcasting inquired whether the resolution there in issue was necessary to the proper functioning of the legislature and the maintenance of its integrity. The question was left open whether a similar inquiry should be conducted where a legislated privilege, like the one asserted in the case at bar, is in question.

[73] It has been suggested that in the Canadian constitutional context, it might be appropriate to subject all exercises of parliamentary privilege, whether asserted by resolution or by statute, to the necessity rule: Heard, supra, at p. 404. There is much to recommend such an extension of the necessity doctrine in Canada, and little to justify a distinction between privilege claimed by resolution and privilege claimed by legislation. The drawing of such a distinction is particularly difficult to accept in a state such as Canada, which recognizes the right of courts to review, where appropriate, the constitutionality of legislation. While it is not necessary in this case to decide whether the necessity doctrine should be so extended, I proceed here on the assumption that in determining whether a parliamentary privilege has been established in respect of a legislated disqualification, the court should ask whether the privilege claimed is necessary to the dignity, integrity or efficient functioning of the legislature.

[74] This, in broad outline, suggests how the constitutional principle of parliamentary privilege may be reconciled with the democratic guarantees of the Charter. Section 3 of the Charter guarantees that candidates will not be denied electoral office by reason of discrimination on the basis of such grounds as race, class or gender. It does not, however, oust the historic privilege of the legislature to deny membership to those who disqualify themselves by crime, corruption or other misconduct. The courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege. If it does not, they may proceed with Charter review. If it does, they must leave the matter to the legislature. This approach preserves parliamentary privilege and the principle of the separation of powers, while at the same time assuring the protection of the right under s. 3 of the Charter not to be excluded from public office on grounds unrelated to the need of the legislature to maintain order and the integrity of its processes.

[75] Viewed thus, the main issue in this case is whether the disqualification of Mr. Harvey under s. 119(c) of the New Brunswick Elections Act is a valid exercise of parliamentary privilege. It is to that question that I now turn.

Is Parliamentary Privilege Established in this Case?

[76] The authorities establish that expulsion from the legislature of members deemed unfit is a proper exercise of parliamentary privilege. Regarding the British House of Commons, Erskine May, supra, wrote that, “[n]o power exercised by the Commons is more undoubted than that of expelling a member from the house, as a punishment for grave offences" (p. 58). In Canada, J. G. Bourinot, in Parliamentary Procedure and Practice in the Dominion of Canada (2nd ed. 1892), at pp. 193-94, affirmed the same rule:

The power of Parliament to expel a member is undoubted. This power has been repeatedly exercised by the English and Colonial Parliaments, either when members have been guilty of a positive crime, or have offended against the laws and regulations of the House, or have been guilty of fraudulent or other discreditable acts, which proved that they were unfit to exercise the trust which their constituents had reposed in them, and that they ought not to continue to associate with the other members of the legislature.

[77] Expulsion may be justified on two grounds: to enforce discipline within the House; and to remove those whose behaviour has made them unfit to remain as members: Heard, supra, at p. 392. Both objectives are important. With respect to the latter, Heard points out that within the past decade, “at least eighteen Canadian legislators were convicted of criminal offences, including sexual assault, assault (on a wife), and murder; while most resigned, a few hung doggedly on until they were expelled by their assembly or defeated at the polls”. He adds:

No legislature can be venerated as an institution of governance if it is populated with such unsavoury characters. Indeed, some would add that the civic virtue of a society requires the removal from public office of the corrupt, criminal, and profoundly immoral.

[78] The right of expulsion on these two grounds -- discipline and unfit behaviour -- is a matter of parliamentary privilege and is not subject to judicial review. Thus Maingot, supra, concludes at pp. 161-62:

What is clear is that the ordinary civil and criminal jurisdiction of the courts does not extend to determining the rights of members to sit in the House, and the courts equally have nothing to do with questions affecting its membership except in so far as they have been specially designated by law to act in such matters as, for example, under the Dominion Controverted Elections Act.

[79] The absence of judicial review where a legitimate ground of expulsion is established may be interpreted as a recognition that a broad and unfettered right to expel members, free from judicial interference and the uncertainty, conflict, and delay that such interference might engender, is necessary to the proper functioning of democracy. Indeed, the need for dignity and efficiency in the House has long been accepted as requiring nothing less. The history of the struggle for parliamentary privilege supports this conclusion. Consider the case that laid down the principle of necessity, Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.). At issue was a declaration by the Commons that protected the publishers of the debates from libel suits. The courts declared that they had the power to review this declaration and struck it down. Parliament resolved the dispute by passing the Parliamentary Papers Act, 1840 (U.K.), 3 & 4 Vict., c. 9, which expressly protected the publishers of debates from libel. This protection is now accepted, in Canada as in Britain, as a fundamental tenet of parliamentary privilege. The point is not that the legislature is always right. The point is rather that the legislature is in at least as good a position as the courts, and often in a better position, to decide what it requires to function effectively. In these circumstances, a dispute in the courts about the propriety of the legislative body's decision, with the delays and uncertainties that such disputes inevitably impose on the conduct of legislative business, is unjustified.

[80] It is thus clear that had the New Brunswick legislature simply expelled Mr. Harvey, that decision would fall squarely within its parliamentary privilege and the courts would have no power to review it. Here, however, we are concerned with a legislated rule to disqualify persons convicted of corrupt electoral practices for a period of time. This raises the question whether disqualification falls within the sphere of parliamentary privilege. Disqualification may be argued to fall within parliamentary privilege on two grounds: first, as a means of making expulsion effective; and second, as a privilege in its own right.

[81] On the first ground, the question is whether disqualification is necessary to make expulsion an effective sanction. Before us, the New Brunswick Attorney General argued that disqualification is necessary to prevent a “revolving door”. In my view, this argument has merit. Unless the legislature has the power to disqualify a person who has violated its rules from seeking office for a period of time, there is nothing to prevent the person from simply seeking re-election in the first available by-election, often in the very riding vacated by the expulsion order. As Heard notes at p. 394, there are ample examples in Britain and Canada of legislators being expelled, re-elected in the ensuing by-election, only to be expelled again for being still unfit for the legislature. As to the ill effects of such fruitless cycles of expulsion and re-election, Heard concludes that:

A legislature does not have conclusive authority to discipline its members if it expels someone simply to have that person returned to carry on where he or she left off. Disqualification would give finality to a disciplinary decision to expel a member.

[82] Disqualification may also fall within parliamentary privilege in its own right. It serves the same purposes as expulsion for acts committed outside the legislature, which has long been recognized as privileged. A person's fitness to sit as a lawmaker is called into question by criminal acts committed outside the legislature just as surely as misconduct within the legislative chamber. That unfitness is as manifest at the time of election as when the person takes his or her seat in the legislature. The legislature should be permitted to determine in advance of the person taking office whether he or she is fit to serve, rather than being required to wait until the person assumes office. In so doing, unnecessary election costs may be saved and the riding is not left without a sitting member while a new election is held. In short, the right to disqualify is necessary to the dignity and efficiency of the legislature. If we accept that a legislature has the right to prevent people convicted of crimes or corruption from sitting as lawmakers, then common sense and the need for efficiency require that the legislature be permitted to disqualify potential members as well as to expel existing members.

[83] On the broader basis of political theory, it may also be argued that the remedy of disqualification is a necessary appurtenance of a legislative assembly. Thus Maingot, supra, states at p. 161 that in Britain: “the House of Commons may exclude, suspend, or expel any member for any reason” (emphasis added). From a Canadian perspective, Marcel Pelletier, in “Privilege in the Canadian Parliament” (1973), 54 Parliamentarian 143, writes at p. 149:

Acceptance by the Commons is a test which all Members must meet and the Canadian House has on occasions rejected a Member notwithstanding any legal qualification and the regularity of his election. . . .

The fact that the House rarely questions the qualifications and the right of its Members is no indication that an elected candidate does not have to meet the test of acceptability to his colleagues. The authority of the House of Commons to reject a fully qualified and properly elected Member has not been weakened by time or disuse.

If, as Heard, supra, at p. 395, puts it, “[t]he authorities are clear that under parliamentary privilege, a legislative body is in general control of its membership”, it is difficult to argue that rules by which candidates are disqualified for corruption do not fall within the domain of parliamentary privilege. The test of acceptance must, of course, comport with grounds on which expulsion can legitimately be compelled.

[84] The history of the power of a legislative body to make statutory rules of disqualification for candidature goes back at least two centuries. Convictions for corrupt and illegal election practices have been automatic disqualifications for many years both in Britain and in Canada. It may be concluded, therefore, as does Heard, supra, at p. 397, that “[t]he setting of disqualifications by statute . . . seem[s] logically to belong to [the] ancient privilege to determine matters relating to the election of members”.

[85] It remains to consider the argument, made by Rice J.A. in the New Brunswick Court of Appeal, against the treatment of disqualification as a matter falling within parliamentary privilege. The argument is that the electorate, rather than the legislature, is the appropriate body to determine whether a person convicted of a crime or corrupt practice should sit as a lawmaker. While the legislature has the power to expel sitting members, the argument goes, the electorate should have the power to decide whether the person should be returned to office. It is asserted that it is not necessary to the effective functioning and dignity of the House that a person be denied the opportunity to seek election, and that the voters are better able to weigh the gravity of the particular offence than is the legislature.

[86] Heard characterizes this argument as “at once appealing and troublesome” (p. 398). Its attraction lies in the democratic character of an appeal to the electorate. Its troubling aspect lies in the assumption that the electorate has, by electing a candidate, endorsed the candidate despite the crime or corruption. This will be true if the candidate is elected by a majority vote. Frequently, however, the winning candidate obtains only a minority of the popular vote. In such a case, it may be argued that the majority of the electorate has not only failed to approve of the candidate, but has positively disapproved of him or her, thus undermining the argument that re-election is a sign of popular approbation.

[87] The argument also fails to recognize that the legislature, and indeed the whole system of democratic government, may be brought into disrepute by permitting those convicted of corruption to sit as lawmakers and to exercise the powers and responsibilities that appertain to that position. It is not only the constituents of the candidate's riding, but also the people of the entire province, who are entitled to an assurance that those charged with making and administering the laws of the land are persons of integrity. Their interest is better judged by the members of the legislature for the province than by the voters in a single riding.

[88] I conclude that the power to disqualify members for corruption is necessary to the dignity, integrity and efficient functioning of a legislature. As such, it is protected by parliamentary privilege and falls outside the ambit of s. 3 of the Charter. It is a matter for the legislature, not the courts, to determine.

Conclusion

[89] I conclude that s. 119(c) of the New Brunswick Elections Act is valid legislation. Mr. Harvey's disqualification was a legitimate exercise of parliamentary privilege and that disqualification must stand. Although I would dispose of the appeal as proposed by La Forest J., it follows from my conclusion that s. 3 of the Charter is not engaged in the present case. The constitutional questions do not, therefore, need to be answered.

Appeal dismissed with costs.

Solicitors for the appellant: Mockler, Peters, Oley, Rouse & Williams, Fredericton.

Solicitors for the respondents the Attorney General for New Brunswick and the Minister of Municipalities, Culture and Housing: Paul M. LeBreton, Fredericton.

Solicitors for the respondents Dennis Cochrane and Hazen Myers: Crocco, Hunter, Purvis & Depow, Woodstock, N.B.

Solicitor for the intervener the Attorney General of Canada: George Thomson, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: Robert E. Charney, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Dominique A. Jobin, Ste‑Foy.