Libman v. Quebec (Attorney General)  3 S.C.R. 569: Freedom of association - Provincial referendum legislation - Spending - Referendum legislation placing restrictions on spending permitted during referendum campaign - Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation - Whether legislation infringes freedoms of expression and association
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law - Charter of Rights - Freedom of expression - Freedom of association - Provincial referendum legislation - Spending - Referendum legislation placing restrictions on spending permitted during referendum campaign - Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation - Whether legislation infringes freedoms of expression and association - If so, whether infringement justifiable - Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d) - Referendum Act, R.S.Q., c. C-64.1, ss. 402, 403, 404, 406 para. 3, 413, 414, 416, 417 of Appendix 2.
Elections - Referendum - Spending - Freedoms of expression and association - Provincial referendum legislation placing restrictions on spending permitted during referendum campaign - Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation - Whether legislation infringes freedoms of expression and association - If so, whether infringement justifiable - Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d) - Referendum Act, R.S.Q., c. C-64.1, ss. 402, 403, 404, 406 para. 3, 413, 414, 416, 417 of Appendix 2.
The appellant challenges the constitutional validity of ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of Appendix 2 of the Referendum Act. That Act, which governs referendums in Quebec, provides that groups wishing to participate in a referendum campaign for a given option can either directly join the national committee supporting the same option or affiliate themselves with it. It also provides for the financing of the national committees and limits their expenses and those of the affiliated groups. The impugned provisions deal with the expenses that may be incurred during a referendum campaign. Sections 402 and 403 establish the principle of "regulated expenses". These expenses include the cost of any goods or services that promote or oppose, directly or indirectly, an option submitted to a referendum. Under ss. 406 para. 3 and 413, only an official agent of a national committee, or one of his or her representatives, may incur or authorize regulated expenses. Section 414 provides that such expenses may be paid only out of the referendum fund, which is available only to the national committees. Under s. 416, no person may accept or execute an order for regulated expenses unless they are incurred or authorized by the official agent of a national committee or by one of his or her representatives. Under s. 417, no person may receive a price different from the regular price for goods or services representing a regulated expense. Finally, s. 404 lists exceptions to regulated expenses. These exceptions, or unregulated expenses, comprise primarily forms of expression that do not require the disbursement of money or financial consideration. The only disbursement of money permitted is the maximum amount of $600 for organizing and holding a meeting. The appellant maintains that the impugned provisions infringe the freedoms of expression and association guaranteed by ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms. He argues that if he wishes to conduct a referendum campaign independently of the national committees, his freedom of political expression will be limited to unregulated expenses. Conversely, if he wishes to be able to incur regulated expenses, he will have to join or affiliate himself with one of the national committees. In the courts below, the Superior Court and the Court of Appeal held that the impugned provisions infringed freedom of expression but that this infringement was justifiable under s. 1 of the Charter.
Held: The appeal should be allowed.
The freedom of expression protected by s. 2(b) of the Charter must be interpreted broadly. Unless the expression is communicated in a manner that excludes the protection, such as violence, any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b). The impugned provisions at issue here infringe freedom of expression. The appellant wishes to express his opinions on the referendum question and convey meaning independently of the national committees by means of "regulated expenses". This is a form of political expression that is clearly protected by s. 2(b) - political expression is at the very heart of the values sought to be protected by freedom of expression - and the impugned provisions restrict that freedom. The expenses of persons who, either individually or as a group, do not wish to or cannot join or affiliate themselves with one of the national committees are limited to the unregulated expenses set out in s. 404. The Act accordingly places restrictions on such persons who, unlike the national committees, cannot incur regulated expenses during the referendum period in order to express their points of view. Since freedom of expression includes the right to employ any methods, other than violence, necessary for communication, this clearly infringes their freedom of political expression.
For similar reasons, the impugned provisions also infringe freedom of association. The protection provided for in s. 2(d) of the Charter includes the exercise in association of the constitutional rights and freedoms of individuals. In the present case, there are both individuals and groups whose freedom of expression is restricted by the impugned provisions. These groups therefore cannot freely exercise one of the rights protected by the Charter. Their freedom of association is accordingly infringed.
From the point of view of justification under s. 1 of the Charter, the basic objective of the Act at issue is to guarantee the democratic nature of referendums by promoting equality between the options submitted by the government and seeking to promote free and informed voting. In its egalitarian aspect, the Act is intended to prevent the referendum debate being dominated by the most affluent members of society. At the same time, the Act promotes an informed vote by ensuring that some points of view are not buried by others. This highly laudable objective, intended to ensure the fairness of a referendum on a question of public interest, is of pressing and substantial importance in a democratic society.
To attain its objective, the Act limits spending not only by the national committees, but also by independent individuals and groups, during the referendum period. There is clearly a rational connection between limits on independent spending and the legislature's objective. Limits on such spending are essential to maintain an equilibrium in financial resources and to guarantee the fairness of the referendum. The evidence shows that without such controls, any system for limiting the spending of the national committees would become futile. The limit on independent spending must also be stricter than that granted to the national committees, since it cannot be assumed that independent spending will be divided equally to support the various options.
With respect to the minimal impairment test, while the impugned provisions do in a way restrict one of the most basic forms of expression, namely political expression, the legislature must be accorded a certain deference to enable it to reconcile the democratic values of freedom of expression and referendum fairness. To attain this objective, the legislature had to try to strike a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all. The impugned provisions are therefore not purely restrictive of freedom of expression. Their primary purpose is to promote political expression by ensuring an equal dissemination of points of view purely out of respect for democratic traditions. The structure set up by the legislature enables the vast majority of the people or groups favouring one of the options to participate actively in the referendum campaign by joining or affiliating themselves with the national committee overseeing the option. The affiliation system therefore significantly relaxes the restriction imposed by the impugned provisions on the freedoms of expression and association of groups that wish to support one of the options submitted to a referendum but disagree with the strategy of the national committee representing the option they support. This relaxation is sufficient to conclude that the impairment of the freedoms of such groups is minimal. Affiliation makes it possible for such groups to conduct campaigns parallel to that of the national committee representing the option they wish to support and to incur regulated expenses out of the referendum fund. Individuals may also associate to form an affiliated group in order to conduct a parallel campaign.
However, the limits imposed under s. 404 cannot meet the minimal impairment test in the case of individuals and groups who can neither join nor affiliate themselves with the national committees and can therefore express their views only by means of unregulated expenses. The forms of expression provided for in that section are so restrictive that they come close to being a total ban. There are alternative solutions consistent with the Act's objective that are far better than the exceptions set out in s. 404. An exception to regulated expenses permitting citizens, either individually or in groups, to spend a certain amount on an entirely discretionary basis while prohibiting the pooling of such amounts would be far less intrusive than the s. 404 exceptions. By virtue of this exception, individuals and groups who can neither join nor affiliate themselves with the national committees would be entitled to a minimum amount that they would be able to spend as they saw fit in order to communicate their points of view. Since it is difficult to sever s. 404 from the rest of the impugned provisions, it must also be concluded that all the impugned provisions constitute an unjustified infringement of the freedoms of expression and association. Sections 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 are accordingly declared to be of no force or effect. In view of this declaration, the other provisions of the Referendum Act relating to control of referendum spending become pointless since practically all these provisions are based on the concept of "regulated expenses". It will be up to the legislature to make the appropriate amendments.
The result of the case would have been the same had it been resolved on the basis of the Quebec Charter of Human Rights and Freedoms.
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