2011 QCCA 1043, 2011 QCCA 1043

Métallurgistes unis d’Amériques (FTQ),

section locale 7649 c. (Québec) Directeur général des élections 2011 QCCA 1043 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004629-109 . 500-10-004631-105, 500-10-004632-103, 500-10-004633-101, 500-10-004634-109, 500-10-004635-106, 500-10-004636-104, 500-10-004637-102 (500-36-005004-091 / 500-61-202937-050), (500-36-005002-095 / 500-61-180939-044), (500- 36-005003-093 / 500-61-180940-042), (500-36-005004-091 / 500-61-180053-045), (500-36- 005005-098 / 500-61-180954-043), (500-36-005006-096 / 500-61-191562-041), (500-36- 005007-094 / 500-61-191619-049), (500-36-005008-092 / 500-61-191620-047) DATE: June 6, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A.

FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A.

No.: 500-10-004629-109 (500-36-005004-091 / 500-61-202937-050) UNITED STEELWORKERS OF AMERICA (FTQ), LOCAL 7649 UNITED STEELWORKERS OF AMERICA (FTQ), LOCAL 7801-A and Nos.: 500-10-004631-105 (500-36-005002-095 / 500-61-180939-044) 500-10-004632-103 (500-36-005003-093 / 500-61-180940-042) SYNDICAT DES COLS BLEUS REGROUPÉS DE MONTRÉAL (CUPE-301) and Nos.: 500-10-004633-101 (500-36-005004-091 / 500-61-180953-045) 500-10-004634-109 (500-36-005005-098 / 500-61-180954-043) FÉDÉRATION DES TRAVAILLEURS ET TRAVAILLEUSES DU QUÉBEC and No.: 500-10-004635-106 (500-36-005006-096 / 500-61-191562-041) SYNDICAT DES EMPLOYÉS DE BUREAU ET DE LOISIR DE LA VILLE DE BAIE- COMEAU, LOCAL 2641-CUPE and Nos.: 500-10-004636-104 (500-36-005007-094 / 500-61-191619-049) 500-10-004637-102 (500-36-005008-092 / 500-61-191620-047) COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA (CLC- FTQ), LOCAL 414 COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA (CLC- FTQ), LOCAL 427 APPELLANTS – Appellants - defendants v.

CHIEF ELECTORAL OFFICER OF QUEBEC RESPONDENT – Respondent - prosecutor and ATTORNEY GENERAL OF QUEBEC RESPONDENT – Respondent - impleaded party JUDGMENT [ 1 ] THE COURT: – On eight appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice

[ 1 ] THE COURT: – On eight appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice Jean-François Buffoni), rendered on March 11, 2010, which dismissed the appellants’ appeal; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Duval Hesler J.A., with which Rochon and Doyon JJ.A. agree; [ 4 ] DISMISSES the appeal, with costs, ANDRÉ ROCHON, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. Mtre Céline Allaire Philion, Leblanc, Beaudry, avocats, S.A.

For the appellant United Steelworkers of America (FTQ) local 7649 and local 7801-A Mtre Gaston Nadeau Trudel, Nadeau, s.e.n.c.r.l.

For the appellants Syndicat des cols bleus regroupés de Montréal (CUPE-301), Fédération des travailleurs et travailleuses du Québec, Syndicat des employés de bureau et de loisir de la Ville de Baie-Comeau, local 2641-CUPE, Communications, Energy and Paperworkers Union of Canada (CLC-FTQ), local 414 and local 427 Mtre Lucie Fiset Chief Electoral Officer of Quebec For the respondent Chief Electoral Officer of Quebec Mtre Jean-Yves Bernard Director General, Legal and Legislative Affairs ( Direction générale des affaires juridiques et législatives) For the respondent Attorney General of Quebec Date of hearing: March 8, 2011 REASONS OF DUVAL HESLER, J.A.

BACKGROUND [ 5 ] The electoral system set up by Quebec legislation automatically provides financing for political parties by reimbursing them 50% of election expenses, up to an amount determined by the number of electors. In exchange for the state’s contribution to election funds, the legislation limits contributions to political parties from other sources, prevents contributions by nominees and, during an election period, prohibits election expenses incurred by persons other than the official agent of a candidate or a party or without his or her authorization. [ 6 ]

Section 402 of the Election Act [1] defines as an election expense the cost of any goods or services used to promote or oppose, directly or indirectly, the election of a candidate or the candidates of a party, to propagate or oppose the program or policies of a candidate or party, to approve or disapprove courses of action advocated or opposed by a candidate or party, or to approve or disapprove any act done or proposed by a party, a candidate or their supporters. [ 7 ] It follows that neither a trade union nor a federation of trade unions may incur election expenses during an election period. [ 8 ] The fact is that the appellants admit that, during the 2003 election period, they incurred expenses related to the design, printing and distribution of documents with partisan content, thereby contravening the Election Act . [ 9 ] As background, it should be noted that, during the 2003 provincial election, a political party, the Action démocratique du

Québec (ADQ), targeted the Fédération des travailleurs et travailleuses du Québec (FTQ) and its affiliated unions. In response, the FTQ published a release, titled Voter ADQ, un pensez-y-bien [ translation : think carefully before voting ADQ], as well as a folder, titled Pour un choix éclairé [ translation : making an informed choice], whose content clearly opposed the ADQ and led to the penal prosecution brought against the appellants. [ 10 ] In their defence, the appellants argued that sections 402 , 413 and 415 of the Election Act infringe their freedom of expression and association, contrary to

section 2 of the Canadian Charter of Rights and Freedoms , and are not saved by

section 1 . The appellant unions, except one, also cited the right to equality guaranteed by

section 15 of the same Charter, as well as sections 3 , 4 and 10 of the Charter of human rights and freedoms adopted by the Province of Quebec. [2] [ 11 ] Bourdeau J., of the Court of Quebec, disagreed with them and found them guilty. Buffoni J., of the Superior Court, dismissed the appeal from the verdicts. Both judges concluded that the impugned provisions constitute a limitation on freedom of expression, which no one challenges, but that the limitation is justified within the meaning of

section 1 of the Charter . [ 12 ] On appeal, the appellant FTQ maintained its position that the impugned provisions violated not only freedom of expression, but also freedom of association.

It argued that, being a federation of trade unions, it had a more significant social and political role to play, and that this role was undoubtedly infringed by the Election Act . [ 13 ] It added that the Supreme Court’s decision in Libman [3] supported its position and thus Bourdeau J. and Buffoni J. had mistakenly concluded that the disputed sections did not impair freedom of association. [ 14 ] It should be noted, however, that the Libman decision was rendered in the very specific context of Quebec’s Referendum Act , [4] which prevented supporters of a referendum option from dissociating themselves from a national committee whose objective they shared – namely to support Yes or No in response to the referendum question – but not the values or the strategic vision: Nonetheless, there are still a certain number of individuals and groups who cannot join or affiliate themselves with the committee and who accordingly can express their views only by means of unregulated expenses: on the one hand, individuals who support one of the options but cannot join the national committee or one of its affiliated groups because they disagree with their respective strategies and for whom affiliation is not possible because it is reserved for groups, and on the other hand, individuals or groups wishing to participate in the referendum campaign without directly supporting one of the options (in particular, abstentionists). [5] [ 15 ] The analysis developed in Libman therefore does not apply in its entirety in the instant case: [ translation ] 127.

The trial judge cited the Court’s conclusion in Libman paragraph 2 (

d) had been infringed to state that

section 351 also infringed this provision. The comparison was not appropriate. The referendum law at issue in Libman in fact obliged interested parties to join a national or affiliated committee in order to incur regulated expenses.

As already stated, that is not the case in this instance.… [6] [ 16 ] In addition, the claim of political rights by trade unions can be seen from a different point of view. [ 17 ] In some Western democratic systems, mandatory membership in a union (closed-shop agreements) may, in some circumstances, be perceived as a violation of union members’ freedom of association, with the union in a sense appropriating its members’ freedom of opinion and expression. Solely as an illustration, and without in any way implying that such a conclusion would be appropriate here, I provide an example from Europe: 63 .

As to whether the applicants’ personal views and opinions were compromised (see paragraph 54 above), it is to be noted that both applicants objected to membership of SID because they could not subscribe to the political views of that trade union (and those of the other trade unions affiliated to the Danish Confederation of Trade Unions (LO)… It is to be observed that such “non-political membership” does not entail any reduction in the payment of the membership fee to the specific trade union.

In any event, there is no guarantee that “non-political membership” will not give rise to some form of indirect support for the political parties to which the specific trade union contributes financially. 64.

In these circumstances the court concludes that both applicants were compelled to join SID and that this compulsion struck at the very substance of the freedom of association guaranteed by art. 11. [7] [Emphasis added.] [ 18 ] I do not think it is useful, however, to discuss further the many aspects of freedom of association, because the members of the appellant unions are absent from the discussion. [ 19 ] Nor is a discussion of the concepts of equality incorporated into the Charter necessary, because the appellants are not part of a disadvantaged group covered by

section 15. [ 20 ] For the purposes of this appeal, it is sufficient to consider the impugned provisions of the Election Act as an undeniable impairment of freedom of expression. It follows that the true question to be decided is rather whether such infringement is justified in a free and democratic society. THE JUSTIFICATION UNDER

SECTION 1 OF THE CHARTER [ 21 ] As already stated, that is indeed the only question raised by this appeal, which, in light of Oakes , [8] breaks down in the following way: a first subquestion concerns an analysis of the pressing and substantial objective of the impugned Act and a second, that of the proportionality of the measure chosen. The measure must be rationally connected with the legislative objectives sought, it must minimally impair constitutional guarantees, and its benefits must outweigh its deleterious effects.

[22] In my view, the constitutional validity of the challenged provisions truly comes into play under the test of minimalimpairment of guaranteed constitutional rights because, in the context, the other aspects of the test in Oakes appear to be relatively easyto resolve as we shall see. [23] I believe it is advisable to add that, as Bastarache J. stressed in Thomson Newspapers, the contextual factors are highlyrelevant in this case: 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, (SCC), [1986] 1 S.C.R. 103, requires a court to establish the objective of the impugned provision, which canonly be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means usedto 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 determiningwhether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as tojustify an infringement of a Charter right.[9] [Citation omitted.] 1. Pressing and substantial objectives [24] The context of this case can be summarized as follows. [25] As Pelletier J.A. pointed out on behalf of the Court in Directeur général des élections du Québec v.

Guy Piché,[10] thephilosophy underlying the type of provisions that concern us [translation] “is that the quality of the democratic process requires that abalance of power be maintained between the various candidates and the various options offered to voters.

The objective of electionfinancing rules is therefore part of the promotion of a so-called egalitarian electoral model”.[11] [26] In Libman,[12] where, as already stated, the lawfulness of certain provisions of the Referendum Act was raised,[13] theSupreme Court described the objective in these 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 adisproportionate influence by dominating the referendum debate through access to greater resources.

What is sought is in a sense anequality of participation and influence between the proponents of each option. Second, from the voters’ point of view, the system isdesigned 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 thepower of money. … 48 For spending limits to be fully effective, they must apply to all possible election expenses, including those of independent individualsand groups.

According to the Lortie Commission, the definition of election expenses must be sufficiently broad to include the cost of anygoods and services used during an election campaign to promote or oppose, directly or indirectly, a candidate or political party. Thus,such expenses should include not only those incurred by political parties and candidates, but also those incurred by independentindividuals and groups unrelated to the parties and candidates.[14] [Citations omitted.] [27] In his conclusions concerning justification under the first

section of the Charter in this matter, Buffoni J., of the SuperiorCourt, pointed out [translation] “the tensions in our democratic societies between two electoral systems”, which were identified by theSupreme Court in Harper,[15] to wit: the egalitarian system and the libertarian system, which Professor Fletcher, cited by Buffoni J.,describes as follows: In a landmark constitutional decision in 2004, the Supreme Court of Canada distinguished between two models of the electoral system:the egalitarian and the libertarian.

The egalitarian regimes stress measures that promote the equality of the various participants inelection campaigns, measured particularly in terms of their capacity to participate in electoral debate. The libertarian regimes stress thefreedom of the participants to use their own resources to influence the contest for power and influence. In practice, all electoral campaignregimes have elements of both models, but one can say that Canada, along with the UK and New Zealand, tilt towards the egalitarian sideand the US and Australia to the libertarian side.

What this means in practice is that Canadian regulations stress fairness as the primaryvalue, whereas Australia stresses freedom.[16] [Citations omitted.] [28] Buffoni J. added that the recent decision by the Supreme Court of the United States in Citizens United v.

Federal ElectionCommission[17] [translation] “will certainly not gainsay the statement that the electoral system of our neighbours to the south belongsmore to the libertarian model”.[18] [29] In light of the decision by the Supreme Court of Canada in Harper, there is no longer any doubt that the Canadian model is ofthe egalitarian type: Common sense dictates that promoting electoral fairness is a pressing and substantial objective in our liberal democracy, even in theabsence of evidence that past elections have been unfair;...

A theoretical objective asserted as pressing and substantial is sufficient forpurposes of the s. 1 justification analysis;....[19] [Citations omitted.] [30] Harper dealt more specifically with electoral spending limits.

The Supreme Court defined the objective in these terms: …first, to favour equality, by preventing those with greater means from dominating electoral debate; second, to foster informedcitizenship, by ensuring that some positions are not drowned out by others (this is related to the right to participate in the political processby casting an informed vote); third, to enhance public confidence by ensuring equality, a better informed citizenship and fostering theappearance and reality of fairness in the democratic process.[20] [31] It is to be noted that a system that automatically provides financing to political parties compensates them for contributions that

would normally be made to them, among other ways, by donations from individuals, corporations or various groups, including trade unions. The advantage of such a system is to prevent certain abuses, observed elsewhere, if specific interest groups are allowed to control the political agenda through generous donations.

To cite once again the words of Professor Fletcher, also quoted in the judgment appealed from: The central arguments underlying the egalitarian model were developed by the Royal Commission on Electoral Reform and Party Financing in 1991.… The Commission took the view that the principle of voter equality in a democracy included the proposition that the inequality of resources inherent in a market economy should not extend into the electoral arena, where equality should be the guiding principle.

Tight financing regulations were required to reduce the risk – and perception – of undue influence of major contributors to parties and candidates and to ensure that access to financial resources was not a necessary ticket to participation in the political arena.

The Commission also stressed that the right to vote included the right to an informed vote, which required that political discourse not be dominated by the most affluent groups . [21] [Emphasis in original.] [ 32 ] It may be believed that, in a libertarian electoral system, where candidates and political parties have only the financing they are given by those members and segments of society that support their vision, and must therefore solicit such financing where their positions find takers, it would be more difficult for the State to justify a restriction on freedom of expression, whether during an election period or at other times. 2.

Proportionality a. Rational connection [ 33 ] In this case, the connection between the objective sought and the measures adopted to achieve it is rational. To ensure that citizens would be central to the process, the legislators wanted, among other things, to prevent legal persons from incurring election expenses.

According to the evidence, the main concern was that the political debate would be dominated during an election period by corporations that have substantial financial means and could even eclipse more marginal political parties or independent candidates from whom little is already heard. [ 34 ] In Harper , the Supreme Court adopted a similar reasoning: Nevertheless, the supposition that uncontrolled spending could favour the messages of wealthier citizens or adversely affect the ability of less wealthy citizens to become informed on electoral issues is not irrational, particularly in a regime where party spending is limited.

It follows that spending limits may, at least in principle, promote electoral fairness. [22] [ 35 ] In this case, the appellants also seek, in the name of fairness, a liberalization of the rules that would allow them to take

part in electoral advertising. Buffoni J., of the Superior Court, summarized their position as follows: [ translation ] [99] In addition, the Unions’ expert believes that it is unfair that third parties such as environmental groups are not allowed to incur election expenses. And yet he recognizes and even maintains that large companies such as Bombardier and Hydro-Québec should not have this right.

When asked whether he was aware that his proposal to open up this possibility to legal persons would include not only environmental groups but also large corporations, he suggested that for-profit corporations be distinguished from non-profit corporations, or that the line be drawn on the basis of the objective of their incorporation, or the number of employees, leaving it up to the government to make the necessary distinctions. … [ 36 ] This solution appeared inadvisable to Buffoni J., who ruled it out in the following terms: [ translation ] [100] Knowing how easy it is for anyone to constitute a non-profit corporation, one can easily see that the Unions’ solution would open the door wide to circumvention of the rules. [ 37 ] It may be useful to point out that, according to the Supreme Court, it is not necessary to demonstrate that concrete pernicious effects have already resulted from restrictive election spending provisions to demonstrate the importance of the legislative objective as well as the rational connection between this objective and the impugned measures: ...

Surely, Parliament does not have to wait for the feared harm to occur before it can enact measures to prevent the possibility of the harm occurring or to remedy the harm, should it occur. As noted earlier, this Court has concluded on several occasions that a reasoned apprehension of harm is sufficient. [23] [ 38 ] One must conclude, as did Buffoni J., that a reasoned apprehension of harm is palpable here. In this, he concurred with Bourdeau J., who, at trial, summarized as follows the elements of harm alleged by the Attorney General of the province: [ translation ] 56.

On many occasions, the necessity of the Legislator’s objectives in election matters has been recognized in the following manner, and agreeing to amend the limits on election expenses would have the following effects: * The dismantling of the architecture of Quebec’s election laws, which are all based on the egalitarian model; * Third parties would be able to incur expenses indirectly for political parties, whereas they are prohibited from doing so directly by the Act that governs the financing of political parties; * The focus of the electoral process would be shifted unequally toward candidates or political parties to the detriment of the voter;

* The imbalance would remain among groups, of which some would be left out, regardless of the amount allocated; * Participation by trade unions would inevitably lead to that of other persons with substantial financial means; * Candidates’ expenses could be broadly exceeded by those of third parties. [ 39 ] Without doubt the appellants were right to fear being prevented, during an election period, from effectively conveying to their members and the general public their points of view on the major social, economic and political issues during a key period of democratic expression.

Even so, one must weigh the issue constituted by the defence of their own interests as legal entities against that of the right of their members to express their own opinions, personally or through a specific authorized group, to contribute to the advancement of a party, a candidate or even a cause that is of their choosing and not necessarily that of their union.

It appears clear that the system selected by the provincial legislature causes no prejudice to voters because the interests of the members of the FTQ continue to be well defended, given the exceptions that the appellants may avail themselves of to convey their message. [ 40 ] This brings us to the decisive branch of the Oakes test in this appeal, namely whether the measures adopted constitute a minimal impairment of the appellants’ freedom of expression. b .

Minimal impairment [ 41 ] As Buffoni J., of the Superior Court, emphasized, the appellants insisted more on what the Act prohibits them from doing during an election period than on what it allows them to do: [ translation ] . The Unions may communicate with their members or with the population by the various means allowed by the first and third paragraphs of

section 404: usual means of internal communication, press releases, appearances in the news media, letters to the editor in newspapers and use of their websites; . Voters who form a legal person may be authorized to incur election expenses as private intervenors under subsections 457.2 et seq. of the Act. [24] [ 42 ] Certainly these exceptions to the basic prohibitions make some of the prohibitions less of an infringement on freedom of expression.

In the first instance, moreover, Bourdeau J., of the Court of Quebec, concluded that the violation of fundamental guarantees is minimal in this case and that the benefits of the Act trump its drawbacks. Buffoni J. did likewise on the appeal. [ 43 ] The appellants cited the provisions of the Canada Elections Act , [25] the same ones that gave rise to Harper , supra , to argue that the provisions of the provincial Act cannot be considered as minimally impairing freedom of expression.

It will be recalled that the federal Act allows third parties to incur election advertising expenses but places a ceiling on such expenses. According to the appellants, this in itself is sufficient to demonstrate that the provincial Act goes too far by totally prohibiting election expenses by third parties.

Instead, it should limit them, as the federal legislation does. [ 44 ] Indeed, this type of reasoning (in the past deemed ab absurdo ) is likely to lead to absurd results. [ 45 ] It implies that, as soon as there exists a solution elsewhere that is less restrictive than that existing under Quebec legislation, Quebec legislation becomes, by that very fact, too restrictive. This type of reasoning by degrees risks depriving legislators of legitimacy in the choices they make, choices that the appellants considered unreasonable, while the questions raised concern choices that are purely political.

In other words, for a measure to be minimally intrusive, no law enacted in another jurisdiction may constitute a relaxation in relation to Quebec’s Election Act . [ 46 ] Admittedly, when the Charter is involved, comparison with other legal regimes and case law from elsewhere is often relevant and helps to properly understand the issues in cases involving freedom of expression.

Even so, to compare the choices made by the Quebec legislature with those made elsewhere concerning a subject as political as the electoral system may create a perverse effect by distorting the consideration of the minimum nature of the impairment. The measure need not be the most minimally impairing measure that can be imagined, but rather one that falls on a reasonable spectrum of possible measures in light of the legislative objectives. [ 47 ] During the trial, a representative of the appellant FTQ even expressed the wish that trade unions, like non-profit organizations, be allowed to take

part in the electoral debate, adding that it would not be desirable for large businesses (Buffoni J., of the Superior Court, cited Bombardier and Hydro-Québec as examples) to enjoy the same rights. [26] But then where do we draw the line?

It is not difficult to imagine, using the logic that the Supreme Court recommends for such circumstances, that an NGO could be created, ostensibly with a social purpose, but in reality controlled by one of the large businesses that the FTQ does not want to see participate in the electoral discourse. [ 48 ] Nor have the references to Libman convinced me that the Supreme Court appears to have already somewhat resolved the matter.

In proposing this avenue of inquiry, the appellant FTQ has overlooked a vital element: Libman was an individual, a voter, and as such central to the concerns and objectives of the Quebec legislature. The Act was written for him and his fellow citizens, not for a legal person with no vote, however commendable its objectives in the public arena may be. c.

The balance between the benefits and the deleterious effects [ 49 ] In the final analysis, the appellant FTQ has asked this Court to choose for Quebec an electoral system that is different from the one created by its legislature, on the basis of the Court’s preferences. The Court’s intervention is not justified in this case, however.

The impairment constituted by the impugned provisions is minimal because it is reasonable from the standpoint of the objective sought, because everyone is treated in the same way, without regard for financial means or ideals, with voters remaining essential to the electoral process and any member of the FTQ retaining the right to contribute in his or her own name to election funds and to the electoral

discourse. [ 50 ] Last but not least, the approach proposed by the appellants does not represent the legal standard to be applied at this stage of the analysis: The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator .

If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement . . . . [27] [Emphasis added.] [ 51 ] Buffoni J. was correct to conclude, like Bourdeau J. at trial, that the government of the Province of Quebec had already made a reasoned demonstration, according to the principles set out in RJR MacDonald v. Canada , [28] that the provisions whose constitutional validity was challenged by the appellants fall within a range of reasonable measures within the meaning of the first

section of the Charter . They are the result of a legitimate legislative choice that does not undermine the democratic nature of our electoral system. [ 52 ] Of course, some have criticized the approach taken by Canadian courts, deeming it too flexible and too respectful of legislative choices. They believe that the “natural deference” approach to the choice of an electoral model is excessive, in particular because of the importance that freedom of political expression must have in our society: …The majority relied on two factors in particular to shift the scales in favour of the impugned law.

The first contextual factor that supported deference to the government was that the “nature of the harm and the efficaciousness of Parliament’s remedy in this case is difficult, if not impossible, to measure scientifically.” The second key contextual factor was the Court’s endorsement of the “egalitarian model” of elections: [Reference omitted.] Under the “egalitarian” model of democracy, active management of the political process by parliament is not only tolerated, but encouraged by the Court. These two factors resulted in a reduced burden on the Attorney General of justifying the

section 2(

b) infringement.

Whereas in Thomson Bastarache J. found that no particular deference was due, in Harper he found “the contextual factors indicate that the Court should afford deference to the balance Parliament has struck between political expression and meaningful participation in the electoral process.”… With its unquestioning acceptance of the egalitarian model, failure to acknowledge the significance of the right at issue, and unreflective deference, the Harper judgment expanded upon the few troubling aspects of the Thomson decision, and signalled the direction of the Court when it again addressed justifiable limits on political expression in Bryan . [29] [ 53 ] With due respect for these authors, it is not up to the courts to substitute their choices for those of legislators, and even less to propose electoral reforms.

Their supervisory power is limited to determining whether legislative choices are justified and reasonable in our free and democratic society. The temptation to exceed this power may be great, as the text by Bredt and Finley shows, but it is one more reason to resist it in a context where the purpose is precisely the empowerment of the electorate, which after all chooses those who govern it. [ 54 ] For these reasons, I would dismiss the appeal, with costs. NICOLE DUVAL HESLER, J.A.