@prefix vivo: . @prefix edm: . @prefix ns0: . @prefix dcterms: . @prefix dc: . @prefix skos: . vivo:departmentOrSchool "Arts, Faculty of"@en, "Political Science, Department of"@en ; edm:dataProvider "DSpace"@en ; ns0:degreeCampus "UBCV"@en ; dcterms:creator "Letkeman, Emily Susan"@en ; dcterms:issued "2009-08-06T00:00:00"@en, "2001"@en ; vivo:relatedDegree "Master of Arts - MA"@en ; ns0:degreeGrantor "University of British Columbia"@en ; dcterms:description """The advent of the Charter of Rights and Freedoms signaled a new and vastly expanded role for the judiciary. By entrenching our civil liberties into the Canadian Constitution, the courts were given the express authority to override inconsistent statutes. Due to the inherent overlap between law and politics, election law is an area that is particularly sensitive to this recent enlargement of judicial power. Despite this, the courts have scrutinized many areas of election law and many federal and provincial statutes have been fundamentally altered. The purpose of this thesis is to determine whether the courts have developed a uniform theory of judicial review where election law is concerned via four case studies: electoral boundary redistribution, prisoner voting rights, the publication of opinion polls during campaigns and third party spending limits. Through an extensive review of the relevant case law and literature, I conclude that the courts have failed to develop a coherent and consistent theory judicial review regarding the application of the Charter to election law. My analysis reveals that the inconsistencies stem largely from three main sources: first is the failure of the courts to adopt a single vision of what constitutes a fair electoral system; second is that the case studies are dealing with two different sections of the Charter (ss. 2(b) and 3); and third is the Oakes test which has expanded judicial discretion along with the potential for disparity. If consistency is ever going to be achieved, the courts need to adopt a single vision of democracy in Canada. Until then, we are left to guess when our political rights may be justifiably restricted under the Charter."""@en ; edm:aggregatedCHO "https://circle.library.ubc.ca/rest/handle/2429/11826?expand=metadata"@en ; dcterms:extent "5019848 bytes"@en ; dc:format "application/pdf"@en ; skos:note "THE CHARTER AND ELECTION LAW IN CANADA: TOWARDS A UNIFIED THEORY OF JUDICIAL REVIEW? by EMILY SUSAN LETKEMAN B.A., University of Victoria, 1999 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES (Department of Political Science) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October 2001 © Emily Susan Letkeman, 2001 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department The University of British Columbia Vancouver, Canada Date -$~dCT stake.\"0 This was done primarily by accepting that the evidence constituted a \"reasonable apprehension of harm\" rather than requiring the Government to provide proof of actual harm. The contextual approach led the Ontario courts to view the blackout against the overall purpose of the CEA, which is to ensure that elections are free and fair. Therefore, the polling blackouts were seen as a logical extension of the other regulations embodied in the Act. Conversely, the Supreme Court's reasoning in Thomson focused heavily on the importance of free political speech to the proper functioning of the electoral process. Therefore, the Court viewed the blackout as an impediment to electoral fairness by denying voters a source of political information in the critical days before an election. Without more concrete evidence as to the actual harm caused by the dissemination of Feasby, supra note 183, at 267. 2 2 6 See Reference Re Provincial Electoral Boundaries (Sask.) [1991] 2 S.C.R. 158, discussed in Chapter 1 -Electoral Boundary Redistributions; Harvey v. New Brunswick (Attorney General) [1996] 2 S.C.R. 876, upheld s. 119(c) of the New Brunswick Election Act which requires a sitting member of the legislature to vacate his or her seat upon conviction of a corrupt or illegal practice. 59 opinion polls, the Court was unwilling to uphold such a \"crude instrument\" which seeks to suppress political expression during campaigns.227 While the Supreme Court reassured the Parliament that s. 2(b) did not preclude the enactment of any restrictions on opinion polls during campaigns, it did rule that the particular limit enshrined in s. 332.1 of the CEA could not be accepted. The majority explained that the three-day limit was too much given the availability of less intrusive 228 means. However, this explanation appears to run contrary to recent Supreme Court decisions which maintain that the courts will not require of the legislatures that they adopt the absolute \"least\" intrusive means in order to meet their legislative objective.229 Given that the only two alternatives consisted of a two or a one day blackout, the Court appears to have impliedly required of Parliament that they adopt the most \"least intrusive means\" available. It is arguable that this decision parallels the route that the Supreme Court took with regards to prisoner voting rights. Similar to the polling blackout, the federal ban on inmate voting was found to be an overbroad limitation when scrutinized under the minimal impairment test. However, with regards to the complete ban on inmate voting, Parliament could not refer to any concrete deliberations that took place which led to the adoption of the particular prohibition. Therefore, the exclusion of all prisoners from the franchise displayed an aura of arbitrariness that could not be condoned under s. 1 analysis. With regards to the blackout, however, the three-day restriction was not something picked out of thin air. On the contrary, the opinion poll blackout enacted by 227 Thomson, supra note 213, at para. 111. 2 2 8 See recommendations of the Lortie Report, supra note 184. 229 R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713; Irwin Toy, supra note 188; Reference Re ss. 193 and 195.1(l)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123; R. v. Chaulk [1990] 3 S.C.R. 1303. 60 Parliament was the result of years of careful consideration and debate. This serves as possible evidence of an activist Court overstepping its authority by indirectly rewriting legislation as they see fit. As Professor Manfredi argues, \"the Court seems to have adopted the view that there is no real principled justification for limiting freedom of expression, which leads it into the dense thicket of policy analysis.\" Or, perhaps, the decision reflects an emerging tendency of the Court to afford the freedom of expression 231 \"a place a privileged protection for political speech in Canadian rights jurisprudence.\" By denying the impugned mandatory disclosure requirements, the British Columbia Supreme Court's decision in Pacific Press endorsed this vision of electoral \"fairness\" which stresses the importance of free political speech. Similar to the reasoning of the S.C.C. in Thomson, the B.C. Court was unable to accept the limits on the freedom of expression without more concrete evidence of potential harm caused by the release of opinion polls not accompanied by methodological information. However, the judgment runs contrary to the obiter suggestions made by the Supreme Court of Canada that the mandatory disclosure requirements of opinion poll information during campaigns may pass constitutional scrutiny. Therefore, it will not be until this issue comes directly before the Supreme Court that it will be definitively decided. It is indisputable that the Charter has significantly affected this area of election law. 2 3 2 The Supreme Court of Canada has made it clear that any attempts by Parliament or the provincial legislatures to promote the integrity of the electoral process via public opinion poll restrictions must be construed very narrowly. The judgment reveals that the 2 3 0 CP. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed, (Don Mills, Ontario: Oxford University Press, 2001), 68. 2 3 1 Devlin, Opinion Polls and the Protection of Political Speech, supra note 212, at para. 15. 2 3 2 Sections 327 & 328 of the CEA currently prevent the dissemination of new opinion polls only on polling day. 61 Court is not as willing to uphold legislation whose goal is to advance the fairness of the political process under freedom of expression as they were under the right to vote. The two Ontario court decisions appeared to have followed the path instigated by the notion of effective representation enunciated in the Saskatchewan Boundaries Reference by permitting the violation of Charter rights in the name of electoral fairness. However, the Supreme Court has adopted the view that the version of electoral fairness guaranteed under s. 2(b) will afford the legislatures very little leeway when the protection of political speech is at stake. 62 CHAPTER 5: THIRD PARTY SPENDING LIMITS DURING CAMPAIGNS The previous chapter reviewed how the federal government attempted, albeit unsuccessfully, to prevent the potential \"undue influence\" of the electorate via restrictions on the publication of opinion polls during campaigns. The present discussion will shift our focus to the issue of third-party spending limits during elections. As mentioned in the preceding chapter, the growth of the media as the dominant mode of communication for election issues was accompanied by the increased usage and publication of opinion polls in the political process. However, a more pressing concern surrounding the increased media presence was the inevitable rise in costs of running an effective election campaign. The Watergate scandal involving President Nixon and the Republican Party in the United States served as an example of how the skyrocketing costs of campaigning could lead to the corruption and manipulation of the electoral process. These concerns prompted the federal government to enact a legislative regime of campaign expenditure limits within the Canada Elections Act (hereinafter CEA) in 1974.233 Contained in this package of election expenses reform was a prohibition against anyone other than registered candidates or parties from incurring election expenses in addition to a ban on the publication of advertisements which directly promoted or opposed a party or a candidate.234 Parliament believed these restrictions to be necessary to ensure the viability of the limits imposed on parties and candidates and to prevent those with significant financial resources from distorting the election process by Canada Elections Act, R.S.C. 1970, c. 14. These were enacted based on the recommendations of both the Report of the Committee on Election Expenses (Ottawa: Queen's Printer, 1966) and the Chapped Committee (Canada: House of Commons, 1971). 234 Ibid. ss. 70(1) and 72 of the CEA. 63 disadvantaging others.235 Although these restrictions appeared to be an essential component in the CEA's regulatory regime, they were, and still are, the subject of much controversy within Canadian election law. As Professor Janet Hiebert explains, the restrictions placed on third-party spending during campaigns revolves around one of democracy's most \"thorny issues: how to facilitate robust and competitive elections while guarding against the use of money in ways that undermine the democratic ideal of citizens' participation on fair terms in the act of self-governance.\" Therefore, constitutionally speaking, the expenditure limits placed on third parties violates the core of freedom of expression under s. 2(b) of the Charter: political expression. The inherent conflict surrounding restrictions on third party spending is illustrated by the fact that the federal government has enacted three successive, yet differing, legislative limits and all three have been struck down by the courts as unconstitutional. The purpose of this chapter is to assess how the judiciary has approached the legislated limits on third party spending in relation to freedom of expression as guaranteed by the Charter. I will begin with a brief review of the relevant case law stemming from both federally and provincially enacted restrictions on third party spending. This will be concluded with a discussion of the main highlights of the jurisprudence and whether the reasoning and outcomes of the cases fits in with approaches adopted in the preceding chapters. Canada, Royal Commission on Electoral Reform and Party Financing, Final Report (Minister of Supply and Services, 1991), 327. Herein after referred to as the Lortie Commission. 2 3 6 J.L. Hiebert, Money and Elections: Can Citizens Participate on Fair Terms Amidst Unrestricted Spending? (1998) 31 Canadian Journal of Political Science 91, at 92. 64 The Alberta Courts and the Restrictions on Third Party Spending in the CEA The first challenge to the federal restrictions on third party spending was launched by the National Citizens' Coalition in 1984 before the Alberta Court of Queen's Bench. 2 3 7 The plaintiff argued that the impugned provisions violated both his freedom of expression and his right to vote under ss. 2(b) and 3 of the Charter. While the Attorney General of Canada conceded that the restrictions constituted a prima facie breach of the Charter provisions, he argued that they were justifiable limits under s. 1. The government reasoned that since parties and candidates are subject to spending limits, \"the absence of spending limits on the part of third parties gives an unfair advantage to those who have access to large campaign funds.\" Thus, the overall purpose of the restrictions was to ensure a level of equality amongst all participants in federal elections. In the Court's \"yxe-Oakes\" assessment as to whether these restrictions were constitutionally justifiable under s. 1, Justice Medhurst reasoned that the \"test must be applied on the basis of the likelihood that the mischief or the harm perceived would occur\" 2 4 0 and that \"there should be an actual demonstration of harm\"... \"to a society value before a limit can said to be justified.\"2 4 1 Therefore, the government's \"fear\" that harm may occur could not constitute sufficient justification for overriding the Charter rights of those individuals and groups affected. The impugned provisions were, thus, declared to be of no force or effect. 23 National Citizens' Coalition Inc. v. Canada (Attorney General) 11 D.L.R. (4th) 481. The aforementioned 1974 restrictions in the CEA included a \"good faith\" clause. However, this provision was removed via amendments to the CEA in October of 1983 (An Act to Amend the Canada Elections Act (No. 3)) Canada Elections Act 1980-81-82-93, c. 164, s. 15. 238 Ibid. 494. 239 Ibid. 495. 2W Ibid. 496. 65 Although this decision was only legally enforceable in Alberta, the Chief Electoral Officer of Canada refused to enforce the third party spending limits across Canada in both the 1984 and 1988 elections. Contrary to fears that third party spending would skyrocket following this ruling, the 1984 federal election showed insignificant levels of independent expenditures. Conversely, the 1988 federal election witnessed a rise in third party spending to almost $4.7 million, most of which was spent by businesses promoting free trade. The Lortie Commission commented that this election demonstrated how \"independent election spending can influence the outcomes of elections by subjecting voters to advertising skewed to one point of view.\" 2 4 2 The subsequent recommendations of the Lortie Report encouraged the federal government to enact a new, yet different, set of restrictions on third party spending in 1993. Amendments to the CEA included s. 213 which prohibited everyone from advertising in relation to an election during a specified blackout period. Sections 259.1(1) and 259.2(2) limited third party spending to $1000 to promote or oppose a specific candidate or party and also prevented the pooling of their resources.244 Soon after their enactment, a challenge was launched against the constitutionality of these provisions in 1993 before the Alberta Court of Queen's Bench in Somerville v. Canada?45 In considering the evidence before him, Justice McLeod found that the limitations constituted a prima facie breach of freedom of expression under s. 2(b) of the Charter. The prohibition on the pooling of funds was found to be in violation of the Lortie Commission, supra note 235, 340. 2 4 3 The Lortie Commission recommended that there should be a $1000 limit on third party advertising during election campaigns, that the sponsor be identified in the ad and that the third parties should neither be permitted to pool nor split their funds. 244 Canada Elections Act, S.C. 1993, c. 19. 245 Somerville v. Canada (Attorney General) [1993] A.J. No. 504, online: QL (AJ). 66 freedom of association under s. 2(d). The restrictions were also found to be in violation of the right to vote under s. 3 for the reason that it precluded voters from \"receiving third party views from other parts of the country.\"246 Unlike in National Citizens' Coalition, the Court now had the Oakes test to follow when assessing whether a limit can be reasonably justified in a free and democratic society under s. 1. The Attorney General of Canada argued that the spending limits were an essential part of the federal electoral financing regime \"which seeks to promote fairness in the electoral process by equalizing the opportunity of all to participate in the democratic debate in a meaningful way regardless of financial resources.\"247 However, Justice McLeod found these reasons insufficient to constitute a pressing and substantial objective under the first component of Oakes. Justice McLeod explained that even if a valid objective had been found, the impugned provisions would have failed the rational connection requirement of Oakes because there was not enough evidence to sustain a reasoned apprehension of harm which would justify the limits. 2 4 8 As a result, none of the impugned provisions were found to be reasonable limits under s. 1 and were, therefore, deemed to be of no force or effect. In defence of the newly enacted restrictions, the federal government appealed the decision to the Alberta Court of Appeal. 2 4 9 However, the Court refused to accept the goal of promoting electoral fairness to be sufficiently pressing and substantial so as to justify the infringement of Charter rights. Justice Conrad explained that this is not a case where the objective of the legislation is trying to balance the expenditures of outside groups. To 246 Ibid, at para. 19. 247 Ibid, at para. 23. 24% Ibid, at para. 35. 249 Somerville v. Canada (Attorney General) [1996] A.J. 515, online: Q L (AJ). 67 the contrary the purpose of this legislation \"is to ensure that third parties cannot be heard in any effective way and that parties are entitled to preferential protection...which can never be justified.\" 2 5 0 The Court reasoned that even if a pressing and substantial objective had been found, the restrictions would, nonetheless, fail the proportionality component of Oakes. There could be no rational connection between legislation that limited third party spending to $1000 when candidates can spend up to $55,000 and parties could spend millions. 2 5 1 The impugned provisions would also fail the minimal impairment test because the Court found that \"without a doubt\" less intrusive means of fulfilling the purported objectives were available to the government.252 Therefore, the federal government's second attempt in enacting legislated limits on third party spending during 253 campaigns had been judicially rejected as a unreasonable limit on Charter rights. As Colin Feasby pointed out, the decisions of the Alberta Courts in both National Citizens' Coalition and Somerville left the federal government unsure as to whether their egalitarian vision of election regulation was compatible with the Charter.254 However, a decision of the Supreme Court of Canada soon provided the government with the encouragement it needed to launch a third attempt at enacting a regime of third party spending limits which could survive Charter scrutiny. 250 Ibid, at para. 77. 251 Ibid, at para. 79. 252 lb id. at para. 83. 2 5 3 In this case the Court also deemed s. 213 of the CEA to be unconstitutional. This prohibited any election advertising in roughly the first 18 days of an election as well as the final 48 hours before the election day. Again the Court refused to accept that these provisions contained a pressing and substantial objective which would warrant overriding Charter rights. Ibid, at paras. 84-96. 2 5 4 C. Feasby, Libman v. Quebec (Attorney General) and the Administration of the Process of Democracy Under the Charter: The Emerging Egalitarian Model (1999) 44 McGill L.J. 5, at 25. 68 The Supreme Court of Canada and Third Party Spending Limits The Supreme Court of Canada was finally given the chance to speak to the issue 255 of third party spending limits, albeit indirectly, in Libman v. Quebec. The case involved a Charter challenge to specific provisions of the Quebec Referendum Act, which severely limited the amount an individual or a group could spend on a referendum campaign if they did not wish to join or affiliate with one of the two National Committees. Similar to the arguments made in National Citizens' Coalition and Somerville, the Attorney General of Quebec claimed that the purposes of these restrictions was to prevent the most affluent members of society from exerting a disproportionate influence during the campaign process as well as ensuring that some positions are not buried by others.256 Unlike the findings of the Alberta Courts, however, the S.C.C. ruled that \"the pursuit of an objective intended to ensure the fairness of an eminently democratic process\"...\"is a highly laudable one.\" 2 5 7 The unanimous decision of the Court openly disagreed with the Alberta Court of Appeal's conclusions in Somerville regarding the legitimacy of the objective of promoting fairness within the electoral system.258 Of particular importance were suggestions made in obiter that, based on the recommendations of the Lortie Commission, a ceiling of $1000 may serve as a 259 constitutionally acceptable limit on third party expenditures during election campaigns. 255 Libman v. Quebec (Attorney General) [1997] 3 S.C.R. 569. 256 Ibid, at para. 41. 257 Ibid, at para. 42. 258 Ibid, at para. 79. 259 Ibid, at para. 81. Even though Libman was dealing with provincial referendum law, the Court ruled that the same principles apply to election law. 69 Professors Jennifer Smith and Herman Bakvis point out, Libman won his case by implication,260 however, the federal government \"won the real victory\" because the Court upheld the validity of such restrictions \"as part of an overall regime of spending 261 restrictions designed to promote fairness in the electoral contests.\" This statement proved correct as the Libman decision encouraged the federal government to enact a new set of restrictions on third party spending in the year 2000. However, before the final amendments were made to the CEA, similar restrictions enacted by the British Columbia government were coming under Charter attack. Although the limits were far more liberal than the $ 1000 cap suggested by the Supreme Court in Libman, the decision reached in the British Columbia Supreme Court served as a warning to the federal government that it may not be guaranteed a get out of jail free card where any third party restrictions were concerned - even in light of Libman. Third Party Spending Limits in British Columbia In 1995 the province of British Columbia amended their Election Act to include provisions which, together, made it illegal for an individual or a group to spend more 9 6 9 than $5000 on advertising during an election campaign. Subsequent to the 1996 election, a Charter challenge was launched against these provisions before the British Although the Court found the objective to be pressing and substantial, the impugned provisions failed the minimal impairment component of Oakes because the forms of expression that those not wishing to join/affiliate with a National Committee were permitted to exercise were \"so restricted that they come close to being a total ban.\" Ibid, at para. 75. Therefore the impugned provisions were severed from the Quebec Referendum Act. 2 6 1 J. Smith & H. Bakvis, Judicial Review and Electoral Law, in H. Mellon & M. Westmacott, eds. Political Dispute and Judicial Review (Scarborough, Ontario: Nelson, 2000), 64 at 75. 2 6 2 Amendments also included the mandatory disclosure requirements associated with the publication of opinion polls during election campaigns which is discussed in the previous chapter. 70 Columbia Supreme Court. The plaintiffs argued that the restrictions on third party spending and the mandatory disclosure requirements violated their freedom of expression under s. 2(b), the freedom of association under s. 2(d) and the right to vote under s. 3. The Attorney General argued that the Supreme Court of Canada's decision in Libman was determinative of the issue with regards to the spending limits especially considering the British Columbia restrictions were far more generous in their scope. Although the suggestion of a $1000 limit in Libman was merely obiter, the B.C. Supreme Court rejected its application on different grounds. More specifically, the Supreme Court had relied on the recommendations of the Lortie Commission which had, indirectly, relied on a study conducted by Professor Richard Johnston.264 From his research, Professor Johnston concluded that third party advertising may have had an impact on * • 96S voters intentions in the 1988 federal election. However, a more recent study led Johnston to conclude that third party advertising had no net effect on voter intention over the course of the 1988 election.266 Therefore, although Justice Brenner was satisfied from the evidence that party and candidate advertising does have an impact on voter intentions, there was no evidence for him to conclude that third party advertising or spending has such an impact. Pacific Press, a Division ofSoutham Inc. v. British Columbia (Attorney General) [2000] B.C.J. No. 308, online: QL (BCJ). 2 6 4 The Lortie Commission relied upon the submission of J. Hiebert entitled Interest Groups and Canadian Federal Elections in Interest Groups and Elections in Canada, ed. F.L. Seidle. Vol 2 of the research studies of the Royal Commission on Electoral Reform and Party Financing. Hiebert's study relied on the original research of Johnston, infra note 265. 2 6 5 R. Johnston, The Volume Impact of 'Third Party' Advertising in the 1988 Election, University of British Columbia: Unpublished Manuscript, Dec. 1990, Prepared for the Royal Commission on Electoral Reform and Party Financing. 2 6 6 R. Johnston, Letting the People Decide: Dynamics of a Canadian Election (Montreal: McGill-Queen's University Press, 1992). 267 Pacific Press, supra note 263, at para. 40. 71 With only evidence to the contrary that third party advertising has an effect on voter intention, the Attorney General of B.C. was unable to convince the Court of \"any 268 unfair dominance of the electoral process that requires legislative action.\" In denying that the legislation contained a pressing and substantial objective, Justice Brenner explained that \"the government has responded to theoretical abstractions and to unproved hypotheses about what might occur if third party spending is unregulated\"269 and because the only empirical evidence is to the contrary, this is not a case where the government can 97ft rely on common sense justification or a reasonable apprehension of harm. Based on this the Court concluded that the government had failed to satisfy the first part of Oakes with regards to the third party spending limits and they were, therefore, deemed to be of no force or effect. Return to Alberta: Strike Three? In May of 2000, the federal government enacted a new scheme of third party spending limits to be applied during election campaigns. Section 350 of the CEA expanded the $1000 limit, which existed prior to Somerville, to $150,000 per general election and $3000 in a particular district. Also similar to the prior restrictions was a prohibition against third parties from splitting or combining their resources in order to circumvent the limits set out in s. 350. Soon after the amendments came into effect, an action was brought against several of the new restrictions before the Alberta Court of Queen 's Bench. 2 7 1 The plaintiff, Stephen Harper, argued that the third party spending 268 Ibid, at para. 76. 269 Ibid, at para. 77. 270 Ibid, at para. 88. 271 Harper v. Canada (Attorney General) [2001] A .J . No. 808, online: QL (AJ). 72 limits violated both freedom of expression under s. 2(b) and the right to vote under s. 3. In addition, he claimed that the prohibition against the pooling of resources violated the 979 freedom of association under s. 2(d). The Attorney General of Canada conceded a prima facie breach of ss. 2(b) and 2(d) for the respected provisions, however, it was not accepted that the restrictions violated the right to vote under s. 3. With reference to the Supreme Court's judgment in Thomson Newspapers, Justice Cairns agreed that the right to vote contains an ancillary informational component. He explained, however, that the heart of s. 3 is the right to \"effective representation\" (discussed in chapter 2), which permits some restrictions on 97^ information \"without running afoul of s. 3.\" Although s. 3 protects the right to sufficient information, it does not confer a right on third parties to mount a major persuasive advertising campaign. Therefore, the third party spending limits did not violate the right to vote under s. 3 of the Charter. The next step for the Court was to determine whether the prima facie breaches of ss. 2(b) and 2(d) of the Charter could be justified as reasonable limits under s. 1. However, before Justice Cairns could conduct an analysis under the Oakes test, he had to first consider the plaintiffs submission that the law in question is vague and is, therefore, not prescribed by law. 2 7 4 Of particular concern were the limits on third party advertising Many other sections of the CEA were challenged in this action but for the purposes of this chapter, I will focus just in those relating to third party spending. The other sections were in relation to the attribution, registration and disclosure requirements (ss. 352-362) of third parties, the prohibition against off-shore contributions and the prohibition against parties (s. 358), candidates and third parties from advertising on polling day (s. 323). All were held to be constitutionally justifiable. 273 Harper, supra note 271, at para. 133. 2 7 4 It is a principle of fundamental justice in Canada that a statute is void for vagueness if its prohibitions are not clearly defined. It does not provide \"sufficiently clear standards to avoid arbitrary and discriminatory applications by those charged with its enforcement\"... \"In Canada, the idea that the law may be void for vagueness is also implicit in the requirement that a limit on a Charter right be prescribed by law. That follows from the rule that precision is one of the ingredients of the prescribed by law requirements.\" 73 which takes a position on an issue \"particularly associated\" with a candidate or a party in s. 350(2)(d). The distinction between the general limit of $150,000 and the constituency limit of $3000 was also accused of vagueness because it is impossible to know how it will be enforced. Justice Cairns agreed that both of the provisions were unconstitutionally vague in their application. The Court reasoned that the scope of s. 350(2)(tf) encompasses 97S potentially any topic and any issue due to the expression \"particularly associated.\" The spending limits were also found to be vague because, given that usual media of communication in an election consists of radio, television and newspapers, it is impossible to determine which expenditures are confined to a particular district. Therefore, Justice Cairns ruled s. 350, in its entirety, to be unconstitutionally vague in its application. Although this finding of vagueness ended the inquiry, the Court proceeded to consider whether the third party spending limits under s. 350 satisfies the s. 1 Oakes analysis. Similar to the reasoning of the B.C. Supreme Court in Pacific Press, supra, Justice Cairns refused to accept the recommendations of Lortie and Libman as reliable evidence because the information relied on by both sources has since been recanted. The most recent evidence confirms that third party spending actually has no net effect on voters' intentions. Cairns J. recognized that \"scientific proof is not necessary to establish a pressing and substantial concern. Parliament is entitled to a reasonable apprehension of harm.\" However, he was not satisfied that \"it is proper to call an apprehension P.W. Hogg, Constitutional Law of Canada, 2000 Student Ed. (Scarborough, Ontario: Thomson Canada Ltd, 2000), at 733. 275 Harper, supra note 271, at para. 223. 276 Ibid, at para. 224. 74 reasonable, if there is no evidence to support that apprehension.\" Because the evidence actually pointed to the contrary, the Court was unable to conclude that the restrictions contained a pressing objective necessary to satisfy the first component of the Oakes test.278 Once again, the Alberta Courts stifled another attempt by the federal government to restrict the spending of third parties during campaigns. Although the most recent restrictions have suffered the same fate as its ancestors, it is questionable whether the federal government will permit the Alberta Courts to dictate federal policy regarding third party limits for a third time. 2 7 9 Conclusions The Lortie Commission commented that the electoral law in Canada must \"first and foremost reflect and promote fairness.\"280 According to this view, the purpose of legislating limits on third party spending during campaigns supports the objective of fairness by preventing those with financial resources from distorting the election process by disadvantaging others. However, the jurisprudence reveals that this principle of fairness may not provide an acceptable justification for the government restriction of voices other than parties and candidates. Similar to the issue of opinion poll restrictions 111 Ibid, at para. 275. 2 7 8 Justice Cairns went on to consider the proportionality portion of Oakes and ruled that the third party spending restrictions failed each part because of the lack of evidence that third party spending actually has an effect on voters' intentions. 2 7 9 Prior to the release of Cairns J.'s judgment, Harper applied for an interlocutory injunction restraining the enforcement of the third party spending limits due to an impending federal election. The injunction was granted by the Alberta Court of Queen's Bench (Cairns J.) Harper v. Canada (Attorney General) [2000] A.J. No. 1226, online: QL (AJ), and affirmed by the Alberta Court of Appeal [2000] A.J. No. 1240, online: QL (AJ). However, the S.C.C. stayed the injunction [2000] 2 S.C.R. 764. The Court explained that \"courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter.\" At para. 9. 280 Lortie Report, supra note 235, 322. 75 during campaigns, the judicial decisions concerning third party spending limits highlight a tension that exists in Canada between two competing visions of what constitutes a \"fair\" electoral system. As Professor Hiebert points out, decisions such as National Citizens Coalition and Somerville treat freedom of expression as a \"negative value which requires only the absence of restraints on individuals or organizations to exercise free speech.\"281 This belief regards fairness from the point of view of citizens who wish to express their opinions in the same manner as candidates and parties are able to. Thus, to limit third party spending is to give preferential treatment to parties and candidates while unfairly restricting the expression of others. Conversely, the Supreme Court of Canada in Libman reflects a vision that 989 \"democracy and unrestrained political liberty are not necessarily synonymous.\" Based on this reasoning, limits on third party spending, similar to those on opinion poll surveys, seek to \"level the playing field\" of participants in elections by prohibiting those with substantial financial resources from exerting undue influence over the electoral process. Professor Hiebert explains that \"money rather than the power of ideas is a determining factor in deciding which issues are debated and, through the volume of advertising 9R1 purchased, what priority is attached to them.\" Therefore, government intervention is necessary to prevent the political parties, candidates and the electorate from being overwhelmed by the power of third party interests. The egalitarian - libertarian dichotomy displayed in both the opinion poll restriction jurisprudence as well as the decisions concerning third party spending 2 8 1 J.L. Hiebert, Fair Elections and Freedom of Expression Under the Charter (1989-90) 24:4 Journal of Canadian Studies, 72 at 75. 2 8 2 K.D. Ewing, Money, Politics and Law: A Study of Electoral Campaign Finance Reform in Canada (Oxford: Clarendon Press, 1992), 163. 2 8 3 Heibert, Money and Elections, supra note 236, 103. 76 restrictions may also be explained by how the particular court viewed the electorate. In Thomson Newspapers, for example, the Supreme Court struck down the opinion poll limitations because their existence assumed that the Canadian voter is a \"naive and irrational actor\" incapable of making independent judgments.284 The same can be said of the decisions reached by the Alberta and British Columbia courts regarding third party spending limits. In Pacific Press, supra, Justice Brenner explained that to accept the spending limits would be to assume that \"the people of British Columbia are unable to qualitatively assess third party communications in election campaigns and to decide, what IOC weight, if any to attach to them.\" However, the Supreme Court of Canada refused to accept this approach when confronted with third party limits in Libman. Instead, the Court viewed the electorate as a vulnerable group that can potentially be easily swayed by the uncontrolled advertising of independent spending during campaigns. Thus, identifying how the particular court conceived the intelligence of the electorate can partially explain why a particular restriction was either upheld or struck down. This also reveals that the judiciary has failed to apply a consistent opinion of the Canadian voting public. As Professor Richard Moon points out, this inconsistency makes it \"impossible to predict when the court will defer to the legislature's judgment that the expression causes harm and should be restricted and when it will strike down the law because the causal link has not been clearly established.\"286 Also similar to the jurisprudence concerning opinion poll restrictions, the decisions regarding third party spending limits hinged on whether the enacting 284 Thomson Newspapers Co. v. Canada (Attorney General) [1998] 1 S.C.R. 877, at para. 112. 285 Pacific Press, supra note 263, at para. 85. 2 8 6 R. Moon, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000), 71. 77 government could provide proof of actual harm. Professors Smith and Bakvis point out that \"ever since National Citizens' Coalition, the 'harm' question has dogged governments that attempt to defend third party restrictions in the court.\" Prior to the Lortie Commission, there was no evidence except the fear that the rising political corruption in the United States prompted by unlimited spending would spill across the border.288 However, the Courts reasoned that it was insufficient for the government to rely on solely on a hunch that what happened in the United States would be replicated in Canada. The requirement that the enacting government provide sufficient proof of harm parallels the reasoning adopted by the S.C.C. in Thomson (concerning opinion polls). This more stringent version of the Oakes test stands in contrast to the jurisprudence concerning s. 3, whereby the courts were more inclined to allow governments to rely on a \"reasonable apprehension of harm\" to justify a Charter breach. This may help explain that, unlike the jurisprudence concerning the right to vote under s. 3, the courts have been less likely to defer to legislative choice where third party limits are concerned. Although the overall purpose of such restrictions fits within the ideal of electoral \"fairness\" that has been echoed throughout all of the chapters, the courts were not convinced that this requires the extension of spending limits to include independent parties during campaigns. J. Smith & H. Bakvis, Changing Dynamics in Election Campaign Finance: Critical Issues in Canada and the United States (2000) 4:1 Policy Matters - Institute for Research on Public Policy, 17. 2 8 8 The skyrocketing costs of elections in the United States has been blamed largely on the U.S. Supreme Court decision of Buckley v. Valeo (1976) 424 U.S. 1 where Congressional attempts at legislation limits on campaign spending were struck down. However, the limits on political contributions were upheld as a reasonable limit in the First Amendment. 78 Similar to the jurisprudence concerning opinion poll restrictions, third party spending judgments have embraced an interpretation of freedom of expression that affords political expression the highest level of judicial protection. From the past two chapters, it is apparent that any legislated restrictions on political expression will be subject to the most stringent standard of constitutional scrutiny. The extremely broad definition given to the freedom of expression makes a prima facie breach easy to establish. The burden is then immediately shifted to the government to rigorously justify its policy under the Oakes test. However, the relatively narrow interpretation given to the right to vote has made the task of establishing a prima facie breach of s. 3 much more difficult for a potential appellant, especially where electoral boundaries are concerned. Therefore, any deference revealed within the s. 3 jurisprudence may partially be explained by the absence of any structured constitutional justification required under s. 1 analysis. Although the Lortie Commission recommended the enactment of third party spending limits based on a study which concluded that third party advertising may have had an effect on voters intentions during the 1988 federal election, that finding has since been reversed. The question now remains as to whether the Supreme Court will stand by its obiter suggestions made in Libman in light of these findings. For the Court to uphold the federal restrictions sans sufficient evidence would stand in direct contradiction to the strict, non-deferential approach it had employed in Thomson Newspapers. Either way, the Supreme Court will be required to exercise a large amount of verbal gymnastics in order to explain its position. 79 The Court will also have to take into consideration the effects that their decision may have on the remaining spending restrictions contained in the CEA. Professor Hiebert explains that if candidates or political parties were to challenge their own spending limits \"the Court may be understandably troubled about the lack of coherency of a regulatory regime which seeks to limit spending of the principle election participants yet subverts that intent by not addressing the spending of others.\"289 Thus, any decision reached by the Supreme Court on this issue will most likely involve the indirect \"micro-management of public policy.\" 2 9 0 Without a doubt, the Canadian Charter of Rights and Freedoms has had a major impact on this area of election law. Every attempt by the federal government, and one provincial attempt, to legislate restrictions on third party spending limits during campaigns have been struck down. Although Peter Hogg may characterize this ongoing constitutional battle as an example of \"Charter dialogue\" between the Courts and the 291 * legislatures, it perhaps can be better characterized as a never-ending conversation. It is not until the Supreme Court clarifies its stance on the issue that the dialogue will finally come to an end. Until then there can be \"no doubt that the legal chapter on third party advertising restrictions is far from closed.\" Hiebert, Money and Elections, supra note 236, 101. 2 9 0 CP. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed, (Don Mills, Ontario: Oxford University Press, 2001), 151. 2 9 1 P.W. Hogg, Charter Dialogue Between the Courts and the Legislatures (1997) 35 Osgoode Hall L.J. 75. 292Smith & Bakvis, Changing Dynamics in Election Campaign Finance, supra note 287, 20. CONCLUSION 80 The addition of the Charter of Rights and Freedoms to the Canadian Constitution in 1982 has undeniably changed the legal and political landscape in Canada. The Charter has shifted the ultimate responsibility of protecting our civil liberties from the legislatures to the courts. There exists no area of law that can escape the recently expanded scope of judicial review. The four case studies discussed in this thesis reveal that, despite its inherent political disposition, election law in Canada has been no exception. In fact, the Charter has fundamentally altered many pieces of legislation in relation to the electoral process that were enacted both prior to and after its entrenchment in 1982. The purpose of case studies was to assess how the Canadian courts have approached the judicial review of the four specific areas of election law. My conclusion will attempt to address the question I posed in the introduction as to whether the judiciary has managed to develop a coherent and uniform theory of Charter review where election law is concerned. There has been a notable theme throughout the entire thesis regarding a fair electoral system and what role legislatures may play in its regulation in light of the Charter. The Royal Commission on Electoral Reform and Party Financing stated that \"the federal electoral process must first and foremost reflect and promote fairness.\" However, the jurisprudence discussed in all four case studies revealed that the notion of political \"fairness\" is not amenable to one particular definition. As Professors Smith and Canada, Reforming Electoral Democracy: Final Report (Minister of Supply and Services Canada, 1991), 322 {Lortie Report). 81 Bakvis explain, \"[i]n Canada, the concept of fairness is the leitmotif of the ongoing debate about the electoral law regime.\"294 The case study on electoral boundary redistribution highlighted a vision of electoral fairness that permits a significant deviation from electoral equality under s. 3 of the Charter. In the Saskatchewan Boundaries Reference, the Supreme Court of Canada embraced a model of elections whereby the legislatures will be afforded a substantial amount of deference in the electoral boundary reapportionment process. The particular notion of fairness permits the legislatures to stray from the strict equality of voting power so that certain regions may receive \"effective representation.\" Therefore, it is very likely that \"the courts will be very deferential to legislative choice when considering the constitutionality of reapportionment schemes.\" The jurisprudence regarding the rights of prisoners to vote, however, revealed a checkerboard of decisions reflecting two visions of fairness within a democracy. On the one hand there were the courts that were hesitant to provide the legislatures any deference because they embraced rehabilitation as one of the main goals of incarceration. Based on this belief, it would be democratically unfair for the state to deny prisoners the franchise if the purpose of jail to make them better citizens. On the other hand, legislative limits on the rights of prisoners to vote were more likely to be upheld if the particular court accepted retribution as the main goal of imprisonment. According to this reasoning, allowing prisoners to vote would taint the electoral process and thoroughly diminish the value of democracy in Canada. Although the Supreme Court of Canada struck down the 2 9 4 J. Smith & H. Bakvis, Judicial Review and Electoral Law, in H. Mellon & M. Westmacott, eds., Political Dispute and Judicial Review (Scarborough, Ontario: Nelson, 2000), 64. 2 9 5 R.G. Richards & T. Irvine, Reference Re: Electoral Boundaries: An Analysis, in Courtney, MacKinnon & Smith, eds., Drawing Boundaries: Legislatures, Courts and Electoral Values (Saskatoon: Fifth House Publishers, 1992), 58. 82 complete federal ban on all prisoners from voting, it is still unclear whether its notion of fairness will permit any legislative limits on prisoner voting rights under s. 3. We can only wait until the Sauve judgment is released to find out whether the Court will follow the deferential approach to s. 3 that it adopted in the Saskatchewan Boundaries Reference. With regards to restrictions on opinion polls during campaigns, however, the Supreme Court has made it very clear that the legislatures will be afforded very little judicial deference under s. 2(b) of the Charter. In Thomson Newspapers, the Court embraced the libertarian vision of democracy that privileges the freedom of political expression over government attempts to curb the potential undue influence of opinion polls via legislated restrictions. According to this view, electoral fairness can only exist when political expression is allowed to flow freely in the absence of government restraints. The Supreme Court concluded that restrictions on opinion polls will only be justified if the enacting government can provide some sort of concrete proof that their publication will have an undue influence on the electoral process. The fourth case study dealing with limits on third party spending has only been addressed by the Supreme Court indirectly via obiter comments given in the Libman case. Professor Colin Feasby commented that \"Libman was a watershed decision because it emphatically demonstrated that the Charter guarantee of freedom of expression and the Canadian tradition of regulating democracy can live together.\"296 Subsequent cases, however, have rejected the acceptance of the egalitarian model because the evidence upon which the Supreme Court based their reasoning has since been disproved. C. Feasby, Libman v. Quebec (A. G.) and the Administration of the Process of Democracy under the Charter: The Emerging Egalitarian Model (1999) 44 McGill L.J., 7. 83 Following the strict protection afforded to political expression in Thomson Newspapers, the courts have been unwilling to accept government attempts to regulate the spending of third parties during campaigns in the absence of proof that the lack of regulations will cause harm to the electoral process. Similar to the approach adopted in Thomson, electoral fairness under s. 2(b) can only exist in the absence of government restrictions on the free flow of ideas. Therefore, any attempts to legislate restrictions in this area will be subject to the most strict judicial scrutiny. It is highly questionable whether the Supreme Court will stand by its reasoning in Libman in light of the new evidence which has surfaced since the decision. To affirm the suggestions made in obiter would definitively contradict the approach that it adopted toward political expression in Thomson Newspapers. Accepting any new limits on third party spending as constitutional, however, would fit nicely with the approach adopted in the Saskatchewan Boundaries Reference that \"voters can only be free if the state regulates the electoral process to further their interests.\"297 Either way, the Supreme Court will have a lot of explaining to do in order to justify its position. It is apparent from the four case studies that the courts have failed to develop a consistent theory of what constitutes a fair electoral system. In particular, the jurisprudence suggests that the courts are more willing to afford the legislatures constitutional leeway under the right to vote under s. 3 in comparison to freedom of expression under s. 2(b) of the Charter. This is in large part due to the definition and scope the Supreme Court accorded to each of the Charter provisions. More specifically, the relatively narrow interpretation of s. 3 given in the Saskatchewan Boundary C. Feasby, Public Opinion Poll Restrictions, Elections and the Charter (1997) 55:2 U.T. Fac. L.Rev, 267. 84 Reference, to guarantee only \"effective representation\" rather than a more strict notion of equality, has made it very difficult to prove a prima facie breach for a potential applicant. Justice McLachlin (as she then was) explained that when electoral boundary reapportionment legislation comes under judicial review, \"the courts must be very cautious\" in interfering unduly in these decisions for reason that they \"involve the balancing of conflicting policy considerations.\"298 Therefore, anyone wishing to challenge a reapportionment scheme will bear the onerous evidentiary burden of proving that the boundaries as they stand are in violation of their right to \"effective representation.\" Conversely, the generally lower level of judicial deference offered in the s. 2(b) jurisprudence is partially the result of the comparatively broad scope afforded to the freedom of expression. By protecting any expression that \"attempts to convey meaning\", the Supreme Court has made the undertaking of establishing a prima facie breach of s. 2(b) relatively effortless.299 Therefore, the onus is automatically shifted to the enacting government to justify its policy as a \"reasonable limit in a free and democratic society\" under s. 1 of the Charter. As Peter Hogg explains, \"the Supreme Court of Canada decided to prescribe a single standard of justification for all rights\" under the Oakes test \"and to make that standard a high one, and to cast the burden of satisfying it on the government.\"300 However, because the Supreme Court made the right to vote a Reference Re Provincial Electoral Boundaries (Sask.) [1991] S.C.J. No. 46 at para. 64 (S.C.C.), online: QL (CJ). 299 Irwin Toyv. Quebec [1989] 1 S.C.R. 927. 3 0 0 P.W. Hogg, Constitutional Law of Canada, 2000 Student Edition (Scarborough: Carswell, 2000), 724. 85 \"qualified right\" where voting parity is concerned, the possibility of the enacting government having to defend its policy remains remote.301 The dissimilar treatment of the right to vote and freedom of expression has resulted in inconsistency and unpredictability where election law is concerned. Although it is possible to generalize about the differing judicial treatments of sections 3 and 2(b), the diversity that exists within each section must not be ignored. The case studies revealed that each topic has produced a multiplicity of outcomes within the realm of each Charter section. My thesis has shown that these discrepancies have stemmed largely from the judicial interpretation of s. 1 of the Charter. More specifically, although the Supreme Court developed a standardized set of criteria under the Oakes test, this has not guaranteed uniformity in its application. The jurisprudence highlights the reality that the Oakes test itself is subject to many forms of interpretation and application. For example, the Supreme Court has consistently made it clear that that legislated limits on political expression under s. 2(b) will be subjected to the most stringent standard of Oakes. Under this variation of Oakes, the enacting government must provide evidence of an identifiable harm in order for the Charter breach to be \"demonstrably justified.\" Jamie Cameron points out that under this version, \"harm is key to s. 2(7j)'s principle of freedom as well as to s. l's concept of justifiable limits: where harm is present, limits are justifiable and where it is absent, the principle of freedom will prevail.\" The harm question, required by the more stringent version of Oakes, has surfaced as a major theme throughout the jurisprudence regarding all of the topics except electoral boundary redistribution. Although the Supreme Court has been quite clear that there 3 0 1 M. Carter, Reconsidering the Charter and Electoral Boundaries (1999) 22 Dal. L.J. 53, at 85. 3 0 2 J. Cameron, The Past, Present and Future of Expressive Freedom Under the Charter (1997) 35 Osgoode Hall L .J , 49. 86 must be some evidence of harm to justify restrictions on the freedom of political expression, it is not certain what approach the Court will adopt toward prisoner voting rights under s. 3. We can only wait until the Sauve judgment is released to find out whether the Supreme Court will apply the strict version of Oakes accompanied by the requirement of demonstrated harm, or whether it will take the deferential route taken towards s. 3 in the Saskatchewan Boundaries Reference. Regardless of which direction the Court takes, the jurisprudence across all the of the case studies reveals how the Oakes test has vastly expanded the amount of decision making discretion available to the judiciary. Although the courts have attempted to develop uniformity of the test through mechanisms such as the requirement of harm, this has not guaranteed the consistency or the predictability of judicial outcomes. Because of this, it is difficult to deny the argument that the decisions \"may simply reflect judicial preference for one set of principles over another.\"303 As Patrick Monahan argues, \"rather than offer any meaningful weights and measures for use in the balancing process,\" s. 1 \"merely invites the Court to devise its own theory of freedom and democracy.\"304 The constant debate over what constitutes fairness in the electoral system is largely supportive of this argument. The case study on prisoner voting rights is reflective of how judicial outcomes can be attributed to what particular vision of penal philosophy the deciding court preferred. Although it is inevitable that \"judges are influenced by their own social, economic and political values.\"305 greater efforts need to be made to establish grounded CP. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed, (Don Mills, Ontario: Oxford University Press, 2001), 147. 3 0 4 P. Monahan, Judicial Review and Democracy: A Theory of Judicial Review (1987) 21 • 1 U B C L Rev 87, 99. 3 0 5 P. Hogg, Constitutional Law of Canada, loose-leaf ed, vol. 2 (Toronto: Carswell, 1997), 33-6. 87 principles and philosophies to ensure the consistency of Charter application to election law. The analysis of electoral boundary redistributions by the Supreme Court of Canada never reached s. 1 analysis due to the narrow definition given to the right to vote. However, this decision highlights how the process of constitutional interpretation itself carries with it incredible amounts of judicial discretion. Through the employment of the purposive method of interpretation, the Court was able to choose from a variety of sources in order to give meaning to the right to vote. As Peter Hogg explains, \"judges have a great deal of discretion in interpreting the law of the Constitution and the process of interpretation inevitably remakes the Constitution into the likeness favoured by the judges.\" In this particular case, the Court focused on tradition and history to uphold an interpretation of s. 3 that permits a significant deviation from voter equality in the name of electoral fairness, and did so without any evidence of harm. By qualifying the right to vote and deferring to legislative choice, the Court made an important policy decision by yielding to legislative choice. Despite the unavoidable overlap between law and politics where election law is concerned, it is without a doubt that the Charter has significantly affected the functioning of elections in Canada. However, the judiciary has failed to establish a consistent theory of Charter review in relation to legislated limits on electoral activities. Although it can be said that more regularity was demonstrated within each of ss. 2(b) and 3, the lack of Supreme Court decisions regarding both prisoner voting and third party spending limits leaves the ability to make any concrete predictions difficult. If consistency is ever going 3 0 6 P. W. Hogg, The Charter Dialogue Between the Courts and the Legislatures (or Perhaps the Charter Isn't Such a Bad Thing After All) (1997) Osgoode Hall L.J. 75, at para. 2. 88 to be achieved, the courts and, especially, the Supreme Court, needs to adopt a single vision of democracy in Canada. In particular, consensus must be achieved with regards to what extent the legislatures may restrict political freedoms in the name of electoral fairness. Until then, we are left to guess when and where our political rights may be justifiably restricted under the right to vote and the freedom of expression under the Charter. 89 THESIS BIBLIOGRAPHY Baker, G.E., The Reapportionment Revolution: Representation, Political Power and the Supreme Court (New York: Random House, 1966). Berger, R., Government by Judiciary (Mass: Harvard University Press, 1971). Blake, D.E., Electoral Democracy in the Provinces (2001) 7:2 Strengthening Canadian Democracy, a research project by the Institute for Research on Public Policy. Boyer, P., Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections (Toronto: Butterworths, 1987). Boyer, P., Political Rights: The Legal Framework of Elections in Canada (Toronto: Butterworths, 1981). Cameron, J., The Past Present and Future of Expressive Freedom Under the Charter (1997) 35 Osgoode Hall L.J. , 1. 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No. 1577 (F.C.C.A.), rev'g (1995) 132 D.L.R. (4 th) 136 (F.C.T.D.). 96 Somerville v. Canada (Attorney General) [1996] A.J. No. 515 (Alta. C.A.), online: QL (AJ), aff g [1993] A.J . No. 504 (Alta. Q.B.), online: QL (AJ). Stoffman v. Vancouver General Hospital [1990] 3 S.C.R. 483. Thomson Newspapers Co. v. Canada (Attorney General) [1998] 1 S.C.R. 877, rev'g [1996] O.J. No. 2829 (Ont. C.A.), rev'g [1995] O.J. No. 1375 (Ont. Gen. Div.). Wesberry v. Sanders 376 U.S. 1 (1964), [1964] SCT-QL 215, online: QL (FED). "@en ; edm:hasType "Thesis/Dissertation"@en ; dcterms:spatial "Canada"@en ; vivo:dateIssued "2001-11"@en ; edm:isShownAt "10.14288/1.0090222"@en ; dcterms:language "eng"@en ; ns0:degreeDiscipline "Political Science"@en ; edm:provider "Vancouver : University of British Columbia Library"@en ; dcterms:publisher "University of British Columbia"@en ; dcterms:rights "For non-commercial purposes only, such as research, private study and education. 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