Judicial Independence
(And What Everyone Should Know About It)
15 March 2012
Introduction
The provincial government’s "Justice Reform Initiative" presents an opportunity to provide information to the public about the courts and the role of the judiciary in our system of government.
Our system of government is divided into three branches: the legislative, the executive and the judiciary. Each has separate and independent areas of power and responsibility. In its simplest form, the legislative branch creates the law, the executive branch enforces the law, and the judicial branch interprets and applies the law in individual cases.
Through a long history, a balance has been struck among these three branches of government, keeping each branch from gaining too much power or having too much influence over the others.
Every resident of Canada remains subject to the application of the law. No person nor government is beyond its reach. This principle is often called the "rule of law" and is important in a democratic system of government. A former Secretary General of the United Nations has defined the rule of law as follows:
It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.1
1 U.N. Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General. (S/2004/616). 23 August 2004. Online: http://www.unrol.org/files/2004%20report.pdf.
This principle has a long history, but the independence of the judges, who are tasked with interpreting and applying the law in individual cases, is an important part.
What is Judicial Independence and Why is it Important?
The term "judicial independence" is often talked about when discussing the justice system, but is not always well-understood. The purpose of these comments is to help the public understand what judicial independence is and why it is important.
A famous English judge said that "Justice must be rooted in confidence." He was referring to the confidence litigants and the public must have that judicial decision-makers are impartial. Those who come before the courts must be certain that decisions made by those courts are not subject to outside influence. Judicial independence means that judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law. Judicial independence is often misunderstood as something that is for the benefit of the judge. It is not. It is the public’s guarantee that a judge will be impartial. The principle has been expressed this way:
In the final analysis we value and stress judicial independence for what it assures to the public, not for what it grants to judges themselves. Ultimately, the sole purpose of the concept is to ensure that every citizen who comes before the court will have [their] case heard by a judge who is free of governmental or private pressures that may impinge upon the ability of that judge to render a fair and unbiased decision in accordance with the law.2
2 Garry D. Watson, "The Judge and Court Administration" in The Canadian Judiciary (Toronto: Osgoode, 1976) at 183 quoted in British Columbia, Commission of Inquiry Pursuant to Order-in-Council #1885, July 5, 1979, Report of the Honourable Mr. Justice P.D. Seaton, Commissioner (October 23, 1979) at 11 ["Seaton Report"].
3 Seaton Report at 60.
It has been suggested that judges may use independence as a "shield" against scrutiny. This is a mistaken view.
Judges have a responsibility to protect their independence and impartiality. They do so not out of self-interest, but as an obligation they owe to the public who have entrusted them with decision-making power, and to whom they are ultimately accountable to maintain the public’s confidence. One judge expressed it this way:
It is the judge [...] who is primarily responsible for the maintenance of [their] independence and the independence of the judiciary generally. The Chief Judge and others with administrative duties must act as a buffer between the executive and individual judges. All judges, especially those with administrative duties, must be vigilant to preserve their independence and the independence of their court. They must keep the Ministry, just as they must keep all others, at arm’s length.3
To preserve judicial independence, the Constitution of Canada requires three things:
1. Security of tenure: Once appointed, a judge is entitled to serve on the bench until the age of retirement, unless, for Superior Court judges, both houses of Parliament agree that he or she should be removed from office, or for Provincial Court judges, a tribunal established under the Provincial Court Act has ordered that he or she should be removed from office.
2. Financial security: Judges are paid sufficiently and in a manner so they are not dependent on or subject to pressure from other institutions.
3. Administrative independence: Courts must be able to decide how to manage the litigation process and the cases judges will hear.
It is easy to see how the first two aspects are important to ensure judges are free from government or private pressures affecting their impartiality. The third aspect, administrative independence, is more complex.
The court as a whole must remain separate from other branches of government to prevent any suggestion of improper influence. The Supreme Court of Canada has stated the aspects of administrative independence necessary to maintain a constitutionally-sound separation between the judiciary and other branches of government. They include:
1. the assignment of judges to hear particular cases;
2. the scheduling of court sittings;
3. the control of court lists for cases to be heard;
4. the allocation of courtrooms; and
5. the direction of registry and court staff in carrying out these functions.
It is important to understand why these functions must remain within judicial control. First, the public could not have confidence in the independence and impartiality of the courts if others, outside the judicial branch, could control or manipulate proceedings by interfering in any of these functions. A judge cannot be independent if the necessary support staff is unavailable, or is subject to the control of and accountable to others.
All recognize there is a requirement for accountability for the allocation and disposition of the resources, human and otherwise, necessary to the proper functioning of the courts. There is bound to be continuing tension between the uncertain and varying demands for the resources, and the constraints on those who must budget for the supply of those resources. But if there is a business case to be made for cost savings, that case must be made within the confines of what is permitted by the Constitution.
Reforms also need to be examined in context. For example, it has been suggested that "overbooking" (the setting of more than one case before the same judge on the same day) is inefficient and costly, because one or more counsel and parties who attend on the appointed day will have their cases adjourned. That can be one result of overbooking. But this view overlooks the fact that overbooking often leads to more effective utilization of judicial and other court resources, taking into account the number of cases that normally settle on the eve of trial or do not proceed for other reasons.
By long history, our court proceedings are based on an adversarial system. The parties present their opposing positions, witnesses are called and cross-examined. The judge sits as a neutral decision-maker. It is not a perfect system, and it continues to evolve, but in its essential form, and particularly in the area of criminal law, it is a system that has worked well for centuries.
In the adversarial system, the preparation and presentation of cases is left primarily in the hands of the lawyers representing the adverse parties. The courts exercise some measure of control over this, but they must respect the accused’s constitutional rights, as well as the professional obligations of the lawyers to their respective clients.
The adversarial system is one feature of the legal system that makes it an uneasy fit with the application of business analysis and systems management designed for a business or government enterprise. The judiciary of each Court has drawn upon such analysis to develop projects and systems to better serve the public in a manner that also recognizes the constitutional structures and rights that underpin the legal system.
There are many other factors which require consideration when seeking to improve the justice system. No one can predict with confidence the number of cases coming into the system at any given time, and no one can predict their complexity or the time they will require to be heard and resolved. Predetermined limits on human resources by those outside the judicial system are likely to give rise to serious problems. Flexibility is necessary if changing demands for judicial and court resources are to be met.
Other Types of Independence
It is important to distinguish between judicial independence and the sort of independence that characterizes the role of other members of our legal system. Police, prosecutors and defence counsel all have to make important decisions in the detection, prosecution and defence of persons alleged to have committed crimes.
There is a critical distinction between the police and Crown prosecutors on the one hand, and the judiciary on the other. The police and prosecutors are in the employ and within the authority of the executive branch of government. Although required to exercise their duties impartially and independently, at the end of the day they are agents of the Crown.
Judges by contrast are not subject to the direction or control of the executive branch of government.
There are sound reasons for this. Government, in its many manifestations, is frequently a party to court proceedings in an adversarial role. For example, the state is behind every criminal prosecution. Government agencies are frequently either parties to court proceedings, or are subject to having their decisions reviewed in the courts. Courts are called upon to decide disputes between our Aboriginal peoples, and various levels of government, or government agencies. Courts also have to rule on the validity of legislation, as to whether it is within the powers given to the Legislature or Parliament by the Constitution, and whether it conforms to the requirements of the Charter of Rights and Freedoms.
So while police and prosecutors must be independent within their proper spheres, theirs is an independence of a different nature or quality than judicial independence. While police and prosecutors must be objective, they are ultimately part of and answerable to the executive branch of government. Judges are not, and their independence safeguards their impartiality.
Conclusion
The judiciary is always open to discussing ways to improve the administration of justice. Indeed, all levels of court have engaged in extensive discussions with government officials over the past several years with a view to achieving that end. In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality.
Chief Justice Lance Finch Chief Justice Robert Bauman Chief Judge Thomas Crabtree
Chief Justice of British Columbia Chief Justice Chief Judge
Supreme Court of British Columbia Provincial Court of British Columbia
Saturday, March 17, 2012
Thursday, March 15, 2012
Four-in-five respondents call for an independent investigation to find out who was behind the misleading robocalls made in the 2011 federal ballot.
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Many Canadians are following stories related to the telephone calls with pre-recorded messages made during the last federal election, and a large proportion believe this method was used widely in the last campaign, a new Angus Reid Public Opinion poll has found.
In the online survey of a representative sample of 1,001 Canadian adults, half of respondents (50%) say they have followed stories related to robocalls made during the last federal election campaign “very closely” or “moderately closely.”
Elections Canada is currently investigating telephone calls with pre-recorded messages made at or near the City of Guelph, Ontario, that may have prevented Canadians from voting in the federal election of May 2011.
Less than one-in-five Canadians (18%) believe the robocalls are “definitely” or “probably” an isolated incident limited to Guelph. Conversely, almost two thirds of Canadians (64%) think the Guelph occurrence is “probably” or “definitely” one of many that took place in the last federal campaign.
A large proportion of Canadians who voted for the Green Party (80%), the New Democratic Party (78%), the Liberal Party (77%) and the Bloc Québécois (also 77%) believe that the robocalls extend beyond Guelph, along with 47 per cent of Conservative Party voters.
Canadians were asked which of the five major federal parties are likely to provide false and misleading information to voters through telephone calls with pre-recorded messages during a political campaign. Only a third of respondents in Canada think the Green Party (32%) and the New Democratic Party (NDP) (33%) are “very likely” or “moderately likely” to rely on this tactic. In Quebec, 32 per cent of respondents think the Bloc Québécois is likely to use robocalls with misleading information.
A majority of Canadians believe the Liberal Party (55%) and the Conservative Party (63%) are likely to provide false and misleading information to voters through telephone calls with pre-recorded messages during a political campaign. In fact, two-in-five Canadians (39%) think the Tories are “very likely” to rely on this tactic.
Half of Canadians (50%)—including 61 per cent of Quebecers—believe that every riding that was the subject of misleading robocalls should have a by-election as soon as possible, and four-in-five respondents (81%) want to hold an independent investigation to find out exactly who was behind any misleading robocalls that may have been made in the May 2011 federal election.
Respondents are divided on the effect robocalls may have had on the last federal ballot, with 44 per cent agreeing that the misleading messages definitely changed the outcome of the May 2011 federal election, and 36 per cent disagreeing with that assessment.
At least three-in-five Canadians who voted for any of the four parties currently in opposition in the House of Commons want to hold by-elections in the ridings that were the subject of misleading robocalls, but only 31 per cent of Tory voters concur. Most opposition voters also believe that the robocalls definitely changed the outcome of the last federal ballot, a view shared by just 17 per cent of Conservative voters.
Full Report, Detailed Tables and Methodology (PDF)
Most Canadians Think Robocalls Were Used Broadly in Last Election
Four-in-five respondents call for an independent investigation to find out who was behind the misleading robocalls made in the 2011 federal ballot.In the online survey of a representative sample of 1,001 Canadian adults, half of respondents (50%) say they have followed stories related to robocalls made during the last federal election campaign “very closely” or “moderately closely.”
Elections Canada is currently investigating telephone calls with pre-recorded messages made at or near the City of Guelph, Ontario, that may have prevented Canadians from voting in the federal election of May 2011.
Less than one-in-five Canadians (18%) believe the robocalls are “definitely” or “probably” an isolated incident limited to Guelph. Conversely, almost two thirds of Canadians (64%) think the Guelph occurrence is “probably” or “definitely” one of many that took place in the last federal campaign.
A large proportion of Canadians who voted for the Green Party (80%), the New Democratic Party (78%), the Liberal Party (77%) and the Bloc Québécois (also 77%) believe that the robocalls extend beyond Guelph, along with 47 per cent of Conservative Party voters.
Canadians were asked which of the five major federal parties are likely to provide false and misleading information to voters through telephone calls with pre-recorded messages during a political campaign. Only a third of respondents in Canada think the Green Party (32%) and the New Democratic Party (NDP) (33%) are “very likely” or “moderately likely” to rely on this tactic. In Quebec, 32 per cent of respondents think the Bloc Québécois is likely to use robocalls with misleading information.
A majority of Canadians believe the Liberal Party (55%) and the Conservative Party (63%) are likely to provide false and misleading information to voters through telephone calls with pre-recorded messages during a political campaign. In fact, two-in-five Canadians (39%) think the Tories are “very likely” to rely on this tactic.
Half of Canadians (50%)—including 61 per cent of Quebecers—believe that every riding that was the subject of misleading robocalls should have a by-election as soon as possible, and four-in-five respondents (81%) want to hold an independent investigation to find out exactly who was behind any misleading robocalls that may have been made in the May 2011 federal election.
Respondents are divided on the effect robocalls may have had on the last federal ballot, with 44 per cent agreeing that the misleading messages definitely changed the outcome of the May 2011 federal election, and 36 per cent disagreeing with that assessment.
At least three-in-five Canadians who voted for any of the four parties currently in opposition in the House of Commons want to hold by-elections in the ridings that were the subject of misleading robocalls, but only 31 per cent of Tory voters concur. Most opposition voters also believe that the robocalls definitely changed the outcome of the last federal ballot, a view shared by just 17 per cent of Conservative voters.
Full Report, Detailed Tables and Methodology (PDF)
Saturday, March 10, 2012
$27B tobacco lawsuit headed for Quebec court : Other provinces team up to take on tobacco companies
Canada's three main tobacco companies are set to do battle in a Montreal court on Monday in the biggest civil case in Canadian history.
A group of Quebec smokers is suing Imperial Tobacco Canada, Rothmans, Benson & Hedges and JTI-Macdonald.
They claim the companies failed to properly warn their customers about the dangers of smoking, underestimated evidence relating to the harmful effects of tobacco, engaged in unscrupulous marketing and destroyed documents.
It's the first time tobacco companies have gone to trial in a civil suit in Canada, and up to $27 billion in damages and penalties are at stake.
The tobacco companies say they vehemently deny the allegations.
On another front, six provinces are teaming up to sue Canadian tobacco firms for health-care costs.
B.C., New Brunswick, Nova Scotia, Saskatchewan, Manitoba and P.E.I. are retaining a national legal team to help them prosecute Canadian tobacco companies.
They're seeking to recover billions of dollars.
A group of Quebec smokers is suing Imperial Tobacco Canada, Rothmans, Benson & Hedges and JTI-Macdonald.
They claim the companies failed to properly warn their customers about the dangers of smoking, underestimated evidence relating to the harmful effects of tobacco, engaged in unscrupulous marketing and destroyed documents.
It's the first time tobacco companies have gone to trial in a civil suit in Canada, and up to $27 billion in damages and penalties are at stake.
The tobacco companies say they vehemently deny the allegations.
On another front, six provinces are teaming up to sue Canadian tobacco firms for health-care costs.
B.C., New Brunswick, Nova Scotia, Saskatchewan, Manitoba and P.E.I. are retaining a national legal team to help them prosecute Canadian tobacco companies.
They're seeking to recover billions of dollars.
Thursday, March 8, 2012
Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764 Supreme Court of Canada
Source: http://scc.lexum.org/en/2000/2000scc57/2000scc57.html
Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764
The Attorney General of Canada Applicant
v.
Stephen Joseph Harper Respondent
Indexed as: Harper v. Canada (Attorney General)
Neutral citation: 2000 SCC 57.
File No.: 28210.
2000: November 10.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
motion for a stay
Practice ‑‑ Stay ‑‑ Federal elections ‑‑ Spending limits ‑‑ Plaintiff granted interlocutory injunction against enforcement of third‑party spending limits pending decision on his constitutional challenge to legislation ‑‑ Whether injunction should be stayed.
The respondent sought a declaration that the provisions in the Canada Elections Act, S.C. 2000, c. 9, imposing limits on third‑party spending on advertising in the course of a federal election campaign are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The issue has gone to trial but judgment has not yet been rendered. An election writ has been issued with a polling date of November 27, 2000. The respondent immediately applied for an interlocutory injunction restraining the enforcement of the third‑party spending limits, pending the decision in the action. The same judge who heard the trial granted the injunction, which was upheld by the Court of Appeal. The Attorney General of Canada applies to this Court for leave to appeal from the interlocutory injunction and, in the interim, for a stay of the injunction.
Held (Major J. dissenting): The stay should be granted.
Per McLachlin C.J., L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.: In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers: (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience. This case turns on an analysis of the third ground -‑ the balance of (in)convenience.
The public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the respondent even though the trial has not been completed. It is taken as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, the balance of convenience favours staying the injunction. 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. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
Per Major J. (dissenting): The interim injunction furthers the Charter’s guarantee of freedom of expression, and the respondent has displaced the assumption that the government suffers a greater harm than he does. Thus, the balance of convenience tips sharply in favour of the respondent. The chambers judge made no error and was entitled to reach the conclusion that the balance of convenience favoured injunctive relief. We should be loathe to interfere with political speech, especially in the midst of a federal election.
The Attorney General admitted that there was a violation of s. 2(b) of the Charter, but did not offer any evidence to show that the injunction would cause some harm. The presumption that legislation generally identified as serving a public interest is prima facie valid should not be conclusive where it competes against the acknowledged impediment to an individual’s free speech unless there is some evidence demonstrating an impediment of a public interest. Furthermore, the assumption that the public interest will suffer irreparable harm when an injunction stops an authority from protecting the public good can be overcome when an applicant demonstrates that the injunction itself serves the public interest. Finally, this case falls within an exception to the principle that the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity.
Cases Cited
By McLachlin C.J. et al.
Applied: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Haig v. Canada, [1993] 2 S.C.R. 995; RJR‑-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; referred to: Thomson Newspapers Co. v. Canada (Attorney General), Bulletin of Proceedings of the Supreme Court of Canada, 1997, p. 882.
By Major J. (dissenting)
Switzman v. Elbling, [1957] S.C.R. 285; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR-‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Attorney General of Canada v. Gould, [1984] 1 F.C. 1133, aff’d [1984] 2 S.C.R. 124.
Statutes and Regulations Cited
Canada Elections Act, S.C. 2000, c. 9, s. 350(1), (2), (3), (4).
Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Authors Cited
Berryman, Jeffrey. The Law of Equitable Remedies. Toronto: Irwin Law, 2000.
Cassels, Jamie. “An Inconvenient Balance: The Injunction as a Charter Remedy”, in Jeffrey Berryman, ed., Remedies: Issues and Perspectives. Scarborough, Ont.: Carswell, 1991, 271.
Roach, Kent. Constitutional Remedies in Canada. Aurora, Ont.: Canada Law Book (loose‑leaf updated 2000, release 7).
Sharpe, Robert J. Injunctions and Specific Performance. Aurora, Ont.: Canada Law Book (loose‑leaf updated 1999, release 7).
MOTION to stay a judgment of the Alberta Court of Appeal, [2000] A.J. No. 1240 (QL), affirming an order of the Court of Queen’s Bench, [2000] A.J. No. 1226 (QL), enjoining the enforcement of s. 350(1), (2), (3) and (4) of the Canada Elections Act. Motion granted, Major J. dissenting.
Written submissions by Graham Garton, Q.C., and Thomas W. Wakeling, for the applicant.
Written submissions by Alan D. Hunter, Q.C., and Eric Groody, for the respondent.
The following is the order delivered by
1 The Chief Justice and L’Heureux-Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ. – On May 31, 2000, Parliament passed the Canada Elections Act, S.C. 2000, c. 9 (the “Act”), imposing limits on third-party spending on advertising in the course of a federal election campaign. The law came into force on September 1, 2000. Our reasons in this application relate solely to the issue of whether an injunction which suspended the enforcement of certain provisions pertaining to third-party spending limits should be stayed. They do not deal with the granting of leave to appeal the injunction order nor any ensuing appeal. They also do not deal with the question of whether the Act is unconstitutional.
2 The respondent Stephen Joseph Harper commenced an action on June 7, 2000 before the Alberta Court of Queen’s Bench, seeking a declaration that the spending limits are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The trial commenced on October 2 and adjourned on October 13, after nine days of evidence.
3 On October 22, an election writ was issued, with a polling date of November 27, 2000. Mr. Harper applied to the same trial judge (Cairns J.), who heard the action seeking a declaration that the spending limits are unconstitutional, for an interlocutory injunction restraining the Chief Electoral Officer of Canada and the Commissioner of Canada Elections from enforcing the third-party spending limits, pending the decision in the action. The trial judge granted the injunction ([2000] A.J. No. 1226 (QL)), and the Alberta Court of Appeal upheld it ([2000] A.J. No. 1240 (QL)). The Attorney General of Canada now applies to this Court, seeking leave to appeal from the interlocutory injunction and, in the interim, a stay of the injunction. The application for leave to appeal is granted, by separate order, released concurrently. This leaves the question of whether the injunction restraining the enforcement of the law imposing spending limits should be stayed.
4 In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers: (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience. Without prejudging the appeal, we are satisfied there is a serious issue to be tried. The issue is no less than the constitutionality of provisions of the electoral law passed by the Parliament of Canada which no court has held to be invalid. This is a serious issue not only because the constitutionality of the provisions is challenged, but because it is common ground that the determination of the constitutionality will turn on the application of s. 1 of the Charter, which is always a complex factual and legal analysis. We also assume that the provisions in issue may occasion “irreparable harm” to the capacity of third parties to participate as they wish in the election campaign to the extent of the spending limits on advertising imposed on them. This leaves the third ground, the balance of convenience.
5 Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience. On the one hand stands the benefit flowing from the law. On the other stand the rights that the law is alleged to infringe. An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decided. Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough: R. J. Sharpe, Injunctions and Specific Performance (loose-leaf ed.), at para. 3.1220.
6 The trial judge found that the freedom of speech interest raised by the applicant Harper to be of great importance. On the other side of the balance, he found that the Attorney General of Canada had called no evidence on the harm that would result from suspending the operation of the law. In the absence of evidence, he characterized this harm as “notional unproven unfairness” (para. 35). Accordingly, he found that the balance of convenience favoured the grant of an injunction.
7 We cannot, with respect, agree. This application is governed by the principles set forth in previous cases. On appeal the applicant Harper may seek alteration of these principles, but for the moment they govern. Applying these principles, the balance of convenience in this case favours granting the stay of the injunction. One of these principles is the rule against granting the equivalent of final relief in interlocutory challenges to electoral statutes, even in the course of elections governed by those statutes: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; see also Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, per Beetz J., at p. 144; Haig v. Canada, [1993] 2 S.C.R. 995. In this case, allowing the injunction to stay in place will in effect give Mr. Harper the ultimate relief he seeks in his action, at least with respect to the current election. The trial judge, however, did not address this factor, nor the case law which addresses it.
8 It may also be noted that, in Thomson Newspapers Co. v. Canada (Attorney General), S.C.C., No. 25593, May 7, 1997 (published in the Bulletin of Proceedings of the Supreme Court of Canada, 1997, at p. 882), this Court refused to grant a stay suspending the enforcement of the provisions mandating publication bans on opinion polls set forth in the Canada Elections Act, R.S.C., 1985, c. E-2, s. 322.1. In so doing, the Court relied on its previous decision in Gould, supra. The Court refused the stay even though the ultimate decision found the poll prohibition to be unconstitutional.
9 Another principle set out in the cases is that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law, it is wrong to insist on proof that the law will produce a public good. Rather, at this stage of the proceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-49:
When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.
It follows that in assessing the balance of convenience, the motions judge must proceed on the assumption that the law -- in this case the spending limits imposed by s. 350 of the Act -- is directed to the public good and serves a valid public purpose. This applies to violations of the s. 2(b) right of freedom of expression; indeed, the violation at issue in RJR--MacDonald was of s. 2(b). The assumption of the public interest in enforcing the law weighs heavily in the balance. 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. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
10 Again, the trial judge appears not to have applied this principle in weighing the benefits of the law against its impact on free expression. Instead of assuming that the legislation has the effect of promoting the public interest as RJR--MacDonald directs, the trial judge based his conclusion on the fact that the Government “has not adduced any evidence to illustrate unfairness in any of these elections in Canada caused by third-party spending limits” (para. 33). He went on to repeat that the “Government simply asserts that third-party spending limits, if not controlled, may (and that is notional only) impact adversely on the fairness of elections” (para. 34), and moved directly from this to the conclusion that leaving the spending limits in place “would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government” (para. 35). Moreover, the trial judge made no mention of the fact that the law may be seen not only as limiting free expression but as regulating it in order to permit all voices during an election to be heard fairly.
11 Applying the principles enunciated in previous decisions of this Court, and without prejudging the outcome of any appeal from the injunction, we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed. Moreover, applying RJR--MacDonald, we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.
Conclusion
12 We therefore conclude that a stay of the order enjoining the enforcement of s. 350(1), (2), (3) and (4) of the Canada Elections Act should be granted.
The following are the reasons delivered by
13 Major J. (dissenting) — The facts that accompany this application by the Attorney General of Canada for a stay of the injunction obtained in Alberta are not in dispute. The chambers judge, relying on the pleadings and the evidence at the trial, faced the concession that the plaintiff Mr. Harper’s freedom of expression was restricted by the legislation. Weighed against this was the inability of the Attorney General to demonstrate that the injunction would cause any inconvenience (see [2000] A.J. No. 1226 (QL), at paras. 34-35, per Cairns J.):
The Government simply asserts that third-party spending limits, if not controlled, may (and this is notional only) impact adversely on the fairness of elections. Yet, it can point to no evidence to illustrate unfairness in the Canadian elections caused by third-party spending.
In my judgment, the spending limits having the deleterious effect of fettering the core freedom of expression and speech as enshrined in the Charter, as they do and as admitted by the Attorney General of Canada, would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government.
14 As described in the reasons of the majority, an injunction should be granted where: (1) there is a serious question to be tried, (2) there is irreparable harm to the person seeking the injunction if no injunction is issued, and (3) the balance of convenience favours an injunction.
15 It is on the determination of the balance of convenience that I disagree with the majority. The chambers judge, who was also the trial judge in the recently concluded trial, was in a unique position to weigh the balance of convenience.
16 The trial judge did not, nor do I, intend the interim injunction to reflect on the validity of the new elections legislation. The question of whether the limits on election spending are constitutional will only be decided once there is a determination on the merits.
17 It is inescapable to me that the balance of convenience tips sharply in favour of the plaintiff. The proposition advanced to counter the obvious inconvenience to Mr. Harper is that legislation generally identified as serving a public interest carries a prima facie assumption of validity. But that presumption should not be conclusive where, as here, it competes against the acknowledged impediment to the plaintiff’s free speech unless there is some evidence demonstrating an impediment of a public interest. Here there is none.
18 The chambers judge was careful to note that the interim injunction was just that. He stated that his ultimate disposition may be that the legislation is constitutional. But he could not ignore the evidence produced during the two-week trial to the extent it bore on granting an interim injunction.
19 The interim injunction would safeguard important constitutional rights guaranteed by the Canadian Charter of Rights and Freedoms and protect the freedom of political speech during a federal election. The law is clear that — in the absence of an error in principle — the trial judge has the discretion, and is entitled to appellate deference.
20 In this application, we are dealing with one of the most valuable forms of speech: political speech. Canadians cherish the unimpeded diffusion of political ideas and opinions, and this Court has long recognized that freedom of expression is “essential to the working of a parliamentary democracy such as ours” (Switzman v. Elbling, [1957] S.C.R. 285, per Abbott J., at p. 326). Hence we must tread carefully in limiting political speech. It is speech that we recognize as invaluable, given its significance in our democratic process. We should be loathe to interfere with it, especially in the midst of a federal election.
21 I am of the view that the trial judge did not err in applying the three-part test for an injunction in a constitutional context, as set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, and RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, both cases that the trial judge referred to and relied upon. As stated, I agree with the majority that the first two requirements are met.
22 The third requirement is that the balance of convenience favours granting the injunction. This requirement subsumes the question of what irreparable harm the defendant faces. After nine days of trial, there was no evidence before the Alberta Court of Queen’s Bench that the injunction would cause any “inconvenience” or “irreparable harm”. Nor has the Attorney General in this application referred this Court to any evidence showing what harm would result from the injunction. Instead, the Attorney General states as a conclusion that suspending the spending limits would result in unfairness, and so the legislation must be applied “in the interests of fairness for all”.
23 The Attorney General admitted that there was a violation of s. 2(b), and offered not a scintilla of evidence showing that the injunction would cause some harm. In this light, the trial judge concluded that the balance of convenience favoured injunctive relief. Given the restriction upon a cherished constitutional freedom and the absence of anything tilting the other way, Cairns J. was entitled to reach this conclusion.
24 I acknowledge that in the majority of cases, it may be acceptable to assume that there is irreparable harm to the public interest when an injunction stops an authority from protecting the public good: RJR--MacDonald, supra, at p. 346. But that is an assumption only (as Sopinka and Cory JJ. suggest at p. 349), and it can be overcome when an applicant demonstrates that the injunction itself serves the public interest. In this case, the injunction furthers the Charter’s guarantee of freedom of expression, and Mr. Harper has displaced the assumption that the government suffers a greater harm than he does.
25 I find that the suggestion of “irreparable harm” to the government or the public interest is strained and unpersuasive. To date, Canadian federal elections have not been governed by limits on third-party spending. It is difficult to see how the consequences of undergoing one more election without these limits would somehow cause “irreparable harm” to our democratic institutions, particularly since no such harm occurred in past elections. In my view, the public interest favours granting, rather than refusing, the injunction. Dean Cassels is right to suggest that the “public interest” does not belong exclusively to the Attorney General, and I agree with his rejection of the “assumption that only one party speaks for the public interest” (J. Cassels, “An Inconvenient Balance: The Injunction as a Charter Remedy”, in J. Berryman, ed., Remedies: Issues and Perspectives (1991), 271, at pp. 303-5). The question is: will the injunction serve the public good by protecting constitutional rights? Given the need to protect free speech, particularly during an election, it seems reasonable to require the Attorney General to provide something more than a pro forma statement about unfairness. In the absence of anything beyond speculation, and in the face of a serious denial of Charter-protected freedoms, the balance of convenience clearly favours the injunction. I would add that while the Attorney General argues that the public interest is served by seeing the legislation enforced, that argument is countered by the compelling public interest in seeing fundamental Charter-protected freedoms upheld: J. Berryman, The Law of Equitable Remedies (2000), at p. 51.
26 “Because the granting of an interlocutory injunction is a discretionary matter appellate courts have limited the role of review”: Berryman, The Law of Equitable Remedies, supra, at p. 37. This Court endorsed the deferential approach in Metropolitan Stores, supra, at pp. 154-56. The standard is high; the reviewing court “must not interfere with [the trial judge’s exercise of discretion] merely on the ground that the members of the appellate court would have exercised the discretion differently”: Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 (H.L.), per Lord Diplock, at p. 1046. To interfere, there must be a clear mistake on the law or the evidence, or some other glaring error. There is no such mistake here.
27 Cairns J. is entitled to appellate deference. He was, in fact, unusually well-placed to grant the injunction. The typical judge faced with this sort of injunction would not have the benefit of having presided over the trial on the merits of the constitutional challenge.
28 It is true, as the majority suggests, that in all but exceptional cases, the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity: Attorney General of Canada v. Gould, [1984] 1 F.C. 1133 (C.A.), aff’d [1984] 2 S.C.R. 124. But this case falls in the narrow category of exceptions. I reach that conclusion for three reasons.
29 First, there is the timing of the challenge. The new Canada Elections Act, S.C. 2000, c. 9, was given royal assent on May 31, 2000. The plaintiff’s statement of claim was issued within seven days. The legislation would ordinarily have come into force after the November 27 general election, but it was activated, so to speak, by publication of notice in the Canada Gazette on September 1, 2000. The Attorney General of Canada introduced this legislation in a manner that virtually sealed it from meaningful constitutional scrutiny before the election. These circumstances demand scrutiny. The prospect arises that governments could pass unconstitutional laws immediately prior to an election and leave affected citizens with no remedy. The state could effectively place its election legislation beyond constitutional scrutiny by virtue of when that legislation is enacted. I note that the situation here is unlike that in Gould, supra, where the impugned provision had been in force for years but was challenged only on the eve of an election.
30 Another compelling factor is that the judge who handled the application for an interlocutory injunction knew the case; he had recently presided over a two-week trial in which the constitutionality of the legislation was debated in great detail. That fact distinguishes this case from Gould, supra, where the judge who granted the injunction had not heard arguments on the constitutionality of the provisions governing prisoners’ voting rights. The fact that the same judge heard both the trial and the application for an injunction here argues in favour of considerable deference to his decision.
31 Finally, there is the nature of the constitutional challenge at issue. The speech that is limited here is political expression. It is the epitome of speech that furthers the aspirations of a democratic society. That expression would be limited at its most important moment, during an election, while the Attorney General offers no evidence that the injunction would cause harm.
32 The majority, at para. 7, accepts the Attorney General’s submission that an injunction “effectively grants [Mr. Harper] the final relief that he seeks in the trial still under way”. I do not, because the “final” question is the constitutionality of the legislation, and that question cannot be answered in these interlocutory proceedings. In any event, it could equally be said that staying the injunction gives the government the final relief it is most concerned about. That argument cuts both ways and does not get us far.
33 This Court, as Professor Roach points out in Constitutional Remedies in Canada (loose-leaf ed.), at p. 7-7, has “clearly rejected reliance on a presumption that legislation is constitutional in deciding interlocutory applications”. In Metropolitan Stores, supra, at p. 124, Beetz J. held that “the presumption of constitutional validity . . . is not compatible with the innovative and evolutive character of [the Charter]”. It could be said that the majority improperly veers toward an automatic presumption of constitutionality.
34 In RJR–MacDonald, at pp. 333-34, Sopinka and Cory JJ. considered the factors that must govern the balancing process:
On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect.
On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter rights. Such a practice would undermine the spirit and purpose of the Charter and might encourage a government to prolong unduly final resolution of the dispute.
I find those words apt. I would deny the application for a stay.
Motion granted, Major J. dissenting.
Solicitor for the applicant: The Deputy Attorney General of Canada, Ottawa.
Solicitors for the respondent: Gowling Lafleur Henderson, Calgary.
Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764
The Attorney General of Canada Applicant
v.
Stephen Joseph Harper Respondent
Indexed as: Harper v. Canada (Attorney General)
Neutral citation: 2000 SCC 57.
File No.: 28210.
2000: November 10.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
motion for a stay
Practice ‑‑ Stay ‑‑ Federal elections ‑‑ Spending limits ‑‑ Plaintiff granted interlocutory injunction against enforcement of third‑party spending limits pending decision on his constitutional challenge to legislation ‑‑ Whether injunction should be stayed.
The respondent sought a declaration that the provisions in the Canada Elections Act, S.C. 2000, c. 9, imposing limits on third‑party spending on advertising in the course of a federal election campaign are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The issue has gone to trial but judgment has not yet been rendered. An election writ has been issued with a polling date of November 27, 2000. The respondent immediately applied for an interlocutory injunction restraining the enforcement of the third‑party spending limits, pending the decision in the action. The same judge who heard the trial granted the injunction, which was upheld by the Court of Appeal. The Attorney General of Canada applies to this Court for leave to appeal from the interlocutory injunction and, in the interim, for a stay of the injunction.
Held (Major J. dissenting): The stay should be granted.
Per McLachlin C.J., L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.: In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers: (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience. This case turns on an analysis of the third ground -‑ the balance of (in)convenience.
The public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the respondent even though the trial has not been completed. It is taken as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, the balance of convenience favours staying the injunction. 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. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
Per Major J. (dissenting): The interim injunction furthers the Charter’s guarantee of freedom of expression, and the respondent has displaced the assumption that the government suffers a greater harm than he does. Thus, the balance of convenience tips sharply in favour of the respondent. The chambers judge made no error and was entitled to reach the conclusion that the balance of convenience favoured injunctive relief. We should be loathe to interfere with political speech, especially in the midst of a federal election.
The Attorney General admitted that there was a violation of s. 2(b) of the Charter, but did not offer any evidence to show that the injunction would cause some harm. The presumption that legislation generally identified as serving a public interest is prima facie valid should not be conclusive where it competes against the acknowledged impediment to an individual’s free speech unless there is some evidence demonstrating an impediment of a public interest. Furthermore, the assumption that the public interest will suffer irreparable harm when an injunction stops an authority from protecting the public good can be overcome when an applicant demonstrates that the injunction itself serves the public interest. Finally, this case falls within an exception to the principle that the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity.
Cases Cited
By McLachlin C.J. et al.
Applied: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Haig v. Canada, [1993] 2 S.C.R. 995; RJR‑-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; referred to: Thomson Newspapers Co. v. Canada (Attorney General), Bulletin of Proceedings of the Supreme Court of Canada, 1997, p. 882.
By Major J. (dissenting)
Switzman v. Elbling, [1957] S.C.R. 285; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR-‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Attorney General of Canada v. Gould, [1984] 1 F.C. 1133, aff’d [1984] 2 S.C.R. 124.
Statutes and Regulations Cited
Canada Elections Act, S.C. 2000, c. 9, s. 350(1), (2), (3), (4).
Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Authors Cited
Berryman, Jeffrey. The Law of Equitable Remedies. Toronto: Irwin Law, 2000.
Cassels, Jamie. “An Inconvenient Balance: The Injunction as a Charter Remedy”, in Jeffrey Berryman, ed., Remedies: Issues and Perspectives. Scarborough, Ont.: Carswell, 1991, 271.
Roach, Kent. Constitutional Remedies in Canada. Aurora, Ont.: Canada Law Book (loose‑leaf updated 2000, release 7).
Sharpe, Robert J. Injunctions and Specific Performance. Aurora, Ont.: Canada Law Book (loose‑leaf updated 1999, release 7).
MOTION to stay a judgment of the Alberta Court of Appeal, [2000] A.J. No. 1240 (QL), affirming an order of the Court of Queen’s Bench, [2000] A.J. No. 1226 (QL), enjoining the enforcement of s. 350(1), (2), (3) and (4) of the Canada Elections Act. Motion granted, Major J. dissenting.
Written submissions by Graham Garton, Q.C., and Thomas W. Wakeling, for the applicant.
Written submissions by Alan D. Hunter, Q.C., and Eric Groody, for the respondent.
The following is the order delivered by
1 The Chief Justice and L’Heureux-Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ. – On May 31, 2000, Parliament passed the Canada Elections Act, S.C. 2000, c. 9 (the “Act”), imposing limits on third-party spending on advertising in the course of a federal election campaign. The law came into force on September 1, 2000. Our reasons in this application relate solely to the issue of whether an injunction which suspended the enforcement of certain provisions pertaining to third-party spending limits should be stayed. They do not deal with the granting of leave to appeal the injunction order nor any ensuing appeal. They also do not deal with the question of whether the Act is unconstitutional.
2 The respondent Stephen Joseph Harper commenced an action on June 7, 2000 before the Alberta Court of Queen’s Bench, seeking a declaration that the spending limits are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The trial commenced on October 2 and adjourned on October 13, after nine days of evidence.
3 On October 22, an election writ was issued, with a polling date of November 27, 2000. Mr. Harper applied to the same trial judge (Cairns J.), who heard the action seeking a declaration that the spending limits are unconstitutional, for an interlocutory injunction restraining the Chief Electoral Officer of Canada and the Commissioner of Canada Elections from enforcing the third-party spending limits, pending the decision in the action. The trial judge granted the injunction ([2000] A.J. No. 1226 (QL)), and the Alberta Court of Appeal upheld it ([2000] A.J. No. 1240 (QL)). The Attorney General of Canada now applies to this Court, seeking leave to appeal from the interlocutory injunction and, in the interim, a stay of the injunction. The application for leave to appeal is granted, by separate order, released concurrently. This leaves the question of whether the injunction restraining the enforcement of the law imposing spending limits should be stayed.
4 In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers: (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience. Without prejudging the appeal, we are satisfied there is a serious issue to be tried. The issue is no less than the constitutionality of provisions of the electoral law passed by the Parliament of Canada which no court has held to be invalid. This is a serious issue not only because the constitutionality of the provisions is challenged, but because it is common ground that the determination of the constitutionality will turn on the application of s. 1 of the Charter, which is always a complex factual and legal analysis. We also assume that the provisions in issue may occasion “irreparable harm” to the capacity of third parties to participate as they wish in the election campaign to the extent of the spending limits on advertising imposed on them. This leaves the third ground, the balance of convenience.
5 Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience. On the one hand stands the benefit flowing from the law. On the other stand the rights that the law is alleged to infringe. An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decided. Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough: R. J. Sharpe, Injunctions and Specific Performance (loose-leaf ed.), at para. 3.1220.
6 The trial judge found that the freedom of speech interest raised by the applicant Harper to be of great importance. On the other side of the balance, he found that the Attorney General of Canada had called no evidence on the harm that would result from suspending the operation of the law. In the absence of evidence, he characterized this harm as “notional unproven unfairness” (para. 35). Accordingly, he found that the balance of convenience favoured the grant of an injunction.
7 We cannot, with respect, agree. This application is governed by the principles set forth in previous cases. On appeal the applicant Harper may seek alteration of these principles, but for the moment they govern. Applying these principles, the balance of convenience in this case favours granting the stay of the injunction. One of these principles is the rule against granting the equivalent of final relief in interlocutory challenges to electoral statutes, even in the course of elections governed by those statutes: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; see also Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, per Beetz J., at p. 144; Haig v. Canada, [1993] 2 S.C.R. 995. In this case, allowing the injunction to stay in place will in effect give Mr. Harper the ultimate relief he seeks in his action, at least with respect to the current election. The trial judge, however, did not address this factor, nor the case law which addresses it.
8 It may also be noted that, in Thomson Newspapers Co. v. Canada (Attorney General), S.C.C., No. 25593, May 7, 1997 (published in the Bulletin of Proceedings of the Supreme Court of Canada, 1997, at p. 882), this Court refused to grant a stay suspending the enforcement of the provisions mandating publication bans on opinion polls set forth in the Canada Elections Act, R.S.C., 1985, c. E-2, s. 322.1. In so doing, the Court relied on its previous decision in Gould, supra. The Court refused the stay even though the ultimate decision found the poll prohibition to be unconstitutional.
9 Another principle set out in the cases is that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law, it is wrong to insist on proof that the law will produce a public good. Rather, at this stage of the proceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-49:
When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.
It follows that in assessing the balance of convenience, the motions judge must proceed on the assumption that the law -- in this case the spending limits imposed by s. 350 of the Act -- is directed to the public good and serves a valid public purpose. This applies to violations of the s. 2(b) right of freedom of expression; indeed, the violation at issue in RJR--MacDonald was of s. 2(b). The assumption of the public interest in enforcing the law weighs heavily in the balance. 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. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
10 Again, the trial judge appears not to have applied this principle in weighing the benefits of the law against its impact on free expression. Instead of assuming that the legislation has the effect of promoting the public interest as RJR--MacDonald directs, the trial judge based his conclusion on the fact that the Government “has not adduced any evidence to illustrate unfairness in any of these elections in Canada caused by third-party spending limits” (para. 33). He went on to repeat that the “Government simply asserts that third-party spending limits, if not controlled, may (and that is notional only) impact adversely on the fairness of elections” (para. 34), and moved directly from this to the conclusion that leaving the spending limits in place “would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government” (para. 35). Moreover, the trial judge made no mention of the fact that the law may be seen not only as limiting free expression but as regulating it in order to permit all voices during an election to be heard fairly.
11 Applying the principles enunciated in previous decisions of this Court, and without prejudging the outcome of any appeal from the injunction, we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed. Moreover, applying RJR--MacDonald, we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.
Conclusion
12 We therefore conclude that a stay of the order enjoining the enforcement of s. 350(1), (2), (3) and (4) of the Canada Elections Act should be granted.
The following are the reasons delivered by
13 Major J. (dissenting) — The facts that accompany this application by the Attorney General of Canada for a stay of the injunction obtained in Alberta are not in dispute. The chambers judge, relying on the pleadings and the evidence at the trial, faced the concession that the plaintiff Mr. Harper’s freedom of expression was restricted by the legislation. Weighed against this was the inability of the Attorney General to demonstrate that the injunction would cause any inconvenience (see [2000] A.J. No. 1226 (QL), at paras. 34-35, per Cairns J.):
The Government simply asserts that third-party spending limits, if not controlled, may (and this is notional only) impact adversely on the fairness of elections. Yet, it can point to no evidence to illustrate unfairness in the Canadian elections caused by third-party spending.
In my judgment, the spending limits having the deleterious effect of fettering the core freedom of expression and speech as enshrined in the Charter, as they do and as admitted by the Attorney General of Canada, would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government.
14 As described in the reasons of the majority, an injunction should be granted where: (1) there is a serious question to be tried, (2) there is irreparable harm to the person seeking the injunction if no injunction is issued, and (3) the balance of convenience favours an injunction.
15 It is on the determination of the balance of convenience that I disagree with the majority. The chambers judge, who was also the trial judge in the recently concluded trial, was in a unique position to weigh the balance of convenience.
16 The trial judge did not, nor do I, intend the interim injunction to reflect on the validity of the new elections legislation. The question of whether the limits on election spending are constitutional will only be decided once there is a determination on the merits.
17 It is inescapable to me that the balance of convenience tips sharply in favour of the plaintiff. The proposition advanced to counter the obvious inconvenience to Mr. Harper is that legislation generally identified as serving a public interest carries a prima facie assumption of validity. But that presumption should not be conclusive where, as here, it competes against the acknowledged impediment to the plaintiff’s free speech unless there is some evidence demonstrating an impediment of a public interest. Here there is none.
18 The chambers judge was careful to note that the interim injunction was just that. He stated that his ultimate disposition may be that the legislation is constitutional. But he could not ignore the evidence produced during the two-week trial to the extent it bore on granting an interim injunction.
19 The interim injunction would safeguard important constitutional rights guaranteed by the Canadian Charter of Rights and Freedoms and protect the freedom of political speech during a federal election. The law is clear that — in the absence of an error in principle — the trial judge has the discretion, and is entitled to appellate deference.
20 In this application, we are dealing with one of the most valuable forms of speech: political speech. Canadians cherish the unimpeded diffusion of political ideas and opinions, and this Court has long recognized that freedom of expression is “essential to the working of a parliamentary democracy such as ours” (Switzman v. Elbling, [1957] S.C.R. 285, per Abbott J., at p. 326). Hence we must tread carefully in limiting political speech. It is speech that we recognize as invaluable, given its significance in our democratic process. We should be loathe to interfere with it, especially in the midst of a federal election.
21 I am of the view that the trial judge did not err in applying the three-part test for an injunction in a constitutional context, as set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, and RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, both cases that the trial judge referred to and relied upon. As stated, I agree with the majority that the first two requirements are met.
22 The third requirement is that the balance of convenience favours granting the injunction. This requirement subsumes the question of what irreparable harm the defendant faces. After nine days of trial, there was no evidence before the Alberta Court of Queen’s Bench that the injunction would cause any “inconvenience” or “irreparable harm”. Nor has the Attorney General in this application referred this Court to any evidence showing what harm would result from the injunction. Instead, the Attorney General states as a conclusion that suspending the spending limits would result in unfairness, and so the legislation must be applied “in the interests of fairness for all”.
23 The Attorney General admitted that there was a violation of s. 2(b), and offered not a scintilla of evidence showing that the injunction would cause some harm. In this light, the trial judge concluded that the balance of convenience favoured injunctive relief. Given the restriction upon a cherished constitutional freedom and the absence of anything tilting the other way, Cairns J. was entitled to reach this conclusion.
24 I acknowledge that in the majority of cases, it may be acceptable to assume that there is irreparable harm to the public interest when an injunction stops an authority from protecting the public good: RJR--MacDonald, supra, at p. 346. But that is an assumption only (as Sopinka and Cory JJ. suggest at p. 349), and it can be overcome when an applicant demonstrates that the injunction itself serves the public interest. In this case, the injunction furthers the Charter’s guarantee of freedom of expression, and Mr. Harper has displaced the assumption that the government suffers a greater harm than he does.
25 I find that the suggestion of “irreparable harm” to the government or the public interest is strained and unpersuasive. To date, Canadian federal elections have not been governed by limits on third-party spending. It is difficult to see how the consequences of undergoing one more election without these limits would somehow cause “irreparable harm” to our democratic institutions, particularly since no such harm occurred in past elections. In my view, the public interest favours granting, rather than refusing, the injunction. Dean Cassels is right to suggest that the “public interest” does not belong exclusively to the Attorney General, and I agree with his rejection of the “assumption that only one party speaks for the public interest” (J. Cassels, “An Inconvenient Balance: The Injunction as a Charter Remedy”, in J. Berryman, ed., Remedies: Issues and Perspectives (1991), 271, at pp. 303-5). The question is: will the injunction serve the public good by protecting constitutional rights? Given the need to protect free speech, particularly during an election, it seems reasonable to require the Attorney General to provide something more than a pro forma statement about unfairness. In the absence of anything beyond speculation, and in the face of a serious denial of Charter-protected freedoms, the balance of convenience clearly favours the injunction. I would add that while the Attorney General argues that the public interest is served by seeing the legislation enforced, that argument is countered by the compelling public interest in seeing fundamental Charter-protected freedoms upheld: J. Berryman, The Law of Equitable Remedies (2000), at p. 51.
26 “Because the granting of an interlocutory injunction is a discretionary matter appellate courts have limited the role of review”: Berryman, The Law of Equitable Remedies, supra, at p. 37. This Court endorsed the deferential approach in Metropolitan Stores, supra, at pp. 154-56. The standard is high; the reviewing court “must not interfere with [the trial judge’s exercise of discretion] merely on the ground that the members of the appellate court would have exercised the discretion differently”: Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 (H.L.), per Lord Diplock, at p. 1046. To interfere, there must be a clear mistake on the law or the evidence, or some other glaring error. There is no such mistake here.
27 Cairns J. is entitled to appellate deference. He was, in fact, unusually well-placed to grant the injunction. The typical judge faced with this sort of injunction would not have the benefit of having presided over the trial on the merits of the constitutional challenge.
28 It is true, as the majority suggests, that in all but exceptional cases, the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity: Attorney General of Canada v. Gould, [1984] 1 F.C. 1133 (C.A.), aff’d [1984] 2 S.C.R. 124. But this case falls in the narrow category of exceptions. I reach that conclusion for three reasons.
29 First, there is the timing of the challenge. The new Canada Elections Act, S.C. 2000, c. 9, was given royal assent on May 31, 2000. The plaintiff’s statement of claim was issued within seven days. The legislation would ordinarily have come into force after the November 27 general election, but it was activated, so to speak, by publication of notice in the Canada Gazette on September 1, 2000. The Attorney General of Canada introduced this legislation in a manner that virtually sealed it from meaningful constitutional scrutiny before the election. These circumstances demand scrutiny. The prospect arises that governments could pass unconstitutional laws immediately prior to an election and leave affected citizens with no remedy. The state could effectively place its election legislation beyond constitutional scrutiny by virtue of when that legislation is enacted. I note that the situation here is unlike that in Gould, supra, where the impugned provision had been in force for years but was challenged only on the eve of an election.
30 Another compelling factor is that the judge who handled the application for an interlocutory injunction knew the case; he had recently presided over a two-week trial in which the constitutionality of the legislation was debated in great detail. That fact distinguishes this case from Gould, supra, where the judge who granted the injunction had not heard arguments on the constitutionality of the provisions governing prisoners’ voting rights. The fact that the same judge heard both the trial and the application for an injunction here argues in favour of considerable deference to his decision.
31 Finally, there is the nature of the constitutional challenge at issue. The speech that is limited here is political expression. It is the epitome of speech that furthers the aspirations of a democratic society. That expression would be limited at its most important moment, during an election, while the Attorney General offers no evidence that the injunction would cause harm.
32 The majority, at para. 7, accepts the Attorney General’s submission that an injunction “effectively grants [Mr. Harper] the final relief that he seeks in the trial still under way”. I do not, because the “final” question is the constitutionality of the legislation, and that question cannot be answered in these interlocutory proceedings. In any event, it could equally be said that staying the injunction gives the government the final relief it is most concerned about. That argument cuts both ways and does not get us far.
33 This Court, as Professor Roach points out in Constitutional Remedies in Canada (loose-leaf ed.), at p. 7-7, has “clearly rejected reliance on a presumption that legislation is constitutional in deciding interlocutory applications”. In Metropolitan Stores, supra, at p. 124, Beetz J. held that “the presumption of constitutional validity . . . is not compatible with the innovative and evolutive character of [the Charter]”. It could be said that the majority improperly veers toward an automatic presumption of constitutionality.
34 In RJR–MacDonald, at pp. 333-34, Sopinka and Cory JJ. considered the factors that must govern the balancing process:
On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect.
On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter rights. Such a practice would undermine the spirit and purpose of the Charter and might encourage a government to prolong unduly final resolution of the dispute.
I find those words apt. I would deny the application for a stay.
Motion granted, Major J. dissenting.
Solicitor for the applicant: The Deputy Attorney General of Canada, Ottawa.
Solicitors for the respondent: Gowling Lafleur Henderson, Calgary.
Tuesday, March 6, 2012
This is a list of major political scandals in Canada:
This is a list of major political scandals in Canada:
Contents [hide]
1 Federal
2 Alberta
3 British Columbia
4 New Brunswick
5 Ontario
6 Nova Scotia
7 Quebec
8 Saskatchewan
9 References
10 External links
FederalPacific Scandal - allegations of bribes being taken by the government of Sir John A. Macdonald (1870s)
Scandal in the Department of Customs and Excise that led to the King-Byng Affair, 1926
Munsinger Affair - Canada's first national political sex scandal (1960s)
Tunagate - tainted tuna (1985)
Grant Bristow - Canadian Security Intelligence Service infiltration of Reform Party of Canada and covert founding of Heritage Front
Airbus affair - 1995 - Prime Minister Brian Mulroney was implicated in a kickback scheme to purchase Airbus planes for Air Canada
APEC Inquiry - 1997 - Royal Canadian Mounted Police conduct at the APEC summit in Vancouver.
Shawinigate - 1999 - An alleged conflict of interest lobbying effort by Prime Minister Jean Chrétien.
Sponsorship scandal - 2004 - misuse and misdirection of funds disbursed through the Liberal government's 1990s sponsorship program. Investigated by the Gomery Commission.
Shoe Store Project - 2007 - Prime Minister's Office under Stephen Harper plans $2M, government-controlled media centre to replace current National Press Theatre (which is run by press gallery staff, instead of those from the PMO).[1]
Julie Couillard scandal - 2007 - Conservative Foreign Minister Maxime Bernier resigned after leaving sensitive NATO documents in the home of Julie Couillard, an ex-girlfriend with links to the Hells Angels biker gang.
In and Out scandal - 2007 - alleged circumvention of election finance rules by the Conservatives in the 2006 election campaign.
Robocall scandal - 2012 - Allegations of whitespread voter fraud occuring during the 2011 Canadian federal election. Robotic and live calls to voters are claimed to have been made in 38 ridings. Currently under investigation by the RCMP and Elections Canada.
The ETS Scandal - An ongoing Canadian political scandal involving alleged wrongdoing by Canadian government officials in the award of a $400-million information technology services contract and allegations of political interference in the ensuing cover-up.
[edit] AlbertaAlberta and Great Waterways Railway scandal - a 1910 scandal that resulted in the resignation of the government of Alexander Cameron Rutherford
Sexual Sterilization Act of Alberta - a 1928 law that resulted in close to 3,000 young people being classified as "mentally unfit" and without their knowledge or consent were sterilized to prevent them from breeding their "bad blood."
John Brownlee sex scandal - John Edward Brownlee, Premier of Alberta, sued for seduction of a young woman and found guilty (early 1930s)
Dar Heatherington - forced to resign from Lethbridge city council in 2004 after being convicted of public mischief.
[edit] British ColumbiaSommers Affair - influence peddling and abuse of privilege on timber licenses by Forest Minister
Driver's Licensing Scandal - widespread bribery of license examiners by new Canadians and their translators
Gracie's Finger - Gerrymandering in Vancouver-Little Mountain
Lillooet Cattle Trail - cost overruns, poor design and other scandalous aspects on most expensive provincial infrastructure project in 19th Century BC
Solidarity Crisis - crisis was launched by Premier Bennett overstaying his mandate, triggering a constitutional crisis
Fantasy Gardens (Social Credit Party) - improper sale of property and influence-peddling by Premier Bill Vander Zalm, in connection with Asian gambling lord Tan Yu
Stephen Rogers (Social Credit Party) - resigns as environment minister after a conflict of interest due to owning shares in a company[2]
Cliff Michael (Social Credit Party) - resigns from cabinet due to conflict of interest over the sale of some land[2]
Reid affair (Social Credit Party) - Bill Reid forced to resign after a report showed that he was diverting lottery funds into a company owned by his former campaign manager
Bud Smith resigns after tapes and transcripts of him talking disparagingly about a lawyer hired by the oppsition NDP to investigate the Reid Affair
Robin Blencoe - (NDP) - allegations of harassing an office employee [2]
Phil Gaglardi (Social Credit Party) - improper use of expenses
British Columbia Resources Investment Corporation (BCRIC or "Brick") (Social Credit Party) - public boondoggle involving publicly-distributed and soon-worthless shares of former Crown Corporation
Bingogate - New Democratic Party of British Columbia - skimming of charity funds (1990s)
Doman Scandal - (Social Credit Party) - insider trading; Premier Bill Bennett indicted but acquitted
Coquihalla Highway - (Social Credit Party) - cost overruns and graft
Casinogate - New Democratic Party - Premier Glen Clark was charged but acquitted of breach of trust in connection with his official duties.[3] Collusion between Global television and the RCMP in trying to incriminate Clark is alleged by many commentators.
FastCat Fiasco (aka "Ferrygate" or simply "the Fast Ferries") - 1990s construction of a fleet of high speed ferry vessels that ended up being massively over-budget and actually slower than existing ferries
Gordon Wilson-Judy Tyabji Affair (British Columbia Liberal Party) - semi-secret romance between the Opposition Leader and his House Whip leads to their downfall
BC Legislature Raids ("Railgate") (BC Liberal Party) - raids on offices of senior political aides in the legislature connected to everything from marijuana grow-ops to questions connected with the sale of BC Rail to Canadian National.
Gordon Campbell (BC Premier, arrested in Hawaii for DUI) (Liberals). Also implicated in Railgate (see previous).
[edit] New BrunswickKarl Toft - serial pedophile molested over 200 boys while an employee in charge at the government run Kingsclear Youth Training Centre between the mid 1960s and the mid 1980s
Richard Hatfield - premier charged with possession of marijuana in 1984
OntarioOntario Bond Scandal - United Farmers of Ontario (early 1920s)
Patti Starr scandal in the late 1980s - illegal use of charitable funds for political campaigns donations
Ipperwash Crisis - incident involving the shooting death of Dudley George, an unarmed Native activist, by an Ontario Provincial Police officer in 1995
Kimberly Rogers - After a disputed welfare fraud conviction, Rogers committed suicide in her Sudbury apartment while under house arrest in 2001, leading to extensive controversy around the Mike Harris government's 1996 welfare reforms, as well as an inquest which made several still-unimplemented recommendations for changes to the system.
Toronto Computer Leasing Inquiry - judicial inquiry into improper computer leasing contracts made by Toronto's municipal government in 1999
Walkerton water scandal in the year 2000
Toronto Police Drug Scandal - multiple scandals broke out in early 2004, as a result of internal affairs and RCMP investigations. Allegations of the sale of narcotics, fake search warrants, raid tip-offs and mob gambling debts involved many dozens of Toronto police officers, including former chief William J. McCormack's son, Michael, who was eventually brought up on 23 charges. As a result of the scandal, the plainclothes downtown unit which many of the charged officers worked out of was disbanded. The court cases relating to these charges continue.
Nova ScotiaThe Thornhill Affair - involved Roland Thornhill, who resigned as Deputy Premier in the 1990s after allegations dealing with a debt settlement from 1980 was brought into question.
The Billy Joe MacLean Affair(The BJM Affair) - MLA Billy Joe MacLean was expelled from the Assembly after Premier John Buchanan's Progressive Conservative government introduced legislation prohibiting anyone from sitting in the assembly who had been indicted by the courts. MacLean pleaded guilty to four counts of submitting forged documents - went to the Supreme Court of Nova Scotia, which upheld Macleans expulsion, but declared the law that prohibited him from running as a candidate to be unconstitutional - MacLean ran for and re-entered the legislature in 1993.[4]
QuebecDuplessis Orphans of 1940s through 1960s - Maurice Duplessis government and the Roman Catholic Church.
[edit] SaskatchewanProgressive Conservative Party of Saskatchewan scandals - Scandals that emerged in the 1990s involving Grant Devine's Progressive Conservative government implicating 16 MLAs, with the chief conviction that of Deputy Premier Eric Berntson in 1999.
Colin Thatcher
References1.^ PM plans own media centre, Toronto Star, Oct. 15, 2007.
2.^ a b Justine Hunter (1991-09-24). "Scandal, retirement take toll on politicians seeking re-election". the Vancouver Sun. p. B7.
3.^ BC Supreme Court "Reasons for Judgment"
4.^ [1] Canadian Parliamentary Review, "The Legislature, Charter and Billy Joe MacLean"
[edit] External linkscbc.ca Top 10 Canadian Corruption Scandals
cbc.ca Scandals, Boondoggles and White Elephants
Contents [hide]
1 Federal
2 Alberta
3 British Columbia
4 New Brunswick
5 Ontario
6 Nova Scotia
7 Quebec
8 Saskatchewan
9 References
10 External links
FederalPacific Scandal - allegations of bribes being taken by the government of Sir John A. Macdonald (1870s)
Scandal in the Department of Customs and Excise that led to the King-Byng Affair, 1926
Munsinger Affair - Canada's first national political sex scandal (1960s)
Tunagate - tainted tuna (1985)
Grant Bristow - Canadian Security Intelligence Service infiltration of Reform Party of Canada and covert founding of Heritage Front
Airbus affair - 1995 - Prime Minister Brian Mulroney was implicated in a kickback scheme to purchase Airbus planes for Air Canada
APEC Inquiry - 1997 - Royal Canadian Mounted Police conduct at the APEC summit in Vancouver.
Shawinigate - 1999 - An alleged conflict of interest lobbying effort by Prime Minister Jean Chrétien.
Sponsorship scandal - 2004 - misuse and misdirection of funds disbursed through the Liberal government's 1990s sponsorship program. Investigated by the Gomery Commission.
Shoe Store Project - 2007 - Prime Minister's Office under Stephen Harper plans $2M, government-controlled media centre to replace current National Press Theatre (which is run by press gallery staff, instead of those from the PMO).[1]
Julie Couillard scandal - 2007 - Conservative Foreign Minister Maxime Bernier resigned after leaving sensitive NATO documents in the home of Julie Couillard, an ex-girlfriend with links to the Hells Angels biker gang.
In and Out scandal - 2007 - alleged circumvention of election finance rules by the Conservatives in the 2006 election campaign.
Robocall scandal - 2012 - Allegations of whitespread voter fraud occuring during the 2011 Canadian federal election. Robotic and live calls to voters are claimed to have been made in 38 ridings. Currently under investigation by the RCMP and Elections Canada.
The ETS Scandal - An ongoing Canadian political scandal involving alleged wrongdoing by Canadian government officials in the award of a $400-million information technology services contract and allegations of political interference in the ensuing cover-up.
[edit] AlbertaAlberta and Great Waterways Railway scandal - a 1910 scandal that resulted in the resignation of the government of Alexander Cameron Rutherford
Sexual Sterilization Act of Alberta - a 1928 law that resulted in close to 3,000 young people being classified as "mentally unfit" and without their knowledge or consent were sterilized to prevent them from breeding their "bad blood."
John Brownlee sex scandal - John Edward Brownlee, Premier of Alberta, sued for seduction of a young woman and found guilty (early 1930s)
Dar Heatherington - forced to resign from Lethbridge city council in 2004 after being convicted of public mischief.
[edit] British ColumbiaSommers Affair - influence peddling and abuse of privilege on timber licenses by Forest Minister
Driver's Licensing Scandal - widespread bribery of license examiners by new Canadians and their translators
Gracie's Finger - Gerrymandering in Vancouver-Little Mountain
Lillooet Cattle Trail - cost overruns, poor design and other scandalous aspects on most expensive provincial infrastructure project in 19th Century BC
Solidarity Crisis - crisis was launched by Premier Bennett overstaying his mandate, triggering a constitutional crisis
Fantasy Gardens (Social Credit Party) - improper sale of property and influence-peddling by Premier Bill Vander Zalm, in connection with Asian gambling lord Tan Yu
Stephen Rogers (Social Credit Party) - resigns as environment minister after a conflict of interest due to owning shares in a company[2]
Cliff Michael (Social Credit Party) - resigns from cabinet due to conflict of interest over the sale of some land[2]
Reid affair (Social Credit Party) - Bill Reid forced to resign after a report showed that he was diverting lottery funds into a company owned by his former campaign manager
Bud Smith resigns after tapes and transcripts of him talking disparagingly about a lawyer hired by the oppsition NDP to investigate the Reid Affair
Robin Blencoe - (NDP) - allegations of harassing an office employee [2]
Phil Gaglardi (Social Credit Party) - improper use of expenses
British Columbia Resources Investment Corporation (BCRIC or "Brick") (Social Credit Party) - public boondoggle involving publicly-distributed and soon-worthless shares of former Crown Corporation
Bingogate - New Democratic Party of British Columbia - skimming of charity funds (1990s)
Doman Scandal - (Social Credit Party) - insider trading; Premier Bill Bennett indicted but acquitted
Coquihalla Highway - (Social Credit Party) - cost overruns and graft
Casinogate - New Democratic Party - Premier Glen Clark was charged but acquitted of breach of trust in connection with his official duties.[3] Collusion between Global television and the RCMP in trying to incriminate Clark is alleged by many commentators.
FastCat Fiasco (aka "Ferrygate" or simply "the Fast Ferries") - 1990s construction of a fleet of high speed ferry vessels that ended up being massively over-budget and actually slower than existing ferries
Gordon Wilson-Judy Tyabji Affair (British Columbia Liberal Party) - semi-secret romance between the Opposition Leader and his House Whip leads to their downfall
BC Legislature Raids ("Railgate") (BC Liberal Party) - raids on offices of senior political aides in the legislature connected to everything from marijuana grow-ops to questions connected with the sale of BC Rail to Canadian National.
Gordon Campbell (BC Premier, arrested in Hawaii for DUI) (Liberals). Also implicated in Railgate (see previous).
[edit] New BrunswickKarl Toft - serial pedophile molested over 200 boys while an employee in charge at the government run Kingsclear Youth Training Centre between the mid 1960s and the mid 1980s
Richard Hatfield - premier charged with possession of marijuana in 1984
OntarioOntario Bond Scandal - United Farmers of Ontario (early 1920s)
Patti Starr scandal in the late 1980s - illegal use of charitable funds for political campaigns donations
Ipperwash Crisis - incident involving the shooting death of Dudley George, an unarmed Native activist, by an Ontario Provincial Police officer in 1995
Kimberly Rogers - After a disputed welfare fraud conviction, Rogers committed suicide in her Sudbury apartment while under house arrest in 2001, leading to extensive controversy around the Mike Harris government's 1996 welfare reforms, as well as an inquest which made several still-unimplemented recommendations for changes to the system.
Toronto Computer Leasing Inquiry - judicial inquiry into improper computer leasing contracts made by Toronto's municipal government in 1999
Walkerton water scandal in the year 2000
Toronto Police Drug Scandal - multiple scandals broke out in early 2004, as a result of internal affairs and RCMP investigations. Allegations of the sale of narcotics, fake search warrants, raid tip-offs and mob gambling debts involved many dozens of Toronto police officers, including former chief William J. McCormack's son, Michael, who was eventually brought up on 23 charges. As a result of the scandal, the plainclothes downtown unit which many of the charged officers worked out of was disbanded. The court cases relating to these charges continue.
Nova ScotiaThe Thornhill Affair - involved Roland Thornhill, who resigned as Deputy Premier in the 1990s after allegations dealing with a debt settlement from 1980 was brought into question.
The Billy Joe MacLean Affair(The BJM Affair) - MLA Billy Joe MacLean was expelled from the Assembly after Premier John Buchanan's Progressive Conservative government introduced legislation prohibiting anyone from sitting in the assembly who had been indicted by the courts. MacLean pleaded guilty to four counts of submitting forged documents - went to the Supreme Court of Nova Scotia, which upheld Macleans expulsion, but declared the law that prohibited him from running as a candidate to be unconstitutional - MacLean ran for and re-entered the legislature in 1993.[4]
QuebecDuplessis Orphans of 1940s through 1960s - Maurice Duplessis government and the Roman Catholic Church.
[edit] SaskatchewanProgressive Conservative Party of Saskatchewan scandals - Scandals that emerged in the 1990s involving Grant Devine's Progressive Conservative government implicating 16 MLAs, with the chief conviction that of Deputy Premier Eric Berntson in 1999.
Colin Thatcher
References1.^ PM plans own media centre, Toronto Star, Oct. 15, 2007.
2.^ a b Justine Hunter (1991-09-24). "Scandal, retirement take toll on politicians seeking re-election". the Vancouver Sun. p. B7.
3.^ BC Supreme Court "Reasons for Judgment"
4.^ [1] Canadian Parliamentary Review, "The Legislature, Charter and Billy Joe MacLean"
[edit] External linkscbc.ca Top 10 Canadian Corruption Scandals
cbc.ca Scandals, Boondoggles and White Elephants
Friday, March 2, 2012
How do I file a complaint about an alleged violation of the Canada Elections Act?
How do I file a complaint about an alleged violation of the Canada Elections Act?
If you have information about an offence that you believe was committed under the Canada Elections Act, please send it to the Office of the Commissioner of Canada Elections:
Commissioner of Canada Elections
c/o Elections Canada
257 Slater Street
Ottawa, Ontario
K1A 0M6
Fax: 1-800-663-4908
E-mail: commissionersoffice@elections.ca
To respond to complaints about alleged offences, the Commissioner requires the following minimum information:
1.Your name, mailing address, telephone number, e-mail address and fax number (if applicable).
If you are submitting the complaint on behalf of another person or organization, please also include the name of that person or organization (the complainant) and their contact information (mailing address, telephone number, e-mail address and fax number, if applicable).
2.A factual description of the events, circumstances or actions that you believe gave rise to the alleged offence.
Please include any specific dates, places or documents that you believe are relevant. This information will enable the Commissioner to assess your complaint; without it, assessment of your complaint may be delayed.
3.If you know it, the section of the Canada Elections Act related to your complaint, or the nature of the alleged offence.
The Commissioner must receive a complaint about an alleged offence within 10 years of the offence being committed. Keep in mind that the passage of time may significantly affect the Commissioner's ability to deal with a complaint.
If you have a complaint about how an election was conducted but you do not believe it is an offence, please send it to the Chief Electoral Officer (see below).
--------------------------------------------------------------------------------
How do I file a complaint or comment about the conduct of a federal election?
To provide feedback on an election worker or on how a federal election was run, or to file a formal complaint, please contact the Chief Electoral Officer using this e-mail form or write to:
Chief Electoral Officer of Canada
Elections Canada
257 Slater Street
Ottawa, Ontario
K1A 0M6
The Chief Electoral Officer handles complaints that are not believed to be violations of the Canada Elections Act. To report an alleged violation of the Canada Elections Act, please contact the Office of the Commissioner of Canada Elections (details above).
If you have information about an offence that you believe was committed under the Canada Elections Act, please send it to the Office of the Commissioner of Canada Elections:
Commissioner of Canada Elections
c/o Elections Canada
257 Slater Street
Ottawa, Ontario
K1A 0M6
Fax: 1-800-663-4908
E-mail: commissionersoffice@elections.ca
To respond to complaints about alleged offences, the Commissioner requires the following minimum information:
1.Your name, mailing address, telephone number, e-mail address and fax number (if applicable).
If you are submitting the complaint on behalf of another person or organization, please also include the name of that person or organization (the complainant) and their contact information (mailing address, telephone number, e-mail address and fax number, if applicable).
2.A factual description of the events, circumstances or actions that you believe gave rise to the alleged offence.
Please include any specific dates, places or documents that you believe are relevant. This information will enable the Commissioner to assess your complaint; without it, assessment of your complaint may be delayed.
3.If you know it, the section of the Canada Elections Act related to your complaint, or the nature of the alleged offence.
The Commissioner must receive a complaint about an alleged offence within 10 years of the offence being committed. Keep in mind that the passage of time may significantly affect the Commissioner's ability to deal with a complaint.
If you have a complaint about how an election was conducted but you do not believe it is an offence, please send it to the Chief Electoral Officer (see below).
--------------------------------------------------------------------------------
How do I file a complaint or comment about the conduct of a federal election?
To provide feedback on an election worker or on how a federal election was run, or to file a formal complaint, please contact the Chief Electoral Officer using this e-mail form or write to:
Chief Electoral Officer of Canada
Elections Canada
257 Slater Street
Ottawa, Ontario
K1A 0M6
The Chief Electoral Officer handles complaints that are not believed to be violations of the Canada Elections Act. To report an alleged violation of the Canada Elections Act, please contact the Office of the Commissioner of Canada Elections (details above).
Wednesday, February 29, 2012
Canadians Reject Components of Bill C-30, Deem it Too Intrusive Half of respondents believe the House of Commons should not pass the proposed legislation.
Canadians Reject Components of Bill C-30, Deem it Too Intrusive
Half of respondents believe the House of Commons should not pass the proposed legislation.
Canadians have not reacted well to the proposed Bill C-30, and many are voicing disagreement with several components of the legislation, a new Angus Reid Public Opinion poll has found.
In the online survey of a representative sample of 1,011 Canadian adults, 45 per cent of respondents have followed stories related to Bill C-30 “very closely” or “moderately closely.” Respondents aged 17-to-34 (47%) and those over the age of 55 (also 47%) are more likely to have been paying attention to the debate on this proposed legislation.
Respondents to this survey were provided with seven elements of Bill C-30 and asked whether they agreed or disagreed with each one. Only three components get the thumbs-up from a majority of Canadians: allowing police to get warrants to obtain information transmitted over the Internet and data related to its transmission, including locations of individuals and transactions (68%), changing the definition of hate propaganda to include communication targeting sex, age and gender (63%) and allowing courts to compel other parties to preserve electronic evidence (57%).
Canadians are almost evenly divided on providing for an internal audit of warrantless requests that will go to a government minister and oversight review body (Agree 40%, Disagree 43%).
Respondents were not satisfied with the remaining elements, with 57 per cent disagreeing with forcing Internet providers and other makers of technology to provide a “back door” to make communications accessible to police, and 62 per cent rejecting a requirement for telecommunications and Internet providers to give subscriber data to police, national security agencies and the Competition Bureau without a warrant, including names, phone numbers and IP addresses.
The most unpopular measure included in Bill C-30 is requiring telecommunications providers to disclose, without a warrant, six types of identifiers from subscriber data (Name, Address, Telephone number, Email address, IP address and Local service provider identifier). Almost two thirds of Canadians (64%) disagree with this idea.
Most Canadians (53%) believe Bill C-30 is too intrusive, and that the government should not be able to track the movements of Canadians or reading their e-mails without a warrant. Only one third (27%) believe Bill C-30 is necessary because many criminal activities, including child pornography, have evolved with technology and police need broader tools to deal with these crimes.
The regions that show the highest level of rejection for Bill C-30 are Alberta (66%), Atlantic Canada (63%) and Ontario (58%).
When asked how the House of Commons should deal with Bill C-30, half of Canadians (51%) want their federal lawmakers to defeat the legislation, while 35 per cent would prefer to pass it. Once again, Alberta, Atlantic Canada and Ontario are the areas where Bill C-30 is regarded in a negative light.
Analysis
While Canadians are content with the measures related to obtaining warrants, changing the definition of hate propaganda and preserving electronic evidence that are included in Bill C-30, the public provides a negative review of the more contentious aspects of the proposed legislation. The idea of surrendering subscriber data and identifiers without a warrant is rejected by almost two thirds of Canadians.
Strong majorities of people who voted for the New Democratic Party (NDP) and the Liberal Party in the last federal election brand Bill C-30 as too intrusive (62% and 58% respectively), but it is important to note that Conservative voters are not as supportive of this government initiative as they have been with others in the past. Almost half of Tory voters (47%) think the proposed legislation is too intrusive. Conservatives are evenly split on what the House of Commons should do with Bill C-30. New Democrats and Grits clearly want to see it defeated.
Alberta, traditionally a Conservative stronghold, is not on the government’s side on this issue. Albertans are more likely to wish for the defeat of Bill C-30 than Ontarians, British Columbians and Quebecers.
Full Report, Detailed Tables and Methodology (PDF
Half of respondents believe the House of Commons should not pass the proposed legislation.
Canadians have not reacted well to the proposed Bill C-30, and many are voicing disagreement with several components of the legislation, a new Angus Reid Public Opinion poll has found.
In the online survey of a representative sample of 1,011 Canadian adults, 45 per cent of respondents have followed stories related to Bill C-30 “very closely” or “moderately closely.” Respondents aged 17-to-34 (47%) and those over the age of 55 (also 47%) are more likely to have been paying attention to the debate on this proposed legislation.
Respondents to this survey were provided with seven elements of Bill C-30 and asked whether they agreed or disagreed with each one. Only three components get the thumbs-up from a majority of Canadians: allowing police to get warrants to obtain information transmitted over the Internet and data related to its transmission, including locations of individuals and transactions (68%), changing the definition of hate propaganda to include communication targeting sex, age and gender (63%) and allowing courts to compel other parties to preserve electronic evidence (57%).
Canadians are almost evenly divided on providing for an internal audit of warrantless requests that will go to a government minister and oversight review body (Agree 40%, Disagree 43%).
Respondents were not satisfied with the remaining elements, with 57 per cent disagreeing with forcing Internet providers and other makers of technology to provide a “back door” to make communications accessible to police, and 62 per cent rejecting a requirement for telecommunications and Internet providers to give subscriber data to police, national security agencies and the Competition Bureau without a warrant, including names, phone numbers and IP addresses.
The most unpopular measure included in Bill C-30 is requiring telecommunications providers to disclose, without a warrant, six types of identifiers from subscriber data (Name, Address, Telephone number, Email address, IP address and Local service provider identifier). Almost two thirds of Canadians (64%) disagree with this idea.
Most Canadians (53%) believe Bill C-30 is too intrusive, and that the government should not be able to track the movements of Canadians or reading their e-mails without a warrant. Only one third (27%) believe Bill C-30 is necessary because many criminal activities, including child pornography, have evolved with technology and police need broader tools to deal with these crimes.
The regions that show the highest level of rejection for Bill C-30 are Alberta (66%), Atlantic Canada (63%) and Ontario (58%).
When asked how the House of Commons should deal with Bill C-30, half of Canadians (51%) want their federal lawmakers to defeat the legislation, while 35 per cent would prefer to pass it. Once again, Alberta, Atlantic Canada and Ontario are the areas where Bill C-30 is regarded in a negative light.
Analysis
While Canadians are content with the measures related to obtaining warrants, changing the definition of hate propaganda and preserving electronic evidence that are included in Bill C-30, the public provides a negative review of the more contentious aspects of the proposed legislation. The idea of surrendering subscriber data and identifiers without a warrant is rejected by almost two thirds of Canadians.
Strong majorities of people who voted for the New Democratic Party (NDP) and the Liberal Party in the last federal election brand Bill C-30 as too intrusive (62% and 58% respectively), but it is important to note that Conservative voters are not as supportive of this government initiative as they have been with others in the past. Almost half of Tory voters (47%) think the proposed legislation is too intrusive. Conservatives are evenly split on what the House of Commons should do with Bill C-30. New Democrats and Grits clearly want to see it defeated.
Alberta, traditionally a Conservative stronghold, is not on the government’s side on this issue. Albertans are more likely to wish for the defeat of Bill C-30 than Ontarians, British Columbians and Quebecers.
Full Report, Detailed Tables and Methodology (PDF
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