r v. GUY PICH, 2011 QCCA 477

Unofficial English Translation Québec (Directeur général des élections) c. Piché 2011 QCCA 477 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004569-107 (700-36-000702-083) (700-61-072401-067) DATE: March 15, 2011 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. CHIEF ELECTORAL OFFICER OF QUEBEC APPELLANT – Appellant-prosecutor v.

GUY PICHÉ RESPONDENT – Respondent-defendant and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded party-impleaded party JUDGMENT [ 1 ] THE COURT: - On the appeal from a judgment rendered on October 5, 2009, by the Superior Court, District of Terrebonne (the Honourable Mr.

Justice André Vincent), which upheld a verdict of acquittal entered on June 25, 2008, in favour of the respondent by the Court of Quebec; [ 2 ] Having examined the file, heard the parties and deliberated; [ 3 ] For the reasons of Pelletier, J.A., with which Rochon and Dufresne, JJ.A., agree: [ 4 ] ALLOWS the appeal without costs; [ 5 ] SETS ASIDE the judgment of the Superior Court; [ 6 ] QUASHES the verdict of acquittal entered by the Court of Quebec; [ 7 ] REFERS the case back to the Court of Quebec so that the respondent can there be convicted of the alleged offence, subject, however, to a declaration of inoperability that would be entered in a definitive manner after the debate on the constitutional issues raised in the notice of intent filed by the respondent.

FRANÇOIS PELLETIER, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. Mtre Michel Guimond CHIEF ELECTIORAL OFFICER OF QUEBEC For the appellant

Mtre Alfred A. Bélisle Mtre Louis Piché GODARD BÉLISLE ST-JEAN & ASSOCIÉS For the respondent Date of hearing: February 10, 2011 REASONS OF PELLETIER, J.A. [ 8 ] Within the meaning of the Act respecting elections and referendums in municipalities (AERM) [1] , only an official agent or his or her assistant may incur an election expense during an election period. [ 9 ] The Act defines an election expense as follows: 451 .

The cost of any goods or services used during an election period to (1) promote or oppose, directly or indirectly, the election of a candidate or the candidates of a party; (2) propagate or oppose the program or policies of a candidate or party; (3) approve or disapprove courses of action advocated or opposed by a candidate or party; or (4) approve or disapprove any act done or proposed by a party, a candidate or their supporters is an election expense. [ 10 ] The Legislature has, however, provided certain exceptions to the general rule, including one concerning the cost of publishing letters to the editor.

The case at issue raises the question of the scope of this exemption. [ 11 ] A relatively simple factual framework gave rise to the dispute. [ 12 ] In November of 2005, a municipal election took place in Sainte-Agathe-des-Monts. During the election period, the respondent, Guy Piché, required that a regional weekly newspaper, L’Information du Nord , publish a letter to the editor. Mr. Piché was a citizen of Sainte-Agathe, but he was neither the official agent of a party nor a candidate for election, nor was he a private intervenor within the meaning of the AERM .

His letter expressed criticism aimed more specifically at a party involved in the election. [ 13 ] Given Mr. Piché’s insistence that his letter be published on a specific date, management of the newspaper billed him at a price equivalent to 60% of the regular price charged for advertising. According to the findings of fact by the Court of Quebec, the newspaper merely sought to cover the publication costs.

In doing so, the newspaper followed the general policy that it applied at all times, whether during an election period or not. [ 14 ] A few months later, in August of 2006, the Chief Electoral Officer (CEE) sent Mr.

Piché the following statement of offence: [ translation ] In Sainte-Agathe-des-Monts, on or about October 8, 2005, during the election period preceding the municipal election of November 6, 2005, in this municipality, when he did not have the capacity of official agent, did incur an election expense in the amount of $172.54 for the publication in the newspaper L’information du Nord of a message opposing one or more candidates of the Équipe Laurent Paquette, in contravention of

section 455 of the Act respecting elections and referendums in municipalities , thereby committing the offence provided in

section 641 of the Act. [ 15 ] In June 2008, Justice of the Peace DuPerron Roy, acquitted the respondent. [2] [ 16 ] In her opinion, the letter opposed a party within the meaning of

section 451 AERM . Even so, she placed it in the category of letters to the editor. Then, analyzing the scope of the exemption provided in the first paragraph of

section 453 AERM, specifically the words “ without payment, reward or promise of payment or reward”, the justice opined that the words applied to the newspaper that published such a letter and not the person who required its publication. [ 17 ] On appeal, Vincent J. of the Superior Court set aside the

interpretation retained by the Court of Quebec, but nevertheless decided to acquit. In his opinion, there is nothing to prevent a citizen from benefiting from the exemption when all conditions have been met, which was the case here. [ 18 ] Our Court gave the CEE special leave to appeal after the allowable time. The Court’s judgment specified, however: [3] [ translation ] [3] Finally, concerning the conclusions sought on the merits, the Court took note of the undertaking by counsel for the appellant to

amend his motion (which, in the circumstances, will act as the inscription in appeal once leave is granted) to add a conclusion concerning the agreement made between the parties in the Superior Court, whereby, in the event of an

interpretation of

section 453 of the Act respecting elections and referendums in municipalities that would lead to the respondent’s conviction, the case would be referred back to the Court of Quebec to debate the constitutional issues, to which the respondent had no objection. Analysis [ 19 ] Here is the text underlying the debate: 453.

The following are not election expenses: (1) the cost of publishing articles, editorials, news, reports or letters to the editor in a newspaper, periodical or other publication, provided that they are published in the same manner and under the same rules as outside the election period, without payment, reward or promise of payment or reward, that the newspaper, periodical or other publication is not established for the purposes or in view of the election and that the circulation and frequency of publication are as what obtains outside the election period; (2) the cost of broadcasting by a radio or television station of a public affairs, news or public opinion program, provided that the program is broadcast in the same manner and under the same rules as outside the election period, without payment, reward or promise of payment or reward; (3) the necessary costs of holding a convention for the selection of a candidate, including the cost of renting a hall, of convening the delegates and of the publicity made at the convention, but which cannot include the cost of any other form of publicity nor exceed $2,250 in the case of a candidate for the office of mayor or $750 in the case of a candidate for the office of councillor; (4) the transportation costs of any person other than a candidate, paid out of his own money, if the costs are not reimbursed to him; (4.1) the cost of the food and beverages served at a political activity where the cost is included in the entrance fee paid by participants; (5) the reasonable costs incurred for the publication of explanatory commentaries on this Act, provided the commentaries are strictly objective and contain no publicity of such a nature as to favour or oppose a candidate or a party; (6) the reasonable ordinary costs incurred for the day-to-day operations of the permanent office of the party at the address entered, not less than three months before the publication of the notice of election, in the register of the chief electoral officer; (7) interest accrued from the beginning of the election period to the day occurring 90 days after polling day, on any loan lawfully granted to an official representative for election expenses, unless the official agent has paid the interest and declared it as an election expense in his return of election expenses; (8) the expenses incurred for the holding of meetings, the total of which does not exceed $200 for the entire election period, including the renting of halls and the convening of participants, provided the meetings are not directly or indirectly organized on behalf of a candidate or party; (9) the publicity expenses, the total of which does not exceed $300 for the entire election period, incurred by a private intervenor authorized in accordance with Division VIII.1, without directly promoting or opposing a candidate or party, to publicize or obtain support for the intervenor’s views on a matter of public interest or to advocate abstention or the spoiling of ballots. [ 20 ] The first paragraph is central to the matter as there are two opposing

interpretations of it. [ 21 ] According to the CEE, the exemption applies only to a letter published free of charge by a newspaper. Moreover, publication must take place in the same manner and under the same rules as outside an election period, and the circulation and frequency of publication must also be established uniformly, whether or not an election is taking place. [ 22 ] Mr. Piché for his part argues the Superior Court’s

interpretation, of which the gist can be found in the following paragraphs: [4] [ translation ] [41] Does the fact that the editor of the newspaper charged for its publication automatically take precedence, so that the exemption provided in the first paragraph of

section 453 cannot apply? [42] The decision to charge for publication is part of the rules of commerce and it is certainly not the legislature’s objective to restrict the rules of commerce during an election period.

If that had been the case, it would have been stated clearly. [43] Nor does to interpret “ without payment, reward or promise of payment or reward ” as meaning that a letter to the editor be published free of charge, as the appellant wishes, correspond to the legislative intent. [44] The legislature chose to limit election expenses, not to place a gag order on the population as a whole. [45] It is the cost of publishing in a newspaper that is exempt, provided that the listed conditions are respected. [46] In the instant case, the publisher agreed to publish the open letter on the same conditions as outside an election period: ...

[47] Moreover it would be improper, if not immoral and undemocratic, for a publisher to charge for the publication of a letter to the editor only during an election period. [48] It appears clear that, having agreed to publish the letter to the editor, the only one in the newspaper’s October 8, 2005 edition, the editor charged for its publication a cost that was less than that of an advertisement. (It is necessary to bear in mind that the newspaper is distributed free of charge and covers its costs from the advertising it publishes). [49] In the circumstances, it was the reader who covered the cost of publishing and not the newspaper. [50] Even so, this matter involves the “cost of publishing” in a newspaper. [51] The evidence does not show any other payment, reward, or promise of payment or reward. [52] The legislature having exempted the cost of publishing in a newspaper a letter to the editor published in the same manner and under the same rules as outside an election period, without payment, reward, or promise of payment or reward, by a newspaper that was not established in view of an election, the respondent was entitled to rely on this exemption in the action brought against him. [53] The cost of publishing being explicitly excluded from the definition of election expenses when they are incurred on the conditions listed in

section 453 subsection 1, the respondent may not be faulted for having incurred an election expense. [ 23 ] Taken outside of the overall context of the AERM , this

interpretation of

section 453 AERM, which Mr. Piché argued on appeal, is certainly attractive. [ 24 ] First, there are costs associated with any publication, as the CEE acknowledged. It follows that someone must assume them, whether it’s the newspaper itself or someone else in its place. From this standpoint, an

interpretation linking payment to the discharge of the actual publication costs would lead to a circular argument removing any effect from the exemption. Moreover, in the unusual circumstances of this case, the offence would become inevitable as soon as L’Information du Nord decided to publish Mr. Piché’s letter in an issue that did not reserve any space for readers’ opinions. If the newspaper asked Mr. Piché to cover the costs, there was payment and therefore no exemption.

If, conversely, the newspaper published the letter without requiring payment, it deviated from its usual policy, so that the second condition to which the exemption is subject would not be met. In both cases, the exemption is of no use.

That is why one must not consider that covering the cost of publishing entails the loss of the benefit of the exemption. [ 25 ] Given these premises, I believe that a consideration of the question at issue cannot completely omit its constitutional framework even though, for the time being, the parties have agreed to hold that debate at a later date and only in the event that such a debate becomes inevitable. [ 26 ] One of the objectives of the AERM is to control the financial means that may come into play in the context of fundamental democratic exercises, be they elections or referendums.

To do so, the AERM has close ties with the Election Act [5] and the Referendum Act . [6] Both of which contain provisions of an analogous nature. [ 27 ] The philosophy underlying these provisions is that the quality of the democratic process requires that a balance of power be maintained between the various candidates and the various options offered to voters.

The objective of election financing rules is therefore part of promoting a so-called egalitarian electoral model. [ 28 ] For the legislature, the undertaking has proved to be delicate because, by necessary implication, the means taken to achieve this end infringe citizens’ freedom of expression, a fundamental Charter right. [7] [ 29 ] At the federal level, the egalitarian model is described in the report of the Royal Commission on Electoral Reform and Party Financing, commonly called the Lortie Commission. [8] In Libman , [9] the Supreme Court relied heavily on this report to analyze the provisions of the Referendum Act . [10] The close ties between these provisions and those in the case before us make it possible to import this analysis almost in its entirety to determine the purpose sought by the AERM .

In Libman , the objective was described in the following terms: 41 Thus, the objective of the Act is, first, egalitarian in that it is intended to prevent the most affluent members of society from exerting a disproportionate influence by dominating the referendum debate through access to greater resources. What is sought is in a sense an equality of participation and influence between the proponents of each option. Second, from the voters’ point of view, the system is designed to permit an informed choice to be made by ensuring that some positions are not buried by others.

Finally, as a related point, the system is designed to preserve the confidence of the electorate in a democratic process that it knows will not be dominated by the power of money. [ 30 ] Achieving this result therefore involves restricting the expenses of candidates and political parties, but also limiting those of independent individuals and groups and even of third parties, such as Mr. Piché. The Supreme Court added: 48 For spending limits to be fully effective, they must apply to all possible election expenses, including those of independent individuals and groups.

According to the Lortie Commission, the definition of election expenses must be sufficiently broad to include the cost of any goods and services used during an election campaign to promote or oppose, directly or indirectly, a candidate or political party (Lortie Commission, supra , at pp. 339-41).

Thus, such expenses should include not only those incurred by political parties and candidates, but also those incurred by independent individuals and groups unrelated to the parties and candidates (Lortie Commission, supra , at p. 339). [Emphasis added] [ 31 ] In Libman , [11] the Supreme Court was concerned with the scope of the Referendum Act with respect to the rights of independent individuals and groups, such as Mr. Libman and the Equality Party. As can be seen from the aforementioned excerpt, the

Supreme Court’s comments occasionally go beyond the analytical framework concerning the situation of independent individuals and groups and include the situation of third parties, such as Mr. Piché. In fact, these two situations have many common characteristics. Thus, in Harper v. Canada , [12] Bastarache J., on behalf of the majority, directly applied to third parties the principles put forth in Libman : 108 Third party advertising can directly support a particular candidate or political party.

Third party advertising can also indirectly support a candidate or political party by taking a position on an issue associated with that candidate or political party. In effect, third party advertising can create an imbalance between the financial resources of each candidate or political party; see Libman , supra , at para. 44 . For candidate and political party spending limits to be truly effective, the advertising expenses of third parties must also be limited.

Indeed, the Lortie Commission concluded that the electoral financing regime would be destroyed if third party advertising was not limited concomitantly with candidate and political party spending (Berger J.A., dissenting, at para. 261). The Commission explained, at p. 327 of the Lortie Report: If individuals or groups were permitted to run parallel campaigns augmenting the spending of certain candidates or parties, those candidates or parties would have an unfair advantage over others not similarly supported.

At the same time, candidates or parties who were the target of spending by individuals or groups opposed to their election would be put at a disadvantage compared with those who were not targeted. Should such activity become widespread, the purpose of the legislation would be destroyed, the reasonably equal opportunity the legislation seeks to establish would vanish, and the overall goal of restricting the role of money in unfairly influencing election outcomes would be defeated.

Thus, limiting third party advertising expenses is rationally connected with preserving the integrity of the financing regime set for candidates and parties. [ 32 ] Bastarache J. also emphasized the main teachings derived from Libman : [13] 61 The Court agreed that the limits on independent spending set out in the Referendum Act were not justified. The Court did, however, endorse spending limits as an essential means of promoting fairness in referenda and elections which the Court held were parallel processes: Libman , at para. 46 .

The Court, relying on the Lortie Report, endorsed several principles applicable to the regulation of election spending generally and of independent or third party spending specifically. They include (at paras. 47-50): [1] If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate. . . .

To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person’s exercise of the freedom to spend does not hinder the communication opportunities of others.

Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard [equal dissemination of points of view]. [2] Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties [free and informed vote]. . . . [3] For spending limits to be fully effective, they must apply to all possible election expenses , including those of independent individuals and groups [application to all-effectiveness of spending limits generally]. . . . [4] The actions of independent individuals and groups can [either] directly or indirectly support one of the parties or candidates, thereby resulting in an imbalance in the financial resources each candidate or political party is permitted. . . . “At elections, the advocacy of issue positions inevitably has consequences for election discourse and thus has partisan implications, either direct or indirect : voters cast their ballots for candidates and not for issues” [issue advocacy vs partisan advocacy]. . . . [5] It is also important to limit independent spending more strictly than spending by candidates or political parties . . . . [O]wing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate [application to all-effectiveness of spending limits generally]. [Emphasis added.] [Emphasis in the text] [ 33 ] All these comments illustrate the very limited scope of the exemptions provided in

section 453 AERM , especially the one that Mr. Piché has argued. As appealing as his arguments may be, they run counter to the general objective sought by the legislature. [ 34 ] Interpreted in its context, the term payment used to describe one of the conditions of exemption must be understood as including, but not being limited to, any reimbursement of the costs of publishing . The payment in question may only be that made to a newspaper by a third party.

In other words, the legislature assumes from the outset that newspapers will absorb the cost of publishing letters to the editor on the same basis as they absorb the cost of articles, editorials, news reports and columns . [ 35 ] The exemption is better understood after reading the very broad definition of election expense found in the AERM .

Without such an exemption, as soon as a newspaper published an editorial that promoted or opposed, directly or indirectly, the election of a candidate or candidates of a party, the cost of publication defrayed by the newspaper would have to be taken into account by the party and authorized by the official agent.

Seen from this standpoint, the exemption is therefore intended to rectify the unintended consequences arising from the definition. [ 36 ] In substance, that is why one can say, like the CEE, that the publication of the letter to the editor has to be “free” for the exemption to apply. [ 37 ] With all due respect for the opposing view, if we adopted the Superior Court’s

interpretation, the control over election expenses that the legislature wanted to put in place would be significantly impaired. Conversely, the

interpretation submitted by the CEE is in line with the philosophy underlying the AERM .

[ 38 ] It follows that Mr. Piché may not rely on the exemption he claimed for himself. He should therefore be found guilty of the alleged offence, quite apart from the constitutional issue of course. [ 39 ] I insist on the fact that my position concerns only the appropriate meaning to be given to the text of the first subsection of

section 453 AERM . Moreover, I am not expressing any opinion about the constitutional compliance of the restriction involved. This issue will be argued in the Court of Quebec, in accordance with the agreement to which the Court gave effect in the judgment on special leave to appeal. [ 40 ] Mr. Piché raises certain other issues that I will address briefly. [ 41 ] He argues first that the verdict of acquittal could be justified by the application of the exemption provided by subsection 8 of

section 453 AERM . I am including the text once again for the reader’s convenience: 453. The following are not election expenses: … (8) the expenses incurred for the holding of meetings, the total of which does not exceed $200 for the entire election period, including the renting of halls and the convening of participants, provided the meetings are not directly or indirectly organized on behalf of a candidate or party; [ 42 ] In his judgment, Vincent J. expressed the opinion that the circumstances of the case could not give rise to the application of this paragraph and I fully agree with him. [ 43 ] Mr. Piché also proposes that the drafting of the first and eighth subsections of

section 453 AERM is ambiguous and that he must benefit from this ambiguity in the application of the principles recognized in R. v. McIntosh . [14] I believe he is mistaken. The true meaning of the texts is perhaps not so easily gleaned at first glance, but it is clear when they are read in connection with the fundamental objectives of the AERM and the teachings of the Supreme Court. [ 44 ] Is a stay of proceedings appropriate, as Mr. Piché claims? In this regard, he argues the disproportionate nature of the debate raised by a rather mundane action carried out in good faith.

I am of the opinion that there is no need to resort to such an exceptional remedy. [15] The debate regarding the issue of guilt may have required a fairly in-depth consideration of the AERM , but this factor alone would not justify a stay of proceedings. [ 45 ] Mr. Piché also argues that, in the circumstances of this case, he would be entitled to an acquittal on the basis of a due diligence defence. I believe that such a defence is inapplicable. Mr. Piché did not take all the means to prevent the event from occurring, which is required to give rise to this defence.

He quite simply did not believe that he was guilty of an offence involving strict liability by paying the costs requested by the newspaper. This is more of a situation therefore relating to ignorance of the law rather than a case of due diligence defence. [ 46 ] Last, Mr. Piché asks that the CEE be ordered to pay extrajudicial fees to his attorney on his behalf because of the excessive scope of the debate that the CEE led him into. [ 47 ] I am aware of the problems that the matter has created for Mr. Piché.

I believe, however, that his claim cannot be applied to the debate that, until now, has concerned only his penal liability with respect to the texts of the AERM . The debate concerning the constitutional compliance of the applicable texts obeys different rules, however. In that event, it will be for the Court of Quebec to decide that dispute if Mr.

Piché sees fit to submit an application for reimbursement of the extrajudicial fees that he must incur to argue the constitutional question. [ 48 ] In conclusion, I would allow the appeal, set aside the judgment of the Superior Court, quash the verdict of acquittal entered by the Court of Quebec, refer the file back to the Court of Quebec so that the argument on the constitutional issues raised in the notice of intent filed by the respondent can take place there and so that the respondent can there be convicted of the alleged offence, subject, however, to a declaration of inoperability that will be entered in a definitive manner following the constitutional debate.

FRANÇOIS PELLETIER, J.A.