Mackay v. Manitoba [1989] 2 S.C.R. 357: Act providing for payment of portion of election expenses if candidates and parties received fixed proportion of votes -- Whether or not Act infringing freedom of expression -- The Elections Finances Act,

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka and Cory JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law -- Charter of Rights -- Charter litigation -- Factual basis -- Declaration sought without factual basis on which to decide issue -- Whether or not Charter issues should be decided in absence of factual basis.

Constitutional law -- Charter of Rights -- Freedom of expression -- Act providing for payment of portion of election expenses if candidates and parties received fixed proportion of votes -- Whether or not Act infringing freedom of expression -- The Elections Finances Act, S.M. 1982-83-84, c. 45 -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

The appellants alleged that the Charter right to freedom of expression was infringed by those sections of The Elections Finances Act which provided for the province's paying a portion of the campaign expenses of candidates and parties receiving a fixed proportion of the votes in the provincial election. No evidence was submitted to support the claim. Respondent did not question the status of the appellants to bring the action and preferred to have the case decided on its merits, rather than have it defeated on the technical basis that it had no factual basis. Appellants conceded that the legislation did not discriminate against them and as a result s. 15 of the Charter did not need to be considered. The trial judge held that the legislation in question did not infringe the guarantee of freedom of expression set out in s. 2(b) of the Canadian Charter of Rights and Freedoms. The majority of the Court of Appeal upheld this decision.

Held: The appeal should be dismissed.

The presentation of facts is essential to a proper consideration of Charter issues and not a mere technicality to be dispensed with by the consent of the parties. Here, the absence of a factual base was not just a technicality to be overlooked but a fatal flaw. The effects of the legislation, and not its purpose, were alleged to have infringed the Charter. If the deleterious effects were not established there could be no Charter violation and no case, accordingly, could be made out. In appropriate circumstances, taking judicial notice of broad social facts could overcome the fact that no evidence was put before the Court.

The Act did not prohibit a taxpayer or anyone else from holding or expressing any position or their belief in any position. Rather, it fostered and encouraged the dissemination and expression of a wide range of views and positions.

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