James L H Sprague

Canadian Administrative and Electoral Law

FEDERAL COURT OF APPEAL INCREASES OPERATION OF “STARE DECISIS” FOR FEDERAL ADMINISTRATIVE AGENCIES

In Canada (Attorney General) v. Bri-Chem Supply Ltd., 2016 CarswellNat 5260, 2016 FCA 257 (Fed. C.A.) the Federal Court of Appeal, while purporting to recognize that stare decisis, does not apply to agencies, has modified the traditional legal position to make agency decisions operate as binding precedents for those who appear before them as well as apparently reducing the ability of agency decision-makers to depart from earlier agency decisions. It appears that Bri-Chem Suppply LtdS. now governs administrative decision-making at the federal level until such time as it is reversed or repudiated by other decisions of the Court of Appeal. Thus, federal administrative agencies, and those who are subject to their decisions must guide themselves by a new (and likely developing) common law respecting the role of precedent in administrative decision-making.

This discussion assumes a basic familiarity with the common law principles of precedent in administrative decision-making.  As discussed in much more detail in chapter 6 of  Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals (Carswell) agency decisions (while binding on the parties in the particular dispute as to the outcome of that dispute) do not create any binding precedent for agency decision-makers or panels of decision-makers in future cases – even similar cases.  Nor is an agency permitted to simply and automatically bind itself voluntarily to the policies or interpretations of those decisions – even if the decision-maker in question is at the initial level and the earlier decision is from a review or appeal level of the same agency.  The principle of stare decisis which is applicable to the courts and their decision-making does not apply to administrative decision-making.  Agencies are required, however, to consider their earlier positions and to determine if they agree with them or if there is good reason to follow them in whatever case is before them at the moment.  All of this is, of course, subject to legislative direction.

In Bri-Chem Supply Ltd., 2016 CarswellNat 5260, 2016 FCA 257 (Fed. C.A.) the Federal Court of Appeal moved agencies significantly towards the standard operation of stare decisis in the courts. It did this by using the equitable principle of abuse of process as jumping board  to modify stare decisis.  Bri-Chem Supply Ltd. modifies the common law of stare decisis from two directions. First at the agency level it appears arguable that the decision reduces the ability of agency decision-makers to depart from earlier decisions. Arguably, following Bre-Chem Supply Ltd. a federal administrative decision-maker cannot depart from an earlier policy or interpretation decision of the agency unless it has a “good reason” to do so. It appears that having a good reason is restricted to situations where a case can be distinguished from an earlier decision or the decision-maker, based on elements or arguments that were not raised in the earlier decision believes that the earlier decision is wrong. It appears that simply having a different policy or interpretation view which a decision-maker believes is preferable to that of earlier decisions likely will not constitute having a “good reason” to depart from an earlier agency decision.   Bre-Chem Supply Ltd. also reduces the ability of agency decision-makers to depart from earlier decisions by restricting the opportunities through which an issue will be brought by the parties before the agency. Bre-Chem Supply Ltd. operates to require those who administer federal law to follow an agency decision as binding precedent other than in cases where the case may be distinguished or is felt, based on new elements or arguments not raised in the earlier decision, to be wrong.

 

The underlying issue in Bri-Chem Supply Ltd. was whether under the Customs Act an importer could correct the tariff classifications in customs declarations in order to obtain more favourable tariff treatment. The Canadian International Trade Tribunal had ruled in an earlier proceeding that this could be done. The Canada Border Services Agency appealed this ruling to the Federal Court of Appeal but discontinued the appeal before its resolution. Instead, as the Tribunal and the Federal Court of Appeal both later concluded, the Agency deliberately set out to disregard the Tribunal’s earlier ruling and to continue to apply its own interpretation of the law to new cases.

 

Bri-Chem Supply Ltd. dealt squarely with whether an agency’s decision should be considered to be precedential. The Tribunal itself in its decision had noted its concern that the actions of Border Services had placed “the precedential value of its decisions into question.” That its decisions be treated as precedential was, in its view, “important for stability and predictability in the importing community.” It treated the matter before it as an abuse of process.

 

“37. Finally, the Tribunal wishes to articulate its concern in regard to the practice of putting the precedential value of its decisions into question by the CBSA.  Both respectful and responsible application of Tribunal precedent is important for stability and predictability in the importing community. Importers should not be subjected to costly and unfair litigation of cases for matters that have already been dealt with through proper legal authority. This is a matter that goes to the heart of, and constitutes a fundamental tenet of, the rule of law and fair and easy access to Canada’s system of administrative justice. Such opposition ultimately leads to a breach of trust in the system and obfuscates the proper administration of justice.” [Bri-Chem Supply Ltd.
v.
President Of The Canada Border Services AgencyAppeal No. AP-2014-017.  Footnotes omitted]

 

The Federal Court’s decision focused on the duty of government officials who administer programs (referred to by the Court as “administrators”) to adhere to decisions of administrative bodies which sit on appeal or review from the officials’ program decisions. In doing so it went far further than the equitable principle of abuse of process.

 

The Court of Appeal started off by affirming the traditional common law principle that while agencies should try to follow their earlier decisions they are not bound by them. But, the Court of Appeal stated, that was only the starting point and that other principles also came to bear.

 

First, agencies were bound to follow “any rulings and guidance given by courts that govern the facts and issues in the case.”

 

Second, Parliament in passing a law empowering an agency to decide issues it did so with the view to furthering efficient and sound management and that “certainty, predictability and finality matter.” In the case in point Parliament had empowered an agency “to decide certain issues efficiently and once and for all.” [emphasis added]. The Court stated that allowing agency panels “to disagree with each other without any limitation tears against the need for a good measure of certainty, predictability and finality.” This was particularly so when, as was the case in point, one was dealing with commercial importation and international trade where the participants “are deluged every day by millions of goods seeking quick, efficient and predictable entry” to the domestic market.

 

Therefore the Court of Appeal held that “while it is true that later tribunal panels are not bound by the decisions of earlier tribunal panels, it is equally true that later panels should not depart from the decisions of earlier panels unless there is good reason.”

 

As will be discussed below the Court’s reference to agency decision-makers departing from earlier decisions only where there is “good reason” likely means more than the traditional common law position where one agency decision-maker simply disagrees with another on policy or interpretation. The lead up references to the aim of agency legislation having the aim of furthering efficiency and sound management, the assertion that the establishment of the, in this case, the Canadian International Trade Tribunal to decide matters “once and for all”, the need for certainty, predictability and finality all point to the Court of Appeal believing that something more than simple disagreement is needed to amount to “good reason”.

 

As will be noted below it is uncertain how a court is to enforce this direction given the current Dunsmuir standard of review analysis. Would a reviewing court use its judgment to determine whether an agency’s departure from an earlier decision was based on a “good reason” or would the reasonableness standard apply such that the agency’s decision departing from an earlier position need only be plausible?

 

After dealing with agency decision-makers the Court of Appeal went on to consider the position of officials charged with administering legislative schemes where there are appeals or reviews from the decisions of the officials to an agency (the “administrators”). Here too the Court of Appeal held, for the purposes of certainty, predictability and finality, an administrator whose actions are regulated by an agency must follow that agency’s decisions. In this assertion the Court of Appeal was not referring simply to the traditional position that an appeal or review agency’s decision in a specific case binds the parties for that case. It was asserting that officials are obligated to follow agency rulings generally in situations outside of a specific case. The Court of Appeal explained that this was due to its aforementioned goals of certainty, predictability and finality. This duty to apply an agency’s rulings generally also flowed from what the Court of Appeal called the concept of “tribunal pre-eminence: tribunals bind those who are subject to their jurisdiction, including administrators, subject to any later orders by reviewing courts.” One can see that in making this assertion the Court of Appeal leapt from the traditional concept of agency rulings being determinative in the case submitted to them to the new position that agency rulings being generally binding with respect to other similar situations outside of the case ruled on.

 

The Court of Appeal did allow for two limited exceptions to this new principle. An administrator is not required to follow an earlier agency decision where the case before it can be distinguished on the facts from the earlier. An administrator, acting bona fide and in accordance with its legislative mandate, can assert that an earlier agency decision on its facts does not apply in a matter that has different facts.

 

Also an administrator with a bona fide concern that an earlier decision is flawed and should not be followed can act upon its view of the matter and, if challenged, should be allowed to act upon its view of the matter.   For this situation to occur the administrator must be able to identify and articulate with good reasons one or more specific elements in the agency’s earlier decision known to the administrator, including the probable impact of the flaw on future cases and the prejudice that will be caused to the administrator’s mandate, the parties it regulates, or both. The Court of Appeal stated that this is “something different from an administrator putting essentially the same facts, the same law and the same arguments” to an agency “on the off-chance it might decide differently.” The administrator must offer submissions that are not simply a rerun but must go further than just a modest modifying or small supplementing of the earlier submissions.   In other words, an administrator is not precluded from re-raising an issue on the basis of materially different arguments likely including matters that were not considered in the earlier decision.

 

“50      In my view, an administrator can act or take a position against an earlier tribunal decision only if it is satisfied it is acting bona fide in accordance with the terms and purposes of its legislative mandate and only if a particular threshold has been crossed. This threshold should be shaped by two sets of clashing principles discussed above: the principles of certainty, predictability, finality and tribunal pre-eminence on the one hand, and, on the other, ensuring that potentially meritorious challenges of arguably wrong decisions can go forward.

 

51      What is the threshold? In an administrative regime like the one before us, the administrator must be able to identify and articulate with good reasons one or more specific elements in the tribunal’s earlier decision that, in the administrator’s bona fide and informed view, is likely wrong. The flaw must have significance based on all of the circumstances known to the administrator, including the probable impact of the flaw on future cases and the prejudice that will be caused to the administrator’s mandate, the parties it regulates, or both.”

 

The Court of Appeal explained that an administrator could not be precluded from re-raising an issue in all cases because if that were the case an agency would never be able to consider the matter nor would a receiving court receive it and serious error might persist. The Court also noted that an administrator was free to request that an agency submit the issue on a reference to a court for definitive resolution. (It also noted that legislative change could be made to reverse the position of the agency.)

 

Lastly, the Court of Appeal noted that where an administrator decides that an earlier tribunal decision “can and should be challenged, the administrator, and later the tribunal, might wish to expedite matters so that the matter may be clarified as soon as possible.” The Court of Appeal also noted that other particular means may exist to facilitate an administrator’s disagreement with an agency’s ruling. An agency could be asked to state a case to the Federal Courts under the Federal Courts Act. The Court of Appeal also referred to section 70 of the Customs Act which authorizes the President of the Customs Border Services Agency to refer directly to the Canadian International Trade Tribunal for decision “any questions relating to the origin, tariff classification or value for duty of any goods or class of goods.”  (As an aside, in my view section 70 does not operate in the same way as a stated case to the Federal Courts. Section 70 only appears to allow a question to be referred to the Tribunal without waiting for an appeal. This is evidence insofar as section 70(1) refers to the reference for the Tribunal’s “opinion” respecting any questions relating to the origin, tariff classification or value for duty of any goods or class of goods.” Questions relating to the origin or value for duty appear to be questions relating to a specific case. Section 70(2) further directs that such references are to be governed by the relevant legislative provisions “as if the reference were an appeal taken pursuant to section 67.”)

 

On the whole I believe the approach taken by the Federal Court of Appeal is neither particularly innovative (the attempt to have agency decisions treated as being binding precedent has been around since at least 1919 with the decision of R. v. Port of London Authority, [1919] 1 K.B. 176 if not earlier), nor necessary and is not particularly logically or practically supportable. I believe that a number of points should be made respecting this decision.

 

  1. Where agencies depart from earlier decisions, or panels of agencies depart from decisions of earlier panels, they do not do so for no good reason. Absent situations where the current decision-maker is unaware of the earlier decision agency decision-makers almost always depart from earlier decisions because they believe that the earlier decision can be distinguished, or it was wrongly decided, or because they believe that their own reasoning is preferable to that of the earlier decision-maker. We are long past the days, if they ever existed, that administrative agencies depart from earlier decisions on whim or for purely arbitrary purposes. Where the Federal Court of Appeal states that an agency must have a good reason from departing from an earlier position it cannot restrict that “good reason” to the same situation the Court imposes on administrators as justifying a failure to follow an earlier agency decision – i.e. that the agency has a materially different reason than that rejected in the earlier decision or that the case is distinguishable. Implicit in the Court of Appeal’s decision is the view the fact that one decision-maker may have a different policy or interpretative view from that set out in an earlier decision is not in itself a good reason for the former to depart from the earlier position. If this is so I disagree with this view. If the Federal Court of Appeal is taking the position that an agency is acting without good reason because, after considering the matter fully and fairly, it disagrees with the principles upheld by an earlier agency decision the Court of Appeal’s position is contrary to the past positions taken in the case law and significantly modifies the principle of stare decisis for agencies. To adopt the position that an agency decision-maker is bound to follow an earlier decision in the same way as an administrator is proposed to be bound (i.e. distinguishable or wrong due to a significant flaw) it means that whichever decision-maker or panel of decision-makers of an agency gets to an issue first gets to bind the discretion of future panels absent new arguments or the ability to distinguish. This undermines one of the underlying reasons for having decisions made by administrative agencies – flexibility. As recognized by the Supreme Court of Canada in Domtar Inc. c. Québec (Commission d’appel en matière de lésions professionnelles), 1993 CarswellQue 145, [1993] 2 S.C.R. 756, 105 D.L.R. (4th) 385 (S.C.C.) the clash of conflicting agency decision-making is one of the means by which agency policy evolves and develops.

 

  1. Furthermore, if one adopts the position that an agency should consider an earlier decision to be wrong by reason of a significant flaw only on the basis of new arguments or elements not raised in that earlier decision then one must at the same time elevate the precedential value of an agency decision over a judicial ruling by a superior court – including the Supreme Court of Canada – when that judicial decision is made on the reasonableness standard. A judicial determination, whether on appeal or judicial review, that a decision or interpretation is reasonable does not mean that that decision or interpretation is correct and leaves open the possibility that another panel of the agency may decide the matter differently even on the same arguments. Reading Bri-Chem Supply Ltd. as precluding an agency panel from deviating from an earlier panel decision unless materially new arguments are presented has the effect of granting greater precedent weight to agency decisions than to some judicial determinations made on the reasonableness standard. Alternatively, one might argue that a court determination that a particular agency decision is reasonable precludes an agency from deviating from that earlier decision except in the case of new arguments or distinguishing circumstances. That of course would elevate reasonableness review to a form of correctness review. (Albeit this might be considered consistent with past Federal Court of Appeal decisions attempting to displace reasonableness review with correctness in certain circumstances.)

 

  1. The Court of Appeal’s underlying reasoning respecting the recognition of certainty and predictability on administrators is problematic when applied to agencies themselves. First, the Court’s assertion that Parliament creates a review agency in order to decide matters “once and for all” is questionable. That has not been the common law of agency precedent. An agency decision settles the specific case before it “once and for all” (subject to judicial review or other legislative avenues of recourse). It has never been the position of the common law that Parliament creates agencies to provide “once and for all” generally binding across the board determinations – at least in the absence of specific wording to that effect. That has traditionally been the role of the courts through the principle of stare decisis – not agencies.

 

Furthermore, to the extent that one hopes to draw support from the “hierarchical” positions of administrators and any relevant review or appeal agency, agency decision-makers or panels of decision-makers of the same level do not sit in a hierarchical arrangement. One panel is not superior to another at the same level. Yet the comments in Bri-Chem could operate to preclude a second panel from departing from the decision of an earlier panel simply on the grounds that the second panel prefers its reasoning to that of the first.

 

Lastly, the so-called principle of “tribunal pre-eminence” operates in the sense of res judicata (i.e. the parties are bound in that case are bound by the decision of the agency respecting the specific question before it) and not as a formalization of abuse of process through re-litigation. Where the equitable principle of abuse of process by re-litigation is invoked the agency possess the discretion to continue with a proceeding notwithstanding the re-litigation if appropriate. There is a duty on the agency to consider the exercise of that discretion. Bri-Chem operates to remove that discretion by creating a bar to an official re-litigating except in the Court of Appeal’s delineated circumstances which are smaller in number than the circumstances that might lead an agency to exercise its discretion to permit an issue to be re-litigated.

 

  1. Bri-Chem Supply Ltd. does not consider the principle that an agency cannot fetter its discretion by simply following earlier decisions without giving due consideration to the principles established by those cases and whether the agency decision-maker agrees with those principles. The common law imposes a duty on an agency, in the exercise of its discretion, to consider whether it agrees with an earlier decision before applying it rather than blindly following that earlier decision as precedent. Thus, an agency must say “I agree with the position taken” in the cited earlier decision rather than saying simply “this issue was decided earlier and I apply that ruling as I cannot identify any new argument or element establishing that the earlier decision is wrong”.

 

At the same time if one assumes that Bri-Chem Supply Ltd. does not intend to alter the ability of administrative decision-makers to depart from earlier decisions it creates a discord with the duty imposed in Bri-Chem Supply Ltd. upon administrators to act as if an agency decision settles an issue authoritatively absent the ability to distinguish or establish that the earlier decision is wrong based on new elements or arguments.

 

Insofar as under the traditional common law an agency is neither required nor permitted to follow earlier administrative decisions with which it disagrees (which disagreement can include the fact that the agency, or panel of the agency, agrees with reasoning rejected in the earlier decision) the position of the Federal Court of Appeal requiring an administrator to follow earlier administrative decisions (other than in the exceptions noted by the Court) or precluding the administrator from essentially re-raising an issue before an agency on the same arguments earlier rejected becomes somewhat illogical. This is particularly so in the case of panel decision-making.

 

It is not uncommon that different panels of an agency may prefer different approaches or interpretations than others. Assuming that Bri-Chem Supply Ltd. does not preclude a subsequent panel from simply preferring its own reasoning or interpretation over that preferred by an earlier panel how is it logical that an administrator should be precluded from recognizing this reality? Bri-Chem Supply Ltd. requires an administrator to treat agency decisions with a finality or precedential effect that they do not have. If the case operates to preclude an administrator from re-raising an issue before an agency, or panel of an agency, it does not preclude the agency or panel from itself raising the issue. Agencies, unlike courts, are not restricted to the consideration of only those issues raised by the parties. Provided that the parties are provided with a fair opportunity to respond an agency can raise and put additional issues to the party. This is particularly so where agencies are required to consider the public interest in decision-making. In fact, as noted above, the agency is required to consider whether it agrees with that earlier position. In doing so the agency should consider the views of the parties and it is surely open to the administrator at that time from raising the same arguments as were raised earlier if those are the only material arguments to be made.

 

Thus, Bri-Chem Supply Ltd. stands for the principle that, other than where new information or arguments can establish that an earlier decision is either wrong or distinguishable, an administrator must apply a ruling of an agency notwithstanding that it always remains open that a different panel of an agency may disagree with the earlier decision on the basis of the argument preferred by the administrator notwithstanding the earlier rejection of that argument by another panel. This appears illogical and requires administrators to operate contrary to the actual operation and reality of the law.

 

Furthermore, precluding a party from re-raising an earlier rejected argument before a different decision-maker in effect re-writes the operation of stare decisis on agencies by effectively reducing the ability to bring cases forward to an agency for reconsideration. It is important to note that this is not the equitable doctrine of abuse of process which doctrine does not operate as a ban on the attempt to re-litigate but is rather a discretion in an agency to decline to hear an issue that was earlier litigated fairly and fully.

 

  1. Nor does Bri-Chem Supply Ltd. not appear to take into account that administrators (i.e. the government officials who administer programs at the first level) are administrative decision-makers in the same way as the agencies to whom their decisions can be appealed. They too must receive and consider the arguments presented by the persons before them before making a decision. They exercise the same discretionary decision-making powers as do the reviewing agencies. Yet Bri-Chem Supply Ltd. can be seen as imposing a limitation on the discretion of these first level administrative decision-makers. There may be instances where a review agency rules against a private person’s position and in favor of that of an administrator. Bri-Chem Supply Ltd. will now permit the administrator to cite that administrative decision as imposing a duty on it to follow the administrative decision in future cases other than in circumstances where the situation may be distinguished or new arguments can be raised. (Disagreement may also be raised as to whether the party in the later case is actually raising a new argument.)   It imposes a duty on the citizen to prove that the review agency decision is wrong or distinguishable. Thus, in order to be able to rely on an earlier decision as being precedential and binding the administrator is no longer required to consider the position of the earlier case and determine whether it agrees with it. In fact in situations where the administrator lost before the reviewing agency Bri-Chem Supply Ltd. contemplates the administrator thereafter applying a decision with which it disagrees. Under Bre-Chem Supply Ltd. the agency assumes the role and authority of a court. An administrative review decision can now be cited by the administrator against a party as having binding precedential effect.

 

  1. The Court of Appeal sets some store on the fact that a decision may have been rendered by an agency which is in a superior hierarchical position than the original administrator. Formal tribunals, of course, are not the only bodies that may be found in a hierarchical structure in administrative decision-making. There may often be different levels of decision-making before one reaches an agency. Does a decision by a higher ranking bureaucrat now create a precedent binding all other bureaucrats in that department or ministry. Presumably, under Bri-Chem Supply Ltd. it does. What about decisions made at the same level of bureaucrat? Does one decision by a departmental official now bind all other officials (subject to legislative review routes)?

 

  1. Are citizens now bound by departmental decisions in particular cases involving different people from raising the same arguments again in their own cases? (This point is similar to that made in point 5 earlier.) Does Bri-Chem Supply Ltd. preclude the citizenry from raising arguments rejected in earlier agency (or administrator) decisions other than cases where new information or argument can prove the earlier decision wrong or distinguishable? Are people who are not administrators bound by the Bri-Chem Supply Ltd. rules when taking their cases to review by agencies? And if not, are there now two types of parties before agencies – administrators who are bound by the Bri-Chem Supply Ltd. principles and other persons who are not? Furthermore, what is the value in holding that a party can seek to re-litigate an issue before an administrator if the administrator is not able to depart from an earlier position absent the ability to distinguish or prove wrong?

 

  1. As an aside one can also note that to the extent that Bri-Chem Supply Ltd. does not preclude re-raising an issue on the basis of materially different arguments than those advanced in an earlier decision the case operates differently than the common law principle of abuse of process through re-litigation. In this sense the common law principle precluding abuse of process through re-litigation is broader than Bri-Chem Supply Ltd. as it extends to arguments that could have been raised in the earlier decision.

 

  1. All in all Bri-Chem Supply Ltd. is another attempt to deal with the problem of consistency in agency decision-making.   In its reasons the Federal Court of Appeal echoed the traditional recognition of the importance of predictability and certainty.

 

“42      … Certainty, predictability and finality matter. Allowing tribunal panels to disagree with each other without any limitation tears against the need for a good measure of certainty, predictability and finality.

 

43      In some contexts, certainty, predictability and finality arguably matter even more. Here, for example, we are dealing with commercial importation and international trade, an area where the CBSA, customs brokers and others are deluged every day by millions of goods seeking quick, efficient and predictable entry to our domestic market: see the Tribunal decision at para. 37, quoted in para. 13, above.”

 

However, there is nothing new in the recognition of the importance of consistency in decision-making. Nor is the creation of binding precedential rulings the only, or even best, way to secure consistency. Consistency and predictability have been values in administrative decision-making for decades without the courts having resorted to extending some sort of stare decisis to agency decisions or precluding officials or parties from deviating from agency decisions in future cases.

 

See for example, the decision of the Ontario Court of Appeal in C.U.P.E., Local 1394 v. Extendicare Health Services Inc., 1993 CarswellOnt 887, [1993] O.J. No. 1545, 104 D.L.R. (4th) 8, 14 O.R. (3d) 65, 17 Admin. L.R. (2d) 27, 64 O.A.C. 126, 93 C.L.L.C. 14,052 (Ont. C.A.) where the Court considered the effect of a statutory direction that a decision of the Ontario Labour Relations Board was to be conclusive for all purposes. The Court of Appeal held that that statutory direction did not make the Board’s interpretation of a statutory provision or arbitration agreement conclusive and binding upon a subsequent decision-maker – including an arbitrator (a body, which if considered in the hierarchical sense, would be lower than the Labour Board). Justice Doherty wrote:

 

“56      The Union’s argument requires that s. 106(1) be read as declaring that the Board’s determination of questions of fact or law, such as the interpretation of the terms of a collective bargaining agreement, are final and conclusive as between the parties. That is not what the section says. It gives the Board the power “to determine all questions of fact or law that arise in any matter before it” but it declares only “the action or decision” of the Board to be “final and conclusive for all purposes.” The Board must make findings of fact and decide questions of law in arriving at its decision. Only the end product is, however, protected by the finality clause in s. 106(1).

 

57      It follows that I must disagree with the conclusion of the Divisional Court. Section 106(1) does not limit the Arbitration Board’s power to hear and determine the dispute brought before it concerning the meaning to be given to the terms of the collective agreement settled in August, 1985. Section 44 of the Labour Relations Act fixes the Arbitration Board with that responsibility. The fact that the Board had engaged in the same interpretive exercise when performing an entirely separate function assigned to it under the Labour Relations Act did not diminish the Arbitration Board’s authority under s. 44 of the Labour Relations Act .”

 

There are answers to the issues that arise from the non-application of stare decisis to administrative decision-making without abandoning or altering the principle. Numerous tools adopted over time to encourage consistency and predictability (guidelines, generic hearings, manuals, full-board meetings, and so forth –  agencies can themselves in considering whether to follow an earlier decision take into account the value served by consistency.). Until the Dunsmuir era of reasonableness review respecting questions of law judicial review and appeals to court served an important role in this. (It seems somewhat of an unexpected consequence that as a result of the adoption of reasonableness review by the courts one would impart binding precedential value to agency decisions.) Some agencies have adopted the practice of indicating agency decisions whose principles are thought to be particularly useful to assist parties in identifying particularly precedential decisions which the agency is likely to follow consistently absent circumstances justifying departure. Similarly, equitable principles respecting abuse of process (which include re-litigation) can be used where appropriate and useful by agencies. Admittedly, as noted by the Tribunal in its decision in Bri-Chem Supply Ltd. abuse of process is not a universal panacea in every case as it may not, for example, address the issue of costs. And it is always open, as noted by the Federal Court of Appeal in Bri-Chem Supply Ltd. for an agency to refer an issue to the courts by way of reference or stated case through which definitive answers to issues which are proving particularly burdensome can be secured.

 

Bri-Chem Supply Ltd. attempts to control consistency at the level of the parties before agencies. In doing so it raises significant issues in logic and legal principle. It remains to be seen whether the provincial superior courts will adopt the Bri-Chem Supply Ltd. principles or whether the decision will ultimately take its position alongside other failed Federal Court alterations of the common law such as Grenier, Georgia Strait Alliance and Wilson v. Atomic Energy.

 

  1. In my opinion, while it was perfectly open to the Federal Court of Appeal to find that on the specific circumstances in Bri-Chem Supply Ltd. it was open to the Canadian International Trade Tribunal to treat the attempted re-litigation of the issue before it as an abuse of process. However, the Court’s apparent re-writing of the operation of stare decisis seemly to meet the specific facts in one case was unwarranted and imprudent.

 

While it would be a simple thing to treat administrative decisions as being binding precedent such an approach does not take into account the reality of administrative decision-making.

 

First, administrative decision-making is intensely driven by circumstances. Furthermore, if one agrees with the position of the Supreme Court of Canada in British Columbia (Securities Commission) v. McLean, 2013 CarswellBC 3618, 2013 SCC 67, [2013] 3 S.C.R. 895, 366 D.L.R. (4th) 30 (S.C.C.) agencies, in their interpretations, often choose between multiple reasonable interpretation on the basis of policy considerations. These policy considerations are not always fully fleshed out or identified by agencies in resolving one particular case.

 

Second, agencies are not staffed by the same type of people who sit on courts. They often have expertise in subject matters other than law and are not trained or sometimes even particularly skilled in identifying, crafting or expressing broad principle. The Courts have long held that agency reasons are not required to be finely crafted, read with a fine tooth comb, or otherwise approached in the same respect as judicial reasons. There can be frequent, and sometimes intense, disagreement between individual agency members (and agency staff) as to the proper approach to matters. And insofar as Dunsmuir reduces the likelihood of the judicial provision of determinative answers it would be imprudent to have binding precedent established on a “first come first severed” basis.   Unless one wishes to absorb administrative decision-making into the judicial stream (including qualification, appointment, tenure, term, and remuneration) one should not blindly treat agency decisions as the equivalent of judicial decisions.

 

Third, it is true that outside of the particular case before it an administrative decision does not bind those who implement the law in other cases. However, the Federal Court of Appeal in Bre-Chem Supply Ltd. appears to elevate the particular situation where one agency has a particular beef with one approach of one agency to a general crisis where government officials and parties readily and regularly ignore the precedential value of administrative decision-making necessitating a major revision of the common law. I very much doubt that there exists in Canada a crisis where government officials regularly and cavalierly disregard the views and interpretations of administrative agencies. Costs alone argue against such a cavalier position. While an important aspect of administrative decision-making involves the testing and evolution of prior decisions and approaches it is only common sense that well reasoned and sound agency interpretations be accepted and applied. Even the government does not have endless fonts of resources to ignore reality. Where it is evident that an agency policy or interpretation is sound, whether set out in non-binding guidelines or decisions which are not binding as precedent, government officials and parties tend to follow them. This is the basic premise behind such things as policies and the publication of agency decisions. It appears to me that the Federal Court of Appeal in Bre-Chem Supply Ltd. has taken one situation without consideration of the degree to which it exists generally, or the degree to which other administrative principles or tools operate to ameliorate or control that situation, to re-write the common law of administrative precedent based on the elements identified in the case before it.

 

 

This, and other aspects of the Bri-Chem Supply Ltd. decision will be discussed in the forthcoming release 2017-2 of Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals which is published by Carswell.

 

CONTEXTUAL DETERMINATION OF STANDARD OF REVIEW: AN UNDESIRABLE RETURN TO THE PRAGMATIC AND FUNCTIONAL ANALYSIS

In a dissenting decision (written by Justices Côté, and Brown with Chief Justice McLachlin and Moldaver J. concurring) in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 CarswellAlta 2106, 2016 SCC 47 (S.C.C.) four justices of the Supreme Court of Canada proposed yet another revision of the standard of review analysis. This new analysis is not so much new as it is a reformulation of the old pragmatic and functional review analysis that was replaced in 2008 with the current Dunsmuir standard of review. Disappointingly (from the perspective of principled decision-making at the Supreme Court level) the dissent was predicated on an apparent change of mind on many of the premises underlying Dunsmuir standard of review analysis rather than being based on new insight or principle. In other words, the dissent’s view appears to be a simple “take back” of previously stated principles.

 

 The dissent recognized that the Dunsmuir analysis is dominated by the nature of the question review question which identifies the standard of review according to the nature of the question which is at stake. (Dunsmuir also recognizes three other factors other than the nature of the question: the presence or absence of a privative clause; the purpose of the tribunal as determined by the interpretation of enabling legislation; and the expertise of the tribunal. However, these factors are employed far less frequently by the courts in the determination of standard of review. The expertise of the agency would likely be the most employed of the four while the presence of a privative clause has more or less been absorbed into the nature of the question. The purpose of the tribunal is now seldom referred to.) The dissent decision viewed an approach to the standard of review analysis “that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review.” In its place the dissent decision would prefer an approach where: “In every case, a court must determine what the appropriate standard of review is for this question decided by this decision maker.” The dissent approach would be based on a contextual analysis in each case to determine the appropriate standard of review. (The dissent would still recognize an exception where the standard of review had been appropriated determined by earlier case law.)

 

The case in point dealt with whether a local Alberta assessment review board had the authority to increase (rather than simply decrease or confirm) a property assessment. The dissent settled on a correctness standard of review based on the existence of a statutory right of appeal, the fact that the decision-maker in question was only one of a number of local assessment boards across the province dealing with the issues, the need for consistency in decision-making, an assertion of lack of expertise in legal interpretation, and the fact that assessment review boards were not the only agencies which played a role in the application of different provisions of the Municipal Government Act.

 

The approach of the dissent to all of these factors appears somewhat problematic.

 

The fact that assessment review was carried out by different local assessment boards across the province and the need for consistency in decision-making appears inconsistent with the Court’s past approach to inconsistency. There appears to be little difference between the situation where a particular statute may be interpreted and applied by a number of similar agencies across a province and the situation where a particular statute may be interpreted and applied by different panels of a single agency in a province. This is the old consistency argument for correctness review which was rejected by the Supreme Court of Canada in Domtar Inc. c. Québec (Commission d’appel en matière de lésions professionnelles), 1993 CarswellQue 145, [1993] 2 S.C.R. 756, 105 D.L.R. (4th) 385 (S.C.C.) and just recently affirmed by the Court in Wilson v. Atomic Energy of Canada Ltd., 2016 CarswellNat 2998, 2016 SCC 29, 399 D.L.R. (4th) 193 (S.C.C.). The fact that the potential for inconsistency arises from the existence of several agencies rather than panels does not appear to me to add anything new to the consistency debate. There is not much difference in the ability of a number of similar agencies in a province from communicating and resolving discrepancies in the interpretation of a their common statute than there is between panels of a single agency. In both cases one is dealing with the situation where there is no central authority – whether in the agency or between the agencies to impose a particular interpretation. In asserting that “there is no overarching institutional body capable of promoting consistency in the interpretation and application of the Act between” [emphasis added] the different provincial boards the dissent’s view appears ignorant of the modern reality of inter-agency co-operation as evidenced through organizations such as the B.C. Council of Administrative Tribunals, the Society of Ontario Adjudicators and Regulators, and the Council of Canadian Administrative Tribunals let alone the simple mechanisms of ordinary conference and seminar and the increasing public access to agency decisions. In this sense the dissent view is clearly predicated on an outmoded view of isolated and insulated agencies.

 

To this mix the dissent added the consideration that it considered that the assessment review board lacked expertise in legal interpretation (at least relative to the courts):

 

“87      The question, then, is whether the Alberta legislature intended to recognize superior expertise in assessment review boards or in the courts with respect to the specific questions appealed pursuant to s. 470 of the Act. As the majority acknowledges, this case is, in part, about the interpretation of s. 467 of the Act. Statutory interpretation does not fall within the specialized expertise of the Board, since its day-to-day work focuses on complex matters of valuation of property. We note that the majority relies on this Court’s jurisprudence for the proposition that a court may not be as qualified as a board to interpret the board’s home statute given “the broad policy context within which” the board must work (para. 33). That may be true in the application of one’s governing statute. However, it is not so in these circumstances, where the matter is one of legal interpretation going to jurisdiction, not practical application. While the Board may have familiarity with the application of the assessment provisions of the Act, the legislature has recognized that the Board’s specialized expertise does not necessarily extend to general questions of law and jurisdiction. The Board’s decisions may, instead, be appealed on these questions of law and jurisdiction.

 

88      In light of this lack of relative expertise on questions of law and jurisdiction, it cannot be maintained that a presumption applies that the legislature intended that the review board’s determinations on questions of law and jurisdiction be owed deference. The legislature created a tribunal with expertise in matters of valuation and assessment. But the legislature placed that tribunal within a statutory scheme that would allow municipalities and assessed persons to appeal questions of law and jurisdiction, while still implicitly permitting judicial review on all other questions. This, in our view, is a clear signal by the legislature that the tribunal it created is not entitled to deference from the courts on questions of law and jurisdiction appealed pursuant to s. 470, while it must be afforded deference on other matters. Such clearly expressed legislative intent should be respected, by applying correctness review in this case.”

 

The dissent led into this discussion of the lack of legal interpretation expertise by noting that the assessment board in question did not have an exclusive administrative purview over the Municipal Government Act (under which the issue arose). The agency was “a composite assessment review board … with jurisdiction to only hear complaints about certain assessments by taxpayers and assessed persons, and to deal only with the issues listed.” There were many other agencies involved in the interpretation and application of different aspects of the statute. Thus, for the dissent the question was whether the Legislature intended to recognize a superior expertise in the local assessment review boards over the courts with respect to the statutory interpretation question at issue.

 

The dissent’s view respecting legal interpretation ability of the assessment review board is a startling departure from the Supreme Court’s approach to the ability of agencies to determine questions of law – including the interpretation of their own and other statutes that has emerged from Dunsmuir and the subsequent case law. It should first be noted that, in my view, the assertion that the assessment review board does not have exclusive purview over the Municipal Government Act a red herring. Deference to an agency’s interpretation over its own statute is based significantly on the agency’s experience and gained expertise over a piece of legislation. The fact that there may be other agencies dealing with different aspects of Municipal Government Act does not impact in any way on the fact that this agency may particularly deal extensively with particular provisions of the statute. There are many omnibus statutes which deal with different aspects of a very broad subject area and which assign jurisdiction of particular parts or divisions of the statute to individual agencies. This does not diminish the effect that particular sections are administered by a particular agency which, if one follows the logic of past Supreme Court decisions, will result in that agency having the experience and expertise in the interpretation and application of those particular sections that underlies Dunsmuir deference to agency interpretations of law.

 

Furthermore, the assertion that the assessment review board lacked expertise in legal interpretation – at least relative to the courts – appears to be a repudiation of the Dunsmuir era assertion that the law is not the exclusive purview of the courts as illustrated by decisions of the Supreme Court of Canada in Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 CarswellOnt 4494, 2009 SCC 39, [2009] 2 S.C.R. 678, 309 D.L.R. (4th) 513 (S.C.C.) and Canada (Attorney General) v. Mowat, 2011 CarswellNat 4190, 2011 SCC 53, [2011] 3 S.C.R. 471, 337 D.L.R. (4th) 385 (S.C.C.) – and as particularly set out in the discussion in Mowat in paragraph 19 and following where the Court recognized the evolution in judicial deference towards agency’s expertise in legal interpretation beyond the earlier recognized areas of particularly technically complex subject areas and subject to the now well-know exceptions to reasonableness review respecting questions of law (constitutional validity of legislation, etc.). The Court had asserted in British Columbia (Securities Commission) v. McLean, 2013 CarswellBC 3618, 2013 SCC 67, [2013] 3 S.C.R. 895, 366 D.L.R. (4th) 30 (S.C.C.) the choice between multiple reasonable interpretation will usually involve policy considerations which it presumed the legislature desired the administrative decision-maker, not the courts, to make. The Court in McLean held that the resolution of unclear language in an administrative decision-maker’s home statute was a matter of interpretative discretion and part of an administrative decision-maker’s expertise.

 

Finally, with respect to the route by way a matter may come before a court, appeal or judicial review, should be a factor in determining the appropriate standard of review I have to say that the dissent’s view that the existence of a right of appeal is a factor that may affect standard of review is problematic from the perspective of the case law flowing in the past from Dunsmuir. While it is true that Dunsmuir itself left the door open to the question of whether the existence of a statutory appeal would operate in a reverse sort of way to the existence of a private clause the provincial superior courts, where they gave any role to the existence a right of appeal, tended to treat the existence of such a right of appeal at best as a very weak factor that was overruled in every case by the nature of the question at hand. Ultimately the Supreme Court in decisions such as Mouvement laïque québécois v. Saguenay (City), 2015 CarswellQue 2626, 2015 SCC 16, [2015] 2 S.C.R. 3, 382 D.L.R. (4th) 385 (S.C.C.) made it clear that the existence of statutory right of appeal did not operate as a factor that can displace an otherwise appropriate Dunsmuir standard of review.

“29 … Where, as in this case, a statute provides for an appeal from a decision of a specialized administrative tribunal, the appropriate standards of review are, in light of the principles laid down by this Court, the ones that apply on judicial review, not on an appeal.

 

38 … Where a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal (Proprio Direct inc. c. Pigeon, 2008 SCC 32, [2008] 2 S.C.R. 195 (S.C.C.), at paras. 13 and 18-21; Q. v. College of Physicians & Surgeons (British Columbia), 2003 SCC 19, [2003] 1 S.C.R. 226 (S.C.C.), at paras. 17, 21, 27 and 36; Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247 (S.C.C.), at paras. 2 and 21; Deputy Minister of National Revenue v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100 (S.C.C.), at para. 27).

43 Contrary to what the first of the Court of Appeal’s approaches suggests, the existence of a right to appeal with leave does not mean that the Tribunal’s specialized administrative nature can be disregarded. Nor is the fact that the Tribunal does not have exclusive jurisdiction in discrimination cases and that a complainant can also turn to the ordinary courts determinative. Although the scope of a right to appeal and the absence of exclusive jurisdiction may sometimes affect the deference to be shown to decisions of a specialized administrative tribunal, this does not justify replacing the standards of review applicable to judicial review with the appellate standards (Commissioner of Competition v. CCS Corp., 2015 SCC 3 (S.C.C.), at paras. 35-39; British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895 (S.C.C.), at paras. 23-24; Public Performance of Musical Works, Re, 2012 SCC 35, [2012] 2 S.C.R. 283 (S.C.C.), at paras. 14-15; Canada (Attorney General) v. Mowat, 2011 SCC 53, [2011] 3 S.C.R. 471 (S.C.C.) (“Mowat“), at para. 23).”

 

In making these comments I am not arguing that context has no role in the review of an agency’s interpretation of its statute. But, in my opinion, context comes into play after the determination of the appropriate standard of review in the application of the standard to the circumstances. This was the approach taken by the majority in Edmonton East (Capilano).

 

Nor am I arguing against a change in the standard of review respecting agency determinations of law or whether the existence of a right of appeal should be a factor in the determination of standard of review (although this is now less likely given the diminished role of privative clauses). I have argued extensively against general Dunsmuir reasonableness presumption respecting agency determinations of law. Similarly, I believe that the creation of a statutory right of appeal should operate as legislative direction for the application of traditional principles of appeal. In making the comments which I do here I am not saying that I would not be in favour of the Supreme Court of Canada’s reversal of its position on these two matters.

 

However, I am not in favour of a loosey-goosey maybe yes, maybe no approach where the same factor can used to argue for correctness or reasonableness depending on a particular judge’s reading of context.   In Edmonton East (Capilano) the dissent essentially treated the same factors as the court as examined in the past as giving rise to reasonableness review and stated that, when read in context, these factors indicated correctness review. In other words, although each of the factors in the past indicated reasonableness review, when read together they indicated correctness review. This is nothing more than a return to the old pragmatic and functional approach to standard of review. As stated by the majority “[t]he contextual approach can generate uncertainty and endless litigation concerning the standard of review.” It brings us back to the situation where two thirds of the body of most review decisions were taken up with discussions of the appropriate standard of review and where that standard could not be said to be determined until the pragmatically and functionally based view of the Supreme Court of Canada was given on any particular question. And this view was inevitably simply a recitation of a broad list of factors that went in different directions followed by a “therefore I conclude the X is the appropriate standard.” Furthermore, a contextual approach to standard of review, in my view, makes it particularly difficult for the legislature to anticipate the standard of review that a court may settle on and to indicate standard of review outside of an express statement of what that standard of review should be (outside of the approach taken by the B.C. Legislature with the Administrative Tribunals Act as noted by the majority). While Dunsmuir’s nature of the question approach may be somewhat formalistic it does at least allow a legislature to know in advance the standards of review that will be applied to particular types of issues and to draft accordingly. A legislature needs some hints from a court as to the road signs to put into legislation. A constantly changing standard of review or an analysis where the meaning of road sign can vary depending on individual judge’s reading of context undermines a legislature’s ability to draft for standard of review other than for direct statement. Even then, as demonstrated by the history of the privative clause, a direct statement may be shaped by its “context”. Dunsmuir provides a number of road signs that allow a legislature to judge in advance how certain types of questions will be approached by the courts on review, the effects of certain provisions (such as shared jurisdiction by the courts and agencies), and whether express statutory direction is required in particular cases. This is not formalism. This is rationality and effectiveness.

 

I discuss this and other aspects of the Edmonton East (Capilano) Shopping Centres Ltd. decision in more detail in the upcoming release 2017-1 of Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals published by Carswell.

 

STANDARD OF REVIEW IN COMMISSION SCOLAIRE DE LAVAL V. SYNDICAT DE L’ENSEIGNEMENT DE LA RÉGION DE LAVAL, 2016 CARSWELLQUE 1791, 2016 SCC 8 (S.C.C.)

The decision of the Supreme Court of Canada in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 CarswellQue 1791, 2016 SCC 8 (S.C.C.) can be read as causing some confusion as to the application of the standard of review respecting procedural decisions of decision-makers which involve the application of fundamental legal principles. The majority of the Court took the position that such decisions were subject to the reasonableness standard of review. The minority of the court (concurring in the result) applied the correctness standard of review. As I will set out in more detail below in my opinion the two conclusions are wholly compatible. They are, in fact, aspects of the same principle – the principle respecting the review of discretionary decision-making.

 

The Commission scolaire de Laval decision dealt with the issue as to whether it was proper for an arbitrator to allow the examination of witnesses as to certain matters was a matter of evidence over which the Arbitrator had been given exclusive jurisdiction by section 100.2 of the Quebec Labour Code. The standard of review respecting such a decision is reasonableness. The desire of a party to focus on a question of law that may be involved in that decision does not change the nature of the question into a question of central importance to the legal system and outside of the arbitrator’s area of expertise.

 

In the case in point members of a school board’s executive committee deliberated in camera as to whether an employee should be terminated. The issue arose as to whether the committee’s deliberations were sufficient to meet the collective agreement requirement that such termination could only take place after “thorough deliberations”.   At a grievance arbitration, over the objections of a party, the Arbitrator held that he would allow members of the committee to testify to be asked questioned as to the substance of the committee’s deliberations in the in camera proceedings and what had happened in terms of the information submitted. The Arbitrator explained that this was necessary in order to allow him to know what had happened during the in camera session and determine if the committee’s deliberations had been “thorough” as required by the collective agreement. In other words, the arbitrator determined that the substance of the in camera discussions was relevant in order to determine if the deliberations met the requirements of the collective agreement and that it was thus proper to ask questions to elicit that information. The Arbitrator also rejected the argument that deliberative secrecy operated to preclude the giving of testimony by the executive members. He held that the fact that a body deliberates in camera does not necessarily mean that it benefits from deliberative secrecy. Further, the fact that the executive committee could decide unilaterally to sit in camera should not enable its members to shield themselves from scrutiny by a grievance arbitrator

 

The Arbitrator’s interlocutory decision was taken to judicial review.

 

The objection to the questioning of the members was based on two arguments. First that the motives of the individual members of a decision-making body were unknowable and not relevant to the propriety of the ultimate decision reached and second that the deliberations of the members was protected by deliberative secrecy.

 

In a split 4 -3 decision the majority of the Supreme Court of Canada held that the standard of review respecting the arbitrator’s decision to allow the members to be examined was reasonableness.   The essence of the majority’s ruling was that this was an evidentiary matter within the exclusive jurisdiction of the Arbitrator and within his expertise.

 

Section 100.2 of the Quebec Labour Code gave the Arbitrator the full authority and exclusive jurisdiction over evidence and procedure in the arbitration process. (“100.2. The arbitrator shall proceed with all dispatch with the inquiry into the grievance and, unless otherwise provided in the collective agreement, in accordance with such procedure and mode of proof as he deems appropriate.”) He also had the exclusive jurisdiction to interpret the collective agreement between the parties. He was called upon to interpret whether the terms of the collective agreement had been met in the procedure followed in the employee’s dismissal and he was authorized by the agreement to annual that decision if that procedure had not been followed. There was a presumption that the standard of review applicable to an agency’s interpretation of its home statute was reasonableness. The Arbitrator’s decision to allow the examination of the committee members was based on his conclusion that their testimony would be helpful to him in determining whether the collective agreement and the relevant Education Act had been complied with. His conclusion flowed from his interpretation of those instruments. The case law established that reviewing courts owed the greatest possible deference to an interpretation of provisions of the Education Act by a grievance arbitrator in an educational setting. That presumption was reinforced by the fact that the Court had held that the usual standard for judicial review of decisions of grievance arbitrators was reasonableness. This standard was equally appropriate where an arbitrator applies or adapts common law and equitable doctrines that emanate from the courts because the grievance arbitrator was part of a discrete and special administrative scheme under which the decision maker has specialized expertise. Lastly, the arbitrator’s decision was protected by a full privative clause.

 

The majority held that it was important to focus on what the parties were actually asking for and what the arbitrator ultimately decided. The arbitrator had allowed the examination of the members of the executive committee. The majority stated that: “It is this decision that is at issue in the judicial review proceedings, and it was reasonable.” It noted that the arbitrator had not yet ruled on the relevance of specific questions, as none had been asked when the objection to the witnesses being called was raised.

 

With respect to relevance as the arbitrator had full authority over evidence and procedure it was up to the arbitrator to apply the rules of relevance to the facts of the case in such a way as he deemed helpful. He was asked, in the context of his interpretation of the Labour Code, the Education Act, and the collective agreement, to decide on the application of well-known and uncontroversial rules and principles. Because the Arbitrator had full authority over evidence and procedure in an inquiry into a grievance, it was up to the Arbitrator to apply the rule of relevance to the facts of the case in such a way as he or she deemed helpful for the purpose of ruling on the grievance.

 

As to the argument respecting deliberative secrecy shielding the deliberations, the arbitrator applied a known rule in order to decide whether deliberative secrecy shielded the executive committee’s deliberations. He was not asked to expand the scope of that rule. The application of a known rule in the determination of the admissibility of information, in light of the Arbitrator’s broad jurisdiction over evidence and procedure, did not amount to a question of central importance to the legal system as a whole that is outside the arbitrator’s area of expertise.

 

The majority held that the questions of evidence and procedure as to the relevance of the deliberations and the application of deliberative secrecy in the context of an employer’s collective decision-making were not outside of the Arbitrator’s area of expertise. The fact that the concepts did not fall solely within the Arbitrator’s expertise or that one of the issues was a general principle of law that applied in other legal fields was not enough to justify dispensing with the reasonableness standard of review.

 

The Court went on to determine that the information in question was relevant and that the case law argued did not operate to make it otherwise and that the principle of deliberative secrecy did not apply to employment situations such as the one in question. Thus, the arbitrator’s decision was reasonable.

 

The minority of the Court, although concurring in the result, held that the standard of review was correctness. It honed in on the two legal questions – immunities from disclosure and deliberative secrecy – which had to be determined in the overall decision to allow the questioning. It held that these were two basic legal questions of central importance to the legal system as a whole over which the Arbitrator had no particular expertise or expertise unique to his specialized role.

 

” 78 … Given the importance of such questions and the fact that an arbitrator has no particular expertise or expertise unique to his or her specialized role with respect to such matters, I am of the opinion that, despite the privative clause in the instant case, the legislature could not have intended such an outcome.”

 

These were questions of law that were general in nature and which had to be applied uniformly and consistently. Furthermore, whatever answer was given to those questions it would not flow from the assessment intrinsically linked to the facts of the case but would be based on principles that were not specific to the arbitration process.

 

The minority distinguished the earlier case of the Supreme Court of Canada in M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 CarswellMan 606, 2011 SCC 59, [2011] 3 S.C.R. 616, 340 D.L.R. (4th) 1 (S.C.C.). The minority explained:

“83      This case can therefore be distinguished from Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, to which my colleague refers (at paras. 33 and 38). First of all, what was at issue in that case was the application to the facts of a principle — estoppel — whose scope was well known and clearly defined. Moreover, Fish J. stated that arbitrators are well equipped to adapt and fashion that principle as they see fit (para. 45). The same cannot be said with respect to the immunities from disclosure and deliberative secrecy. These principles, which relate to the administration of justice as a whole, must be applied uniformly and consistently. In addition, the principle at issue in Nor-Man was closely linked to the arbitrator’s discretion to order the remedy he or she considers just and appropriate in the circumstances of the case before him or her. Finally, and most importantly, the application of the principle of estoppel was not of central importance to the legal system in such circumstances.”

 

In my view, it may be easier to approach the decision in Commission scolaire de Laval from the perspective of a discretionary decision made by the Arbitrator as to whether the members of the executive committee could be questioned as to the in camera proceedings. The standard of review respecting exercises of discretion is reasonableness. But implicit in the determination of the reasonableness of the exercise of discretion is that the decision-maker must be correct in the identification and application of the general legal principles relating to that exercise (most basically such as the principles respecting the exercise of discretion- fettering, improper purpose, and so forth).

 

As I have explained earlier in Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals (Carswell) in my discussion respecting the Dunsmuir standard of review relating to discretionary decisions the statement that an agency’s exercise of its discretion is subject to the reasonableness standard of review is a simplification. The standard of reasonableness does not focus solely on the merits of a decision. For a decision to be reasonable it must fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir – emphasis added).

 

“… There are actually three types of sub-decisions involved in the making of a discretionary decision by an agency.

 

  1. The identification of whether the agency has discretion to exercise.

 

  1. The identification and application of the proper legal principles applicable to the exercise of discretion.

 

  1. The exercise of judgement in exercising the discretion used to arrive at the merits of the case.

 

Following Dunsmuir and the developments to its principles since the issuance of that decision:

 

(i) whether an agency has properly identified the existence or extent of discretion will likely be treated as an agency’s interpretation of its own statute and thus subject to the reasonableness standard of review;

 

(ii) whether an agency had properly identified and applied the proper legal principles respecting the exercise of discretion will likely be treated as a question of law of central importance to the legal system and outside of the agency’s expertise and thus subject to the correctness standard of review; and

 

(iii) the merits of the exercise of the agency’s discretion (the policy or judgement-based aspect of the matter) will remain subject to the reasonableness standard of review.”

 

One can see these three elements at play in the majority’s decision in Commission scolaire de Laval. The majority looked to the reasonableness standard of review in determining the authority of the Arbitrator to make the decision in question. The questions respecting whether legal principle as developed by case law rendered the individual testimony of the members of the committee relevant or whether the legal principle of deliberative secrecy applied outside of the adjudicative forum were determined by both the majority and the minority on the basis that the Arbitrator was correct as to the operation of those principles. And the merits as to whether the testimony was relevant or should be allowed was determined on the basis of reasonableness.

 

The difference between the majority and the minority positions is that the minority focuses solely on the issue of the legal principles while the majority wraps that issue in the broader matter of the question as to the propriety of the decision to allow the testimony of the executive committee members.

 

The adoption by the majority of the overall reasonableness standard does not result in the admission of some range of permissible answers as to the relevant legal principles themselves. As the majority noted, this was not a case where some new parameter was sought to be applied to those principles. The legal principles respecting relevance and the extent of deliberative secrecy remained and were properly identified.   The minority focuses on the question of the identification and operation of the two legal principles in question and states that because these were questions of central importance to the legal system as a whole and outside of the expertise of the Arbitrator the standard of review respecting the identification and operation of those principles was correctness. The majority focuses on the broader question of the decision to allow the testimony in question and states that that was subject to the reasonableness standard of review. Implicit in the majority decision, however, as evident from its discussion of the principles of relevance and deliberative secrecy, is the requirement that for the Arbitrator’s decision to allow that testimony to fall within an acceptable range of possible answers in light of the facts and the relevant legal principles. The exercise of discretion on the basis of an incorrect understanding of the relevant legal principle does not fall within a range of answers which are defensible in respect of the law. Both the majority and minority of the Supreme Court of Canada in Commission scolaire de Laval require the proper identification of the legal principles involved.

 

Fulfilling The Worst Expectations Respecting The Executive’s Discretion To Appoint

By its nature the discretion of governments respecting the appointment of administrative agency members is subject to criticisms and allegations of abuse. It is an accepted principle that governments in making their appointments are entitled to consider the point of view or philosophy of those who they appoint. Who is appointed to agencies can be as important as the powers and mandate entrusted to the agency. Legislation does not govern the operation of agencies in every detail. Agency members usually possess great discretion under the various statutes to determine what an agency will do and how it will do it. They have the authority to interpret legislation (a power which is increasingly important given the default deference of modern courts to agency interpretations of their home statutes). They have the authority to create policies which guide them and any regulated individuals in the exercise of their mandates. They have the authority to determine when some projects will be initiated and which will be deferred. In appointing individuals of its choice to agencies a government generally seeks to ensure that appointees not only possess the expertise to do the job at hand but also share the appointing authority’s vision of governance. An agency’s approach to governance or its policy decisions can either further or frustrate a sitting government’s vision.

 

No agency governs by fiat or the brute force of the law. Ultimately in order for its orders to be effective and its mandate achieved it must achieve “buy-in” from the public. The public must have confidence in the agency.   An essential part of this “buy-in” requires that agencies not only not abuse the discretion granted to them but also attempt to avoid the appearance of abuse. In order to avoid creating situations whereby the validity of an agency, or its actions, may be called into question and thus undermining that public “buy-in” governments must similarly attempt to ensure that their discretion is exercised in a manner that may be seen as, or open to, allegations of abuse.

 

This does not always happen as illustrated by two incidents which appear to have their roots in the pending 2015 federal general election.

 

Readers will recall that in the period before the Conservative government called the federal general election in 2015 (which it knew would put its continuing authority at risk) it exercised its appointment power to re-appoint a number of individuals whose existing appointments had not yet expired. These re-appointments were made but by their terms were not to come into effect until the existing appointments had expired. Some of these existing appointments would expire during the election period. Some would expire in the thirty days or so following the October 19, 2015 polling day. Some few would not expire until long after the election day – some as much as a year after the election. (For example the existing appointment of the director of the Canadian Museum of History was not scheduled to expire until June 2016 yet it was renewed in June, 2015 with a delayed effective date of June 2016 for five years until June 2021[1] while that of the Canada Post CEO was not set to expire until February 2016 but was renewed July 28, 2015 for five years until February 2021 with an effective date of February 1, 2016.

 

Why is this important?  It is not an issue of expertise. Presumably all of these individuals had the expertise to validly hold the positions they held.

 

The issue is partly a question of patronage with one government apparently attempting to appropriate to itself the ability to appoint individuals to agencies which rightfully belongs to another government. This is in itself not an insignificant matter. Patronage is an established mechanism for the running of the political state. (For a much more expansive discussion see Jeffery Simpson’s history of patronage in Canada, Spoils of Power: The Politics of Patronage.)

 

Much more serious is that the reappointments made far in advance of the expiry of the existing appointment can look like an abuse of the appointment power.[2] It can appear to be an effort for a government to attempt to ensure that its policies and approaches to governance will continue beyond its lifetime. Had those far advanced reappointments been made during the election period they would likely have fallen afoul of the caretaker convention.[3] And, of course, that party would have lacked the authority altogether after the election to make the far advance appointments that it did.

 

By purporting shortly before an election to re-appoint individuals effective long after it may have lost the authority to directly govern a government can continue to maintain its grip on the governance of a nation indirectly by ensuring that those who interpret and implement legislative programs share its vision and approaches. The Conservative government’s actions in these far advance re-appointments is far more serious than simply who gets to appoint whose friends to what posts.

 

Personally, I am not affronted by a government exercising its appointment power to address agency appointments which will expire during an election period or shortly thereafter. These are times when governments have the least time or resources able to direct their minds to the needs of agencies and to ensure that individuals who are needed to run an agency are capable of doing so. (Such appointments would likely pass muster under the caretaker convention (as being urgent and in the public interest)). This is the period when the executive is least likely to be able to turn its mind to agency appointments and agencies should be able to continue to function efficiently notwithstanding elections. It is not unknown in the past for governments to have made re-appointments effective in the thirty or so days following an election. In my view this is a practical compromise between pure theory and practical necessity which the system can tolerate.   The actions of the Conservative government in 2015, however, respecting the far advance appointments is quite a different story. It does not appear to have been an exercise in ensuring the effective operation of agencies over an election period but, rather, gives the appearance of an obvious attempt to make appointments effective many months after one has lost the reins of governance.  If effective operation were the guiding motivation of the government one might have expected it to turn its mind to the longstanding egregious need of the Specific Claims Tribunal for the government to fill the outstanding vaccines on that tribunal. (See the article “Pledge to add members soon, says panel head” in the February 05 2016 issue of the Lawyers Weekly which recounts the repeated and unanswered requests of the head of the Tribunal, Mr. Justice Slade for the government to fill that body’s vacancies  http://www.lawyersweekly.ca/articles/2604.  Incidentally, Justice Slade was originally appointed head of the Tribunal by the Conservatives in July 2010 effective December 2010 for a 5 year term to December 2015.  There was no advance re-appointment for Justice Slade by the Conservatives before the election.  He was re-appointed by the Liberals in December 2015 for another 5 year term.) Or, alternatively, the government might have thought to provide some redress for the astounding backlog of the Social Affairs Tribunal (see reports such as http://globalnews.ca/news/1703378/disability-benefits-wait-stretches-years-due-to-tribunal-backlog/ or as reported by the Auditor General http://www.cbc.ca/news/politics/auditor-general-report-shared-services-1.3429861.)

There does not appear to be any legal prohibition against the exercise of an appointment power far in advance of the expiry of the original appointment as was done in these cases. While there are a number of provisions in the federal Interpretation Act respecting appointments none address this issue. It may be that this incident calls for legislation to address it.

 

It is likely that past governments may not have been lily white purists respecting the exercise of their appointment powers out of pure respect for the purity of the system. The most practical reason that I can identify why no government (to my knowledge) has acted so blatantly in the past is the simple fact that appointments which are not made effective until some time far in the future can be revoked at will by a new government with no economic or legal cost to the government. (See the discussion in chapter 4 of Macaulay and Sprague Practice and Procedure Before Administrative Tribunals (Carswell).)  The legal reality respecting appointments today is that whether an appointment is for a set term terminable only for cause or is at pleasure terminable at will once in effect that appointment can still be revoked without cause by a government with at an economic cost in the payment of damages arising either from contract (the “at pleasure” appointees) or from the law regarding improper termination (the “for cause” appointees). However, that rule applies only to the termination of a existing appointment – not the revocation of an appointment which is not yet effective. Where the appointment is not yet effective the appointed individual will not yet have entered into any contractual relations and the government will not be liable for any damages resulting from the termination of that not yet effective appointment. The same argument will apply to those advance instruments respecting appointments which can only be terminated on address of one or both Houses of Parliament. The statutory language respecting those latter appointments is generally couched in terms of a member being removable from office only on address to the relevant House. The cancellation of an appointment which is not yet effective does not remove a member from office. It operates to prevent the member from assuming that office.

 

Only the now defunct Conservative government knows why it acted as it did. It may have been unaware of the legal ease to terminate appointments which are not yet in effect. Alternatively it may have hoped that an inexperienced new government was unaware of the significant policy role the outgoing government was hoping to secure through these advance appointments. Or it may simply have hoped that at very least these appointments might have been continued by the incoming government due to the political spectacle involved in the termination of a significant number of perhaps fully qualified agency appointees. Whatever the motives there does not appear to have been anything innocent or worthy in the policy of far advance re-appointments. At the very least it made many likely qualified appointees into political footballs. One hopes that future governments will resist the urge to follow this practice.

 

The second illustration of actions with poor public optics deals with the position of the federal Veterans’ Ombudsman. That office was created by the Conservative government by order-in-council on April 3, 2007 (OiC 2007-0530). An individual was then appointed as Ombudsman on October 12, 2007 for three years with the appointment being effective November 11, 2007 (OiC 2007-1553). Approximately three years later on November 4, 2010 the original order-in-council was amended to change the terms of the position. The order-in-council now specified that an appointment could not be renewed (OiC 2010-13374- effective November 11, 2010). The effect of this change was to make the existing Ombudsman ineligible for re-appointment. That same day a different individual was appointed Ombudsman for a five year non-renewable term effective November 11, 2010 (the expiry of the original Ombudsman’s appointment). Approximately five years later, on June 5, 2015 the original order-in-council was again amended, this time to remove the earlier inserted ban on re-appointments and to make the term of appointment renewable (OiC 2015-0783). One month after that, on July 28, 2015, the then Ombudsman was re-appointed for a 3 year term effective on the expiry of his existing appointment November 11, 2015 (OiC 2015-1139). This re-appointment was made approximately one week before the government called the 78 day general election (in which it was to be voted out of office) slightly over three months before the expiry of the individual’s existing appointment.

 

This “in again out again” tampering with the terms of the Ombudsman position can give rise to public suspicions of a government tampering with a position in order to ensure the appointment or non-appointment of particular individuals.  Questions naturally arise as to why the “non-renewable” term was inserted into the original position description and why was it subsequently removed?  The cynic will wonder if it had anything to do with the government’s view of the individuals involved.  Whether or not such suspicions are valid the neutrality of the position is thereby called into question and the public “buy-in” of its actions is threatened.

 

It is doubtful that actions such as the above are restricted to only governments of one political stripe. The nature of politics is to seek to win and to hold power and there are instances where the line is likely crossed. That, however, does not diminish the point that the care should be taken to avoid such instances which can undermine the effective operation of agencies and the accomplishment of their mandates.  For certainly, whatever else the fallout of these actions by the Conservative government they turned the careers of  many qualified individuals into political footballs (as recently evidenced by the legally unfounded calls by the Conservative opposition for the resignation of the Liberal Minister for contacting relevant appointees to suggest their voluntary resignation of their re-appointments.  Thus, ensuring that the matter would remain in the forefront of the political arena.  This further indicates that politics – not efficiency or effectiveness – was at the heart of the government’s actions in the last days of its tenure).

[1] Technically, this was an approval of an appointment by the Board of Trustees of the Museum.

 

[2]   In the abstract it raises the spectre of an government concerned with the loss of control making successive renewals of an appointment for decades in advance each effective on the expiry of the preceding appointment. This abstract possibility illustrates the inherent wrongness of far advance reappointments.

 

[3] In its August, 2015 document Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During an Election the federal Privy Council Office explains the caretaker convention as follows:

 

“In Canada’s Westminster form of government, convention requires that the Government command the confidence of the House of Commons at all times. While constitutionally a government retains full legal authority to govern during an election, as well as the responsibility to ensure that necessary government activity continues, it is expected to exercise restraint in its actions. This is often referred to as the “caretaker convention”. The rationale is that, following dissolution, there is no elected chamber to which the Government can be held accountable, and the Government cannot assume that it will command confidence in the next Parliament.

 

 

This does not mean that government is barred from making decisions or announcements, or otherwise taking action, during the caretaker period. It can and should do so where the matter is routine and necessary for the conduct of government business, or where it is urgent and in the public interest – for example, responding to a natural disaster. In certain cases where a major decision is unavoidable during a campaign (e.g., due to an international obligation or an emergency), consultation with the opposition parties may be appropriate, particularly where a major decision could be controversial or difficult for a new government to reverse.

 

In short, during an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is:

 

  • (a) routine, or
  • (b) non-controversial, or
  • (c) urgent and in the public interest, or
  • (d) reversible by a new government without undue cost or disruption, or

(e) agreed to by opposition parties (in those cases where consultation is appropriate).

 

In determining what activity is necessary for continued good government, the Government must inevitably exercise judgement, weighing the need for action and potential public reaction, given the absence of a confidence chamber and the possibility that a different government could be elected.”

 

PARLIAMENTARY PRIVILEGE IN THE CURRENT FEDERAL GENERAL ELECTION

DISCLAIMER

The focus of this posting is on the period parliamentary privilege may be claimed after the expiry of the 40 day period following the dissolution of the House of Commons for a Canadian federal election and before the newly elected House of Commons recommences business.

The following represents the results of some lengthy Twitter brainstorming by Thomas Hall, Sean Hunt and me respecting the running of an MP’s privilege between the dissolution of the House of Commons and the recalling of Parliament. I am summarizing the conclusions reached in that brainstorming insofar as Twitter is not the easiest medium to consolidate results of tweets carried out over an extended period.  I have not shared this summary with either Mr. Hall or Mr. Hunt prior to blog publication so, obviously, any errors herein are mine.

I have edited this entry since its original posting but have not changed any of the substantive conclusions arrived at early. The posting was edited to:

  •  add a reference to Maingot’s assertion that privilege cannot be claimed until one is elected a MP;
  • add a reference to the Federal Court decision in Samson Indian Nation which recognized a shorter period during which privilege exists; and
  • to make minor style changes.

In the course of this brain storming we periodically referred to the Ontario Court of Appeal decision in TeleZone Inc. v. Attorney General, 235 D.L.R. (4th) 719, 2004 CanLII 36012 (Ont. C.A.), Erskine May’s Parliamentary Practice, and Joseph Maingot’s Parliamentary Privilege in Canada.  This is a summary of the conclusions reached in a Twitter stream. It is not represented as more.  There is no deep and scholarly research here.  TeleZone was updated to ensure that it remains good law.  We welcome any views or additional information based on more authoritative research that may contradict or supplement the below.

Lastly, the calculations and dates used herein have not taken into account any possible delays that might result from such things as a delay in the validation of results, a judicial recount, errors in the return of the writ or delays in publication of results.

OVERVIEW

The summary of our conclusion is:

  1. There appears to be no doubt that a former MP enjoys Parliamentary privilege for 40 days after the dissolution of Parliament. (TeleZone).  This appears to flow from his or her status as an MP in the dissolved House rather than some status as an MP after dissolution.
  1. A person summoned as an MP to a Parliament recalled after dissolution enjoys privilege for a maximum of 40 days before the date appointed for business in the proclamation recalling the House of Commons. (The privilege will continue after House is recalled).
  1. In order to determine if and when an individual enjoys Parliamentary privilege respecting the recall of Parliament after a dissolution you need two things. The absence of either indicates that there is no privilege:  i) there must be a person who has been summoned to the business of the House – i.e. a person must be elected as an MP; and ii.)  the House of Commons must have been summoned to attend for business on a specific date.
  1. Thus, the 40 days preceding the recall of the House will be calculated starting from the pro forma date set for the next meeting of the House in the proclamation issued at the time of the House’s dissolution and counting backwards for 40 days or to the date a person was elected as MP should that take place less than 40 days before the appointed date for meeting.
  1. With respect to the possibility of Prime Minister Stephen Harper being summoned as a witness in the on-going trial of Senator Mike Duffy the Prime Minister’s privilege as a former member of the now dissolved House expires Sept. 11, 2015. If elected in this current general election his privilege will not recommence until the date the writ is returned to the Chief Electoral Officer and the information published in the Canada Gazette.  This cannot physically be sooner than November 2, 2015.  So one can likely safely conclude that at least between Sept 12, 2015 and November 2, 2015 the Prime Minister will not enjoy any privilege even if he is re-elected to the House.

DISCUSSION

Who Has Been Summoned

  1. The date an MP is elected is tied to the return of the writ.

The formal date for the return of the writ is set out in the proclamation dissolving the House.  In the case of the current general election the date set for the return of the writs is November 9, 2015.  This is a pro forma date as the writs can be returned earlier.

  1. This formal date is calculated today by reference to the periods specified in the Canada Elections Act for the validation of the vote and the return of the writ. The formal date is usually set a  date which is a little longer that the earliest time possible for writs to be returned under the Act and a little shorter than the longest time that the writs can be returned under the Act.
  1. Under the Canada Elections Act the original date for the RO to validate the results is set out in the Notice of Election posted at the time the RO first opened his or her office.
  1. That original validation date can be no later than 7 days after polling day (section 62(c) CEA).
  1. If all of the returning ballot boxes have not been received by the RO by that original validation date the RO can delay the validation up to no more than 7 additional days to allow time for all of the boxes to be received (s. 293(2) CEA).
  1. No earlier than six days following the validation of results the RO declares the relevant person elected on the back of the election writ (s. 313(1) CEA) (“The returning officer … shall declare elected the candidate who obtained the largest number of votes by completing the return of the writ in the prescribed form on the back of the writ.”)
  1. The RO then “without delay” returns the writ to the Chief Electoral Officer (s. 313 CEA).
  1. The CEO then verifies the returned writ and returns it to the RO for completion or correction if necessary (s. 315(3) CEA).
  1. If all is in order the CEO publishes in the Canada Gazette the name of the candidate who was declared elected (s. 317(b) CEA).
  1. Maingot, in his Parliamentary Practice states that in Parliamentary practice the entry in the Canada Gazette commences the official existence of a Member. If this is correct then presumably this is the date which determines who has been summoned to the business of Parliament for the purposes of Parliament.

Summoning The House And The Date For Business

  1. It appears to be common in Canada to refer to an M.P.’s privilege existing during the 40 days before and after a session and for 40 days following the dissolution of the House. (TeleZone).  (The Federal Court had earlier, in Samson Indian Nation & Band v. Canada, 2003 CarswellNat 2526, 2003 FC 975, [2003] F.C.J. No. 1238, 238 F.T.R. 68 (Fed. Ct.), reduced this period to 14 days to reflect the effect of modern means of communication and travel.  However, the Ontario Court of Appeal in TeleZone disagreed with the Federal Court and held that once a court had recognized the privilege it did not have the authority to modify it to reflect changing social conditions. The 40 day period best reflects the traditional approach taken by the Canadian case law and by Speakers of the House of Commons. We are not aware of any Canadian case law which has employed the 14 day period set out in Samson Indian Nation.)
  1. The difficulty with referring to the privilege existing for the 40 day preceding a Parliamentary session is that a session does not commence until it commences. In other words, until the session actually commences one does not have a fixed day from which to calculate the preceding 40 day period.  One can have reference to the third proclamation which is issued at the time of the dissolution of the House which sets a pro forma date for the House to meet.  However,  until the House actually meets the session has not officially started.  We think that this is a matter of semantics (as illustrated in the next paragraph) and that one uses the pro forma date as the date for the backwards calculation for the beginning of privilege.
  1. Erskine May refers to Parliamentary privilege operating after dissolution for the 40 days before the next appointed meeting. This wording makes more logical sense than attempting to use “session” in the calculation of the advance period of privilege.  Using this wording it is clear that in the case of dissolution, the pro forma date set out in the proclamation calling for the meeting of Parliament is the date that has been appointed for the meeting of the House.  Thus, after dissolution one can look to the pro forma date in the proclamation summing the House of Commons which is issued on the date of the dissolution of the House (and published in the Canada Gazette) as the date to be used in calculating the beginning of privilege (40 days before the appointed date for meeting).
  1. This pro forma date can, and almost always does, change following an election. As and when that occurs it is this new date which is used for the calculation of the beginning of privilege. Thus, a privilege which may exist at a specific time on the basis of an existing pro forma date fixed for the recall of the House may disappear for that time and not start until later if the actual date of recall is shifted to a later date. When the pro forma recall is changed the period of the privilege must be recalculated.

Is Privilege Retroactive To Date Before One Is Elected MP?

  1. Maingot asserts that privilege is not retroactive to a date before a person was elected an MP.. This appears logical in light of a number of common sense factors.
  1. The purpose of the Parliamentary privilege is so that the Crown has the unrestricted right to call upon the House for service. It is to provide time for the summoned person to prepare and to travel to the House.
  1. Taking this as a foundational base it stands to reason that the privilege cannot exist until such time as a summons issues and there is a person summoned.
  1. Consequently, it is our view that privilege arising from the recall of the House does not attach to a person until he or she has been elected.  Where the 40 day period counting backwards from the pro forma date of recall extends back to a date before a person was elected that person cannot claim privilege for the amount of the 40 day period that falls before the date of his or her election.  Privilege does not operate retroactively to some date before the election of a member. Unless one is dealing with the privilege enjoyed by a former MP that exists only for the 40 days after the dissolution of the House  a person cannot claim privilege for a period before he or she was elected.
  1. Allowing the privilege to run prior to the election of a member serves no purpose in terms of preparing and travelling to the House. It can also interfere with other legal proceedings which may be taking place at that time for no purpose.  Allowing for retroactive application of privilege can also cause confusion as to whom it applies.  If one used only the date fixed for meeting as the determinative factor for the fixing of the period of privilege, privilege could apply to anyone who could potentially be elected within the 40 day period prior to the date fixed for meeting.  For example, in the case of the current federal general election the pro forma date fixed for the meeting of the House is November 16th, 2015.  Forty days preceding that date is October 7th, 2015 – some 12 days before polling day.  It is inconceivable that every candidate in the current general election could potentially claim privilege between October 7 and the return of the writs even though that time will fall in the 40 day period preceding the pro forma date of recall..
  1. Thus, in our view, after the dissolution of the House a former M.P. enjoys privilege for 40 days after the dissolution. Thereafter privilege ends and no one can claim it until the privilege recommences.  Privilege recommences following a person’s election in the ensuing general election as calculated from the pro forma date set for the reconvening of the House counting backyards to whatever date falls 40 days before that date  or to whatever date a person may have been elected as the M.P. and who has been summoned to the House if that date is less than 40 days before the date fixed for the meeting of the House.

Application To Prime Minister Stephen Harper

  1. Speculation appears to abound respecting the ability to summon Prime Minister Stephen Harper as a witness in the criminal trial concerning Senator Mike Duffy. If one applies the above conclusions to the Prime Minister’s case at this time one arrives at the following:
  1. The Prime Minister’s privilege as a former member of the dissolved House ends September 11, 2015 (40 days after dissolution).
  1. Given that the pro forma date for the next meeting of the House has been set at November 16th, 2015 should Mr. Harper be re-elected his Parliamentary privilege will recommence no earlier than the date the relevant writ of election for his district has been completed, returned to the Chief Electoral Officer and likely published in the Gazette. (Should the RO’s certification of a person as having been elected be sufficient for that person to be considered to be an MP this date will shift to the earlier date of the RO’s completion of the writ (no earlier than 6 days after validation.)
  1. Given a polling date of October 19, 2015 the absolute earliest this could take place is November 2, 2015 (7 days for validation – assuming the validation date for that district was originally set at 7 days after polling day- and 6 days for return of the writ – assuming a super-human effort in returning the writ to the Chief Electoral Officer and publication on that same day)

AN INTRODUCTION TO THE RIGHT TO VOTE AS IMPLEMENTED UNDER THE FEDERAL CANADA ELECTIONS ACT

1.1 Legal Sources Governing Canadian Elections

 

The source of direct political power in Canada is elections.[1]  Membership in the House of Commons, practically speaking the most powerful, if not legally the senior, house of Parliament, is based on the geographic division of the country into electoral districts.  Power in the House is exercised by the party or person who can muster the support of the most of his or her fellow members.  Membership in the House is determined by election with one member being chosen for each electoral district in the country by the eligible electors of that district. These elections are governed by a large number of inter-related legal authorities of which the most prominent are likely the constitution and the federal statute, the Canada Elections Act.  But there are a great many other legal authorities that impact on different aspects of a federal election such as, to name a few, the Parliament of Canada Act[2], the Electoral Boundaries Readjustment Act,[3] the Broadcasting Act,[4]  the Director of Public Prosecutions Act, [5]  the Official Languages Act,[6] the Access to Information Act,[7] the Privacy Act,[8] the Human Rights Act,[9] the Income Tax Act,[10] the Public Service Employment Act,[11] and the Financial Administration Act.[12] 

1.2 The Constitution

The Constitution[13] is the primary source of authority respecting federal elections.  The Constitution Act, 1867:

  • establishes a federal Parliament (s.17);
  • sets out the determination of the number of seats in the House of Commons (ss. 37, 51, 51, and 52);
  • establishes control over federal elections in the federal Parliament (s. 41);
  • prohibits senators from being elected or sitting in the House of Commons (s. 38),[14]
  • sets a maximum life of a House of Commons at 5 years subject to earlier dissolution by the Governor General (s. 50); and
  • prescribes the requirement that a person elected to the House of Common must take the Oath of Allegiance being assuming his or her seat (s. 128).

Those constitutional provisions are supplemented by the Canadian Charter of Rights and Freedoms, which is  Part I of the Constitution Act, 1982.  The Charter sets out:

  • the right to vote and to be qualified to stand for election (s. 3); repeats the maximum 5 year life of the House of Commons;
  • provides how a House can continue beyond 5 years in a time of real or apprehended war, invasion or insurrection (s. 4); and provides that Parliament must sit at least once every twelve months (s. 5).

It is important to note that the right to vote flows from the Constitution not the Canada Elections.  The Canada Elections Act does not grant the right to vote.  This is so notwithstanding that that the Canada Elections Act provides in section 3 that: “Every person who is a Canadian citizen and is 18 years of age or older on polling day is qualified as an elector.”  Technically, section 3 of the Canada Elections Act does not grant the right to vote but merely recognizes the constitutional right of citizens and restrict that constitutional right to those who are 18.  Similar to the restriction in section 3, section 4 also purports to limit the constitutional right to vote by providing that three other categories of people are not entitled to vote:  the Chief Electoral Officer, the Assistant Chief Electoral Officer;[15] and every person who is imprisoned in a correctional institution serving a sentence of two years or more.[16]  Either by judicial ruling (prisoners) or practice (the disappearance of the position of Assistance Chief Electoral Officer, the Chief Electoral Officer is the only person who continues to be disentitled to vote under section 4.   Technically, he or she is not the only person who has been disentitled to vote by the Canada Elections Act because that disadvantage is shared by every Canadian citizen who is under the age of 18.

It is important in understanding the right to vote that this right flows from the constitution, not the Canada Elections Act. That Act exists to implement, regulate, administer and restrict the right to vote.  The right to vote would exist if the Canada Elections Act (or its provincial equivalents) did not exist.  What would be missing would be the means of implementing that right.

Other aspects of the Constitution Act, 1982 are also relevant to federal elections, although not aimed directed at them, notably provisions such as section 2(b) (freedom of expression[17] – most relevant in the context of election expense limits, electoral advertising restrictions, and the release of election results), section 2(d) (freedom of association), and section 15 (equality before the law – for example the prohibition against minors voting).  In addition, electoral legislation is subject to general constitutional principles such as the requirement in section 7 that a limit imposed by law not be unduly vague.[18]

1.2(a) The Authority Of The Federal Parliament Over Federal Elections

 

As will be discussed in more detail later in the context of the constitutional right to vote, under section 41 of the Constitution Act, 1867 Parliament can legislate with respect to federal elections and in doing so it may intrude upon or infringe some constitutional rights.  Some constitutional rights (those found in section 2 and sections 7 to 15 of the Charter) are subject to direct express Parliamentary override under section 33 of The Constitution Act, 1982. As noted by the Supreme Court of Canada in Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.) the express override provision in the Charter cannot be used to override the constitutional right to vote in section 3 of the Charter.  However, while Parliament cannot override the constitutional right to vote under section 33, the constitutional right to vote in section 3 of the Charter, and other Charter rights including the section 2(b) right to freedom of expression can be restricted by reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Charter. Parliament has frequently imposed restrictions or limitations on Charter rights through the Canada Elections Act.  Some of these infringements have been held to be lawful, some have not.[19]  The test for the determination of whether an infringement of a Charter right is discussed in more detail below in the context of the right to vote but the same analysis is applicable in the context of the breach of any Charter right.  While the approach to the determination of whether an breach of a Charter right is the same for all Charter infringements, there is no blanket result that applies across the board to all aspects of infringements.  Each infringement must considered in light of its own particular circumstances and purposes.[20]

1.2(b)  The Constitutional Right Of Freedom of Expression

As this is not a text on constitutional law it will not outline in any detail the extent of the constitutional rights that may be applicable to elections other than for the constitutional right to vote found in section 3 of the Charter. Having said that, aside from the section 3 guarantee of the right to vote, of the various Charter values that interplay with the electoral process the section 2 guarantee of freedom of expression is likely the most interactive with the process.  There is a clear overlap between the constitutional right to vote (which includes the right to exercise one’s vote in an informed manner[21]) and the constitutional right to freedom of expression. As a core element of elections is communication – not only of ideas but of cajolery, flattery, fear mongering, blandishments and blarney the Charter guaranty of freedom of expression is clearly triggered by the electoral process. As noted by the Supreme Court of Canada in Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.) quoting from its earlier decision in Libman c. Québec (Procureur général), 1997 CarswellQue 851, 1997 CarswellQue 852, [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 3 B.H.R.C. 269, 46 C.R.R. (2d) 234 (S.C.C.): “Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter“.    Also in Thomson Newspapers the Supreme Court also acknowledged that political process is at the core of the Charter right of freedom of expression.  Again quoting from another of its earlier decisions, this time R. v. Keegstra, 1990 CarswellAlta 192, [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131, [1991] 2 W.W.R. 1, 114 A.R. 81, 117 N.R. 1, 11 W.C.B. (2d) 352, 1 C.R. (4th) 129, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, 77 Alta. L.R. (2d) 193 (S.C.C.), the Court noted the centrality of the political process to the section 2(b) guarantee.

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.[22]

The Charter guarantee of freedom of expression “aims at permitting free expression” to promote “truth, political and social participation, and self-fulfillment”.  The right feeds and promotes the concept of an informed vote with its obvious beneficial electoral and democratic consequences.[23]  Thus, to the extent that the Constitution provides for elections and the right to vote therein the section 2(b) guarantee of freedom of expression operates to enhance the fullness and democratic value of those elections.

As noted earlier, the Charter guarantee in section 2(b) of freedom of expression is subject, under section 1 of the Charter, to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The process by which one determines whether an infringement is justified is discussed in below in the context of the section 3 right to vote.

Having said that, elections are a contest between opposing camps and there can sometimes be conflicts between the freedom of expression of those camps and the electorate’s right to vote in that the full exploitation of freedom of expression can operate to the disadvantage of the right to vote.  The provision of incomplete information or information capable of misconstruction, or the provision of information too late in the electoral process to permit effective consideration or refutation while constituting freedom of expression can result in the electorate being mislead and failing to exercise its right to vote in a way that the electorate would not have voted if it were in possession of the complete picture thereby undermining the concept of meaningful participation and effective representation. Where these possibilities arise the Supreme Court has indicated that the obligation is to find an appropriate balance between both sets of rights.[24]

1.2(c)  The Constitutional Right To Vote

 

1.2(c)(i) Who Has The Constitutional Right To Vote

 

Notwithstanding the centrality of the electoral process to the Charter guarantee of freedom of expression it is the Charter right to vote that lies at the heart of the electoral process.  As noted by the Supreme Court of Canada the very heart of a democratic society is a representative and responsible government[25] – when the government is responsible to a legislature which is elected by the citizenry. And the basis of an election is, obviously, the right to vote.  The Supreme Court of Canada has stated on a number of occasions that the right to vote (or to stand for office) is the embodiment of democracy.[26]

In its decision in Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.) the Court stated that the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote.  While in the past the right to vote in federal elections has been tied at different times to various different criteria such as gender, property and wealth, section 3 of the Canadian Charter of Rights and Freedoms[27] now constitutionally guarantees an unqualified right for every citizen of Canada to vote.[28]

  1. 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.

This constitutional right to vote is not a matter of privilege, status, merit, or wealth but is an aspect of what it is to be Canadian.[29]

The constitutional right to vote in section 3 of the Constitution Act, 1982 cannot be easily interfered with.  It cannot be overridden by a legislature under section 33(1) of the Charter.[30]  Nor is it to be construed to mean anything less than as it reads – a right in every citizen “to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”[31]  Having said that, as will be seen in the discussion below the right to vote or to be qualified to run has been construed as being more than as it reads.

While it is possible to impose limitations or restrictions on the constitutional right to vote (as will be discussed below), the right itself is universal and without restriction.[32]  It is unqualified[33] and not subject to any countervailing public interests.[34]  It is not limited by any concept of being limited to “decent and responsible people”[35] or any inherent or perceived difficulty in implementing or exercising it.[36]

Thus, in Fitzgerald (Next Friend of) v. Alberta[37] the Alberta Court of Queen’s Bench (subsequently approved by the Court of Appeal) stated:

14      Section 3 clearly contains no limitations on the right to vote, other than citizenship. While the content of the right to vote might be subject to interpretation (Dixon v. British Columbia (Attorney General) (1989), 59 D.L.R. (4th) 247 (B.C. S.C.); Reference re Provincial Electoral Boundaries, [1991] 2 S.C.R. 158 (S.C.C.)), the words “every citizen” are clear. Any limitation on those words constitutes a breach of s. 3, which must then be justified under s. 1. This was explicitly stated by Strayer J. in Belczowski v. R., [1991] 3 F.C. 151 (Fed. T.D.) at 159:

It is quite clear in section 3 who are the holders of the right (“every citizen of Canada”) and what they are thereby entitled to do (“to vote in an election of the members of the House of Commons … .”). I am not deterred in this finding by the argument of the defendant that the section cannot be applied literally because there are some, such as infants, who clearly should not have the right to vote. I do not need to define here who may properly be denied the vote; that issue must be determined in each case under section 1 of the Charter.[38]

1.2(c)(ii) Limits On The Constitutional Right To Vote

 

1.2(c)(ii)(a)  The Ability Of Parliament To Place Limitations On The Right To Vote

 

The constitutional right to vote includes the obligation on Parliament not to interfere with the right of each citizen to participate in a fair election.[39]  A limitation may be direct (for example, by expressly denying an elector the right to vote[40]) or indirect (for example, by providing greater rights of participation to some that can have the effect of diminishing the participation rights of others[41]).  It can also result from non-action (for example, by failing to provide any means for voters outside of the country to vote[42]) just as much as from action.

Nonetheless, as is evident to any person familiar with elections in Canada, and as suggested at the end of the above quotation, Parliament and the provincial legislatures still impose restrictions on the right of citizens to vote – the most common of which is age – one must have reached a specified age to vote.

The legislative authority to infringe upon or limit the constitutional right to vote is preserved by section 1 of the Charter.

  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.

If Parliament feels that there are difficulties with any aspect of the exercise of the right to vote it has the authority under section 41 of the Constitution Act to impose limitations, restrictions or requirements upon that exercise to address that difficulty. However, by virtue of section 3 and section 1 of the Charter any such limitation, restriction or requirement must be demonstrably justified in a free and democratic society.

1.2(c)(ii)(b) Constitutional Right To Vote Can Only Be Limited For A Good Reason

 

What that means is that under section 1 of the Charter the constitutional right to vote can be limited only for a good reason.  Any intrusion upon, or breach of, the constitutional right to vote is subject to non-deferential review[43] by the courts and must be justified according to the test stabled by the Supreme Court of Canada in R. v. Oakes, 1986 CarswellOnt 95, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 14 O.A.C. 335, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, 50 C.R. (3d) 1 (S.C.C.).[44]  Any infringement or limitation upon the constitutional right to voted which cannot be justified under section 1 of the Charter is unconstitutional.[45]

In order to be demonstrably justified in a free and democratic society under the Oakes test an infringement or limitation on the constitutional right to vote must be legitimate and proportionate.  That is to say that the infringement or limitation must be intended to serve some important purpose in a free and democratic society and the harm resulting from the infringement or limitation must be proportionate to the benefit secured by it.   In order to be found as such the infringement or limitation must meet the following criteria:

Legitimacy

 

  1. The infringement or limitation must be intended to secure some purpose that is pressing and substantial in a free and democratic society. This requires that one identify what is hoped to achieve through the infringement or limitation, and demonstrate that that objective is pressing and substantial in a free and democratic society (ie. there must be more than the simple fact that the majority of the electorate might favor the infringement or limitation).

Proportionality

 

  1. The means chosen must be reasonable and demonstrably justified, which means:
  1. i) the infringement or limitation must be rationally connected to the purpose or objective (i.e will it achieve the intended purpose);
  1. ii) the infringement must minimally impair the constitutional right to vote (i.e. impair the right as little as possible); and

iii) the harm resulting from the infringement must be proportionate to the benefit achieved.[46]

In the application of the above test context is all important.  The legislative provision in question must be considered in the context of the social problem which it is intended to address and close attention must be paid to the detail of the provision and the factual setting in which it is intended to operate.[47]

This is not a text on constitutional law and does not set out a detailed analysis or discussion of the application of the Oakes  test.  The practical operation of the test can be seen by reference to the table at the end of this chapter which outlines a number of infringements or limitations imposed on the constitutional right to vote by Parliament or a provincial legislature and the outcome of the resulting judicial challenge of that infringement or limitation.

1.2(c)(iii) The Rights Contained In The Constitutional Right To Vote

 

1.2(c)(iii)(a)  Basic Voting Rights

 

Section 3 of the Charter guarantees both:

(i) the right to vote for a member of Parliament or a legislative assembly; and

(ii) the right to be qualified to run for election thereto. It reflects Canada’s constitutional character as a parliamentary democracy.[48]  In an election for the federal House of Commons or a provincial legislative assembly[49] each Canadian is entitled to one vote in a particular electoral district[50] or to run as a candidate for one district.

The extent of the rights granted by section 3 flows from its express words and from its purpose.[51] But the right to vote extends to more than simply the right to put a ballot in a ballot box.[52]  It also carries with it a number of implicit rights dealing with aspects of voting that ensure that the right is meaningful[53] and fair.[54] In Dixon v. British Columbia (Attorney General)[55] the B.C. Supreme Court approved of the summary of the collected rights entailed in the concept of the right to vote:

55      The Attorney General, relying on Boyer, Political Rights: The Legal Framework of Elections in Canada (1981), at pp. 81 et seq., concedes that the following core values or rights form part of the s. 3 guarantee of the right to vote.

56      1. The right not to be denied the franchise on the grounds of race, sex, educational qualification or other unjustifiable criteria;

57      2. The right to be presented with a choice of candidates or parties;

58      3. The right to a secret ballot;

59      4. The right to have one’s vote counted;

60      5. The right to have one’s vote count for the same as other valid votes cast in a district;

61      6. The right to sufficient information about public policies to permit an informed decision;

62      7. The right to be represented by a candidate with at least a plurality of votes in a district;

63      8. The right to vote in periodic elections; and

64      9. The right to cast one’s vote in an electoral system which has not been “gerrymandered” — that is, deliberately engineered so as to favor one political party over another.

65      I would add to this list a tenth precept. It cannot be denied that equality of voting power is fundamental to the Canadian concept of democracy. The claim of our forefathers to representation by populations — “rep by pop” — preceded Confederation and was confirmed by it.

1.2(c)(iii)(b)  Right To Participate Meaningfully In An Election

 

The constitutional right to vote extends beyond this list to also include matters which can be said to be necessary in order for electors and electoral participants to be able to play a meaningful role in the electoral process.[56]  The Supreme Court of Canada has said that for electors meaningful participation means the ability to hear and weigh many points of view, while for those direct and indirect participants in an election (candidates, political parties and others seeking to promote  them or their electoral ideas) it means the ability to inform electors of their positions.[57]  Thus, the ability to play a “meaningful role” in an election extends beyond a free, effective and secret vote to include “fulsome” participation in the electoral process.  In Harper v. Canada (Attorney General)[58], drawing upon its earlier decision in Figueroa v. Canada (Attorney General)[59], the Supreme Court of Canada stated that participation in the electoral process in itself has an intrinsic value – independent of its impact upon the actual outcome of an election. Greater participation in the political discourse, the Court stated, leads to a wider expression of beliefs and opinions and results in an enriched political debate, thereby enhancing the quality of Canada’s democracy.  Thus, in Figueroa the value of the participation of political parties in elections extended to more than simply their ability to form a government.  The participation itself of the individual members and supporters of a party, that is to say their contribution to the flow of ideas and concepts, was also seen as an aspect of meaningful participation.[60]

The finite nature of elections and the practical aspects of human communication come into play in determining the extent of the right of meaningful participation.  There is only so much time an election,  and often only so much resources that can be drawn up (for example, there is only so much broadcast advertising time that can be employed in an election period).  In Figueroa the Supreme Court held that, because of these natural limitations, the right to meaningful participation includes the right not to be drowned out by the participation of others.  This includes not only controls on the ability to reserve or purchase finite resources for the use of a particular side or view point but also on the ability of those with more resources to use those resources to overwhelm the views of those with less.[61]  Thus, election expense limits or election advertising limits are not considered to be breaches of the section 3 right to vote but are rather valid manifestations of that right provided that they are suitably crafted to ensure that electoral participants are able to effective convey their messages and the electorate is able to be fully informed.[62] It also includes the idea that the state can attempt to equalize the participation of persons in an election by providing the means to do so (such as through the mandatory provision of free broadcasting time or the provision of tax credits for political contributions).[63] In other words, section 3 includes “the notion that individuals should have an equal opportunity to participate in the electoral process.”[64]

While the state can provide benefits to attempt to equalize the participation in the electoral process it cannot do so in a way that benefits some at the expense of others.  Legislation that gives electoral advantages to some electors which diminish the participation rights of others breaches the constitution right to vote in section 3 and to be constitutionally valid would have to be justifiable under section 1 of the Charter.

 

 In illustration, in Figueroa the Supreme Court held that the right to meaningful participation meant that a government could not extend greater participation rights to political parties that ran at least 50 candidates in a general election that it granted to smaller parties which ran only a lesser number of candidates.

At the time of Figueroa the Canada Elections Act gave greater rights to registered parties than non-registered parties.[65]  Notably, only registered parties could give tax receipts for donations, could retain surplus campaign funds at the end of a general election, and had the right to have their party affiliation noted on the ballot form for their candidates.  In order to become registered a party had to run at least 50 candidates in the last general election.

The Supreme Court of Canada found that giving greater rights to the larger, registered, parties breached section 3 in a number of ways.

First, it diminished the ability of citizens to assess the relative strengths and weaknesses of each party’s platform which was felt necessary in order for each citizen to vote in a manner than accurately reflects his or her preferences.

Second, it gave the individuals and supporters of larger parties better means than others to communicate their ideas and opinions.

Third, restricting the inclusion of a candidate’s political affiliation on the ballot form to candidates of registered parties was found to interfere with the capacity of non-registered parties to compete.  It reduced the ability of the less knowledgeable electors to vote for their preferred candidates and could create the impression that a candidate was not in fact affiliated with a political party or that the party with which the candidate was affiliated was not an legitimate political party.

The Supreme Court of Canada held that the 50 candidate rule could not be justified under section 1 as it failed the Oakes test in several ways.[66]

While the constitutional right to vote protects an elector’s meaningful participation in an election from unjustifiable interference it does not go further to impose an obligation upon Parliament to enhance that ability to participate beyond that standard.  In other words if Parliament has passed legislation that respects meaningful participation section 3 cannot be used to require that Parliament do more to maximize that ability.[67]

1.2(c)(iii)(c) The Right To Fairly Structured Electoral Districts

 

Under our constitution Canada is a representative democracy – that is to say that the citizens elect representatives to govern on their behalf.  Those representatives are said to the responsible to their electors as disapproval by the electoral can result in the member not being re-elected. The country is governed through a Parliament which has the authority to pass laws for the nation.  The members of the lower House of that Parliament are elected by the citizenry and the government of the day is selected by the Crown based on the party in the House of Commons which has sufficient support to control the proceedings of the House.  Under our constitutional system the right to vote does not extend to a right to vote for any candidate running anywhere.  The section 3 right to vote deals with the election of members to the House of Commons and in the Canadian system of government members of the House are not voted in at large but rather on the basis of geographic electoral districts.

Each member of the House of Commons represents one electoral district in Canada and is elected by the electors in that district to represent its in the House.  In Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, 1991 CarswellSask 403, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 27 A.C.W.S. (3d) 602, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161 (S.C.C.) the Supreme Court of Canada held that the idea of representation:

comprehends not only the idea of having a voice in the selection of members of the House of Commons and the government of the country but also the right “to bring one’s grievances and concerns to the attention of one’s government representative; as noted in Dixon v. British Columbia (Attorney General), [1989] 4 W.W.R. 393 at 413, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (S.C.), elected representatives function in two roles — legislative and what has been termed the “ombudsman role.”

Each province is assigned a number of electoral districts as determined and revised every ten years by the Chief Electoral Officer according to numbers provided by the Chief Statistician following the decennial census according to the formula set out in sections 51 to 52 of the Constitution Act, 1867 (as recently amended by the Fair Representation Act, S.C. 2011, c. 26).[68] The number of seats allocated to each province is a basically a population based calculation with adjustments as set out in the Constitution.  These adjustments are designed to ensure certain provinces have a minimum number of seats.

In addition to the provincial seats, rule 51(2) creates  three seats for the three territories which are allocated one each to territory. Following the most recent readjustment following the 2011 decennial census the application of the above rules resulted in an increase from the 308 seats that existed in 2014 to 338 seats.  That is the number of seats which are up for grabs in the current 2015 general election to the federal House.

The constitutional right to vote grants each elector the right to cast one vote for one member in one electoral district. [69]  The electoral district in which an elector is empowered to cast his or her vote is, for the most part, determined by residence (not by property ownership).[70]  As Justice Cory, in his dissent in Haig v. R., 1993 CarswellNat 1384, 1993 CarswellNat 2353, [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193 (S.C.C.), noted, tying the vote to residence was aimed at preventing the “plural voting” that could have resulted in the case of persons who owned property in more than one riding.

  1. At the outset, it must be remembered that originally the right to vote was tied to ownership of property. A person owning property in several ridings could cast a vote in each of them. The provisions pertaining to residency were aimed at preventing “plural voting” by prohibiting property owners from voting in more than one riding. The residency requirement was designed to facilitate the attainment of the principle of one person one vote. It should not be used too readily as a means of depriving a person of any right to vote.

 

The concept of “residence” is nothing more than mechanism to enable the implementation of the right to vote within the constitutional construction of responsible government in Canada through a House of Commons constructed along the lines of individual members representing the interests of electors within electoral districts. It has no particular value outside of this purpose.  The right to vote is not tied to commitment to country, or knowledge of local affairs, or being subject to the laws which Parliament may make, or any other concept of “worthiness”. [71] In a system which is based, not on a vote at large, but a vote for a representative for a particular district residence is a mechanism designed to implement the right to vote within that system.

Insofar as the right to vote is based on voting in electoral districts the importance of the structure of those electoral districts within a province is evident. The establishment of the boundaries of the individual federal electoral districts within a province lies within the power of Parliament.  The geographic size of a district, the number of electors contained in a district, and the grouping of types or classes of electors into districts can materially affect the outcome of an election and the ability of an elected member to represent the interests of his or her district. Thus, the proper establishment of electoral boundaries is an essential aspect of the concept of electoral fairness.

The drawing of the boundaries of electoral districts can affect the democratic rights of Canadians in a number of different ways.

How those lines are draw can easily be seen to affect the ability of a member to represent the interests of the electors of that district if it results in a district which is too large, either geographically or in numbers of electors for that member to reasonably communicate with those electors.

Similarly, the outcome of an election in a district, or the ability of the electors therein to select a person can be affected by the undue grouping of individuals who are perceived to have particular interests within or among districts.

Unduly distributing seats among urban or rural populations so that the one or the other will elect a dominant number of members, or ensuring that a district is dominated by a perceived interest group can ensure that any member elected will represent the views of that group.  Or contrary wise distributing a perceived interest group throughout a number of districts can result in that group’s voting being overwhelmed by the larger interests groups which may be present in each district.

The number of electors within a district can also be seen to affect the importance, or weight, of an individual elector’s vote. It can take fewer electors to elect a member in districts with relatively small populations than it does in a district with a large population.  In a sense, then, the weight of each individual’s vote in a small population district might be perceived as being greater than the weight of a single elector’s vote in a large population district.  Thus, structuring districts unevenly in terms of population can be seen as reducing the voting power of those in the high population district compared to those in the lower population districts.  This issue is further compounded by the practical reality that each province has only so much population to be distributed among the number of seats constitutionally assigned to that province such that the population count of districts can vary considerably from one province to another. [72]

These issues have been addressed by the Supreme Court of Canada through the concept of “effective representation”.  The Court has held that while the right to vote grants an elector only one vote, to be cast in only one district in an election that does not mean that each vote must be of equal weight.  Rather, than ensuring that the value of each elector’s vote is equal to the constitutional right to vote is said to guarantee only the right to effective representation. [73]  This means that there must be relative (not absolute) parity among voting numbers within a particular province. However, effective representation is said to go beyond simply the issue of number to take into account, in the words of the Supreme Court of Canada factors “like geography, community history, community interests and minority representation” in order to ensure that Parliament effectively represents “the diversity of our social mosaic”[74] to ensure that individuals and communities of interests do not go without a voice.

Thus, in Reference re Provincial Electoral Boundaries, the Supreme Court of Canada, in endorsing the concept that the structure of boundaries not be used to advantage some electors or groups over others, held that the dilution of one citizen’s vote as compared to another cannot be countenanced unless it can be justified on the grounds of practical impossibility or the provision of more effective representation.  Nonetheless the Court  recognized the practical geographic realities of life in Canada,  the value of social diversity and the importance that all aspects of society be perceived as having a voice in government.  For that reason the Court endorsed the idea that electoral districts could be structured in a way that resulted in deviations in parity between the voting power of electors but only for the purposes of better governance.  The Court endorsed the earlier decision of the Saskatchewan Court of Queen’s Bench in Dixon v. British Columbia (Attorney General), 1989 CarswellBC 43, [1989] 4 W.W.R. 393, [1989] B.C.W.L.D. 1337, [1989] B.C.J. No. 583, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (B.C.S.C.) that “only those deviations should be admitted which can be justified on the ground that they contribute to better government of the populace as a whole, giving due weight to regional issues within the populace and geographic factors within the territory governed.”

These principles are recognized and implemented in the design of electoral districts within a province by the provisions of the Electoral Boundaries Readjustment Act.

Under the Electoral Boundaries Readjustment Act in order to ensure the continuing effectiveness of electoral representation in light of ever changing populations and social makeup the boundaries of federal electoral districts are established or adjusted every 10 years after the determination of the provincial seat allocation by the Chief Electoral Officer following the decennial census.  These determinations are made by independent commissions – one for each province.[75] Each commission is tasked with structuring the boundaries of the resulting districts within each province according to the criteria set out in section 15 of the Electoral Boundary Readjustment Act which reflect the principles laid down by the Supreme Court in Reference re Provincial Electoral Boundaries.[76]

After a statutorily mandated series of consultations with the public and with Members of Parliament by the commissions their ultimate boundary determinations are collected by the Chief Electoral Officer in what is called a “draft representation order” which is submitted to the Minister who is designated as responsible for the Electoral Boundaries Readjustment Act. Within five days of the draft orders receipt by the Minister the Governor-in-Council is required to proclaim the order “to be in force, effective on the first dissolution of Parliament that occurs at least seven months after the day on which that proclamation was issued.”  There is no authority in either the Chief Electoral Officer, the Minister, or the Governor-in-Council to change the boundaries as structured in the various commission reports.[77]

Just as the Electoral Boundaries Readjustment Act reflects the principles of the right to vote in the determination of electoral boundaries the provisions of the Canada Elections Act are structured upon the democratic principles set out in the constitution.

1.3 The Canada Elections Act

 

The Canada Elections Act governs the election of members to the federal House of Commons.  The constitutional rights which have just been discussed are reflected in a number of overarching principles which can be seen as directing the selection and operation of the provisions of the Act.  These principles have been numbered and identified in various ways over the years but for the purposes of this work it can be said that the provisions of the Canada Elections Act reflect Canada’s democratic constitutional rights through the balancing of seven governing principles:

Transparency: The electorate should have (1) sufficient information about candidates and their actions to vote in an informed way; (2) sufficient knowledge of the conduct of the elections and the electoral authority to be confident in the propriety of the electoral process. [78]

Fairness: The electoral process be balanced, equal and fair and not unduly favour one over another. [79]

Participation: Participants must be able to participate in an election to enable electors to have a reasonable opportunity to know and consider in the selection of representatives the values and policies which those representatives will bring to their task if elected. [80]

Secrecy and privacy:  Electors must be able to cast their vote freely according to their conscience without fear or intimidation of retribution.  Equally, the privacy of participants is not to be unreasonably intruded upon. [81]

Efficiency and effectiveness of system:  The electoral system must operate in a manner that reflects practical realities and capabilities and efficiently and effectively allows the exercise of the right to vote and otherwise respects electoral principles. [82]

Impartiality:  The electoral system must operate impartially without favoritism.[83]

Accountability:  Participants must be accountable for their actions in an election and must be those who implement that system.[84]

The above principles are not separate and distinct but can often overlap in operation.  Thus, frequently, Parliament, has had to balance the various interests at stake in an attempt to provide an overall system which best contributes to the representative democracy of this country.  As evidenced by some of the cases set out in the table below Parliament has not always correctly set the balance.  Beyond this, as one proceeds through the text which follows it will often be seen that the Act frequently does not simply reflect the minimum standards which might be said to be required by its governing constitutional rights.  Rather, Parliament has often, in consideration of the seven governing principles, created processes that go beyond constitutional minimums to attempt to provide a system which maximizes representative democracy in this country.

 

OUTCOMES OF JUDICIAL CHALLENGES TO

LEGISLATIVE INFRINGEMENTS OR LIMITATIONS ON

CONSTITUTIONAL RIGHT TO VOTE

 

1. Limitation:  All prisoners denied right to vote (Fed)

Constitutional Right Asserted:  Charter section 3 (right to vote)

Reason Given To Justify: (a) to affirm and maintain the sanctity of the franchise in our democracy; (b) to preserve the integrity of the voting process; and, (c) to sanction offenders.

Limitation Struck Down: Sauvé v. Canada (Attorney General), 1992 CarswellOnt 1711, 55 O.A.C. 219, 7 O.R. (3d) 481, 89 D.L.R. (4th) 644  (Ont. C.A.), affirmed Sauvé v. Canada, 1993 CarswellOnt 1491, [1993] 2 S.C.R. 438, 153 N.R. 242, 15 C.R.R. (2d) 1, 40 A.C.W.S. (3d) 700, 40 A.C.W.S. (3d) 701, 64 O.A.C. 124 (S.C.C.) (Sometimes referred to as Sauvé No. 1.)

Reason For Decision:  Met neither legitimacy nor proportionality tests.

Legitimacy:

Highly symbolic and abstract nature of goal detracted from its ability to justify infringement. Also integrity of process unacceptable as a justification as incarceration is not incompatible with ability to intellectually participate in democracy nor is there any requirement to take advantage of expose to democratic marketplace of ideas in order to vote.

Proportionality:

Court summarily merged consideration of legitimacy and proportionality saying that all three objectives, even taken collectively were either insufficiently important or unacceptable objectives, or expressed in means which were not rationally connected with objectives or which impaired the right to vote far more than is necessary.

2.  Limitation:  Prisoners serving a sentence of two years or more were prohibited from voting while incarcerated (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify: (1) to enhance civic responsibility and respect for the rule of law; and (2) to provide additional punishment, or” enhance the general purposes of the criminal sanction”.

Limitation Struck Down: Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

Reason For Decision: The denial was neither legitimate nor proportionate.

Legitimacy:

Stated objectives were too vague and symbolic to be capable of constitutional analysis.  They did not adequately describe the problem that required the denial of the right to vote.

Proportionality:

No rational connection: Denying penitentiary inmates right to vote more likely to send messages that undermine respect for the law and democracy rather than messages that enhance those values.  The denial will not teach people to obey the law.  Also voting is not a privilege that can be suspended for the morally unfit or unworthy.  Lastly, cannot completely deny a person a constitutional right as a mechanism for punishment.  Furthermore, in this context, the punishment is arbitrary (not sufficiently tailored to a particular crime) and does not serve a legitimate penal purpose (denying participation in political process neither deters crime or rehabilitates criminals), nor can it be seen as a proper denunciation of unlawful conducts as, in being a blanket punishment for all crimes, it fails to recognize the particular moral culpability of offender.

Did not minimally impair:  Infringement too broach catching many crimes which are relatively minor and whose perpetrators cannot be said to have broken their ties to society.

Harm was not proportionate to benefit:  The infringement undermined the legitimacy and effectiveness of government and the rule of law, curtailed personal right to political expression and participation in political life of country, and countermands the message that everyone is equally worthy and entitled to respect under the law and has a particularly disproportionate effect on the disadvantaged Aboriginal community. These greatly outweigh the tenuous benefits argued by government.

3.  Limitation:  Denial of right to vote to every person who was restrained of his or her liberty of movement or deprived of the management of his or her property by reason of mental disease.  (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  Need for mental competence or judgmental capacity to vote.

Limitation Stuck Down:  Canadian Disability Rights Council v. Canada, 1988 CarswellNat 133, [1988] 3 F.C. 622, 12 A.C.W.S. (3d) 112, 21 F.T.R. 268, 38 C.R.R. 53 (Fed. T.D.)

Reason Given For Decision:  The provision was arbitrary.  It was at the same time both too narrow and too wide, catching people who should not be there, and not catching people who should be. It was too broadly drafted as it would catch individuals who might suffer from a personality disorder which impaired their judgment in one aspect of their life only which would not warrant depriving them of the right to vote.  Also provision did not deny all persons suffering from mental disease the right to vote but only those whose liberty of movement had been restrained or whose property was under the control of a committee of estate.

4.  Limitation:  Every person who was found guilty of an illegal or corrupt practice (terms defined in statute) was prohibited for five years from (1) being registered as an elector or voting as any election; (2) holding any office in the nomination of the Crown or of the Lt.-Governor in Council; or (3) being elected to or sitting in the Legislative Assembly, and if at that date he or she was elected, his or seat directed to be vacated from time of conviction. (New Brunswick)

Constitutional Value Asserted:  Charter section 3 (right to vote), Charter section 12 (cruel and unusual punishment)

Reason Given To Justify:   Need to preserve the integrity of the electoral process – the expectation of citizens to have a fair electoral process so that the right found in section 3 does not become a hollow and empty one, devoid of meaning or substance.

Limitation upheld:  Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C.).

Reason For Decision:   While the limitation infringed the constitutional right to vote it met the Oakes test.

Regulating the influence that an individual convicted of elections statute offence on electoral machinery was a pressing and substantial concern.

The effects were proportionate. Was a rational connection between infringement and objective.  Section not arbitrary as it applied only to people charged and convicted of specified offences.  Served as a strong general and specific deterrent.  Requiring elected person to vacate seat was an appropriate response and not overreaching in light of objective. Also, five year disqualification period ensured that a convicted person was ineligible to run in next election and provide for a time of cleansing which allowed the integrity of the process to be renewed.

Even if the limitation amounted to a punishment (which was not determined) could not be considered to be cruel or unusual and therefore could not infringe the prohibition against cruel and unusual punishment in section 12 of the Charter.

5.  Limitation:  Being absent from country at election effectively disenfranchised one as the electoral system failed to provide any means for absentee voting (B.C.)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  It was sufficient to provide a right for a citizen to vote in Canada.  There was no obligation to provide the means for a person who chose to be absent from Canada to exercise their vote from abroad.

Limitation Not Found To Be Reasonable:  Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.)

Reason for decision:  No reasonable ground was show upon which the failure to create the means to exercise the vote when abroad could be justified.  In fact means for absentee voting already existed federally and in 7 of the 10 provinces.

6.  Limitation:  In order to vote one either had to have specified documentary ID required, or, in the alternative, take an oath and be vouched for by another qualified elector in the same polling division who knew you, had proper ID, and who had not vouched for another in the election. (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  Reducing the potential for fraud or error that could impair the integrity of the voting system by allowing voting by individuals who are not entitled to vote.  Specifically:

1. To address the harm of fraud;

2. To address the potential for fraud;

3. To address the public perception of fraud and the potential for fraud;

4. To address mistakes and inaccuracies in the electoral system and the conduct of elections thereby ensuring that the electoral system and the conduct of elections is, and is perceived to be, fair, secure and effective; and,

5. To ensure that only eligible voters cast their votes.

Limitation Upheld: Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

Reason For Decision:  Preventing voting fraud and thereby maintain the integrity of elections constituted a pressing and substantial objective.  The parties conceded that the case turned on the minimal impairment aspect of the Oakes criteria.  The plaintiffs were unable to provide reasonable and effective alternative means to accomplish the rational objective of preventing electoral fraud which would impair rights less than the challenged restrictions.  Any small risk of partisan abuse was outweighed by the goals of the pressing and substantial objective.

7. Limitation:  Must be at least 18 to vote (Alta. Elections Act)

Constitutional Value Asserted:  Charter section 3 (right to vote); Charter section 15 (equality before the law)

Reason Given To Justify:  To ensure that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government.

Limitation Upheld: Fitzgerald (Next Friend of) v. Alberta, 2002 CarswellAlta 1594, 2002 ABQB 1086, [2003] 3 W.W.R. 752, [2003] A.W.L.D. 91, 104 C.R.R. (2d) 170, 10 Alta. L.R. (4th) 155, 331 A.R. 111 (Alta. Q.B.), aff’d 2004 CarswellAlta 660, 2004 ABCA 184, [2004] 6 W.W.R. 416, [2004] A.W.L.D. 346, 120 C.R.R. (2d) 82, 27 Alta. L.R. (4th) 205, 321 W.A.C. 113, 348 A.R. 113 (Alta. C.A.)

Reason For Decision: Limitation infringed constitutional right to vote and the guaranty in section 15 of the Charter for equal protection of the law without discrimination on an enumerated ground – in this case age.  But infringements were justified under section 1 of the Charter.

Age based restriction is rationally connected to object otherwise babies would be able to vote.  (Implicit in this statement is belief that at some point individuals do not have  rational ability or knowledge to vote.)  Children become more mature as they age and 18 year olds, with more years of experience, are more likely to serve as rational and informed voters than younger voters with less experience.  Setting the voting age at 18 does not go farther than necessary as, in general, 18 year olds as a group have finished high school and are starting to make their own life decisions.  It is rational that they take on responsibility of voting at the same time as they take on greater responsibility for direction of their own lives.  It can also be assumed that by age 18 most individuals will have completed high school social studies courses giving them important background information for rational and informed voting.

Note: In  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.)  the Supreme Court of Canada provided a similar, but more ambiguous, explanation of age based restrictions on the right to vote saying that in applying an age based restriction a legislature would not be making any comment on the worthiness of the under aged person to vote but was making a decision based on the experiential situation of all citizens when they are young (which is similar to the holding in Fitzgerald) and that it was only regulating a “modality” of the universal suffrage.

8. Limitation:  Federally appointed judges prohibited from voting (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  To preserve appearance of political neutrality.

Limitation Declared To Be Unconstitutional: Muldoon v. R., 1988 CarswellNat 134, [1988] 3 F.C. 628, 12 A.C.W.S. (3d) 260, 21 F.T.R. 154 (Fed. T.D.) (note:  claim did not extend to having right to qualification for membership in legislative assembly, or right to participate as public political partisans in any election)

Reason For Decision: Court made no real findings on the merits.  The parties did not contest the issuance of a declaration (bill was before Parliament removing the restriction in any event).  Court felt that there were arguments such that decision on matter could go either way.  The declaration was issued as the Court held that a requested declaration should issue where parties are in agreement unless court finds that the declaration was not justified by the facts or would amount to a miscarriage of justice, neither of which cases could be said to arise in the circumstances.

9.  Limitation:  Greater participation rights (right to issue income tax receipts, retaining unspent campaign funds, right to have party affiliation included on ballot) given to parties which run at least 50 candidates in a general election than to parties which run less than 50 candidates. (Fed)

Constitutional Value Asserted:  Charter section 3 (right to vote)

Reason Given To Justify:  1.  Improve the electoral system through public financing in a cost efficient manner.  2.  Protect the integrity of the electoral system by ensuring that third parties that have no genuine interest in participating in electoral process do not abuse the electoral financing system. 3.  Ensuring a viable outcome for Canadian form of responsible government by increasing the likelihood of the formation of a majority government that has aggregated preferences on a national scale which would produce more effective governance than governments than consist of coalitions between or among various political parties.

Requirement To Run At Least 50 Candidates Struck Down:  Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

Reason For Decision:

Purpose: Improve the electoral system through public financing in a cost efficient manner.

 

1. Failed rational connection requirement.  No connection between right to retain surplus campaign funds ballot affiliation and objective of improving electoral system through public financing in a cost efficient manner.  The restrictions on tax receipts had no real impact on the burden of maintaining the public purse as nothing prohibited every citizen from donating maximum amount to a registered party.  Thus the connection between the legislation and the goal of cost efficiency was tenuous at best. Furthermore, government failed to provide any evidence to substantiate claim that the threshold requirement to issue tax receipts actually improved the cost efficiency of the tax credit system.

2.  Failed minimal impairment requirement.  If Parliament concerned that costs associated with tax credit scheme are prohibitively high a more appropriate was to address issue would be to reduce the amount that each citizen was entitled to claim in respect of donations.  This would be more effective and would not result in the violation of any citizen’s right to play a meaningful role in electoral process.

3. The benefits of restriction did not outweigh the deleterious effects.  The impact of the restriction on section 3 rights was substantial but government produced no evidence to shown any significant benefit to public purse.  Plus, given the smaller support base of the small parties one would expect that the savings to the public purse by restricting those contributions to be relatively insignificant.

Purpose: Protecting the integrity of the electoral system

1.  No rational connection between restricting right to have party name on ballot and integrity of electoral system. Similarly no connection between restrictions on tax receipts and integrity of system as there was no evidence that only parties that can field 50 candidates have a legitimate electoral interest. Also no evidence that the substantial record keeping and filing requirements imposed on registered parties are not sufficient to prevent third parties from seeking registered party status for the sole purpose of abusing the tax credit scheme.  Similarly, no rational connection respecting inability to retain campaign funds. Court rejected argument by government that non-registered parties could not retain surplus because not subject to reporting obligations.  Court held that that was a circular argument insofar as the 50 candidate rule was the requirement that kept smaller parties from being registered and subject to reporting obligations.

2.  Failed minimal impairment requirement.  No proof that  integrity of system could not be equally achieved through strict spending rules and the use of auditors to prevent misuse of funds which approach would have no impact on section 3 rights.

Purpose:  Ensuring a viable outcome for Canadian form of responsible government

1. No rational connection.  No evidence that 50 candidate rule has any impact on the formation of majority governments.  The more likely threat to majority governments is the proliferation of registered parties generally but the Elections Act imposes no limit on the number of political parties that can be registered.

2.  Benefits do not outweigh the deleterious effects.  The impact on section 3 rights is substantial given negative impact on the communication of ideas. Also, does great harm in that in order to achieve its objective, the legislation would have to result in the election of individual candidates and majority governments which would not otherwise have been elected.  Government failed to advance sufficient evidence to demonstrate that the election of a majority government would result in benefits that outweigh those deleterious effects.  Nor did government provide a reasoned basis on which to reach that conclusion.

10.  Limitation:  Restrictions on ability of third parties to do political advertising during an election (duty to register; financial management controls; attribution of donations to donors; reporting requirements; spending limits; and related anti-avoidance provision prohibiting acting in collusion with another third party to exceed third party spending limits), also ban on doing election advertising on polling day.

Constitutional Value Asserted:  Charter section 3 (right to vote),  Charter section 2(b) (freedom of expression), Charter section 2(d) (freedom of association)

Reason Given To Justify:  See below in context of particular limitation.

Limitation Upheld:  Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.).

Reason For Decision:

Third Party Spending Limits

 

Reason Given For Limit:  1.  To promote equality in the political discourse.  2.  To protect the integrity of the financing regime applicable to candidates and parties. 3.  To maintain confidence in the electoral system.

Third party spending limits were found to infringe section 2(b) freedom of expression but were found to be rationally connected to the stated purposes, constituted a minimal impairment, and were proportionate.

Third party spending limits were found not to infringe on the section 3 right to vote as they were sufficiently crafted to ensure that participants were able to convey their information without being able to drown out the voices of others.

Anti-avoidance

The anti-avoidance provisions, seen as being ancillary and supportive of the spending limits, were found not to infringe free expression or the right to vote.  Nor did they violate the section 2(d) Charter right of freedom of association as they operated only as a supportive mechanism for the spending limits and, rather than prohibiting people from joining an association to pursue a collective goal, only prohibited the association from undertaking a particular activity (i.e. the circumvention of the spending limits)

Ban On Election Advertising On Polling Day

Reason Given For Limitation:  1.  Provide commentators and others with an opportunity to respond to any potentially misleading election advertising.  2.  To ensure that electors in different parts of the country have access to the same information before they go to the polls.

The election advertising ban on polling day was found to be an infringement of  the right in section 2(b) to freedom of expression.  However, it was justifiable as it was rationally connected to its purposes; was of minimal impairment as it lasted only 20 hours in a 36 day campaign and applied only to advertising; and there was not evidence that the blackout period had any deleterious effects.

The election advertising ban on polling day was found not to breach the section 3 right to vote.  It was not found to have an adverse impact on the information available to voters as it was of only a short duration and, while extending to third parties, candidates and political parties, did not extend to the media.  Any vital information that an electors must have in the restricted time could be obtained through the media and it was difficult to envision that the ban could lead to a deprivation of information that an elector could not cast a rational and informer vote.

Attribution, Registration and Disclosure Requirements

Reason Given To Justify:  1.  Ensured the proper implementation and enforcement of the third party election advertising limits.  2.  Provided electors with relevant election information.

The attribution, registration and disclosure requirements were found to infringe the section 2(b) right of freedom of expression as have the effect of restricting the political expression of those who do not comply with them.   However, they were found to be justified.  The reasons given for the requirements were found to be pressing and substantial.  The requirements were found to be rationally connected to those purposes; were minimally impairing given the amount of tombstone information required, the requirements to appoint financial agents and auditors was not overly onerous and facilitated compliance with the reporting obligations; and the benefits of the measures were found to outweigh the deleterious effects which were found to be minimal as there was no evidence that a contributor had been discouraged from engaging in electoral advertising because of the reporting requirements.

The attribution, registration and disclosure requirements did not infringe the section 3 right to vote.  They provide transparency and thus advance the objective of an informed vote.  By these means electors are made aware of who contributes and who spends in the electoral process and, thus, who stands behind communications.

Insufficient evidence was provided to find that the attribution, registration and disclosure requirements infringed the section 2(d) right to freedom of association.

11. Prohibition Against Broadcasting Of Election Results In A District Until All Polls In District Closed. (Fed)

Constitutional Value Asserted:  Section 2(b) (freedom of expression)

Reason Given To Justify:  To ensure that all electors are equal in the electoral information available to them and to maintain the public perception of electoral fairness that all electors are equal in that way.

Limitation Upheld:  R. v. Bryan, 2007 CarswellBC 533, 2007 SCC 12, [2007] 1 S.C.R. 527, [2007] 5 W.W.R. 1, [2007] B.C.W.L.D. 1416, [153 C.R.R. (2d) 316, 217 C.C.C. (3d) 97, 237 B.C.A.C. 33, 276 D.L.R. (4th) 513, 359 N.R. 1, 45 C.R. (6th) 102, 72 B.C.L.R. (4th) 199 (S.C.C.)

Reason For Decision:  The purpose of the provision was pressing and substantial.  The limitation was rationally connected to that purpose.  Parliament had considered the issue and determined that the limitation in question was the most effective and least intrusive and there was evidence showing that the policy choice of Parliament was a rational and justifiable solution to the problem of information imbalance.  The benefits of the ban were clear while the deleterious effects were minor.  There was no evidence of any harm to the electoral process or to the general right of Canadians to be informed that was manifestly superior to the evidence of the beneficial effects in promoting electoral fairness.  The magnitude of the ban was extremely small.  It was effective for only a matter of two to three hours, only on election day, only the late voters would be affected.

Limitation:  Prohibition on publication or dissemination of election opinion survey for days prior to polling day.

Constitutional Values Asserted: Charter section 2(b) freedom of expression

Reason Given To Justify: 1.  To provide a period of rest and reflection for voters prior to going to the polls.  2. To provide a period during which the accuracy of a poll could be publicly questioned and debated, so that the scientific validity and accuracy of any particular poll would be more fully known to Canadian voters and thus reduce the possibility that the scientific accuracy of polls may be overestimated by Canadian voters in a particular election and that votes might based on this inaccurate perception.

Limitation Struck Down:  Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

Reason For Decision: The ban infringed on freedom of expression.  The publication of polling information conveys meaning and falls within the ambit of section 2(b) and the prohibition of the broadcasting, publication or dissemination of opinion survey results during the final 3 days of an election campaign clearly infringes the right.

The “day of rest” purpose was not a pressing and substantial objective.  It was predicated on the false assumption that electors would be overcome by the “flurry” of polls appearing in the media that they would forget the issues on which they should be concentrating.  That presumption was rejected as electors had to be presumed to have a certain degree of of maturity and intelligence and it could not be assumed that they would be so naïve as to forget the issues and interests which motivate them to vote for a particular candidate.   Furthermore, it could not be assumed that electors assume that polls are absolutely accurate in predicting outcomes of elections and that they would overvalue poll results.

The provision of a period during which the accuracy of a poll could be publicly questioned and debated was found to be a pressing and substantial objective as there was evidence that suggested that an uncertain number of electors could be influenced in their electoral choice by false polls whose pernicious aspect could not be discovered because of the lack of response time.

The limitation was rationally connected to its objective but failed the minimal impairment test.  The government failed to show why a significantly less intrusive but equally effective measure was not chosen.  Furthermore, the provision was both overbroad and underbroad.  It was overbroad because it banned all polls, including accurate ones, during the final three days.  It was underbroad because there was no legal obligation for a poll to disclose its methodology and in the absence of such disclosure it was difficult to see the logical of providing a period to respond and criticize a poll which, whose accuracy could not be determined regardless of the time provided, without knowledge of methodology.  Requiring the disclosure of methodology without a ban would obviously be less intrusive than a ban without the disclosure of methodology.

The beneficial effects of the legislation were also found not to outweigh its deleterious impact.

The deleterious effects were significant. The impact on the freedom of expression was found to be profound amounting to a complete ban on political information at a crucial time in the electoral process. It sent the message that the media can be constrained by government not to publish factual information.  It interfered with the reporting function of the media at a time when its participation was most crucial to self-governance. And it denied electors access to information which some would consider very useful in deciding their vote. This latter effect also could undermine the faith of the electorate in the electoral process if they felt that there votes were better informed as a result of having this information.

The benefits, however, were found to be minimal.  It operated to withhold information which could be rationally and properly assessed by the vast majority of the electorate out of a concern that a very few, the most unobservant and naïve, might be so confounded that they would cast their vote for a candidate whom they would not otherwise have preferred.

Limitation: Loss Of Ability To Exercise Right To Vote If Absent From Country For Five Consecutive Years

 

Constitutional Values Asserted:  Charter section 3 right to vote

 

Reasons Given To Justify:  Residency requirement fulfills the pressing and substantial objective of strengthening the social contract at the heart of Canada’s system of constitutional democracy.

Limitation Upheld: Frank v. Canada (Attorney General), 2015 CarswellOnt 10870, 2015 ONCA 536 (Ont. C.A.) (certain persons outside of the country for more than 5 years)  (Caveat: The Ontario Court of Appeal decision in Frank is a majority decision and is likely anomalous with previous right to vote decisions and, if appealed to the Supreme Court of Canada, will, in all probability be reversed. The notes below reflect only the reasons of the majority of the court.  The reasoning of the dissent, although in my opinion, logically superior, is not reflected.)

Reason For Decision:  Limitation was found to restrict section 3 right to vote but was found to be a reasonable limit.

Legitimacy

 

The goal of strengthening the social contract was a pressing and substantial concern.

The social contract is about reciprocity between civic rights and responsibilities and in the context of the case at hand is founded on a mutuality between the franchise and the citizen’s obligation to obey the law.   Laws command obedience because they are made by those whose conduct they govern.

Proportionality

There was a rational connection between the restriction and the objective.  The legislative objective is to maintain the connection between the voters, the lawmakers and the laws.  Most of Canada’s laws have little practical impact on non-resident citizens. As non-residents are not directly governed by Canadian laws it is reasonable for a government to place limits on a non-resident’s right to vote as that person’s non-residence becomes long-term rather than temporary because the longer-term non-resident has voluntarily withdrawn from the social contract and has submitted him/herself to another political and legal order.

The restriction minimally impaired the right to vote as reasonably possible. The test is whether the five years is a reasonable cut-off.  The duration of absence is a means by which to determine whether the citizen is temporarily away from Canada or not.  Any “cut-off” point will produce some arbitrariness at its boundaries, but if it is a principled rule it is capable of constituting a reasonable limit. “Because five years falls within the reasonable range of policy choices as the point at which to differentiate between temporary non-residents and longer-term non-residents who have voluntarily removed themselves from the social contract, the means chosen were minimally impairing.”  There was also a proper balance between the salutary effects of the restriction and the degree of impairment on the right.   The representative nature of government was a core democratic principle which was strengthened by the fact that members are elected by, and are answerable to, those who live in the jurisdiction.  Against this, the deleterious results of the restriction is measured.  There was no out-right ban on non-resident voting, only on long term non-residents.  Individuals assuming long term non-residency cease to be subject to most Canadian law and thereby relinquish their right to a voice in that law. Those rights are not permanently denied but are reinstated when they return to Canada which they can do at any time and remain without restriction.

 

[1] Influence is, of course, a significant indirect source of political power.  The Canada Elections Act imposes controls on two aspects of influence – influence gained from contributions to political entities and influence gained through political advertisement by “third parties” (i.e. entities which are not themselves political entities in elections).

[2] In which is found, for example, provisions respecting eligibility (can only be a candidate in one district (s. 21), member of provincial legislature cannot be to the federal House of Common (s. 22) and loss of federal seat if elected to provincial legislature (s. 23)),  resignations and vacancies in the House of Commons (ss. 28 to 31) including provisions respecting the issuance of writs for by-elections  and the effect of the calling of a general election on an existing by-election (s. 31).

[3] Which deals with the creation of electoral districts.

[4] The Broadcasting Act applies to election broadcasting and the Canadian Radio-television and Telecommunications Commission plays a role in regulating broadcasting during an election.  See, in illustration, section 347 of the Canada Elections Act.  See also the CRTC notice Elections and Political Advertising on TV and Radio (available on-line at http://www.crtc.gc.ca/eng/info_sht/b309.htm) which sets out a quick summary of the role of the CRTC during elections.

[5] Which, for example, deals with the responsibility of the Director of Public Prosecutions for the prosecution of offences under the Canada Elections Act (see s. 3(8)).

[6] Which, for example, prescribes communication requirements for Elections Canada. See Part IV of the Act: “Communications With And Services To The Public”.

[7] Elections Canada is subject to the access provisions of the Access to Information Act. The Office of the Chief Electoral Officer (the official statutory name for Elections Canada) is listed as a government institution in Schedule I to the Act.

 

[8] Elections Canada is subject to the privacy provisions of the Privacy Act. The Office of the Chief Electoral Officer (the official statutory name for Elections Canada) is listed as a government institution in schedule 3 of the Act.

 

[9] The anti-discrimination provisions of the Human Rights Act, including provisions respecting access to services, applies to Elections Canada and the services it provides.  See, in illustration, the decision of the Human Rights Tribunal in Hughes v. Elections Canada, 2010 CarswellNat 280, 2010 CHRT 4 (Canadian Human Rights Tribunal).

[10] Which, in illustration, deals with income tax deductions for contributions to, and the issuance of income tax receipts by, federal registered political parties, their registered electoral district associations and candidates.  See section 127(3) to (4.1) of the Act.  See also the Department’s Income Tax Circular IC75-2R8 Contributions to a Registered Party, a Registered Association or to a Candidate at a Federal Election (available on-line at http://www.cra-arc.gc.ca/E/pub/tp/ic75-2r8/ic75-2r8-11e.pdf.

[11] Which governs the employment of employees of Elections Canada.  See sections 19 and 20 of the Canada Elections Act.

[12] For example, the Office of the Chief Electoral Officer is listed as part of the Core Public Administration (Schedule IV) and is a division or branch of the public administration (Schedule I.1) and is governed by the resulting relevant provisions of the Act respecting the administration of the public service.

[13] The Constitution Act, 1867 and the Constitutional Act, 1982.

 

[14] Other restrictions on the membership in the House of Commons are found in the Parliament of Canada Act (members of provincial legislatures (ss. 22 and 23), and the Canada Elections Act (people convicted of “corrupt” or “illegal” practices (s. 502 – time specific ineligibility).

[15] A statutory office which has no statutory functions, and by practice does not exist any more.  In practical terms the position ceased to exist when the Governor-in-Council, at the request of the Chief Electoral Officer, stopped appointing individuals to the position.  Theoretically the office could be reinvigorated if the Governor-in-Council reinstated appointments.

[16] Held unconstitutional by the Supreme Court of Canada in Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.) but never formally repealed.  The Canada Elections Act does not contain any process by which these re-enfranchised prisoners can exercise their right to vote.  Following Sauvé the Chief Electoral Officer has used his/her statutory authority to adapt the Act to extent the statutory process for voting by prisoners who were not disenfranchised under section 4 to those newly prisoners who regained the right to vote by reason of Sauvé.

[17] As this is not a text on constitutional law, other than for the constitutional right to vote it will not outline in any detail the extent of the other constitutional rights that may be applicable to elections.

With respect to the Charter guaranty of freedom of expression in Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.) the Supreme Court of Canada quoted its holding in Libman c. Québec (Procureur général), 1997 CarswellQue 851, 1997 CarswellQue 852, [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 3 B.H.R.C. 269, 46 C.R.R. (2d) 234 (S.C.C.) that: “Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter“.  In Thomson Newspapers the Supreme Court also acknowledged that political process is at the core of the Charter right of freedom of expression.  The Court quoted the following from its earlier decision in R. v. Keegstra, 1990 CarswellAlta 192, [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131, [1991] 2 W.W.R. 1, 114 A.R. 81, 117 N.R. 1, 11 W.C.B. (2d) 352, 1 C.R. (4th) 129, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, 77 Alta. L.R. (2d) 193 (S.C.C.):

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.

[18] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.):

90      A provision will be considered impermissibly vague where there is no adequate basis for legal debate or where it is impossible to delineate an area of risk; see Canada v. Pharmaceutical Society (Nova Scotia), [1992] 2 S.C.R. 606 (S.C.C.), at pp. 639-40. The interpretation of the terms at issue here must be contextual. It is clear that a regulatory regime cannot by necessity provide for a detailed description of all eventualities and must give rise to some discretionary powers — a margin of appreciation. What is essential is that the guiding principles be sufficiently clear to avoid arbitrariness. While no specific criteria exist, it is possible to determine whether an issue is associated with a candidate or political party and, therefore, to delineate an area of risk. For example, it is possible to discern whether an issue is associated with a candidate or political party from their platform. Where an issue arises in the course of the electoral campaign, the response taken by the candidate or political party may be found in media releases (Lortie Report, at p. 341). Whether the definition is impermissibly broad is a matter for legal debate and is more properly considered at the minimal impairment stage of the justification analysis.

[19] See the table at the end of this chapter for a summary of a number of instances of legislative infringements on Charter rights in the context of both federal and provincial electoral legislation.

[20] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[21] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201 (S.C.C.):

“The right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner. For a voter to be well-informed, the citizen must be able to weigh the relative strengths and weaknesses of each candidate and political party. The citizen must also be able to consider opposing aspects of issues associated with certain candidates and political parties where they exist. In short, the voter has a right to be “reasonably informed of all the possible choices”: Libman, at para. 47.”

[22] Similarly, see Canada (Attorney General) v. Somerville, 1996 CarswellAlta 503, [1996] 8 W.W.R. 199, [1996] A.J. No. 515, 122 W.A.C. 241, 136 D.L.R. (4th) 205, 184 A.R. 241, 37 C.R.R. (2d) 24, 39 Alta. L.R. (3d) 326 (Alta.C.A.) (There is no expression more deserving of protection than electoral free speech.)

[23] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[24] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[25] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.)

[26] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.): (S.C.C);  Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.).

[27] Which is Part I of the Constitution Act, 1982.

[28] Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.)  (“10      The right of every citizen to vote, guaranteed by s. 3 of the Charter, lies at the heart of Canadian democracy. The franchise has gradually broadened in Canada over the course of history from male property owners 21 years of age and older to the present universal suffrage of citizens aged 18 and over. Universal suffrage is reflected in s. 3 of the Act, which provides that a person is “qualified” to vote if he or she is a Canadian citizen and is 18 years of age or older.”)

[29] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).  In that decision the Supreme Court stated that:

“43      The idea that certain classes of people are not morally fit or morally worthy to vote and to participate in the law-making process is ancient and obsolete.”

[30]  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.);  Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.);  Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.).

Section 33(1) provides that:

33(1)  Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision therefore shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

[31] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

[32] Universal as far as the wording of section 3 purports to go – which is elections to the federal and provincial legislatures.  Section 3 does not extend to voting in federal referenda (which are not of the same nature as elections, being merely consultative or advisory in nature rather than binding) or municipal elections (which are not elections to a federal or provincial legislature):  Haig v. R., 1993 CarswellNat 1384, 1993 CarswellNat 2353, [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193 (S.C.C.).

[33]  Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C)

[34] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[35] Sauvé v. Canada (Attorney General), 1992 CarswellOnt 1711, , 55 O.A.C. 219, 7 O.R. (3d) 481, 89 D.L.R. (4th) 644 (S.C.C.)

[36] Dixon v. British Columbia (Attorney General), 1989 CarswellBC 43, [1989] 4 W.W.R. 393, [1989] B.C.W.L.D. 1337, [1989] B.C.J. No. 583, 15 A.C.W.S. (3d) 121, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (B.C.S.C.)

[37] Fitzgerald (Next Friend of) v. Alberta, 2002 CarswellAlta 1594, 2002 ABQB 1086, [2003] 3 W.W.R. 752, [2003] A.W.L.D. 91, 104 C.R.R. (2d) 170, 10 Alta. L.R. (4th) 155, 331 A.R. 111 (Alta. Q.B.), aff’d 2004 CarswellAlta 660, 2004 ABCA 184, [2004] 6 W.W.R. 416, [2004] A.W.L.D. 346, 120 C.R.R. (2d) 82, 27 Alta. L.R. (4th) 205, 321 W.A.C. 113, 348 A.R. 113 (Alta. C.A.)

[38] Simlarly, see Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

57 … On the face of it, the rights given under s. 3 of the Charter are restricted only by citizenship and connection to an electoral district. This follows from the wording of s. 3 of the Charter which provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly”.

70      It follows from all of this that the s. 3 right to cast a ballot for a candidate in a federal or provincial election is limited only by the specific wording of the section, that is, by citizenship and residence. Any other impediment to the ability of an elector to cast a vote constitutes a facial breach of the section. Where legislation, such as the legislation in question in this case, has the double effect of breaching the rights of some citizens while enhancing the rights of others, the duty of the court is to first isolate the breach and then to determine whether it is justifiable under s. 1. If the impugned legislation also has the effect of enhancing an aspect of the right, it is a factor to take into consideration in the s. 1 analysis.

[39] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

 

[40] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.) (certain prisoners);  Frank v. Canada (Attorney General), 2014 CarswellOnt 5850, 2014 ONSC 907, 119 O.R. (3d) 662, 239 A.C.W.S. (3d) 909, 372 D.L.R. (4th) 681 (Ont. S.C.J.), reversed Frank v. Canada (Attorney General), 2015 CarswellOnt 10870, 2015 ONCA 536 (Ont. C.A.) (certain persons outside of the country for more than 5 years)

[41] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[42] Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.) (no absentee voting system) (B.C.)

[43]  The position of the courts is that in the context of constitutional validity a reviewing court owes no deference to Parliament (Sauvé v. Canada (Attorney General), 1992 CarswellOnt 1711, , 55 O.A.C. 219, 7 O.R. (3d) 481, 89 D.L.R. (4th) 644 (S.C.C.); Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.);  Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)).

However, in the context of Parliament’s choice between constitutionally valid processes the courts will extend deference to that choice such that the court’s electoral choices do not take precedence over those of Parliament.  Similarly, in the application of the Oakes test, some deference is owed to Parliament’s balancing of interests and to the nature and sufficiency of the evidence required for the government to demonstrate that the limits in question are reasonable and justifiable in a free and democratic society (R. v. Bryan, 2007 CarswellBC 533, 2007 SCC 12, [2007] 1 S.C.R. 527, [2007] 5 W.W.R. 1, [2007] B.C.W.L.D. 1416, [153 C.R.R. (2d) 316, 217 C.C.C. (3d) 97, 237 B.C.A.C. 33, 276 D.L.R. (4th) 513, 359 N.R. 1, 45 C.R. (6th) 102, 72 B.C.L.R. (4th) 199 (S.C.C);  (Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201 (S.C.C.)).

[44] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

Having said that, in the event that a limitation on the right to vote arise by reason of the Chief Electoral Officer’s use of his or her discretionary authority under the Canada Elections Act (as his or her power to adapt the Act to deal with emergencies or unforeseen circumstances (s. 16) or to give directions to Returning Officers (s. 17), it would be the test in set out in Doré c. Québec (Tribunal des professions), 2012 CarswellQue 2048, 2012 SCC 12, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, 255 C.R.R. (2d) 289, 343 D.L.R. (4th) 193, 34 Admin. L.R. (5th) 1, 428 N.R. 146 (S.C.C.) that would be used to determine the constitutional validity of that exercise of discretion.  The test in Doré is essentially a reasonableness test which asks whether, in this case the CEO, has hit an appropriate balance between the constitutional right to vote and the statutory objectives sought to be accomplished by the exercise of discretion.

[45] Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C);  Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[46] Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.)

[47] Thomson Newspapers Co. v. Canada (Attorney General), 1998 CarswellOnt 1981, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 109 O.A.C. 201, 159 D.L.R. (4th) 385, 226 N.R. 1, 51 C.R.R. (2d) 189 (S.C.C.):

87      The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.), requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

[48]  In Canada the House and the provincial legislatures are comprised of individual members, a particular district.  The right to vote in section 3 is said to be the right to vote for members in a election for the House or a legislature.  Thus, the right to vote has to be construed according to the characteristics of the House and legislature.  In

Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.) the Supreme Court of Canada stated:

29      … Section 3 provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly“. The right to vote in the election of “members of the House of Commons” reflects Canada’s constitutional character as a parliamentary form of government. Citizens have the right to vote in a specific electoral district, choosing among various candidates who wish to be the Member of Parliament for that district: see Henry v. Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R. (5th) 70 (B.C. S.C.), at para. 139.

See also Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.);

[49] The right to vote in section 3 of the Charter, as stated in its terms, does not extend to referenda or municipal elections. (Haig v. R., 1993 CarswellNat 1384, 1993 CarswellNat 2353, [1993] 2 S.C.R. 995, [1993] S.C.J. No. 84, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193 (S.C.C.))

[50]  Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.) (“30.  …The Charter right to vote is for the Member of Parliament for the electoral district in which the voter resides.);  Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A).

Parliament and the various provincial legislative assemblies have the right to set the boundaries of their own electoral districts; but the exercise of that authority is subject to the Charter right to vote and cannot be exercised in a way to breach that right. (Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161, J.E. 91-938, EYB 1991-67923 (S.C.C.))

[51] Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[52] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[53] Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

 

69      Three things follow from these cases. First, s. 3 contains a bundle of rights derived from its explicit words and from its purpose of guaranteeing the rights of citizens to play a meaningful role in the electoral process. The explicit rights are procedural and spelled out in the section. The implicit rights are substantive and may require resort to a broad range of factors to determine. To paraphrase Iacobucci J. in Figueroa, the implicit rights are the conditions under which the right to play a meaningful role in the electoral process are expressed. Infringement of any of the rights constitutes a breach of s. 3.

[54]  Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.).

Fairness as an essential aspect of the right to vote was also noted in R. v. Bryan, 2007 CarswellBC 533, 2007 SCC 12, [2007] 1 S.C.R. 527, [2007] 5 W.W.R. 1, [2007] B.C.W.L.D. 1416, [153 C.R.R. (2d) 316, 217 C.C.C. (3d) 97, 237 B.C.A.C. 33, 276 D.L.R. (4th) 513, 359 N.R. 1, 45 C.R. (6th) 102, 72 B.C.L.R. (4th) 199 (S.C.C.);   Harvey v. New Brunswick (Attorney General), 1996 CarswellNB 467, [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, 178 N.B.R. (2d) 161, 201 N.R. 1, 37 C.R.R. (2d) 189, 454 A.P.R. 161, EYB 1996-67337 (S.C.C.);  and Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[55] Dixon v. British Columbia (Attorney General), 1989 CarswellBC 43, [1989] 4 W.W.R. 393, [1989] B.C.W.L.D. 1337, [1989] B.C.J. No. 583, 15 A.C.W.S. (3d) 121, 35 B.C.L.R. (2d) 273, 59 D.L.R. (4th) 247 (B.C.S.C.)

[56] Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.):

28      The fundamental purpose of s. 3 of the Charter was described in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912 (S.C.C.), by Iacobucci J., for the majority, at para. 30:

In the final analysis, I believe that the Court was correct in Haig [v. Canada, [1993] 2 S.C.R. 995], to define s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process. Democracy, of course, is a form of government in which sovereign power resides in the people as a whole. In our system of democracy, this means that each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives. The fundamental purpose of s. 3, in my view, is to promote and protect the right of each citizen to play a meaningful role in the political life of the country. Absent such a right, ours would not be a true democracy.

Similarly, see Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.).

[57] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[58] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[59] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

[60] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.):

40      With respect to the ability of a political party to act as an effective vehicle for the meaningful participation of individual citizens in the electoral process, it is important to note that political parties have a much greater capacity than any one citizen to participate in the open debate that the electoral process engenders. By doing so in a representative capacity, on behalf of their members and supporters, political parties act as a vehicle for the participation of individual citizens in the political life of the country. Political parties ensure that the ideas and opinions of their members and supporters are effectively represented in the open debate occasioned by the electoral process and presented to the electorate as a viable option. If those ideas and opinions are not subsequently adopted by the government of the day, it is not because they have not been considered, but, rather, because they have received insufficient public support.

41      Importantly, it is not only large political parties that are able to fulfil this function. It likely is true that a large party will be able to play a larger role in the open discourse of the electoral process, but it does not thereby follow that the capacity of a political party to represent the ideas and opinions of its members and supporters in the electoral process is dependent upon its capacity to offer the electorate a “government option”. Large or small, all political parties are capable of introducing unique interests and concerns into the political discourse. Consequently, all political parties, whether large or small, are capable of acting as a vehicle for the participation of individual citizens in the public discourse that animates the determination of social policy.

[61] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.);  Libman c. Québec (Procureur général), 1997 CarswellQue 851, 1997 CarswellQue 852, [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 3 B.H.R.C. 269, 46 C.R.R. (2d) 234 (S.C.C.).

[62]  Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[63] Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[64] This is viewed as the egalitarian model of elections as opposed to a libertarian model in which involves the imposition of as few restrictions as possible.  Harper v. Canada (Attorney General), 2004 CarswellAlta 646, 2004 SCC 33, [2004] 1 S.C.R. 827, [2004] 8 W.W.R. 1, [2004] A.W.L.D. 294, [2004] S.C.J. No. 28, 119 C.R.R. (2d) 84, 239 D.L.R. (4th) 193, 27 Alta. L.R. (4th) 1, 320 N.R. 49, 321 W.A.C. 201, 348 A.R. 201, J.E. 2004-1104, REJB 2004-61915 (S.C.C.)

[65] It still does, but it is now far easier for a political party to become registered.

[66] See the table at the end of this chapter.

[67] Figueroa v. Canada (Attorney General), 2003 CarswellOnt 2462, 2003 SCC 37, [2003] 1 S.C.R. 912, [2003] S.C.J. No. 37, 108 C.R.R. (2d) 66, 227 D.L.R. (4th) 1, 306 N.R. 70, 67 O.R. (3d) 440 (note), 67 O.R. (3d) 440 (S.C.C.)

48      I begin by noting that it is not my position that s. 3 imposes upon Parliament a freestanding obligation to extend to political parties the right to issue tax credits for donations received outside the election period or to extend to candidates the right to transfer unspent election funds to the party. Section 3 prevents Parliament from interfering with the right of each citizen to play a meaningful role in the electoral process; it does not impose upon Parliament an obligation to enact legislation that enhances the capacity of political parties to raise funds for the purpose of communicating the ideas and opinions of its members and supporters to the general public. …

[68] See section 14 of the Electoral Boundaries Readjustment Act:

 

  1. (1) On receipt of the estimates referred to in section 12.1, the Chief Electoral Officer shall calculate the number of members of the House of Commons to be assigned to each province, subject and according to the provisions of section 51 of the Constitution Act, 1867 and the rules in that section, and on the completion of that calculation shall cause a statement to be published in the Canada Gazette setting out the results.

Sections 51 to 52 of the Constitution Act, 1867, set out the formula for the calculation of the number of seats as follows.

Readjustment of representation in Commons

  1. (1) The number of members of the House of Commons and the representation of the provinces therein shall, on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada provides from time to time, subject and according to the following rules:

Rules

 

  1. There shall be assigned to each of the provinces a number of members equal to the number obtained by dividing the population of the province by the electoral quotient and rounding up any fractional remainder to one.

000

[Note:  The “electoral quotient” is determined according to Rule 6 below.]

  1. 
If the number of members assigned to a province by the application of rule 1 and section 51A is less than the total number assigned to that province on the date of the coming into force of the Constitution Act, 1985 (Representation), there shall be added to the number of members so assigned such number of members as will result in the province having the same number of members as were assigned on that date.
  1. 
After the application of rules 1 and 2 and section 51A, there shall, in respect of each province that meets the condition set out in rule 4, be added, if necessary, a number of members such that, on the completion of the readjustment, the number obtained by dividing the number of members assigned to that province by the total number of members assigned to all the provinces is as close as possible to, without being below, the number obtained by dividing the population of that province by the total population of all the provinces.
  1. 
Rule 3 applies to a province if, on the completion of the preceding readjustment, the number obtained by dividing the number of members assigned to that province by the total number of members assigned to all the provinces was equal to or greater than the number obtained by dividing the population of that province by the total population of all the provinces, the population of each province being its population as at July 1 of the year of the decennial census that preceded that readjustment according to the estimates prepared for the purpose of that readjustment.
  1. 
Unless the context indicates otherwise, in these rules, the population of a province is the estimate of its population as at July 1 of the year of the most recent decennial census.
  1. 
In these rules, “electoral quotient” means

(a)   
111,166, in relation to the readjustment following the completion of the 2011 decennial census, and

(b) 
 in relation to the readjustment following the completion of any subsequent decennial census, the number obtained by multiplying the electoral quotient that was applied in the preceding readjustment by the number that is the average of the numbers obtained by dividing the population of each province by the population of the province as at July 1 of the year of the preceding decennial census according to the estimates prepared for the purpose of the preceding readjustment, and rounding up any fractional remainder of that multiplication to one.

Population estimates

(1.1) For the purpose of the rules in subsection (1), there is required to be prepared an estimate of the population of Canada and of each province as at July 1, 2001 and July 1, 2011 — and, in each year following the 2011 decennial census in which a decennial census is taken, as at July 1 of that year — by such authority, in such manner, and from such time as the Parliament of Canada provides from time to time.

Yukon Territory, Northwest Territories and Nunavut

(2) The Yukon Territory as bounded and described in the schedule to chapter Y-2 of the Revised Statutes of Canada, 1985, shall be entitled to one member, the Northwest Territories as bounded and described in section 2 of chapter N-27 of the Revised Statutes of Canada, 1985, as amended by section 77 of chapter 28 of the Statutes of Canada, 1993, shall be entitled to one member, and Nunavut as bounded and described in section 3 of chapter 28 of the Statutes of Canada, 1993, shall be entitled to one member.

Constitution of House of Commons

51A.  Notwithstanding anything in this Act a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province.

Increase in Number of House of Commons

  1. The Number of Members of the House of Commons may be from Time to Time increased by the Parliament of Canada, provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.

[69] Henry v. Canada (Attorney General), 2014 CarswellBC 177, 2014 BCCA 30, [2014] 5 W.W.R. 104, [2014] B.C.W.L.D. 1434, [2014] B.C.J. No. 122, 237 A.C.W.S. (3d) 381, 349 B.C.A.C. 255, 53 B.C.L.R. (5th) 282, 596 W.A.C. 255 (B.C.C.A.)

[70] Wrzesnewskyj v. Canada (Attorney General), 2012 CarswellOnt 12997, 2012 SCC 55, [2012] 3 S.C.R. 76, [2012] S.C.J. No. 55, 270 C.R.R. (2d) 23, 296 O.A.C. 82, 351 D.L.R. (4th) 579, 435 N.R. 259 (S.C.C.):

30      Section 6 of the Act recognizes that all persons meeting the three requirements of age, citizenship and residence are “entitled” to vote. It reads:

 

  1. Subject to this Act, every person who is qualified as an elector is entitled to have his or her name included in the list of electors for the polling division in which he or she is ordinarily resident and to vote at the polling station for that polling division.

Section 6 uses the term “polling division”. Polling divisions exist within electoral districts for administrative simplicity and voter convenience on election day (J. P. Boyer, Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections (1987), vol. I, at p. 101). The Charter right to vote is for the Member of Parliament for the electoral district in which the voter resides.

As will be seen later in this text, the concept of residence does not always refer to actual physical presence in a district.  In practice there are individuals whose circumstances would deny them the right to vote if their physical presence was required to be in a particular district in order to constitute residence (notably members of the armed forces serving abroad). Thus, in Hoogbruin v. British Columbia (Attorney General), 1985 CarswellBC 406, [1985] B.C.J. No. 2572, [1986] 2 W.W.R. 700, [1986] B.C.W.L.D. 225, 20 C.R.R. 1, 24 D.L.R. (4th) 718, 34 A.C.W.S. (2d) 288, 70 B.C.L.R. 1(B.C.C.A.) the B.C. Court of Appeal held that the right to vote required that the government create some system for voting by persons who were out of the country at the time of an election.  Similarly, treating physical presence with residence could create unfairness to other electors in the same district such as would result in the artificial gathering of prisoners from across the country in a prison in a district.  Thus, in respecting the concept of the right to vote, including the concept of effective representation, there are circumstances where a notional residence is sometimes used.  But even in those circumstances a person can have only one residence.

[71]  Sauvé v. Canada (Chief Electoral Officer), 2002 CarswellNat 2883, 2002 SCC 68, [2002] 3 S.C.R. 519, 18 D.L.R. (4th) 577 (S.C.C.).

[72] For example, compare the electoral district of Charlottetown with a population of 32,174 with that of Vancouver Centre with a population of 123,701 (as per the 2003 Representation Order).

[73] Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, 1991 CarswellSask 403, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 27 A.C.W.S. (3d) 602, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161 (S.C.C.)

[74] Reference re Provincial Electoral Boundaries, 1991 CarswellSask 188, 1991 CarswellSask 403, [1991] 2 S.C.R. 158, [1991] 5 W.W.R. 1, [1991] S.C.J. No. 46, 127 N.R. 1, 27 A.C.W.S. (3d) 602, 5 C.R.R. (2d) 1, 81 D.L.R. (4th) 16, 94 Sask. R. 161 (S.C.C.)

[75] No commission is established for the three seats in the House allocated to the three territories.  The Electoral Boundaries Readjustment Act expressly establishes and describes the boundaries of three electoral districts covering the three territories – the Yukon, the Western Arctic, and Nunavut (s. 30).

Each commission consists of three members.  The Chief Justice of a province appoints the Chair of the commission for that province and the other two members are appointed by the Speaker of the House of Commons.  A Commission is not subject to the direction of any other authority and makes it decision as to boundaries according to the directions in the Electoral Boundaries Readjustment Act.

[76] See section 15 of the Electoral Boundaries Readjustment Act:

 

  1. (1) In preparing its report, each commission for a province shall, subject to subsection (2), be governed by the following rules:

(a) the division of the province into electoral districts and the description of the boundaries thereof shall proceed on the basis that the population of each electoral district in the province as a result thereof shall, as close as reasonably possible, correspond to the electoral quota for the province, that is to say, the quotient obtained by dividing the population of the province as ascertained by the census by the number of members of the House of Commons to be assigned to the province as calculated by the Chief Electoral Officer under subsection 14(1); and

(b) the commission shall consider the following in determining reasonable electoral district boundaries:

(i) the community of interest or community of identity in or the historical pattern of an electoral district in the province, and

(ii) a manageable geographic size for districts in sparsely populated, rural or northern regions of the province.

(2) The commission may depart from the application of the rule set out in paragraph (1)(a) in any case where the commission considers it necessary or desirable to depart therefrom

(a) in order to respect the community of interest or community of identity in or the historical pattern of an electoral district in the province, or

(b) in order to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions of the province,

but, in departing from the application of the rule set out in paragraph (1)(a), the commission shall make every effort to ensure that, except in circumstances viewed by the commission as being extraordinary, the population of each electoral district in the province remains within twenty-five per cent more or twenty-five per cent less of the electoral quota for the province.

[77]  The delay in the coming into force of a proclamation order is to ensure that the Chief Electoral Officer has sufficient time to take the necessary steps and make the necessary adjustments to reflect the new boundaries. The statutorily mandated delay in the effectiveness of a representation order means that the new boundaries do not come into effect until the first general election (not by-election) that takes place at least seven months after the day the proclamation is issued.  If a by-election or general election is held within that seven month period the old boundaries remain in effect for that election.  Thus, if a general election is held within the first seven months the new boundaries of the representation order will not take effect until the House is again dissolved after that election (presuming that such second general election would fall outside of the seven month delay period following the issuance of the proclamation.

The electoral boundary process, along with suggestions for improvement thereto, is described in some detail in the Report of the 2005 Report of the Chief Electoral Officer entitled Enhancing the Values of Redistribution:  Recommendations of the Chief Electoral Officer of Canada Following the Representation Order of 2003 which available on-line through the Elections Canada website at http://elections.ca/res/rep/off/recom_redis/recom_redistribution_e.pdf.

The electoral boundary process that was followed in 2012 following the 2011 decennial census is described in the Elections Canada document entitled 2012 Redistribution of Federal Electoral Districts.  Process Assessment Report which is available on-line through the Elections Canada website at http://elections.ca/res/rep/oth/ebrar/ebrar_e.pdf.

[78] The principle of transparency can be seen in aspects of the Canada Elections Act such a the requirement for financial reports by participants in the electoral process and the right of public access thereto; the right of candidates to have representatives observe the voting process and the counting of the ballots in polling station; the requirements for participants in the electoral process to identify themselves in communications with the public; the direction in section 541 of the Act for public access to all reports and statements (other than election documents received from election officers) all instructions issued by the Chief Electoral Officer under the Act and all correspondence with election officers or others in relation to an election; and the reports which the Chief Electoral Officer is required to provide respecting the conduct of general and by-elections under section 534 of the Act.

[79] The principle of fairness can be seen in aspects of the Canada Elections Act such as those designed to ensure a level playing field for participants such as the spending limits prescribed for registered parties, candidates, and third parties, and for nomination contests, and the broadcasting provisions which, among other things require the provision of free broadcasting time to registered parties, the obligation on broadcasters to sell time to all registered parties that desire it, and the requirement that broadcasters sell time to political parties and candidates at the lowest rate that that time would otherwise be sold to anyone.

[80] Participation rights can be seen provisions of the Canada Elections that ensure the ability of volunteers to participate freely in the electoral process; spending limits which help ensure that broad participation in the electoral process and limit the ability of those with money to drown out the voices of smaller or less wealthy participants; the provision of public financing in the form of tax credits, and reimbursements for election expenses also enhances participation right; and the various process to permit persons to vote who will away from their electoral district on polling day.

[81] Secrecy and privacy is maintained in the electoral process through provisions of the Canada Elections Act that deal with the secrecy of the ballot; restrictions respecting access to the lists of electors.

[82] Provisions in the Canada Elections Act promoting the efficiency and effectiveness of the electoral process are illustrated by the requirements in the Act for access to polling stations, and provisions respecting the establishment and size of polling divisions.

[83] Provisions in the Canada Elections Act illustrating the principles respecting impartiality can be seen in those provisions respecting the neutral position of the Chief Electoral Officer, the appointment of Returning Officers, and the express statutory direction that all election officers conduct themselves with fairness and impartiality.

[84] The principle of accountability in the Canada Elections Act can be seen illustrated in provisions respecting the responsibility of electoral participants to make reports respecting their electoral activities; in the provisions respecting contested elections; and in the offence and enforcement provisions of the Act.

 

The Law Versus Popular Opinion

The below first appeared in substantially the same form as the Author’s Note to release 2015-3 of my Practice and Procedure Before Administrative Tribunals (Carswell).

Apparently in July 2014 a (non-lawyer) individual was notified that he would no longer be permitted to act as a representative for veterans before the Veterans Review Board.  Many months later, on January 13, 2015 the media picked up the story with reports by CBC (CBC News, posted Jan 13, 2015 6:50 PM AT) and CTV (CTV Atlantic, published Tuesday, January 13, 2015 7:47PM AST) that the individual had been sent a letter by the Veterans Review and Appeal Board advising him of the ban.  The CBC report stated that the letter from the Board stated that the requirements for representing clients had changed and that non-lawyer representatives who do not comply with the expected standards will no longer be able to act on behalf of clients in proceedings before the Board.  CTV reported that the letter from the Board had said that he was not competent to handle veterans’ cases. One day later the media returned to the story with CTV (CTV Atlantic, published Wednesday, January 14, 2015 7:43PM AST) reporting that the Board had changed its mind and had allowed the individual to continue to represent veterans if he addresses concerns about his work falling below standard.  A Board spokesperson is reporting as writing in an e-mail  that: “Providing that Mr. [X] undertakes in writing to comply with the standards of competent representation articulated in the Practice Note and advances claims in a manner that protects and does not prejudice the rights of veterans, the (Veterans Review and Appeal Board) will permit him to represent veterans in cases before the (board)”.  As reported in the January 14th, according to the Board the individual did not follow the rules and that his actions hindered the appeal process.  The report noted that these failings were said to include failing to provide legible submissions, submitting altered documents, and filing incomplete submissions.

What appears to have happened between January 13th and 14th (besides the media reports) was likely explained by a tweet on the social media site Twitter by the new Minister of Veterans Affairs in which the Minister stated: “Following my request to the VRAB for a second look, Mr. Neville is permitted to continue his advocacy work for veterans.”

The Board is an independent, quasi-judicial agency, which sits on reviews of the Minister’s decisions (or more precisely, the Minister’s officials).

There is a great deal of confusion about what actually may have happened in this case.  It is not explained how the individual came to be banned from acting as a representative.   There are no legislative provisions dealing with who gets to be a representative before the Board (although a veteran has the statutory right to be represented by a representative.)  An agency such as the Veterans Review and Appeal Board has the common law authority to permit or not permit individuals to appear before it but this power flows from the agency’s control over its procedure and its power to prevent abuse of its process.  That authority could be exercised by at a hearing by the presiding panel or, by the Board as a whole.  It cannot, however, be exercised as an administrative matter by the Chair or by staff of the Board.  In any event the person who is the subject to the ban would be entitled to some sort of notice and opportunity to be heard.  It has not been reported how the decision in this case was made.  In fact a story that appeared in the Canadian Bar Association’s National (web only edition) reported that it was the Minister  (which, given the July 2014 reported date of the banning, one assumes would have actually been the previous, not the current, Minister) who had barred the individual, that the Minister had reversed his decision after a “backlash” and that the department would be requiring the individual to file certain documents requiring the individual to attest that he follows the code of conduct of the Board.  These last reports seem unlikely insofar as neither the Minister nor the department has any legal authority whatsoever (beyond the staff of the Bureau of Pensions Advocates) as to who can appear before the Board.  If true, the CBA National Report indicates an even more serious problem respecting the operation of the purportedly independent Board than suggested above.  Minimally, however, the CBA Report is indicative of the introduction some confusion in the operations of the Board.

Regardless of the lack of details respecting the making of the decision in question there seems to be two facts that are not questioned.  First, that the Minister requested that the Board change its decision or at least take a second look at the matter; and second, that the media, for the most part, greeted this intervention with wide spread approval.

There seems to be little doubt that in law the Minister of Veterans Affairs should not contact the quasi-judicial authority that oversees his decisions to query a decision of the Board – nor should the Board act on such queries.  A polite “Thank you Minister – now butt out” phrased more professionally would have seemed to have been the proper response.  Even a call from the Minister which purported simply to request that the Board look at its decision again would breach the rules respecting independence.   The call having been made the Board is placed in the position of looking like it’s actions were in response.  So many issues flow from such a query.  What enquiries did the Minister make before contacting the Board?  Did the Minister believe that some intervention by him would have some influence on the decision-making of the quasi-judicial, independent agency?  Did it?  Does the Minister have, or will he have in the future, influence respecting other decisions made by the Board?  Does this representative have some specific “in” with the Minister?  Will the Board treat this representative more deferentially in the future because of some such “pull? Etc etc. etc.

This reminds me of a similar incident in December, 2014 when a provincial Attorney General issued a directive purported to allow the publication of name of the girl who had committed suicide after incidents of cyber-bullying – notwithstanding the existence of a judicial publication ban arising from the related child pornography proceedings expressly prohibiting the publication of the girl’s name.  (The directive was issued in December  notwithstanding that the Nova Scotia Director of Public Prosecutions had been reported earlier as saying that he and the Attorney General had decided not to give the media the green light to being using the name as to do so would be “unprecedented… and inappropriate in this context.” (J-Source.ca report by Tamara Baluja · September 30, 2014).

The girl’s family had not been in favour of the ban being issued and were in fact pleased with the Crown’s decision as it was felt that it would advance the fight against cyber-bullying.   The judge, himself, did not seem that keen on the ban.  However, under s. 486.4(3) of Criminal Code the Court had had no discretion in issuing the ban but was required to do so by the legislation which made no exceptions.[1]  The Court had in its reasons (which do not appear to have been appealed) carefully examined several arguments which had been submitted in the hopes that the Court could find a way to avoid the ban.  Ultimately, the Court concluded that there was no way around it and that the law required that the ban be issued even though the judge felt that his decision served no purpose given that both of the girls’ parents wanted her identity public and her case had been widely reported.  The Court stated that it was clear that Parliament didn’t intend exceptions to apply to the Criminal Code ban on identification in child pornography cases.

The later directive from the Attorney General is reported to say that no breach of the ban by the media or in any forum identifying the girl as the victim was to be prosecuted – unless the girl’s name was used in a derogatory way.

Technically, the Attorney General’s directive likely constituted an illegal dispensation – where the Crown purports to allow individuals to act contrary to the law. You know, the principle that operates to prevent the Crown from allowing its friends and allies to operate outside of the law.

In this case it amounted to saying that while Parliament was clear that a judge, acting judicially,  was not be allowed to make exceptions to the law for whatever reason, elected politicians and state officials, de facto, could.

Again, the media was generally pleased with the Attorney General’s directive.

Is there a lesson to be drawn from the above, aside from any of the legal points?  And is that lesson that the Rule of Law can be, and will be, easily disregarded by officials, the media and the public where there is a general belief that the ends justify the means?    If so, it will hardly be surprising that politicians, and others who find themselves wrestling with legal requirements tend to view the outcomes they desire or need in the same way.

Before ending I think it should also be asked how necessary were the above instances of setting aside the Rule of Law?  Were all legal options of reconsideration, appeal or judicial review pursued in these cases?  What was the impact of the decisions in question and did they, themselves warrant the disregarding of the Rule of Law?

Should other decision-makers, whether judicial, administrative or prosecutorial, disregard the law if the media and the public seem to like the idea?

I will end this point with a quotation from Robert Bolt’s A Man For All Seasons (to which I have referred before):

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

[1] Section 486.4 was no long forgotten and out of date legislative hold-over from another era.  Its operation was known and intended.  It had only been added to the Criminal Code in 2005 by the Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (S.C. 2005, c. 32, s. 15). Section 486.4(3) provides:

“(3) In proceedings in respect of an offence under section 163.1 [child pornography], a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.”

AN ALTERNATIVE INTERPRETATION OF SECTION 58(2)(C) OF B.C.’S ADMINISTRATIVE TRIBUNALS ACT

Sections 58 and 59 of British Columbia’s Administrative Tribunals Act set out the standard of review to be adopted on judicial review from agency decisions to which either or both are made applicable.   Generally speaking section 58 sets the standard of review where the decision in question is protected by a privative clause while section 59 deals with the situation where there is no privative clause.  I’d like to throw out a thought respecting the interpretation of section 58(2)(c) for consideration.   Section 58(2)(c) purports to deal with “matters” other than those identified in sections 58(2)(a) and (b).  The courts of B.C. treat that as a reference to matters which fall outside of the parameters of any privative clause protecting the decision of the agency.  I would like to suggest, in the alternative, that section 58(2)(c) deals with types of findings, questions or decisions not addressed in paragraphs (a) and (b) and not subject matter issues that are not protected by the privative clause in question.  In other words, the extent of the relevant privative clause is irrelevant respecting the application of section 58(2)(c) and section 58(2)(c) is concerned only with the nature of the question at issue.

Standard of review if tribunal’s enabling Act has privative clause

58  (1) If the tribunal’s enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert tribunals under subsection (1)

(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,

(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and

(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal’s decision is correctness.

“Standard of review if tribunal’s enabling Act has no privative clause

59  (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.

(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.

(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.

(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(c) is based entirely or predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.”

It is not uncommon in legislative schemes that a privative clause will protect some but not all of an agency’s  decisions.  Reading the text of section 58(1) and (2) one could assume that in such cases section 58 of the A.T.A. applies only to those decisions which are protected by the privative clause.  It would be logical to assume that in such a case, assuming that the Legislature had also made section 59 applicable to the agency, it would be section 59 that applied to those questions that were not protected by the privative clause.  Alternatively, if section 59 of the A.T.A. was not made applicable to the agency’s decisions it would fall to the common law to determine the appropriate standard of review.   However, if you made this assumption you would most likely be wrong.

The body of the case law in British Columbia indicates that, in situations where section 58 of the A.T.A. is made applicable to an agency, where a matter is not protected by an agency’s privative clause, the standard of review respecting matters which are not covered by the agency’s privative clause are determined under section 58(2)(c).

Such an approach (which is fully understandable for reasons set out below) can, however, lead to a glitch in the standard of review – certainly in such cases where the question in issue is a finding of fact or an exercise of the agency’s discretion.

The established position of the B.C. case law on this question can be seen in the recent decision of the B.C. Court of Appeal in United Mexican States v. British Columbia (Labour Relations Board):2015 CarswellBC 173, 2015 BCCA 32, 381 D.L.R. (4th) 78 (B.C.C.A.).  In United Mexican States the B.C. Court of Appeal made the following direction respecting the determination of the standard of review under the A.T.A.:

 

“27.  …The preferred approach for determining whether a matter falls within the exclusive jurisdiction of a tribunal and attracts the standard of patent unreasonableness under s. 58(2)(a), or does not and attracts the standard of correctness under s. 58(2)(c) “is simply to examine whether the privative clause [in the tribunal’s enabling statute] covers the ‘matters’ in issue”: Kerton v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCCA 7 (B.C. C.A.) at para. 29. This analysis is required even where a tribunal is interpreting its home statute, as was the case in Kerton.

In the case in point the issue was whether the patent unreasonableness or the correctness standard of review applied to the B.C. Labour Relations Board’s conclusions respecting the extent of the of state immunity granted Mexico under the State Immunity Act.  The B.C. Court of Appeal held that it was the correctness standard set out in section 58(2)(c) of the A.T.A..  This was because while the Labour Relations Code gave the Board the “exclusive jurisdiction to decide a question arising under the Code” the Court of Appeal held that the scope of state immunity under the State Immunity Act was not a matter under the Code but was a matter that was clearly outside of the Board’s exclusive jurisdiction.  Thus, the Court of Appeal held, section 58(2)(c) applied as “the scope of state immunity … is a matter that is clearly outside of the Board’s exclusive jurisdiction…”

“28      Section 139 of the Code provides that the Board “has exclusive jurisdiction to decide a question arising under [the] Code”. As the chambers judge correctly held, the scope of state immunity under the SIA is a matter that is clearly outside of the Board’s exclusive jurisdiction: at para. 56. Consequently, the standard of correctness applies, pursuant to s. 58(2)(c) of the ATA. This Court must therefore determine whether the chambers judge was correct to find that the Board itself was correct in its conclusions as to the scope of state immunity under the SIA.”

As illustrated by the United Mexican States decision the British Columbia courts appear to read section 58 as applying to an agency whose decision is protected by a privative clause regardless of whether the matter at hand falls within the purview of that privative clause.    That is to say, if the legislated scheme provides for a privative clause applying to any or all of the decisions of the agency then section 58 applies.  The effect of the extent of the privative clause on the standard of review attributed to each matter is then determined by subsections 58(2) with the standard of review applicable to those matters that fall under the privative clause being determined by sections 58(2)(a) or (b) and the standard for those matters that do not fall under the privative clause being determined by section 58(2)(c).

This approach is illustrated by Ford v. Lavender Co-operative Housing Assn., 2011 CarswellBC 531, 2011 BCCA 114 (B.C.C.A.) where the Court of Appeal held that in the context of agency decisions which are protected by a privative clause section 58 of the Administrative Tribunals Act is comprehensive and describes the standards of review for all questions that may arise. Where the question does not fall within one of the delineated classes the question will fall into section 58(2)(c)  which provides “a catch-all standard of correctness for all matters not identified in s. 58(2)(a) and (b).”  There are a number of other decisions which are consistent with this position (University of British Columbia v. University of British Columbia Faculty Assn., 2007 CarswellBC 641, 2007 BCCA 201 (B.C.C.A.); Sidhu v. British Columbia (Workers’ Compensation Appeal Tribunal), 2010 CarswellBC 502, 2010 BCSC 277 (B.C. S.C.);  FortisBC Inc. v. Shaw Cablesystems Ltd., 2010 CarswellBC 3292, 2010 BCCA 552 (B.C.C.A.) and the above noted decision in United Mexican States.

 

It can be argued, however,  that this approach can lead to odd results – at least in the case of findings of fact.  Under the current interpretative approach taken by the B.C.courts to section 58(2)(c) a finding of fact by an agency respecting a matter that falls outside of the relevant privative clause would fall under section 58(2)(c) and therefore be subject to the correctness standard of review specified therein. Similarly, exercises of the agency’s discretion respecting matters falling outside of the parameters of the relevant privative clause would be subject to correctness review.  These are decidedly odd departures from the traditional role of courts on either judicial review or appeals from administrative decision-makers.

Where the subject of the matter in issue  does not fall under an agency’s privative clause logically it could be argued that it is either section 59 which governs the standard of review respecting that matter, or the common law – not section 58(2)(c).  Under this view the “matters” referred to in section 58(2)(c) are the types of findings, questions and decisions referred to in sections 58(2)(a) and (b) (findings of fact or law, exercises of discretion, and questions about the application of the principles of natural justice and fairness) not the subject matter of the finding, question or decision at hand as referred to in section 58(1).  This alternative interpretation of section 58(2)(c) avoids a correctness standard of review being applied to findings of fact and exercises of discretion.

 

If the issue at hand is not covered by a privative clause it can surely be argued that section 58 of the A.T.A. does not apply at all.  The opening words of section 58(2) provides that the provisions of subsections 58(2)(a) to (c) apply to “expert tribunals under subsection (1)”.   Section 58(1), in turn, provides that: “If the tribunal’s enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.” (my emphasis).   If the issue in question does not fall under a privative clause then, as regards that issue, the agency is not “expert tribunal” which means in the context of subsection 58(2) it is not an expert tribunal under subsection (1).

Admittedly, section 58(2)(c) states that it sets the standard of review “for all matters other than those identified in paragraphs (a) and (b).  The B.C. courts appear to read the reference to those matters identified in paragraphs (a) and (b) as being the matters to which the relevant privative clause applies and “all matters other than those” matters (which are addressed in paragraph (c)) as being  a reference to the various matters which are not caught by the privative clause in question.  To me, that reading appears problematic.  In my view “those matters identified in paragraphs (a) and (b)”  are the findings or questions addressed in those sections – the findings of fact or law, exercises of discretion, and questions about the application of the common law rules of natural justice and fairness.  Not the subject matter issues which are protected by the relevant privative clause.

In support of the alternative interpretation of section 58(2)(c) I offer two arguments.

First, section 58(2) deals with judicial proceedings relating to “expert tribunals under subsection (1)”.  If the matter in question is not protected by an agency’s privative clause it is not an expert tribunal “under subsection (1)” respecting that matter and section 58(2) – which includes subsections 58(2)(a) to (c) – do not apply.  It is highly problematic to read subsection 59(2)(c) as bringing matters which are not covered by section 58(1) under the rubric of subsection 58(2)(c).  Reading subsection 58(2)(c) this way not only brings all matters falling outside of an agency’s privative clause under section 58(2)(c) but potentially brings all administrative agency decisions under that subsection even where there is no privative clause. A decision by an agency which has no privative can be seen as a matter falling outside of decision “by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause” (quoting from subsection 58(2)(a))

Secondly, there is, in fact, no “matter” referred to in subsection (b).  The only reference to something in section 58(2)(b) is the reference to  questions of the application of natural justice and fairness.  While subsection 58(2)(a) refers to “a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause” section 58(2)(b) merely refers to “questions about the application of common law rules of natural justice and procedural fairness”.  Subsection 58(2)(b) does not use the word “matter” or the phrase “by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause”.  The reference in subsection 58(2)(c) then to “matters other than those identified in paragraphs (a) and (b)” makes no sense if the word  “matters” in 58(2)(c) is to address the matters falling under the agency’s privative clause because there are no such matters referred in paragraph (b).  What is referred to in both paragraphs (a) and (b) are types of questions or decisions by the agency – not the subject matter to which those findings, questions or decisions relate..

Consequently, it is possible,to read the “matters” referred to in subsection 58(2)(c) as a reference, not to the various decisions covered by the privative clause, but the types of questions, or findings, or exercises of authority by the agency that are not set out in either subsections 58(2)(a) and (b).  Arguing against such a view is the fact that the only such question that springs to mind that is not already listed in paragraphs (a) and (b) are questions of mixed fact and law.

Rather than treating subject matter that fall outside of an agency’s privative clause as being subject to section 58(2)(c) it might be better to view those matters as falling under section 59 of the A.T.A. or the common law.   Section 59 would apply if it has been legislatively been made applicable to the agency’s decisions along with section 58.  The common law would apply where it has not.  (The latter of which was the case in the situation of the United Mexican States decision where only section 58 of the A.T.A. was made applicable to the decisions of the Labour Relations Board.

Recognizing that section 58 does not apply to a matter at all, given that the matter falls outside of the agency’s privative clause, and that it is section 59 or the common law that should be applicable to the determination of the standard of review for that matter will resolve the problem with the review of findings of fact that are made respecting matters that fall outside of the parameters of the relevant privative clause. For under either questions of fact are subject to a reasonableness standard of review.

This latter result looks to me to better reflect the intention of the Legislature.  Where the Legislature expressly addresses the standard of review respecting questions of fact in the A.T.A.  both sections 58 and section 59 direct a reasonableness standard of review.  This standard is  consistent with the current common law standard of review that would result under the Dunsmuir standard of review analysis.   It is also consistent with the general principle of appellate review that, insofar as the initial decision-maker is in the better position to see and evaluate the evidence before it, matters of fact are not to be interfered with by an appellate court in the absence of palpable error.   Thus, in my view, it is likely that regardless of the existence of a privative clause the Legislature would intend a reasonableness standard of review for agency findings of fact.   As noted above, however, it is possible under United Mexican States interpretation of section 58(2)(c) that a question of fact will end up being subject to a correctness standard of review.  This, to my mind, indicates that the United Mexican States approach to section 58(2)(c) is problematic.  Whether or not section 58 or section 59 or the common law applies to the determination of the standard of review should, in my opinion, depend on whether the matter in issue falls within an existing privative clause.  If it does, then section 58 applies and one then looks to the type of finding, question or decision in issue in order to determine which of paragraphs 58(2)(a) to (c) apply.  If the matter falls outside of the privative clause then it is section 59 which applies if it has been made applicable to the agency in question and if it has not then the common law.  One then looks at looks at the type of finding, question or decision in dispute to determine the standard of review under those guides.

I acknowledge that the head notes to sections 58 and 59 refer broadly to the standard of review if the tribunal’s enabling statute have or not do not have a privative clause.  However, as set out in section 11 of B.C.’s Interpretation Act these headings are not part of the statute in which they fall and they do not direct the meaning of the sections which they precede.  They are merely editorial guides of general convenience that operate to broadly aid the reader to find the appropriate provision in a statute.  The actual operation of the provision is determined according to its terms – not the head note.

“11  (1) In an enactment, a head note to a provision or a reference after the end of a section or other division

(a) is not part of the enactment, and

(b) must be considered to have been added editorially for convenience of reference only.”

In any event I’m throwing this idea out for consideration.  It may be that I’ve missed the mark completely here on some basic point.

Has The B.C. Court of Appeal Narrowed The Common Law Authority Of Agencies To Reconsider A Decision For Jurisdictional Errors To Questions Of “True” Jurisdiction?

In Fraser Health Authority v. British Columbia (Workers’ Compensation Appeal Tribunal), 2014 CarswellBC 3824, 2014 BCCA 499 (B.C.C.A.) the B.C. Court of Appeal (majority 3-2 decision) held that the common law authority of agencies to reopen a decision on jurisdictional grounds does not extend to correcting decisions because they are patently unreasonable. The majority also confirmed the earlier decision of the Court of Appeal in Lysohirka v. British Columbia (Workers’ Compensation Board), 2012 CarswellBC 3532, 2012 BCCA 457, [2013] 2 W.W.R. 687, 330 B.C.A.C. 68 (B.C.C.A.) that the concept of “jurisdiction” as used in the seminal decision of the Supreme Court of Canada in Chandler v. Assn. of Architects (Alberta), 1989 CarswellAlta 160, [1989] 2 S.C.R. 848, 62 D.L.R. (4th) 577 (S.C.C.) should be read as a reference to “true” questions of jurisdiction as used by the Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 CarswellNB 124, 2008 SCC 9, 291 D.L.R. (4th) 577 (S.C.C.)

Due to the space restrictions of a blog entry I am not going to go into the details of the majority decision in Fraser Health Authority or outline the common law authority of agencies to reopen matters as enunciated in Chandler. Readers of this note who are unfamiliar with these matters may, if they wish consult my text Practice and Procedure Before Administrative Tribunals (published by Carswell) for this information – notably the upcoming 2015-3 release.

In my view the decision of the majority of the B.C. Court of Appeal in Fraser Health Authority is substantially correct. While I believe that the conflating of “jurisdiction” as used by the Supreme Court of Canada in Chandler with the Dunsmuir concept of “true” jurisdictional questions remains problematic that aspect of the decision does not, in my opinion, affect the essence of the Court of Appeal’s ruling.

In my view the majority of the Court of Appeal in Fraser Health Authority is correct that the common law authority to reopen a decision as that law flows from the Supreme Court of Canada in Chandler has never extended to the correction of errors or law or fact simply because those errors may be egregious (i.e. the decision is patently unreasonable). Chandler is clear that that, other than for the errors outlined in that case, or any legislative authority, an agency does not have the authority to reopen a decision simply because it has made a mistake as to fact or law. I do not see how the fact that such an error may be egregious or irrational changes the nature of the error.

But I do have concerns with the majority in Fraser Health Authority (and its purported approval of the earlier decision of the B.C. Court of Appeal in Lysohirka v. British Columbia (Workers’ Compensation Board), 2012 CarswellBC 3532, 2012 BCCA 457, [2013] 2 W.W.R. 687, 330 B.C.A.C. 68 (B.C.C.A.)) where the majority equates jurisdiction as used in Chandler with the concept of “true” jurisdictional matters as defined in Dunsmuir.

Dunsmuir deals with the standard of review which a court should adopt in reviewing an agency decision through judicial review. It sets a general default of a reasonableness standard of review subject to a limited number of exceptions one of which are “true” questions of jurisdiction. The Dunsmuir concept of a “true” jurisdictional question includes only to the questions that deal with the authority of an agency to deal with an issue. Does the agency have the authority to deal with rates, or with costs, or the power to determine whether a lease is valid. Dunsmuir clearly excludes from the concept of “true” jurisdictional questions issues that go, not only to defining the parameters of an agency’s authority, but how that authority is exercised – including questions of natural justice and fairness. (Under Dunsmuir natural justice and fairness is a separate category from “jurisdiction”.)

Chandler, or course, in setting out the common law authority of agencies to reconsider their own decisions characterized certain of the faults which enabled reconsideration (including breaches of natural justice) as being “jurisdictional”. Notwithstanding that both Chandler and Dunsmuir use the term “jurisdiction” I do not believe that one should read those decisions are using the term in the same way. One surely has to take the words used in Chandler according to their meaning at that time. I disagree with the majority of the British Columbia Court of Appeal in Fraser Health Authority that the Supreme Court in Dunsmuir was redefining the concept of “jurisdiction” for any purpose other than judicial review and certainly not for the purposes of Chandler. The Supreme Court of Canada expressly states in Dunsmuir that it is dealing only with the concept of judicial review. (And in this light, Dunsmuir can be seen as an aspect of the discretionary authority of the superior courts to entertain judicial review or not.) This would appear evident from the Supreme Court of Canada’s later musings that there may not be, in fact, any “true” jurisdictional questions warranting an exception to the default standard of reasonableness review.  Applying those musings to Chandler would mean that jurisdiction has been completely removed as a category from the common law principles respecting reconsideration. “Jurisdiction” as used in Dunsmuir is used in the context of exceptions to the default reasonableness standard of review and in its later musings the Court questions whether it should continue to exist as such – not whether the concept of jurisdiction has ceased to have any meaning.

Perhaps one can argue that the concept of “jurisdiction” as used in judicial review and in the principles respecting reconsideration are similar. Both go to aspects of considering decisions which have been made.  Nonetheless, it is difficult to believe that when the Supreme Court in Dunsmuir discusses whether “jurisdiction” should serve as an exception to the default standard of review of reasonableness that the Court purports at the same time to be discussing the ability of an agency to reconsider a matter on the basis of jurisdictional error including breaches of natural justice or that in its later musings respecting there actually being no “true” jurisdictional questions the Court intended to remove that factor as a ground of common law reconsideration.

There is nothing particularly new about a narrow concept of jurisdiction.  That concept as been around since at least 1973 with the decision of the Supreme Court of Canada in S.E.I.U., Local 333 v. Nipawin District Staff Nurses Assn., 1973 CarswellSask 120, [1975] 1 S.C.R. 382 (S.C.C.).  And it existed at the time the Supreme Court of Canada made its decision in Chandler.  Yet it is clear that in Chandler that the Supreme Court included in the concept of “jurisdictional” error the ability to correct breaches of natural justice and fairness.

While the Supreme Court in Dunsmuir, may have believed that respect for Parliament and the expertise of agencies warranted a reconsideration of the standards of judicial review there have been no similar calls to review the policy reasons underlying the common law reconsideration authority of agencies as outlined in Chandler. 

At the end of the day, however, I do not believe that the majority of the B.C. Court of Appeal in Fraser Health Authority means to narrow the Chandler authority to reopen a decision to correct jurisdictional error. As noted above the Chandler concept of jurisdictional error never extended to the reopening of decisions simply because they were patently unreasonable. The linking of the common law authority for agencies to reconsider their decisions on the basis of jurisdictional error with Dunsmuir’s concept of “true” jurisdiction is, to my view, more a matter of unhappy word choices used in capturing and rejecting the idea of patent unreasonableness as an aspect of the common law reconsideration authority. Conflating the two uses of “jurisdiction” narrows the common law jurisdiction of agencies to review their own decisions. The majority of the Court of Appeal in its reasons does not appear to intend to limit the common law as set out in Chandler. It purports to uphold it. When the majority of the Court proceeds from the discussion of Chandler to Dunsmuir it does so with no effort to reconcile the recognition in Chandler of some process errors constituting “jurisdictional” errors permitting reconsidering with the exclusion in Dunsmuir of breaches of natural justice (and perhaps other process tainting errors) as being questions of “true” jurisdiction.

I hope that future Courts do not continue to adopt the Dunsmuir concept of “true” jurisdiction as a short form way of encapsulating the idea that the common law authority of agencies to reopen decisions does not extend to decisions which are “patently unreasonable” but do not other otherwise fall under that authority as set out in Chandler.

Does Dunsmuir suggest that the time come to restructure the common law reconsideration authority of agencies? If so, rather than restricting that authority to questions of “true” jurisdiction consideration should be given to expanding that authority – particularly when one considers that the decision-maker exercising the reconsideration authority may be the very same decision-maker who made the original decision. If the courts are going to adopt a greater “hands off” approach to agency interpretations of law as per the dictates of Dunsmuir, it may be that that adoption should be accompanied by an extension of the authority of agencies to themselves correct errors of law which they themselves perceive that they have made. Such extended authority would be even more important if the courts continue to adopt the Supreme Court of Canada’s direction that inconsistent decisions by administrative agencies respecting the same issue do not amount to unreasonableness (Domtar Inc. v. Québec (Commission d’appel en matière de lesions professionnelles),1993 CarswellQue 145, [1993] 2 S.C.R. 756, 105 D.L.R. (4th) 385 (S.C.C.)).

Inquiries and Buy Outs

The below first appeared as the Author’s Note accompanying Release 2014-11 of MACAULAY AND SPRAGUE’S “PRACTICE AND PROCEDURE BEFORE ADMINISTRATIVE TRIBUNALS”.

In the news at the time of writing is the situation respecting serious allegations of personal misconduct on the part of two MPs of a political party and the response thereto adopted by the leader of that party. Putting aside all of the very many real and significant issues in this matter I was struck by how similar the process adopted by the party leader in this case was to the processes commonly adopted by agencies in the context of disciplinary proceedings or matters of urgency. Those processes usually involve some serious matter coming to the attention of the agency (the advice given to the leader that some of his members had conducted themselves improperly), a preliminary and less rigorous investigation (the reference of the matter to the Whip of the party and the Whip’s subsequent inquiries with all of the MPs involved, and the other party Whip, and report back, presumably, that there may be something that warranted further action), the taking of an interim “holding ” decision to regularize or neutralize immediate potential harm (the suspension from the party of the MPs subject to the allegations – presumably (but without any actual knowledge of the case) to neutralize the party from political claims of cover-up or non-action), followed by a more rigorous, fulsome and intended fair inquiry (the reference to the Speaker and the Board of Internal Economy) to be followed by a final decision and, if appropriate, action (the potential expulsion of the MPs who were the subject of the allegations). The process followed by the leader of the party must have seemed quite familiar to those with administrative law experience.

From media reports there is apparently no set process on the Hill to respond to allegations of this nature. I cannot help but feel that, whatever one’s ultimate judgement as to the process adopted, the party leader in question deserves credit for developing a process which balances a number of complex countervailing interests in a matter with serious potential consequences, within an extremely short period of time and in the midst of a difficult, and often “take no prisoners” mentality, political atmosphere.

On another note, however serious a backlog issue your agency may be facing, you may not wish to adopt the practice which media reports at time of writing allege the government has taken to apparently deal with refugee appeals. Media reports of November 9, 2014 allege that under the Assisted Voluntary Return and Reintegration Program, unsuccessful refugee claimants who agree to abandon the appeal process are given an “in-kind reintegration assistance” payment (up to a maximum of $2,000) and airfare home. It may be possible to view such payments to assist individuals who are in a bad way out of humanitarian motives until one learns that the amount of payment made is reduced depending on number of appeal rights one surrenders. On this basis this is not any sort of humanitarian gesture but a bald contractual negotiation where the government appears to be buying a claimant’s legal rights. Accepting the offer at the early stage of the appeal process will apparently net one more money than if one waits and waives only a later stage right. Since 2012 this program is alleged to have paid a total of $7.5 million to refugee claimants to leave the country.

If these allegations are correct, and the details correctly reported, one can see the purely bureaucratic mind at work calculating the cost of processing appeals and related expenses and proposing the payment of a lesser sum to claimants to abandon their claims (which one must remember are legally rights flowing from conventions driven by humanitarian concerns) and just get out of the bureaucracy’s way.

This may be a cost-effective way of managing a system but it fails to recognize the costs are an incidental aspect of the purpose of a system. Appeal processes are set up by legislation to verify and where appropriate actualize rights of individuals. Such processes cost money. A system which focuses on the control of the incidental aspect without reference to the mandate to be served by the process is highly problematic.

On a purely practical note, what message is sent by this alleged program? Come to Canada and claim refugee status – win and secure the ability to live here – lose and be paid a wad of cash? This may sound like an invitation to try to come to Canada with false claims to the detriment of valid refugee claimants.

J.L.H.S.