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Lecture 4

POLS 3136 Lecture Notes - Lecture 4: Canada Elections Act, Beverley Mclachlin


Department
Political Science
Course Code
POLS 3136
Professor
Ray Bazowski
Lecture
4

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Jan 25th Cases
Harper V Canada 2004
Constitutional law Charter of Rights Freedom of expression Federal elections Third party
election advertising Spending limits Attribution, registration and disclosure requirements
Blackout period Whether third party election advertising scheme and blackout on third party
advertising on polling day infringe freedom of expression If so, whether infringement justifiable
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) Canada Elections Act, S.C. 2000, c. 9, ss. 323 ,
350 , 351 , 352 to 357 , 359 , 360 , 362 .
Constitutional law Charter of Rights Right to vote Federal elections Third party election
advertising Spending limits Attribution, registration and disclosure requirements Blackout
period Whether third party election advertising scheme and blackout on third party advertising on
polling day infringe right to vote Canadian Charter of Rights and Freedoms, s. 3 Canada Elections
Act, S.C. 2000, c. 9, ss. 323 , 350 , 351 , 352 to 357 , 359 , 360 , 362 .
Constitutional law Charter of Rights Freedom of association Federal elections Third party
election advertising Spending limits Whether limits on third party election advertising expenses
infringe freedom of association Canadian Charter of Rights and Freedoms, s. 2 (d) Canada Elections
Act, S.C. 2000, c. 9, ss. 351 , 356 , 357(3) , 359 , 362 .
The respondent brought an action for a declaration that ss. 323(1) and (3) , 350 to 360 , and362 of
the Canada Elections Act were of no force or effect for infringing ss. 2 (b), 2 (d) and 3 of the Canadian
Charter of Rights and Freedoms . Section 350 limits third party election advertising expenses to $3000
in a given electoral district and $150,000 nationally; s. 351 prohibits individuals or groups from splitting
or colluding for the purposes of circumventing these limits; ss. 352 to 357 , 359 , 360 and 362 require a
third party to identify itself in all of its election advertising, to appoint financial agents and auditors, and
to register with the Chief Electoral Officer; and s. 323 provides for a third party advertising blackout on
polling day. The trial judge concluded that ss. 350 and 351 were in prima facie violation of ss. 2 (b)
and 2 (d) and that neither was justified under s. 1 of the Charter . The Court of Appeal upheld the
unconstitutionality of ss. 350 and 351 and also struck down ss. 323 , 352 to 357 , 359 , 360 and 362 on
the asis that the povisios ust all stad o fall togethe as pat of the sae desig
Held (McLachlin C.J. and Major and Binnie JJ. dissenting in part): The appeal should be allowed. The
impugned provisions of the Canada Elections Act are constitutional.
In promoting the equal dissemination of points of view by limiting the election advertising of third
parties who are influential participants in the electoral process, the overarching objective of the
spending limits is electoral fairness.
Under s. 3, the right of meaningful participation in the electoral process is not limited to the selection of
eleted epesetatives ad iludes a itize’s ight to exercise his or her vote in an informed
manner. In the absence of spending limits, it is possible for the affluent or a number of persons pooling
their resources and acting in concert to dominate the political discourse, depriving their opponents of a
easoale oppotuity to speak ad e head, ad udeiig the vote’s aility to e adeuately
informed of all views.
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