Canadian Constitution Foundation v. Attorney General of Canada

Court File No.: CV-1900627380 Date: 2019-10-07 Superior Court of Justice - Ontario

Re: Canadian Constitution Foundation And: Attorney General of Canada

Before: Koehnen J.

Counsel: Adam Goldenberg, Connor Bildfell, for the Canadian Constitution Foundation Michael H. Morris, Gail Sinclair and Katrina Longo for the Attorney General of Canada

Heard: September 24, 2019

ENDORSEMENT

Background

[1] The applicant challenges the constitutionality of section 91 of the Canada Elections Act, S. C. 2000, c. 9 (the "Act") and seeks to have its application determined on an urgent basis.

[2] The matter came to me after I was appointed case management judge on September 23, 2019 pursuant to a request by the applicant to the Chief Justice of Ontario. I convened a case conference with counsel on September 24, 2019.

[3] The section the applicant challenges prohibits the making or publishing of certain types of "false" statements with "the intention of affecting the results of an election". The applicant asserts that the prohibition limits the freedoms guaranteed in section 2 (b) of the Charter of Rights and Freedoms.

[4] The prohibition applies during an "election period". We are currently in the midst of a federal election which constitutes an election period under the act. The election period began under the act on September 11, 2019 and will end on October 21, 2019.

[5] The applicant submits that the prohibition is having and will continue to have an unconstitutional chilling effect on political expression during the election campaign. As a result, the applicant seeks an urgent case timetable that would see the matter disposed of before the end of the election.

[6] The applicant issued its notice of application on September 13, 2019 and served the respondent on September 16, 2019. The applicant's proposed timetable envisages the respondent delivering materials by September 30, 2019, cross examinations being held on October 7, the applicant's factum being delivered on October 9, the respondents factum being delivered on October 11 and a hearing on October 14.

[7] The respondent does not oppose a timetable that would see the matter addressed with some degree of speed but submits that it is inappropriate to force the matter to a conclusion before the end of the election.

[8] I declined the applicant's request for an urgent hearing timetable on September 24, 2019 and indicated I would provide short reasons.

Analysis

[9] The impugned provision was passed by Parliament in December 2018 and entered into force in January 2019. The current election date has been fixed and known for approximately four years. The applicant waited until after the election had been called to commence its application. The application materials contained no explanation for why the applicant waited so long. Applicant's counsel submits that the applicant did not become aware of the provision until recently. The consequences of the applicant becoming aware of the legislation late in the day should, however, fall on the applicant's shoulders rather than on the shoulders of the respondent.

[10] Before January 2019 the Act also contained broader prohibitions on speech during elections. Those provisions were arguably broader the current provision.

[11] The applicant did not challenge the original provisions but waited until after the election was called to challenge the narrower, amended provisions. To the extent that there is prejudice to members of the public arising from the restrictions applicable to free speech, those restrictions are more limited than they were in previous elections. That of course does not speak to the merits of the application but is one factor in considering the degree of and balance of prejudice among parties with an interest in the outcome of the application.

[12] The jurisprudence makes the dangers of overly hasty adjudication of charter issues abundantly clear.

[13] In Thompson Newspapers Co. Limited v. The Attorney General of Canada, unreported Order dated March 27, 1997, Lamer CJC denied an abridged timetable because the matter involved freedom of speech which could be anticipated to attract a number of interveners. Abridged timetables in constitutional matters should not shut the door on those who have the right to apply for and obtain intervenor status.

[14] Although intervenor status is not granted as readily in matters of first instance as at appellate levels, this is a matter in which a number of individuals and organizations might be expected to have a legitimate claim to for intervenor status including the Chief Electoral Officer of Canada and provincial Attorneys General.

[15] In Canadian Broadcasting Corp., v. Attorney General, 2011 ONSC 2281, a number of media applicants challenged the constitutionality of section 329 of the Act which prohibited the transmission of election results in one electoral district to another before the close of all polling stations in that other district. The applicant sought an urgent hearing so the application could be determined in the few weeks before election day.

[16] In declining the request for an urgent hearing, Himel J. noted that the expedited timetable would prejudice the Crown and that prejudice to the respondent was a highly relevant factor in determining whether the application should be expedited: at para. 13.

[17] Himel J. was not persuaded that the applicants could not have brought the application before the election was called which would have allowed enough time for proper presentation and consideration of the complex issues the proceeding raised: at para. 14. The same applies here.

[18] Charter challenges must be carefully considered because they profoundly affect the lives of Canadians. Courts should insist on careful preparation and presentation of Charter cases: MacKay v. Manitoba, [1990] 2 S.C.R. 357 at para. 8.

[19] The challenge the applicant brings to section 91 of the Act involves complex issues that require careful analysis. The issues go to the heart of a fair election and the right to freedom of speech. Issues of such importance should be prepared and considered with serenity and not under the pressure of an artificial timetable.

[20] The applicant concedes that even its expedited timetable would leave restrictions on freedom of speech in place for most of the election campaign. Assuming the application is granted, a hearing on October 14 would leave a maximum of one week of unrestricted speech. Even that assumes that the judge would decide the question on the day of the hearing. It is highly doubtful whether decisions of this complexity and importance should be made on the day of the hearing. The case would almost certainly benefit from closer study and reflection. As a practical matter a hearing on October 14 is unlikely to result in a decision before the election date of October 21.

[21] Requiring an applications judge to provide an almost immediate decision in a complex case is not the appropriate way to dispense justice. Charter challenges require careful analysis and balancing of competing interests: Canadian Broadcasting Corporation, at para. 16. Given that it is highly unlikely that a court could release reasons in time to make a material impact on the extent of freedom of speech during the election campaign, assuming the application is granted, there would appear to be little purpose in imposing an urgent timetable on the parties which limits their ability to brief the case for the court.

[22] It is also highly unlikely that a case of this sort would stop with the judge of first instance. An appeal, at least to the Court of Appeal, is almost certain. Any appellate court would be dealing with this after the election has been concluded. The appellate court is entitled to have a fully developed record, not one that is cobbled together under circumstances of artificial urgency. Similarly, an appellate court is entitled to have reasons from a judge of first instance that are careful, considered and comprehensive.

[23] The applicant points out that the court recently acted urgently with respect to an application arising during the municipal election in the City of Toronto thereby recognizing the need to move quickly in an election scenario. In that case, however, the urgency could not have been avoided. That application was prompted by a change to provincial laws in mid-campaign that had an immediate impact on the election. The applicants in that case moved as quickly as they could reasonably be expected to.

[24] The respondent also points out that any attempt to strike section 91 under the timelines proposed by the applicant would run afoul of section 554 (1) of the Act. That section provides:

"No amendment to this Act applies in an election for which the writ is issued within six months after the passing of the amendment…"

[25] The purpose of this provision is to provide a fair playing field in which everyone knows the rules of the election before and during the campaign. The provision recognizes that changing the rules shortly before or during the election does not ensure people's rights but distorts the playing field.

[26] While section 554 (1) might not, strictly speaking, be applicable to a judicial decision, the sentiment it embodies is nevertheless one to take into account. In my view, the court should not be changing the rules in mid-campaign in circumstances where the applicant could have been fully aware of the provision and its limitations long before the election was called and could have dealt with this matter in an orderly fashion.

[27] I therefore decline the applicant's request for an urgent timetable that would see a hearing before the end of the election. The parties may approach me at their convenience to arrange a case timetable and hearing date.

Koehnen J.

Date: October 7, 2019.