Supreme Court Judgments

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569

Robert Libman             Appellant

Equality Party

v.

The Attorney General of Quebec                                                     Respondent

Indexed as:  Libman v. Quebec (Attorney General) 

File No.:  24960.

1997:  April 22; 1997:  October 9.

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for quebec

Constitutional law ‑‑ Charter of Rights  ‑‑ Freedom of expression ‑‑ Freedom of association ‑‑ Provincial referendum legislation ‑‑ Spending ‑‑ Referendum legislation placing restrictions on spending permitted during referendum campaign ‑‑ Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation ‑‑ Whether legislation infringes freedoms of expression and association ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) , (d) ‑‑ Referendum Act, R.S.Q., c. C‑64.1, ss. 402, 403, 404, 406 para. 3, 413, 414, 416, 417 of Appendix 2.

Elections ‑‑ Referendum ‑‑  Spending ‑‑ Freedoms of expression and association ‑‑ Provincial referendum legislation placing restrictions on spending permitted during referendum campaign ‑‑ Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation ‑‑ Whether legislation infringes freedoms of expression and association ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) , (d) ‑‑ Referendum Act, R.S.Q., c. C‑64.1, ss. 402, 403, 404, 406 para. 3, 413, 414, 416, 417 of Appendix 2.

The appellant challenges the constitutional validity of ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of Appendix 2 of the Referendum Act.  That Act, which governs referendums in Quebec, provides that groups wishing to participate in a referendum campaign for a given option can either directly join the national committee supporting the same option or affiliate themselves with it.  It also provides for the financing of the national committees and limits their expenses and those of the affiliated groups.  The impugned provisions deal with the expenses that may be incurred during a referendum campaign.  Sections 402 and 403 establish the principle of “regulated expenses”.  These expenses include the cost of any goods or services that promote or oppose, directly or indirectly, an option submitted to a referendum.  Under ss. 406 para. 3 and 413, only an official agent of a national committee, or one of his or her representatives, may incur or authorize regulated expenses.  Section 414 provides that such expenses may be paid only out of the referendum fund, which is available only to the national committees.  Under s. 416, no person may accept or execute an order for regulated expenses unless they are incurred or authorized by the official agent of a national committee or by one of his or her representatives.  Under s. 417, no person may receive a price different from the regular price for goods or services representing a regulated expense.  Finally, s. 404 lists exceptions to regulated expenses.  These exceptions, or unregulated expenses, comprise primarily forms of expression that do not require the disbursement of money or financial consideration.  The only disbursement of money permitted is the maximum amount of $600 for organizing and holding a meeting.  The appellant maintains that the impugned provisions infringe the freedoms of expression and association guaranteed by ss. 2( b )  and 2( d )  of the Canadian Charter of Rights and Freedoms .  He argues that if he wishes to conduct a referendum campaign independently of the national committees, his freedom of political expression will be limited to unregulated expenses.  Conversely, if he wishes to be able to incur regulated expenses, he will have to join or affiliate himself with one of the national committees.  In the courts below, the Superior Court and the Court of Appeal held that the impugned provisions infringed freedom of expression but that this infringement was justifiable under s. 1  of the Charter .

Held:  The appeal should be allowed.

The freedom of expression protected by s. 2( b )  of the Charter  must be interpreted broadly.  Unless the expression is communicated in a manner that excludes the protection, such as violence, any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b).  The impugned provisions at issue here infringe freedom of expression.  The appellant wishes to express his opinions on the referendum question and convey meaning independently of the national committees by means of “regulated expenses”.  This is a form of political expression that is clearly protected by s. 2(b) ‑‑ political expression is at the very heart of the values sought to be protected by freedom of expression ‑‑ and the impugned provisions restrict that freedom.  The expenses of persons who, either individually or as a group, do not wish to or cannot join or affiliate themselves with one of the national committees are limited to the unregulated expenses set out in s. 404.  The Act accordingly places restrictions on such persons who, unlike the national committees, cannot incur regulated expenses during the referendum period in order to express their points of view.  Since freedom of expression includes the right to employ any methods, other than violence, necessary for communication, this clearly infringes their freedom of political expression.

For similar reasons, the impugned provisions also infringe freedom of association.  The protection provided for in s. 2( d )  of the Charter  includes the exercise in association of the constitutional rights and freedoms of individuals.  In the present case, there are both individuals and groups whose freedom of expression is restricted by the impugned provisions.  These groups therefore cannot freely exercise one of the rights protected by the Charter .  Their freedom of association is accordingly infringed.

From the point of view of justification under s. 1  of the Charter , the basic objective of the Act at issue is to guarantee the democratic nature of referendums by promoting equality between the options submitted by the government and seeking to promote free and informed voting.  In its egalitarian aspect, the Act is intended to prevent the referendum debate being dominated by the most affluent members of society.  At the same time, the Act promotes an informed vote by ensuring that some points of view are not buried by others.  This highly laudable objective, intended to ensure the fairness of a referendum on a question of public interest, is of pressing and substantial importance in a democratic society.

To attain its objective, the Act limits spending not only by the national committees, but also by independent individuals and groups, during the referendum period.  There is clearly a rational connection between limits on independent spending and the legislature’s objective.  Limits on such spending are essential to maintain an equilibrium in financial resources and to guarantee the fairness of the referendum.  The evidence shows that without such controls, any system for limiting the spending of the national committees would become futile.  The limit on independent spending must also be stricter than that granted to the national committees, since it cannot be assumed that independent spending will be divided equally to support the various options.

With respect to the minimal impairment test, while the impugned provisions do in a way restrict one of the most basic forms of expression, namely political expression, the legislature must be accorded a certain deference to enable it to reconcile the democratic values of freedom of expression and referendum fairness.  To attain this objective, the legislature had to try to strike a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all.  The impugned provisions are therefore not purely restrictive of freedom of expression.  Their primary purpose is to promote political expression by ensuring an equal dissemination of points of view purely out of respect for democratic traditions.  The structure set up by the legislature enables the vast majority of the people or groups favouring one of the options to participate actively in the referendum campaign by joining or affiliating themselves with the national committee overseeing the option.  The affiliation system therefore significantly relaxes the restriction imposed by the impugned provisions on the freedoms of expression and association of groups that wish to support one of the options submitted to a referendum but disagree with the strategy of the national committee representing the option they support.  This relaxation is sufficient to conclude that the impairment of the freedoms of such groups is minimal.  Affiliation makes it possible for such groups to conduct campaigns parallel to that of the national committee representing the option they wish to support and to incur regulated expenses out of the referendum fund.  Individuals may also associate to form an affiliated group in order to conduct a parallel campaign.

However, the limits imposed under s. 404 cannot meet the minimal impairment test in the case of individuals and groups who can neither join nor affiliate themselves with the national committees and can therefore express their views only by means of unregulated expenses.  The forms of expression provided for in that section are so restrictive that they come close to being a total ban.  There are alternative solutions consistent with the Act’s objective that are far better than the exceptions set out in s. 404.  An exception to regulated expenses permitting citizens, either individually or in groups, to spend a certain amount on an entirely discretionary basis while prohibiting the pooling of such amounts would be far less intrusive than the s. 404 exceptions.  By virtue of this exception, individuals and groups who can neither join nor affiliate themselves with the national committees would be entitled to a minimum amount that they would be able to spend as they saw fit in order to communicate their points of view.  Since it is difficult to sever s. 404 from the rest of the impugned provisions, it must also be concluded that all the impugned provisions constitute an unjustified infringement of the freedoms of expression and association.  Sections 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 are accordingly declared to be of no force or effect.  In view of this declaration, the other provisions of the Referendum Act relating to control of referendum spending become pointless since practically all these provisions are based on the concept of “regulated expenses”.  It will be up to the legislature to make the appropriate amendments.

The result of the case would have been the same had it been resolved on the basis of the Quebec Charter of Human Rights and Freedoms.

Cases Cited

Disapproved:  Somerville v. Canada (Attorney General) (1996), 136 D.L.R. (4th) 205; referred to:  Reference re Alberta Statutes, [1938] S.C.R. 100; Boucher v. The King, [1951] S.C.R. 265; Switzman v. Elbling, [1957] S.C.R. 285; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Zundel, [1992] 2 S.C.R. 731; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Haig v. Canada, [1993] 2 S.C.R. 995; National Citizens’ Coalition Inc. v. Canada (Attorney General) (1984), 11 D.L.R. (4th) 481; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Schachter v. Canada, [1992] 2 S.C.R. 679.

Statutes and Regulations Cited

Canada Elections Act, R.S.C., 1985, c. E‑2, ss. 259.1 [en. 1993, c. 19, s. 112], 259.2 [idem].

Canadian Charter of Rights and Freedoms , ss. 1 , 2( b ) , (d).

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12.

Constitution Act, 1982 , s. 52 .

Election Act, R.S.Q., c. E‑3.3 [adapted by R.S.Q., c. C‑64.1, App. 2 (am. 1992, c. 38, s. 93)], ss. 91 para. 1, 402, 403, 404, 405, 406 paras. 1, 2, 3, 412, 413, 414, 416, 417, 426, 427, 430.

Referendum Act, R.S.Q., c. C‑64.1, ss. 1 “referendum period” [repl. 1981, c. 4, s. 5; am. 1984, c. 51, s. 530], 2 to 6, 7 [am. 1992, c. 38, s. 79], 13 [idem, s. 82], 22 [idem, s. 87], 23 paras. 1, 2, 3 [idem, s. 88], 24 [am. 1981, c. 4, s. 16], 25, 36, 37 [am. 1992, c. 38, s. 90], 38, 40 [am. 1982, c. 62, s. 143], 41 [am. 1981, c. 4, s. 11], 42  [idem, s. 12; am. 1984, c. 51, s. 542; am. 1989, c. 1, s. 591], 44 [am. 1989, c. 1, s. 593; am. 1995, c. 23, s. 55], 45 [am. 1992, c. 38, s. 92], App. 2 [idem, s. 93] amending ss. 91 para. 1, 402, 403, 404, 405, 406 paras. 1, 2, 3, 412, 413, 414, 416, 417, 426, 427, 430 of the Election Act, R.S.Q., c. E‑3.3.

Authors Cited

Canada.  Royal Commission on Electoral Reform and Party Financing.  Reforming Electoral Democracy:  Final Report, vol. 1.  Ottawa:  Minister of Supply and Services Canada, 1991.

Quebec.  Assemblée nationale.  Journal des débats, 5 avril 1978, vol. 20, n^o 17, pp. 708, 710.

Quebec.  Assemblée nationale.  Journal des débats:  Commissions parlementaires, 2^e sess., 31^e lég.  Commission permanente de la présidence du conseil, de la constitution et des affaires intergouvernementales.  Étude du livre blanc sur la consultation populaire, novembre et décembre 1977.

Quebec.  Assemblée nationale.  Journal des débats:  Commissions parlementaires, 3^e sess., 31^e lég.  Commission permanente de la présidence du conseil et de la constitution.  Étude du projet de loi n^o 92 ‑‑ Loi sur la consultation populaire, 7 juin 1978, n^o 114, pp. B‑4505 à B‑4509; 12 juin 1978, n^o 126, pp. B‑4930 à B‑4941; 16 juin 1978, n^o 139, pp. B‑5506 à B‑5520.

Quebec.  Gouvernement du Québec.  Consulting the People of Québec.  Québec:  Éditeur officiel du Québec, 1977.

APPEAL from a judgment of the Quebec Court of Appeal, [1995] R.J.Q. 2015, [1995] Q.J. No. 617 (QL), affirming a judgment of the Superior Court, [1992] R.J.Q. 2141, [1992] Q.J. No. 1206 (QL).  Appeal allowed.

Julius H. Grey, Kim Mancini and Simon Ruel, for the appellant.

Benoît Belleau and Jean‑Yves Bernard, for the respondent.

//The Court//

English version of the judgment delivered by

1                        The Court ‑‑ This appeal concerns the constitutional validity of certain provisions of Appendix 2 of the Referendum Act, R.S.Q., c. C‑64.1, in light of ss. 2( b )  and 2( d )  of the Canadian Charter of Rights and Freedoms , which protect freedom of expression and freedom of association.  The impugned provisions place limits on the expenses that may be incurred during a referendum campaign, inter alia by setting out what types of expenses are permitted and who may incur them.

I - Facts

2                        The appellant, Robert Libman, was president of the Equality Party and a member of the National Assembly when, in 1992, he brought a motion in the Superior Court for a declaratory judgment in anticipation of the referendum on the Charlottetown Accord.  The purpose of the motion, which was brought jointly with the Equality Party, was to have ss. 22, 25, 36, 37 and 38 of the Referendum Act and ss. 91 para. 1, 402, 403, 404, 405, 406 paras. 1, 2 and 3, 412, 413, 414, 416, 417, 426, 427 and 430 of Appendix 2 of that Act declared invalid and of no force or effect.  In their motion, Mr. Libman and the Equality Party maintained that the impugned provisions infringed the freedom of expression, freedom of association, freedom of peaceful assembly and right to equality protected by the Canadian  Charter  and the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12.  Mr. Libman and the Equality Party also asked the trial court to recognize their right to conduct an unrestricted referendum campaign and receive a fair share of the public funds available for such a campaign.

3                             The Superior Court dismissed the motion:  [1992] R.J.Q. 2141, [1992] Q.J. No. 1206 (QL).  It held that while the impugned provisions infringed freedom of expression, the infringement had been shown to meet the test of s. 1  of the Canadian  Charter .  Only Mr. Libman appealed the trial judgment.  Furthermore, his challenge was now limited to the constitutional validity of ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of Appendix 2 of the Referendum Act, and to the infringement of freedom of expression and freedom of association.  The majority of the Court of Appeal dismissed the appeal, affirming the trial judge’s decision that the impugned provisions infringed freedom of expression but that the infringement could be justified under s. 1  of the Canadian  Charter :  [1995] R.J.Q. 2015, [1995] Q.J. No. 617 (QL).  Brossard J.A., dissenting in part, would have allowed the appeal and declared certain of the impugned provisions to be of no force or effect.  Mr. Libman appealed that judgment to this Court.

II ‑ Impugned Statutory Provisions and Operation of the Referendum Act

4                             The Referendum Act governs referendums in Quebec.  It lays down the general framework for the organizational structures necessary for the holding of any referendum.  Section 44 reads as follows:

44.  Except to the extent that this Act provides otherwise, every referendum shall be governed by the provisions of the Election Act (chapter E‑3.3) that are in force at the time and that are enumerated in Appendix 2, with, where necessary, the amendments indicated therein.

The regulations made under the Election Act and writs made under the said Act apply, mutatis mutandis, to a referendum.

5                        Appendix 2 of the Referendum Act thus incorporates certain provisions of the Election Act, R.S.Q., c. E‑3.3, amending them to adapt them to referendums.  Section 45 of the Referendum Act provides that the chief electoral officer must cause a version of the Election Act, as amended by Appendix 2 of the Referendum Act, to be printed:

45.  The chief electoral officer must cause a special version of the Election Act (chapter E‑3.3) to be printed, striking out therefrom the sections not appearing in Appendix 2, incorporating therein the sections of the said Act appearing in the said Appendix and making the amendments indicated in the said Appendix.

In preparing the special version, the chief electoral officer may amend the titles and subtitles of the said Act.

The chief electoral officer shall also cause to be printed a special version of the regulations made pursuant to sections 549 and 550 of the Election Act.

The chief electoral officer accordingly published the Special Version of the Election Act for the holding of a Referendum (hereinafter “Special Version”), which facilitates the use of Appendix 2 of the Referendum Act.

6                             All the statutory provisions at issue here are provisions of the Election Act as amended by Appendix 2 of the Referendum Act, namely ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417.  For ease of reference, we shall cite the impugned provisions as they appear in the Special Version:

402.  The cost of any goods or services used during the referendum period to promote or oppose, directly or indirectly, an option submitted to a referendum is a regulated expense.

403.  In the case of goods or services used both during and before a referendum period, the part of the cost thereof which constitutes a regulated expense shall be established according to a method based on the frequency of use during the referendum period compared to the frequency of use before and during the referendum period.

404.  The following are not regulated expenses:

(1)  the cost of publishing articles, editorials, news, interviews, columns or letters to the editor in a newspaper, periodical or other publication, provided that they are published without payment, reward or promise of payment or reward, that the newspaper, periodical or other publication is not established for the purposes or in view of the referendum and that the circulation and frequency of publication are as what obtains outside the referendum period;

(2)  the cost at fair market value of producing, promoting and distributing a book that was planned to be put on sale at the prevailing market price regardless of the issue of the writ;

(3)  the cost of broadcasting by a radio or television station of a program of public affairs, news or commentary, provided that the program is broadcast without payment, reward or promise of payment or reward;

(4)  the reasonable expenses incurred by a person, out of his own money, for meals and lodging while travelling for referendum purposes, if the expenses are not reimbursed to him;

(5)  the transportation costs of a person, paid out of his own money, if the costs are not reimbursed to him;

(6)  the reasonable expenses incurred for the publication of explanatory commentaries on this Act and the regulations thereunder, provided the commentaries are strictly objective and contain no publicity of such a nature as to favour or oppose an option submitted to a referendum;

(7)  the reasonable ordinary expenses incurred for the day‑to‑day operations of not more than two permanent offices of an authorized party the addresses of which are entered in the registers of the chief electoral officer;

(8)  interest accrued from the beginning of the referendum period to the day occurring 90 days after polling day, on any loan lawfully granted to an official agent for regulated expenses, unless the official agent has declared them as regulated expenses in his return of regulated expenses;

(9)  the costs of holding a meeting, which must not exceed $600, including the cost of renting a hall and of convening the participants, provided the meeting is not directly or indirectly organized on behalf of a national committee.

For the purposes of subparagraph 7 of the first paragraph, the permanent office of an authorized party is the office where the employees of the party or of a body associated with it for the purpose of attaining its objects and recognized by the leader of the party for such a purpose by a letter addressed to the chief electoral officer before the seventh day following the issue of the writ, work on a permanent basis, outside the referendum period, at ensuring the dissemination of the party's political program and coordinating the political action of the party members.

406.  . . .

The official agent may authorize them [the deputies or the local agent of each electoral division whom he has appointed with the approval of the chairman of the national committee] to incur or authorize regulated expenses up to the amount he fixes in their deeds of appointment. The amount may be changed at any time, in writing, by the official agent before he files his return of regulated expenses.

                                                                   . . .

413.  During a referendum period, only the official agent of a national committee, his deputy or a local agent may incur or authorize regulated expenses.

414.  An official agent, his deputy or a local agent shall pay the cost of regulated expenses only out of a referendum fund.

416.  No person may accept or execute an order for regulated expenses not given or authorized by the official agent of a national committee, his deputy, a local agent or authorized advertising agency.

417.  No person may, for goods or services whose cost is wholly or partly a regulated expense, claim or receive a price different from the regular price for similar goods or services outside the referendum period nor may he accept a different remuneration or renounce payment.

A person may, however, contribute his personal services and the use of his vehicle without remuneration, provided that he does so freely and not as part of his work in the service of an employer.

7                        As already mentioned, the Referendum Act read together with the Special Version sets out a series of measures relating to the organization of a referendum.  The Act applies during a “referendum period”, which is defined as “the period beginning on the day of the writ instituting the holding of a referendum and ending on polling day” (s. 1).  The government’s writ is issued after the National Assembly has approved the question or adopted the bill that is to be submitted to a referendum (ss. 7 and 13).

8                        Chapter VIII of the Referendum Act concerns the organization of a referendum campaign.  Upon the adoption by the National Assembly of a question or bill that is to be submitted to a referendum, the secretary general of the National Assembly must inform the chief electoral officer thereof and send every member of the National Assembly a notice to the effect that they may, within five days after the adoption of the question or bill, register with the chief electoral officer in favour of one of the options submitted to the referendum (s. 22).  Members of the National Assembly who register for an option form the provisional committee for that option (s. 23 para. 1).  If no members have registered in favour of one of the options within the prescribed time, the chief electoral officer invites electors to form a provisional committee for that option (s. 23 para. 2).  The number of provisional committees is thus equal to the number of options submitted to the referendum.  After the provisional committees have been formed, the chief electoral officer calls a meeting at which the members of each provisional committee are to establish the national committee in favour of their option, adopt the by‑laws that will govern it and appoint its chairman (s. 23 para. 3).  The by‑laws are adopted on a majority basis (s. 25).

9                        Section 24 of the Referendum Act reads as follows:

24.  The by‑laws governing a national committee may determine any matter relating to its proper operation, including the name under which it is to be known and the manner in which it is to be established.

Such by‑laws may also provide for the setting up of local authorities of this committee in each electoral division, provided that each of these authorities is authorized by the chairman of the national committee.

These by‑laws must furthermore provide for the affiliation to the committee of groups which are favourable to the same option and see to the establishment of the norms, conditions and formalities governing the affiliation and financing of these groups.

This section thus provides, inter alia, that the by‑laws adopted by the provisional committee govern all matters relating to the establishment and operation of the national committee.  The third paragraph of s. 24 adds that the by‑laws must provide for the affiliation of groups favourable to the same option and ensure the financing of such groups.  Groups wishing to participate in a referendum campaign for a given option can therefore either directly join the national committee supporting the same option or affiliate themselves with it.  Thus, a group that disagrees with the strategy proposed by the national committee advocating the same option as it does could affiliate itself with the national committee rather than joining it directly.

10                      Division IV of Chapter VIII of the Referendum Act provides for the financing of the national committees and imposes limits on the amounts each national committee and its affiliated groups can spend.  The national committees and their affiliated groups have a right to incur “regulated expenses” (this term will be defined infra), which must in all cases be paid out of a “referendum fund” (s. 36).  The only amounts that can be paid into each national committee’s referendum fund are:  (a) the government subsidy provided for in s. 40; (b) any amounts transferred or loaned to the fund by the official representative of a political party authorized under Title III of the Election Act, provided that the total of these amounts from all parties does not exceed $0.50 per elector in the aggregate of the electoral divisions; and (c) any contributions directly paid by an elector out of his or her own property (s. 37).  In the case of these last contributions, the maximum amount that each elector can contribute to each national committee in the same referendum is $3000 (s. 91 Special Version).  Finally, regardless of the size of the referendum fund available to a national committee, the committee and its affiliated groups may not incur regulated expenses greater than the equivalent of $1 per elector (s. 426 Special Version).  Thus, if there are 3 million electors in the province, the total of the regulated expenses incurred by each national committee and its affiliated groups may not exceed $3 million.  This is the “ceiling” on spending to which each committee is subject.

11                      Regulated expenses are defined as “[t]he cost of any goods or services used during the referendum period to promote or oppose, directly or indirectly, an option submitted to a referendum” (s. 402 Special Version).  Section 403 Special Version complements s. 402; it sets out how to calculate the part of the cost of goods or services used both during and before the referendum period that constitutes a regulated expense.  Each national committee has an official agent to incur its regulated expenses (s. 405 Special Version) who is appointed by the chairman of the national committee.  The official agent may authorize deputies or local agents he or she has appointed to incur or authorize regulated expenses up to the amount the official agent has fixed in their deeds of appointment (s. 406 paras. 2 and 3 Special Version).  The official agent may change this amount at any time before filing his or her return of regulated expenses (s. 406 para. 3 Special Version).  During the referendum period, only the official agent of a national committee or his or her deputies or local agents may incur or authorize regulated expenses (s. 413 Special Version); furthermore, these regulated expenses must necessarily be paid out of the national committee’s referendum fund (s. 414 Special Version).  No one may accept or execute an order for regulated expenses not given or authorized by a national committee’s official agent, his or her deputy, a local agent or an authorized advertising agency (s. 416 Special Version).  Nor may any one claim or receive a different price for goods or services whose cost is wholly or partly a regulated expense; however, a person may provide personal services and the use of his or her vehicle, provided that this is done without monetary consideration and freely, and not as part of his or her work in the service of an employer (s. 417 Special Version).

12                      Section 404 Special Version sets out nine exceptions to the definition of regulated expenses.  These exceptions constitute expenses that may be incurred without the approval of a national committee’s official agent, his or her deputy or a local agent.  These unregulated expenses include in particular:  (1) the cost of publishing articles, editorials and certain other types of documents, provided that they are published without payment; (2) the cost of producing, promoting and distributing a book that was planned to be put on sale at the prevailing market price before the writ was issued; (3) the cost of broadcasting, by radio or television, of a program of public affairs, news or commentary, provided that the program is broadcast without payment; (4) reasonable expenses incurred by a person out of his or her own money for meals and lodging while travelling for referendum purposes together with his or her transportation costs, provided that these expenses and costs are not reimbursed to the person; and (5) the costs, to a maximum of $600, of holding a meeting, including the cost of renting a hall and of convening the participants, provided that the meeting is not directly or indirectly organized on behalf of a national committee.

13                      Finally, the Referendum Act also provides for the establishment of a Conseil du référendum, which has exclusive jurisdiction to hear any judicial proceedings relating to a referendum and to the application of the Act (ss. 2 to 6).  The Conseil is composed of three judges of the Court of Québec.  Its decisions are final and without appeal, although an appeal lies to the Court of Appeal on a question of law from a decision rendered by the Conseil under s. 41 or 42.

III ‑ Judgments in Appeal

Superior Court, [1992] R.J.Q. 2141

14                      In the Superior Court, Mr. Libman and the Equality Party maintained that the impugned provisions infringe freedom of expression and freedom of association in three ways:  first, by limiting contributions by individuals and referendum spending, second, by requiring that regulated expenses be incurred through a national committee, and third, by limiting groups or individuals wishing to participate without supporting either option (for example, by advocating abstention) to unregulated expenses.

15                      With respect to the first ground, Michaud J. concluded that while the limits placed by the Act on referendum contributions and spending infringe freedom of expression, the infringement can be justified in a free and democratic society.  In his view, these limits have a laudable objective, [translation] “namely to try to give both options comparable means of expressing themselves and prevent the most powerful from obtaining a favourable outcome through a barrage of publicity” (p. 2147), and the impairment is minimal in relation to the resulting gains for democracy.  The appellant subsequently abandoned this ground on appeal.

16                      With respect to the second ground, Michaud J. concluded that the requirement that regulated expenses be incurred through the national committees does not infringe the freedoms of expression and association.  He based this conclusion on the fact that the Act does not require groups wishing to promote one option to join the national committee representing that option, but also provides that such groups may affiliate themselves with the national committee if they disagree with the strategy it proposes.  He pointed out that the court must assume that the by‑laws on affiliation adopted by the national committees will be consistent with the rights conferred by the charters.  He then added the following at p. 2152:

[translation]  Should the by‑laws adopted by the national committee with which the applicants wish to be affiliated prove to be unfair or inequitable for them, they can take the matter to the Conseil du référendum pursuant to ss. 2 and 3 of the Act.

17                      Finally, concerning the third ground, Michaud  J. pointed out that a group or individual wishing to campaign without supporting either option nevertheless indirectly promotes one of the two options.  That is why the freedom of expression of that group or individual is limited to unregulated expenses.  Michaud J. concluded that this infringement can be justified in a free and democratic society both because the Act does not absolutely prohibit all expressive activities but limits them to the exceptions set out in s. 404 Special Version and because a [translation] “restriction on independent referendum spending seems necessary to maintain the balance between the opposing forces” (p. 2157).  In his view, the limits imposed by s. 404 Special Version seemed acceptable, so it was not open to the court to substitute its own definition thereof for that of the legislature.

Court of Appeal, [1995] R.J.Q. 2015

18                      In the Court of Appeal, Mr. Libman no longer challenged either the principle of national committees (operation and funding) or the need to limit referendum spending.  All he sought was the right for any individual or group to campaign independently of the national committees on the same basis as them, that is, the right to receive funding and to incur regulated expenses within certain limits.

Bisson J.A.

19                      Bisson J.A. concluded that the impugned provisions infringe the freedom of political expression, which is one of the most basic forms of freedom of expression.  He did not see, however, how these provisions could infringe freedom of association, since [translation] “the [only] constraints placed on [citizens] relate to the money they can invest and the vehicles they can use” (p. 2021).

20                      In Bisson J.A.’s view, this infringement can be justified in a free and democratic society.  He began by mentioning the extent of the work that led to the adoption of the Referendum Act and the need to give the legislature some leeway.  He then acknowledged the importance of the objective of the impugned provisions, namely to ensure a balance in the financial resources available to the proponents of each option submitted for the referendum so as to promote the healthy exercise of democracy.  He noted that s. 24 of the Referendum Act provides that affiliated groups may be formed that are parallel to the national committees and that s. 404 Special Version provides for certain forms of communication that every citizen is free to use.  According to Bisson J.A., bearing the objective of the provisions in mind, there is no valid alternative to the present system that would warrant the intervention of the courts.  He stated, at p. 2025:  [translation] “The present system seems to me to be the least disadvantageous for citizens.”

Delisle J.A.

21                      Delisle J.A. also concluded that the impugned provisions restrict the freedom of expression of individuals wishing to campaign independently of the national committees, since these provisions allow them to express their political ideas only by means of unregulated expenses (s. 404 Special Version).  He added that the impugned provisions restrict political expression, which is the most important form of expression in a democracy.  He then acknowledged that certain restrictions on this form of expression may be justified to ensure the proper functioning of democracy.

22                      According to Delisle J.A., this infringement is justified under s. 1  of the Canadian  Charter .  He defined the objective of the Act as follows, at p. 2049:

[translation]  The purpose of the Act is to promote participation by citizens in the governing of public affairs, in order to resolve certain major questions of political life.  The Act also seeks to promote equality between the options submitted by the government.

To ensure this equality, Delisle J.A. considered it reasonable for the legislature to limit spending by third parties, at p. 2051:

[translation]  If the legislature takes the trouble to regulate the spending and financing of the national committees to ensure that each is on an equal footing, it would be illogical to permit certain groups wishing to act on their own to conduct campaigns as they see fit.  They would place one option at an advantage or a disadvantage by allowing more to be spent on its behalf.

There is thus a rational connection between the restrictions imposed and the objective of the Act.  He added that it could be seen from the evidence that the legislature had made a genuine effort in good faith to find the measure that would impair freedom of expression as little as possible while respecting the objective of the Act.  He noted that the expression of independent individuals and groups is not totally fettered, that the Act provides for a possibility of affiliation, that the court must assume that the rules relating to affiliation will be consistent with the charters and that the Act provides for recourse to the Conseil du référendum should difficulties arise.  In his view, it can be concluded on the basis of these factors that there is a balance between the deleterious effects of the restrictions and the objective pursued by the legislature.  He concluded by stating that the salutary effects of the restrictions outweigh their deleterious effects, since the provisions guarantee a balance in the information conveyed by the proponents of the different options, thus promoting an informed vote by the people.

Brossard J.A. (dissenting in part)

23                      According to Brossard J.A., the impugned provisions clearly restrict the [translation] “freedom of political expression in its noblest aspect, in relation to the exercise of the most fundamental political right that exists in a democracy, namely the expression of a citizen’s political choice when called to vote in a referendum” (p. 2027).  He pointed out that the bipolar system established by the Act ‑‑ two committees representing the two options submitted to the referendum ‑‑ disregards a broad range of public opinion.  He was also of the view that the independent third parties whose freedom of expression is limited to unregulated expenses include not only those wishing to participate, either individually or as a group, without supporting either option, but also, and especially, those who wish to support an option but cannot join the committee because they disagree with its strategy or cannot affiliate themselves with it because they are not members of a “group”.

24                      Like his colleagues, Brossard J.A. stressed the importance of the objective of the impugned provisions, namely to ensure that voting is both free and informed.  He also recognized that there is a rational connection between the objective of the Act and [translation] “the principle of the means chosen to attain it, namely the control and restriction of expenses incurred for advertising or promotional purposes during the ‘referendum period’” (p. 2031).  Although he recognized the need to show a certain deference to the legislature’s choice, Brossard J.A. concluded that the impugned provisions do not satisfy the minimal impairment test.  He began by noting the importance of the freedom at issue and then added that it had not been shown that restrictions as severe as those imposed in s. 404 Special Version are necessary to attain the objective of the Act.  He stated the following, at p. 2043:

[translation]  In my view, the minimum acceptable limit or restriction, and the one most directly connected to the objective, would be one that merely imposes a reasonable and justifiable ceiling on regulated expenses incurred by independent third parties, who would then be free to express their opinions and points of view in accordance with rational standards concerning the expenses required to express those points of view and opinions.

Brossard J.A. added that in his view the deleterious effect of the impugned provisions outweighed the salutary effect, since it had not been shown that it would be impossible to monitor compliance with the ceilings imposed without an almost total prohibition on spending by independent third parties.  He even questioned the effectiveness of the measures imposed in relation to the objective of the Act.

25                      Brossard J.A. would have declared ss. 413, 414, 416 and 417 and the words “provided that they are published without payment, reward or promise of payment or reward” in s. 404(1), the words “provided that the program is broadcast without payment, reward or promise of payment or reward” in s. 404(3) and the words “submitted to a referendum” in s. 402 to be of no force or effect, and would have left it to the legislature to establish a ceiling it considered reasonable for independent individuals and groups.

IV ‑ Constitutional Questions at Issue

26                           On October 21, 1996, the following two constitutional questions were stated:

(1)  Do ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of the Election Act, R.S.Q., c. E‑3.3, as amended by Appendix 2 of the Referendum Act, R.S.Q., c. C‑64.1, adopted under s. 44 of the Referendum Act, violate in whole or in part s. 2(b) and/or s. 2( d )  of the Canadian Charter of Rights and Freedoms ?

(2)  If they do, do these sections or any of them constitute a reasonable limit prescribed by law under s. 1  of the Canadian Charter of Rights and Freedoms ?

V ‑ Analysis

A.  Constitutional Infringements

27                      The appellant submits that the impugned legislation infringes the freedom of political expression and the freedom of association guaranteed by the Canadian  Charter .  He argues that if he wishes to conduct a referendum campaign independently of the national committees, his freedom of political expression will be limited to unregulated expenses.  Conversely, if he wishes to be able to incur regulated expenses, he will have to join or affiliate himself with one of the national committees.

28                      The Court has consistently and frequently held that freedom of expression is of crucial importance in a democratic society (e.g., Reference re Alberta Statutes, [1938] S.C.R. 100; Boucher v. The King, [1951] S.C.R. 265; Switzman v. Elbling, [1957] S.C.R. 285; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Zundel, [1992] 2 S.C.R. 731).  In Edmonton Journal, supra, at p. 1336, Cory J. wrote eloquently about how fundamental this freedom is in any democracy:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.  Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.  The concept of free and uninhibited speech permeates all truly democratic societies and institutions.  The vital importance of the concept cannot be over‑emphasized.  No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8  of the Charter which guarantees the qualified right to be secure from unreasonable search.  It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.  [Emphasis added.]

Freedom of expression was not created by the Canadian  Charter  but rather was entrenched in the Constitution in 1982 as one of the most fundamental values of our society (see, for example, Switzman v. Elbling, supra, at pp. 306-7).

29                      In Keegstra, supra, at pp. 763‑64, Dickson C.J. stressed the paramount importance for Canadian democracy of freedom of expression in the political realm:

Moving on to a third strain of thought said to justify the protection of free expression, one's attention is brought specifically to the political realm.  The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy.  Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.  Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity.  The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all. [Emphasis added.]

Political expression is at the very heart of the values sought to be protected by the freedom of expression guaranteed by s. 2( b )  of the Canadian  Charter .  (See also Edmonton Journal, supra, at pp. 1355‑56; Zundel, supra, at pp. 752‑53.)

30                      Irwin Toy, supra, laid down the tests for infringement of freedom of expression.  The Court must ask, first, whether the form of expression at issue is protected by s. 2(b) and, second, whether the purpose or effect of the impugned legislation is to restrict that form of expression.

31                      The appellant claims the right to conduct a referendum campaign independently of the national committees and with the same type of regulated expenses.  Is this form of expression protected by s. 2(b)?  The Court favours a very broad interpretation of freedom of expression in order to extend the guarantee under the Canadian  Charter  to as many expressive activities as possible.  Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2( b )  of the Canadian  Charter  (Irwin Toy, supra, at p. 970; Zundel, supra, at p. 753).

32                      There is no doubt that the appellant is attempting to convey meaning through the form of communication at issue; he wishes to express his opinions on the referendum question independently of the national committees by means of expenses that are included in the definition of “regulated expenses”.  This is a form of political expression that is clearly protected by s. 2( b )  of the Canadian  Charter .

33                      It remains to be determined whether the provisions challenged by the appellant restrict freedom of expression.  Sections 402 and 403 Special Version establish the principle of “regulated expenses” during a referendum period.  These expenses include the cost of any goods or services that promote or oppose, directly or indirectly, an option submitted to a referendum.  Under s. 406 para. 3 and s. 413 Special Version, only an official agent of a national committee or one of his or her representatives may incur or authorize regulated expenses.  Section 414 Special Version provides that regulated expenses may be paid only out of the referendum fund, which is available only to the national committees.  Under s. 416 Special Version, no person may accept or execute an order for regulated expenses unless they are incurred or authorized by the official agent of a national committee or by one of his or her representatives.  In s. 417 Special Version, the legislature has provided that no person may receive a price different from the regular price in payment of a regulated expense.  Finally, s. 404 Special Version lists exceptions to regulated expenses, which are very restrictive.  As has already been mentioned, the unregulated expenses listed in s. 404 comprise primarily forms of expression that do not require the disbursement of money or financial consideration.  The only disbursement of money permitted is the maximum amount of $600 for organizing and holding a meeting.

34                      Thus, to be able to incur regulated expenses, the Act requires that a person belong either to one of the national committees or to a group affiliated with one of the committees.  Since the definition of regulated expenses is very broad, most of the expenses incurred to campaign during a referendum period fall into this category reserved exclusively for the national committees or affiliated groups.  Certain categories of persons therefore do not have access to regulated expenses during a referendum campaign, in particular:

(1)  persons who, either individually or as a group, would like to support one of the options submitted to the referendum but who do not wish to join or affiliate themselves with the national committee supporting the same option as they do ‑‑ for a variety of reasons ‑‑ are limited to the unregulated expenses set out in s. 404 Special Version;

(2)  individuals who, while supporting one of the options submitted to the referendum, cannot join the national committee campaigning for that option directly ‑‑ because they do not wish to identify their political ideas with those promoted by that committee or because they disagree with that committee’s referendum strategy, for example ‑‑ cannot even affiliate themselves because the possibility of affiliation provided for in s. 24 of the Referendum Act is restricted to “groups”.  They are thus limited to the unregulated expenses provided for in s. 404 Special Version;

(3)  persons who, either individually or as a group, wish to participate in the referendum campaign without supporting either of the options ‑‑ if they advocate abstention or are against the referendum question as worded, for example ‑‑ cannot directly join or affiliate themselves with one of the national committees.  They are thus limited to the forms of communication set out in s. 404 Special Version, that is, to unregulated expenses.

35                      The Act accordingly places restrictions on such persons who, unlike the national committees, cannot incur regulated expenses during the referendum period in order to express their opinions and points of view.  This clearly infringes their freedom of political expression.  There is no doubt that freedom of expression includes the right to employ any methods, other than violence, necessary for communication.

36                      Freedom of association is also infringed for similar reasons.  As was pointed out earlier, there are groups that cannot incur expenses independently of the national committees to promote or oppose, directly or indirectly, one of the options submitted to a referendum.  The forms of expression available to these groups are restricted.  In Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367, Sopinka J. stated, inter alia, that the protection provided for in s. 2(d) includes the exercise in association of the constitutional rights and freedoms of individuals.  He relied on the reasons of Le Dain and McIntyre JJ. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.  Le Dain J. made the following connection between freedom of association and freedom of expression, at p. 391:

Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion.

McIntyre J. stated the following, at p. 407:

It is, I believe, equally clear that . . . freedom of association should guarantee the collective exercise of constitutional rights.  Individual rights protected by the Constitution do not lose that protection when exercised in common with others.

37                      In the case at bar, there are both individuals and groups whose freedom of expression is restricted by the impugned legislation.  These groups therefore cannot freely exercise one of the rights protected by the Canadian  Charter , namely freedom of expression; their freedom of association is accordingly infringed.  The infringement of freedom of association and the infringement of freedom of expression are closely related, and we shall analyse them together.

B.  Justification for the Violation:  Section 1  of the Canadian Charter 

38                           The analytical approach developed by the Court in R. v. Oakes, [1986] 1 S.C.R. 103, serves as a guide for determining whether an infringement can be justified in a free and democratic society.  Certain clarifications were made regarding the third step of the proportionality test in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.  Thus, the Court must first ask whether the objective the statutory restrictions seek to promote responds to pressing and substantial concerns in a democratic society, and then determine whether the means chosen by the government are proportional to that objective.  The proportionality test involves three steps:  the restrictive measures chosen must be rationally connected to the objective, they must constitute a minimal impairment of the violated right or freedom and there must be proportionality both between the objective and the deleterious effects of the statutory restrictions and between the deleterious and salutary effects of those restrictions.

39                           The Attorney General must show that the statutory restrictions can be justified under s. 1  of the Canadian  Charter .  The standard of proof to be used is the civil standard, namely proof on a balance of probabilities (Oakes, supra, at p. 137).  Scientific proof is not required to meet this standard:  “the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view” (RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at p. 333).  Referendum campaigns fall within the realm of social science, which does not lend itself to precise proof.

(1)  Objective of the Act

40                      The basic objective of the Act at issue is to guarantee the democratic nature of referendums by promoting equality between the options submitted by the government and seeking to promote free and informed voting.  It provides for control of spending by the national committees during a referendum campaign, as well as control of spending by independent individuals or groups who do not wish to or who cannot join or affiliate themselves with either of the national committees, in order to promote a certain equality of access to media of expression.  Professor Peter Aucoin, who was called by the Attorney General of Quebec to testify as an expert on the Canadian electoral and referendum system, explained the objective of the impugned provisions of the Referendum Act as follows:

The purpose of spending limits in an election or a referenda [sic] campaign is to promote fairness as a primary value or objective of the democratic process.

                                                                   . . .

Fairness is promoted in order to ensure that to the greatest extent possible that various sides in an election or a referenda [sic] have a reasonable equal opportunity to present their case to voters in the hopes that their case will influence the vote and that voters themselves will have a reasonable opportunity to hear the various views put forward by the participants before they cast their vote. [Case on Appeal, at pp. 28‑29.]

41                      Thus, the objective of the Act is, first, egalitarian in that it is intended to prevent the most affluent members of society from exerting a disproportionate influence by dominating the referendum debate through access to greater resources.  What is sought is in a sense an equality of participation and influence between the proponents of each option.  Second, from the voters’ point of view, the system is designed to permit an informed choice to be made by ensuring that some positions are not buried by others.  Finally, as a related point, the system is designed to preserve the confidence of the electorate in a democratic process that it knows will not be dominated by the power of money.

42                      The appellant himself conceded that the objective of the impugned legislation is of pressing and substantial importance in a democratic society.  In our view, the pursuit of an objective intended to ensure the fairness of an eminently democratic process, namely a referendum on a question of public interest, is a highly laudable one.

(2)  Proportionality Test

(a)  Rational Connection

43                      The Court must determine whether there is a rational connection between the restrictions imposed by the legislature and the legislature’s objective.

44                      The Quebec legislature has provided for two means to attain its objective:  first, limiting referendum spending in order to ensure that each option will be entitled to comparable financial resources and to prevent either option from unduly influencing the outcome because it has access to significantly greater financial resources than its adversaries; second, preventing unlimited spending by third parties in order to avoid an imbalance in the level of spending permitted for each option.  It is this second means that the appellant is challenging in the name of the freedoms of expression and association.  The appellant submits that independent individuals and groups who do not wish to or cannot join or affiliate themselves with one of the national committees are unjustifiably limited to the unregulated expenses provided for in the Act.

45                      To better understand the rational connection between the objective of the Act and the statutory restrictions, it will be helpful to consider the 1991 report of the Royal Commission on Electoral Reform and Party Financing, which the Attorney General of Quebec adduced in evidence (Reforming Electoral Democracy:  Final Report (1991), vol. 1).  This federal Commission, better known as the Lortie Commission, was established in 1989 to inquire into the Canadian electoral system and customs.  Its mandate was to present a series of recommendations aimed at improving and preserving the democratic character of federal elections in Canada.

46                      Although the referendum system is different from the electoral system, in that the popular vote concerns a specific question and is not necessarily binding on the government whereas in an election the people vote to elect their political representatives for a specific mandate, the same principles underlying election legislation should in general be applicable to referendum legislation (see Cory J.’s comments on the subject in Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1050).  There are enough points of similarity between the two systems to draw such a parallel.  Both involve setting up a procedural structure allowing for public discussion of political issues essential to governing the country or province and designed to ensure that the majority principle is adopted.  In both elections and referendums, voters  can freely express their choice after being informed of the issues during the election or referendum campaign, as the case may be.

47                      The Lortie Commission pointed out that expenses incurred in an election campaign ‑‑ advertising, for example ‑‑ have a considerable impact on the outcome of the vote (Lortie Commission, supra, at pp. 324 and 339; testimony of Professor Peter Aucoin, Case on Appeal, at pp. 36‑37, 94 and 131).  It recognized that spending limits are essential to ensure the primacy of the principle of fairness in democratic elections.  The principle of electoral fairness flows directly from a principle entrenched in the Constitution:  that of the political equality of citizens.  If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate (Lortie Commission, supra, at p. 324).  To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person’s exercise of the freedom to spend does not hinder the communication opportunities of others.  Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard.  Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties.  Thus, the principle of fairness presupposes that certain rights or freedoms can legitimately be restricted in the name of a healthy electoral democracy (Lortie Commission, supra, at p. 323).  Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources (Lortie Commission, supra, at p. 324).  It should also be noted that 93 percent of the respondents to a national survey conducted by the Lortie Commission supported limits on spending by political parties  (Lortie Commission, supra, at p. 334).  This high percentage shows that the majority of Canadians agree with limiting election spending in order to promote fairness as a fundamental value of democracy.

48                      For spending limits to be fully effective, they must apply to all possible election expenses, including those of independent individuals and groups.  According to the Lortie Commission, the definition of election expenses must be sufficiently broad to include the cost of any goods and services used during an election campaign to promote or oppose, directly or indirectly, a candidate or political party (Lortie Commission, supra, at pp. 339‑41).  Thus, such expenses should include not only those incurred by political parties and candidates, but also those incurred by independent individuals and groups unrelated to the parties and candidates (Lortie Commission, supra, at p. 339).

49                      The actions of independent individuals and groups can directly or indirectly support one of the parties or candidates, thereby resulting in an imbalance in the financial resources each candidate or political party is permitted.  Such individuals or groups might either conduct a campaign parallel to that of one of the candidates or of a party and in so doing have a direct influence on the campaign of that candidate or party, or take a stand on a given issue and in so doing directly or indirectly promote a candidate or party identified with that issue.  As the Lortie Commission pointed out in this regard, it is difficult to distinguish between partisan advocacy and advocacy by third parties in terms of influence on the vote; the objective of an election campaign is to influence the outcome of the vote, that is, the election of a candidate or of a political party.  People do not vote for issues; nevertheless, the purpose or effect of the debate on the issues will be to influence the final vote.  The Commission stated the following on this subject, at p. 340:

Canadian and comparative experience also demonstrate that any attempt to distinguish between partisan advocacy and issue advocacy ‑‑ to prohibit spending on the former and to allow unregulated spending on the latter ‑‑ cannot be sustained.  At elections, the advocacy of issue positions inevitably has consequences for election discourse and thus has partisan implications, either direct or indirect:  voters cast their ballots for candidates and not for issues.

Independent spending could very well have the effect of directly or indirectly promoting one candidate or political party to the detriment of the others; the purpose of limits on spending by independent individuals and groups is to prevent their advertising or other expenditures from having a disproportionate influence on the vote (Lortie Commission, supra, at pp. 339‑40 and 354).

50                      It is also important to limit independent spending more strictly than spending by candidates or political parties.  It cannot be presumed that equal numbers of individuals or groups will have equivalent financial resources to promote each candidate or political party, or to advocate the various stands taken on a single issue that will ultimately be associated with one of the candidates or political parties (Lortie Commission, supra, at pp. 337‑38 and 351).  While we recognize their right to participate in the electoral process, independent individuals and groups cannot be subject to the same financial rules as candidates or political parties and be allowed the same spending limits.  Although what they have to say is important, it is the candidates and political parties that are running for election.  Limits on independent spending must therefore be lower than those imposed on candidates or political parties.  Otherwise, owing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate.

51                      The 1988 federal election showed clearly how independent spending could influence the outcome of voting.  During the 1988 election, there were no controls on independent spending.  Elections Canada was not enforcing the provisions of the Canada Elections Act, R.S.C. 1970, c. 14 (1st Supp.), on spending limits for individuals and groups as a result of the decision in National Citizens’ Coalition Inc. v. Canada (Attorney General) (1984), 11 D.L.R. (4th) 481 (Alta. Q.B.).  In that case, the National Citizens’ Coalition had challenged, inter alia, the limits on independent spending provided for in s. 70.1 of the Canada Elections Act (now s. 259).  That section prohibited all independent spending to directly promote or oppose candidates or political parties during an election.  Medhurst J. held that this provision was an unjustified restriction on the freedom of expression of individuals and groups during an election.  The government decided not to appeal the decision (Lortie Commission, supra, at p. 328).  As a result, this provision was not enforced during the 1984 and 1988 general elections.  During the 1988 election, independent spending on advertising exceeded $4.7 million (Lortie Commission, supra, at p. 337).  Most of these advertisements were directed at the issue of free trade.  The statistics showed that four times as much money was spent to promote free trade as was spent to oppose it.  Thus, even if this spending was not necessarily partisan, it clearly favoured the Progressive Conservative Party indirectly.  That party was the only one to advocate free trade; it therefore benefited considerably from this “indirect” independent spending.  The Lortie Commission drew the following conclusion from that experience, at pp. 337‑38:

The 1988 election experience clearly demonstrated that advertisements promoting an issue but not explicitly exhorting voters to vote for a particular candidate or party could themselves be grossly unfair because they can constitute an endorsement of a particular party, if one party can be clearly distinguished from others on the basis of its stand on a central election issue.

52                      Limits on independent spending are essential to maintain an equilibrium in the financial resources available to candidates and political parties and thus ensure the fairness of elections (Lortie Commission, supra, at p. 327).  Furthermore, according to another survey conducted in 1991, 75 percent of Canadians supported limits on spending by interest groups (Lortie Commission, supra, at p. 337).  These statistics also show the importance of controlling spending in order to maintain public confidence in the electoral system.

53                      In our view, the Lortie Commission’s comments on the importance of limits on independent spending for preserving the fairness of the Canadian electoral system should apply, mutatis mutandis, to the Quebec referendum system.  In a referendum, “options” are submitted to voters rather than candidates or political parties.  The national committees are the principal structure set up by the Quebec legislature to promote each of these options.  Spending by the national committees is subject to limits to ensure that equivalent financial resources are available to the proponents of each option for addressing the public.  Referendum period spending limits are essential to guarantee the fairness of the referendum.  The appellant does not contest this limit on the national committees.

54                      However, the spending limit system would lose all its effectiveness if independent spending were not also limited.  Spending by individuals or groups who do not wish to or cannot join or affiliate themselves with one of the national committees must be limited for the same reasons as underlie the limits on independent spending during an election campaign.  Independent spending during a referendum campaign directly or indirectly favours one of the options over the others.  Even independent individuals and groups advocating abstention indirectly favour one of the options over the others (testimony of Professor Aucoin, Case on Appeal, at p. 155).  Independent spending must therefore be controlled to ensure that the promotion of one of the options does not benefit from far greater financial resources.  The limit on independent spending must also be stricter than that granted to the national committees.  Since it cannot be assumed that each option will benefit from the same amount of independent spending in its favour, such spending must be restricted to preserve a balance in the promotion of the options and favour an informed and truly free exercise of the right to vote.  In this light, the regulation of referendum spending pursues one of the objectives underlying freedom of expression, namely the ability to make informed choices (Ford v. Quebec (Attorney General), supra, at p. 767).

55                      The appellant relied on Somerville v. Canada (Attorney General) (1996), 136 D.L.R. (4th) 205, in support of his submissions concerning the unfairness of the limits on independent spending in the Referendum Act.  In that case, the Alberta Court of Appeal declared certain provisions of the Canada Elections Act, R.S.C., 1985, c. E-2, relating to limits on independent spending similar to the ones at issue here to be unconstitutional.  Among other things, these provisions allowed third parties to incur “advertising expenses” provided that they did not exceed $1000 and were not pooled.  These advertising expenses included all expenses incurred “for the production, publication, broadcast and distribution of any advertising for the purpose of [directly] promoting or opposing” a party or candidate during an election (s. 259).  In the view of the Alberta Court of Appeal, the impugned legislation violated the freedoms of expression and association guaranteed by the Canadian  Charter .  It stressed that the objective of limiting third party spending was itself inconsistent with the Canadian  Charter  because it gave preferential treatment to the expression of candidates and political parties, to the detriment of third parties.

56                           However, it is our view that the objective of Quebec’s referendum legislation is highly laudable, as is that of the Canada Elections Act.  We agree in this respect with the analysis of the Lortie Commission and of the expert witness P. Aucoin regarding the need to limit spending both by the principal parties (the national committees in the case of a referendum) and by independent individuals and groups in order to preserve the fairness of elections and, in the present case, referendums.  The system set up by the legislature to ensure a certain equality of resources between the options submitted to a referendum and thereby enhance democratic expression would become ineffective if independent individuals and groups were allowed unlimited spending or spending with a ceiling similar to that of the national committees.  As we pointed out earlier, it cannot be presumed that the same financial resources will be available to the different independent individuals or groups or that those resources will be divided equally to support the various options.  The legislature’s objective can only be achieved through stricter limits on independent spending, which are supported by a large majority of Canadians.

57                      The evidence adduced by the Attorney General of Quebec demonstrates the need to prevent an unequal distribution of financial resources among the options that would undermine the fairness of the referendum process.  The evidence also shows that unless independent spending is controlled, any system for limiting the spending of the national committees would become futile.  In our view, there is clearly a rational connection between limits on independent spending and the legislature’s objective.

(b)  Minimal Impairment

58                      In RJR‑MacDonald, supra, McLachlin J. explained the application of the minimal impairment test as follows, at p. 342:

[T]he government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective.  The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary.  The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.  If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement. . . .

59                      This Court has already pointed out on a number of occasions that in the social, economic and political spheres, where the legislature must reconcile competing interests in choosing one policy among several that might be acceptable, the courts must accord great deference to the legislature’s choice because it is in the best position to make such a choice.  On the other hand, the courts will judge the legislature’s choices more harshly in areas where the government plays the role of the “singular antagonist of the individual” ‑‑ primarily in criminal matters ‑‑ owing to their expertise in these areas (Irwin Toy, supra, at pp. 993‑94; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at pp. 304‑5; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, at p. 521; RJR‑MacDonald, supra, at pp. 279 and 331‑32).  La Forest J.’s comment on the subject in RJR‑MacDonald, supra, at p. 277, is perfectly apposite:

Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy‑making, nor should they be. This is a role properly assigned to the elected representatives of the people, who have at their disposal the necessary institutional resources to enable them to compile and assess social science evidence, to mediate between competing social interests and to reach out and protect vulnerable groups.

60                      The degree of constitutional protection may also vary depending on the nature of the expression at issue (Edmonton Journal, supra, at pp. 1355‑56; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at pp. 246‑47; Keegstra, supra, at p. 760; RJR‑MacDonald, supra, at pp. 279‑81 and 330).  Since political expression is at the very heart of freedom of expression, it should normally benefit from a high degree of constitutional protection, that is, the courts should generally apply a high standard of justification to legislation that infringes the freedom of political expression.

61                      What is the situation in the case at bar?  In answering this question, the legislature’s objective, namely to enhance the exercise of the right to vote, must be borne in mind.  Thus, while the impugned provisions do in a way restrict one of the most basic forms of expression, namely political expression, the legislature must be accorded a certain deference to enable it to arbitrate between the democratic values of freedom of expression and referendum fairness.  The latter is related to the very values the Canadian  Charter  seeks to protect, in particular the political equality of citizens that is at the heart of a free and democratic society.  The impugned provisions impose a balance between the financial resources available to the proponents of each option in order to ensure that the vote by the people will be free and informed and that the discourse of each option can be heard.  To attain this objective, the legislature had to try to strike a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all.  From this point of view, the impugned provisions are therefore not purely restrictive of freedom of expression.  Their primary purpose is to promote political expression by ensuring an equal dissemination of points of view and thereby truly respecting democratic traditions.

62                      The role of the Court is to determine whether the means chosen by the legislature to attain this highly laudable objective are reasonable, while according it a considerable degree of deference since the latter is in the best position to make such choices.  As Wilson J. stated in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 296, a failure to satisfy the minimal impairment test will be found only if there are measures “clearly superior to the measures currently in use”.

63                      It can be seen from the evidence that the legislature went to considerable lengths, in good faith, in order to adopt means that would be as non‑intrusive as possible while at the same time respecting the objective it had set.  The Quebec government first published a White Paper entitled Consulting the People of Québec (August 1977), which set out the objectives the government hoped to attain through referendum legislation and proposed means to attain those objectives.  The government explained the objectives of the regulation of referendum spending as follows, at p. 7:

The Government hopes . . . to attain three objectives.  The first is to ensure that the various factions have as close to equal chances as possible.  The second is to see that referendum campaigns are based on personal financial contributions from the voters rather than from a handful of wealthy contributors.  And the third is to guarantee that all the financial aspects of the campaign are made known to the public.

To do this, the government proposed a system similar to that which exists today:  first, the establishment of umbrella committees for each option, which alone would be authorized to incur referendum expenses, second, the control of the spending and revenues of these committees, and, third, financial assistance provided by the government.

64                      The proposal made in the White Paper on referendums was debated extensively before the Standing Committee of the President of the Council on the Constitution and Intergovernmental Affairs, when members of the National Assembly and numerous interveners submitted briefs and recommendations (see, inter alia:  National Assembly, Journal des débats: Commissions parlementaires, Commission permanente de la présidence du conseil, de la constitution et des affaires intergouvernementales, Étude du livre blanc sur la consultation populaire (November and December 1977)).  Following these debates, Robert Burns, the Minister of State for Electoral and Parliamentary Reform, tabled Bill 92, the Referendum Act, which was faithful to the original ideology, although the means to achieve it had been modified somewhat on the basis of certain recommendations.  During second reading of Bill 92, Minister Burns made the following comments in the National Assembly, Journal des débats, April 5, 1978, vol. 20, No. 17, at pp. 708 and 710:

[translation]  I would therefore like to mention here that in drafting this bill the government took into account the representations made to it in the fall when the White Paper on referendums was being studied by the Standing Committee of the President of the Council.  The government took those representations seriously, as it provided, for example, for the creation of a Conseil du référendum at the request of the Union Nationale.  At the request of the Official Opposition, it provided for a period of at least twenty days between adoption of the question by the National Assembly and issuance of the referendum writs.  There are many other examples that could be given to show how the government, in drafting its bill, endeavoured to comply with the proposals made to it at the parliamentary committee stage by representatives of the different opposition parties and by those of various organizations, both federalist and nationalist.

                                                                   . . .

In my opinion, the system of national committees is only one way to attain the objectives being pursued.  If other systems consistent with the principles ‑‑ I lay great stress on this ‑‑ of equality of opportunity and respect for freedom of expression were to be proposed to me, I would be happy to submit them to my Cabinet colleagues and, eventually, to the National Assembly.

65                      One of the most important recommendations debated was that of the Commission des droits de la personne concerning affiliation.  In its comments on Bill 92 in June 1978 (National Assembly, Journal des Débats: Commissions parlementaires, Commission permanente de la présidence du conseil et de la constitution, Étude du projet de loi n^o 92 ‑‑ Loi sur la consultation populaire, June 7, 1978, No. 114, at pp. B‑4505 to B‑4509), it agreed with the bill’s objectives and recognized that certain restrictions had to be imposed to attain them (at p. B‑4507):

[translation]  In the opinion of the Commission des droits de la personne, any infringement of the freedoms of expression and association that might result from [this obligation to belong to one of the national committees] should first be seen in light of the objective being pursued here, with which it is in complete agreement, namely to ensure that each of the options submitted to a referendum has an equal opportunity to explain its benefits.  Ensuring equality of opportunity between the various options necessarily entails a degree of constraint and, until further notice, the Commission is only too pleased to accept it in principle.

It then pointed out that the bill severely restricted the freedoms of expression and association in requiring that groups wishing to participate in the referendum campaign join the national committees directly.  To soften these restrictions, it proposed that the bill be amended to give groups a further possibility of affiliation (at p. B‑4508):

[translation]  So, to avoid boycotts of the national committees and a proliferation of groups working outside the umbrella organization, and to lessen substantially the constraint on the freedoms of association and of expression, the Commission proposes introducing a status of affiliate for individuals and groups not wishing to associate themselves with the overall strategy decided on by the national committee although they agree with its ultimate objective.

In such a case, for such dissent relating not to the objectives but to the strategy to be meaningful, it would of course be necessary to ensure a proportional distribution of revenues between the majority group and the "affiliated" groups in accordance with criteria that might be set out in each national committee’s by‑laws.

We would conclude by reminding the government that the by‑laws governing the national committees will be subject to the Charter of human rights and freedoms and stressing the numerous pitfalls for human rights and freedoms, which necessarily means that there must be strict equality between the options.  [Emphasis added.]

This proposal was adopted by the legislature, which amended its bill to add a third paragraph to s. 23 (now s. 24 of the Referendum Act) to the effect that the by‑laws of the national committees must “provide for the affiliation to the committee of groups which are favourable to the same option and see to the establishment of the norms, conditions and formalities governing the affiliation and financing of these groups” (National Assembly, Journal des débats: Commissions parlementaires, Commission permanente de la présidence du conseil et de la constitution, Étude du projet de loi n^o 92 ‑‑ Loi sur la consultation populaire, June 12, 1978, No. 126, at pp. B‑4930 to B‑4941; June 16, 1978, No. 139, at pp. B‑5506 to B‑5520).

66                      It should be mentioned at the outset that the appellant is not contesting the principle and operation of affiliation in this Court.  Affiliation significantly relaxes the restriction imposed by the impugned provisions on the freedoms of expression and association of groups that wish to support one of the options submitted to a referendum but disagree with the strategy of the national committee representing the option they support.  Affiliation makes it possible for groups to conduct campaigns parallel to that of the national committee representing the option they wish to support, that is, they can incur regulated expenses by means of an amount granted by the committee in question out of the referendum fund.  Individuals may also associate to form an affiliated group in order to conduct a parallel campaign.  Like that of the national committees, the spending of an affiliated group must be monitored by the committee’s official agent or by one of his or her deputies or local agents.  However, the role of these agents and deputies is confined to ensuring that the limit imposed on regulated expenses ‑‑ in the case of an affiliated group, this limit is in fact the amount granted by the national committee ‑‑ is complied with; they have no control over the discourse of either the national committees or the affiliated groups (see the testimony of Professor Peter Aucoin, Case on Appeal, at pp. 89‑90).

67                      Under s. 24 of the Referendum Act, the national committees are required to adopt by‑laws providing for the financing of affiliated groups.  The Referendum Act does not set out a specific framework within which such by‑laws must be adopted but gives the national committees complete freedom in respect of “the establishment of the norms, conditions and formalities governing the affiliation and financing of these groups”.  However, this discretion must be exercised in accordance with the Canadian  Charter .  Lamer J., as he then was, stated the following on the subject in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078:

As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied.

68                      In the case at bar, the national committees do not have an express power to infringe the Canadian  Charter  in drafting the rules of affiliation.  In our view, they do not have such a power by necessary implication either.  It is the Referendum Act that expressly restricts the freedoms of expression and association of individuals.  The objective of the by‑laws on affiliation is instead to limit this infringement of the freedoms of expression and association as much as possible.  The discretion conferred on the national committees in respect of affiliation must therefore not be used to restrict the freedoms of expression and association, but rather to extend those freedoms by promoting the broadest possible political expression.

69                      Thus, the principle that must guide the national committees in drafting by‑laws on affiliation is the promotion and spreading of the freedom of expression of groups wishing to affiliate.  Assuming that requests for affiliation are made in good faith, in other words, that the groups seeking affiliation genuinely wish to promote the option represented by the committee, the committee cannot deny them affiliation on the basis of the content of the message they are seeking to disseminate.

70                      As for the amounts to be granted to each of the affiliated groups, the committee must determine them in a fair and reasonable manner.  It should be noted that each national committee has a limited amount to distribute.  Each national committee and its affiliated groups cannot incur regulated expenses that exceed the limit imposed on them by the Act, namely the equivalent of $1 per elector (s. 426 Special Version).  The first criterion that should be applied in determining the amount to be granted is the representativeness of the affiliated group.  It is inherent in the democratic system that the representativeness of a point of view should have an effect on its dissemination.  Since contributions are limited, a group, party or candidate with little support will receive that much less money to assert its point of view.  Of course, the objective of this criterion is not to determine how many people will ultimately vote for the option based on the arguments put forward by the group; it is not a question of trying to conduct a pre‑referendum referendum.  However, the support each group has at the time of determination of the amount to be granted is quite clearly a criterion to be taken into consideration.  Moreover, this is the position taken by Professor Aucoin in his testimony, at p. 87 of the Case on Appeal:

Secondly, it has this provisional committee make the bylaws.  In the first instance, the bylaws are made by a majority rule.  I think that accords with our understanding of democracy.  Secondly, the law itself is very explicit, that is to accommodate those who want to affiliate.  I would say it passes that test.  Third, there is the assumption in terms of the way in which the law is structured, that the accommodation of the majority and the minority factions in a group will be proportional, will be proportion [sic] to who they represent, who they can argue they represent, what share they should get, the various criteria they might want to use to say:  We have this fair share.

A second criterion to be taken into consideration is fairness.  The committee must grant amounts that are sufficient to enable each group to make itself heard, although to varying degrees.  It would be quite unfair for a small group to be granted such a small amount that it is in practice impossible for it to assert its point of view in any way whatsoever.  That would go against the objective the national committees must pursue in respect of affiliation, namely the promotion and dissemination of the broadest possible range of views.  One last criterion that could be taken into consideration in extreme cases is the need to take tactical considerations into account.  This criterion could be used to exclude extremist groups advocating an approach that would objectively do real damage to the option and to the proper operation of the referendum process.  Such cases will undoubtedly be exceptional, and the national committees will have to be careful not to try to use this criterion to make a general value judgment respecting the discourse its affiliated groups are seeking to deliver.

71                      To ensure the proper operation of the Act, and in particular of the system of affiliation and of the fair and reasonable distribution of the available money between the national committee and the various affiliated groups, the Act provides for the establishment of a Conseil du référendum composed of three judges of the Court of Québec (see para. 13).  Thus, should any group consider itself wronged by a national committee in the affiliation procedure, it could always take its case to the Conseil du référendum.  That body’s role is, inter alia, to ensure that all the groups are treated fairly, and in accordance with the charters.  In his testimony, Professor Aucoin stressed the importance of the Conseil du référendum and its role in the operation of the Act (Case on Appeal, at pp. 61‑62).  Moreover, as Professor Aucoin mentioned, the potential media impact of a decision by the Conseil du référendum concluding that a committee has treated a group trying to affiliate with it unfairly is clearly a further incentive for the national committees (at p. 96 of the Case on Appeal):

In this system, the people on the majority have an obligation to be fair to the people in minority situation.  They have a deterrent of the council, which can pass judgement on them and say that:  You have not been fair in the fairness of the allocation of money.  And, of course, that will not be private, that will go public.  And so there’s another deterrent.

72                      The advantage of the affiliation system is that it ensures compliance with the objectives pursued by the legislature in the impugned provisions.  Since the affiliated groups receive their money out of the maximum amount of expenses granted to the national committee, the equality of financial resources available to promote the options submitted to the referendum is not infringed by the presence of affiliated groups; each option retains the same spending limit.  This system removes the temptation for the proponents of the various options to divide into small groups in order to increase the total amount spent to promote their option in order to circumvent the limit imposed on the national committees and thus improve their option’s visibility within the community.  Another significant advantage of this system is that it allows the affiliated groups to receive their share of the subsidy paid by the government into the referendum fund pursuant to s. 40 of the Referendum Act.  Thus, while their affiliation imposes some restrictions, it also entails the advantage of government financial support for groups that might otherwise lack resources.  From this point of view, it is not obvious that the affiliation system should be regarded as restricting political expression.  (On the advantages of the affiliation system, see also:  Professor Aucoin’s report, Case on Appeal, at pp. 269‑72, and his testimony, Case on Appeal, at pp. 61‑63 and 87‑91.)

73                      Thus, for groups that wish to support one of the options submitted to a referendum but do not wish to join the national committee because they disagree with its strategy, the affiliation system ‑‑ which, it should be noted, the appellant is not contesting ‑‑ relaxes the restriction imposed on these groups by the impugned provisions sufficiently for us to conclude that the impairment is minimal.  The structure set up by the legislature enables the vast majority of the people or groups favouring one of the options to participate actively in the referendum campaign by joining or affiliating themselves with the national committee overseeing the option.  Furthermore, individuals who disagree with the committee’s strategy could join an affiliated group that agrees with their position.  They could thus participate actively in the referendum campaign through this affiliated group.

74                      Nonetheless, there are still a certain number of individuals and groups who cannot join or affiliate themselves with the committee and who accordingly can express their views only by means of unregulated expenses: on the one hand, individuals who support one of the options but cannot join the national committee or one of its affiliated groups because they disagree with their respective strategies and for whom affiliation is not possible because it is reserved for groups, and on the other hand, individuals or groups wishing to participate in the referendum campaign without directly supporting one of the options (in particular, abstentionists).

75                      While it is true that the impugned provisions do not totally prohibit the freedom of expression of these individuals and groups, which should normally make the infringement easier to justify (see:  Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, at pp. 1105‑6; RJR‑MacDonald, at pp. 343‑44 and 353), the forms of expression provided for in s. 404 Special Version are so restrictive that they come close to being a total ban.  While ss. 404(1) and (3) authorize expression by means of the print, radio or television media, they require that the opinion be circulated or broadcast “without payment, reward or promise of payment or reward”.  The ability to express a point of view through these media thus depends on a third party, which limits the effectiveness of this exception to regulated expenses considerably.  Since not the slightest amount may be spent, it will ultimately be the radio or television broadcaster or the print publisher who will decide whether the opinion will be disseminated.  Section 404(2) provides for the possibility of publishing a book during the referendum campaign provided that the publication was planned before the campaign began.  This exception is also very limited, since in most cases it will be much more appropriate to write a book during the referendum campaign, and after having read the referendum question, than before.  Furthermore, writing a book requires substantial resources that are not available to all those who would like to present their points of view in the referendum debate.  Sections 404(4) and (5) provide that a person may pay, out of his or her own money, any expenses he or she incurs for transportation, meals and lodging while travelling “for referendum purposes”, if these expenses are not reimbursed.  However, it is not sufficient to permit people to pay their travelling expenses, as they still have to be able to pay to have their point of view heard once they reach their destination.  The final relevant exception is found in s. 404(9), which authorizes incurring up to $600 in costs to hold a meeting, including the cost of renting a hall and convening the participants.  Without ruling on the reasonableness of the amount in question, it must be recognized that this exception, like the others, is very restrictive, as it is limited to the organization of a meeting.

76                      Thus, as regards the exceptions set out in s. 404 Special Version, groups and individuals who cannot join or affiliate themselves directly with the national committees are allotted no money whatsoever to spend as they see fit in order to make their positions known.  It is therefore impossible, for example, for them to pay to have flyers, pamphlets or posters printed that present their points of view.  This Court has already pointed out the importance of these forms of communication, which are generally used by the least affluent members of our society (Ramsden v. Peterborough (City), supra; Committee for the Commonwealth of Canada v. Canada, supra).  In our view, this example suffices to illustrate the seriousness of the restriction imposed in s. 404 Special Version on individuals and groups who can neither join nor affiliate themselves with the national committees.

77                      As we mentioned in the rational connection analysis, limits on spending by third parties in addition to the limits imposed on the national committees are necessary and must be far stricter than those on spending by the national committees in order to ensure that the system of limits and a balance in resources is effective (para. 54).  Nonetheless, we are of the view that the limits imposed under s. 404 cannot meet the minimal impairment test in the case of individuals and groups who can neither join the national committees nor participate in the affiliation system.  In our view, there are alternative solutions far better than the limits imposed under s. 404 Special Version that are consistent with the legislature’s highly landable objective.  The Lortie Commission’s recommendation on third party expenses is one possible solution.

78                      To guarantee the operation of the system of election spending limits, the Lortie Commission recommended, inter alia, that groups and individuals not connected with a political party or candidate (independents) be prohibited from incurring election expenses exceeding $1000 and from pooling these amounts (Lortie Commission, supra, at pp. 350‑56).  This recommendation made it possible for all practical purposes to ensure that the balance in the financial resources of the parties and candidates was respected without radically restricting the freedom of expression of independents.  By allowing a certain amount without limits on how it was to be used, the Commission ensured that independents would be able to assert their points of view and that they would have some leeway in choosing forms of expression.  Furthermore, by allowing a relatively low amount and prohibiting pooling, the Commission removed the temptation for parties or organizations of candidates to split into small groups in order to multiply and thus increase the limits imposed on their campaigns by the Canada Elections Act.  In this way, the Commission ensured that the impact of its infringement of the principle of limiting election spending by parties and candidates would be minimal enough for the system to remain effective.  It wrote the following in this regard at p. 355 of its report:

While it is possible that, in certain circumstances, a $1000 spending limit might jeopardize the effectiveness of candidate and party spending limits, the risk that fairness would be compromised by spending at this level would not be so significant as to justify a lower limit, provided that individuals or groups not be permitted to combine resources to augment the spending limit.  The regulation of independent expenditure thus must include an explicit restriction against individuals or groups pooling their financial resources to overcome the spending limit.  Without such a restriction, the effectiveness of spending limits on individuals and groups could easily be destroyed.

79                      Parliament adopted this recommendation and enacted the following in ss. 259.1 and 259.2 of the Canada Elections Act, R.S.C., 1985, c. E-2:

259.1 (1)  Every person who incurs advertising expenses in excess of one thousand dollars between the date of the issue of the writ and the day immediately following polling day is guilty of an offence.

(2)  Subsection (1) does not apply to

(a)  a candidate, official agent or any other person acting on behalf of a candidate with the candidate's actual knowledge and consent; or

(b)  a registered agent of a registered party acting within the scope of the registered agent's authority or other person acting on behalf of a registered party with the actual knowledge and consent of an officer of the registered party.

259.2 (1)  Every person who sponsors or conducts advertising without identifying the name of the sponsor and indicating that it was authorized by that sponsor is guilty of an offence.

(2)  For the purposes of section 259.1, no person shall incur an advertising expense in combination with one or more other persons if the aggregate amount of the advertising expenses incurred exceeds one thousand dollars.

In Somerville v. Canada (Attorney General), supra, the Alberta Court of Appeal declared these provisions to be unconstitutional.  With respect, we have already mentioned that we cannot accept the Alberta Court of Appeal’s point of view because we disagree with its conclusion regarding the legitimacy of the objective of the provisions (para. 55).

80                           In our view, an exception to regulated expenses similar to that recommended by the Lortie Commission would be far less intrusive than those currently applicable under s. 404 Special Version.  The Act could permit citizens, either individually or in groups, to spend a certain amount on an entirely discretionary basis while prohibiting the pooling of such amounts.  To limit the scope of this exception and prevent abuse, the legislature could also be at liberty to exclude from its application certain individuals or groups who already have platforms from which to express their views, such as the national committees, affiliated groups and individuals or groups belonging to the national committees or affiliated groups.

81                      By virtue of this exception, individuals and groups who can neither join nor affiliate themselves with the national committees would be entitled to a minimum amount that they would be able to spend as they saw fit in order to communicate their positions.  In our view, this alternative would result in a more acceptable balance between absolute individual freedom of expression and equality of expression between proponents of the various options.  It is not up to this Court to decide what amount should be allowed.  Should the legislature adopt this alternative, it will have to set the amount.  Nevertheless, it might be thought that the amount of $1000 proposed by the Lortie Commission in the Canadian election context is not necessarily appropriate in the context of a Quebec referendum.  The appropriate amount will have to be fair while being small enough to be consistent with the objective of the Act.

82                      Although s. 404 Special Version is the only provision that is really problematic, it is difficult to sever it from the rest of the impugned provisions.  Section 404  Special Version provides for exceptions to “regulated expenses”, which are defined, and the persons entitled to incur them are described, in ss. 402, 403, 406 para. 3, 413, 414, 416 and 417 of the Special Version.  Without further exceptions to the regulated expenses, the effect of severance would be a total ban on referendum spending by third parties except through the national committees.  The Act would itself be unconstitutional were s. 404 alone to be severed.  Since all the impugned provisions form a closely interrelated whole and s. 404 Special Version does not meet the minimal impairment test, all the impugned provisions fall with it, like a house of cards.

(c)  Deleterious and salutary effects

83                      Having concluded that the system set up by the Referendum Act does not meet the requirements of the minimal impairment test, it is in principle unnecessary to consider the final test, namely proportionality between the deleterious and salutary effects of the system.

84                      A decision cannot be made in the abstract, and until the legislature has altered its system, it will clearly be impossible to determine whether the system’s benefits outweigh its deleterious effects on the freedoms of expression and association.  However, it is clear from our analysis that protecting the fairness of referendum campaigns is a laudable objective that will necessarily involve certain restrictions on freedom of expression.  Freedom of political expression, so dear to our democratic tradition, would lose much value if it could only be exercised in a context in which the economic power of the most affluent members of society constituted the ultimate guidepost of our political choices.  Nor would it be much better served by a system that undermined the confidence of citizens in the referendum process.

VI ‑ Disposition and Remedy

85                      For the reasons given, the constitutional questions must be answered as follows:

Question:     Do ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of the Election Act, R.S.Q., c. E‑3.3, as amended by Appendix 2 of the Referendum Act, R.S.Q., c. C‑64.1, adopted under s. 44 of the Referendum Act, violate in whole or in part s. 2(b) and/or s. 2( d )  of the Canadian Charter of Rights and Freedoms ?

Answer:       Yes.

Question:     If they do, do these sections or any of them constitute a reasonable limit prescribed by law under s. 1  of the Canadian Charter of Rights and Freedoms ?

Answer:       These sections do not constitute a reasonable limit within the meaning of s. 1.

86                      The appropriate remedy remains to be determined.  The appellant is asking the Court to declare all the impugned provisions unconstitutional and of no force or effect.  It is impossible in the case at bar to resort to the techniques of reading in and severance, since they would require us to make choices within the domain of the legislature (Schachter v. Canada, [1992] 2 S.C.R. 679; Rocket v. Royal College of Dental Surgeons of Ontario, supra, at p. 252).  Consequently, having concluded that the provisions as a whole constitute an unjustified infringement of freedom of expression and freedom of association, we declare ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of the Special Version to be of no force or effect under s. 52  of the Constitution Act, 1982 .  We are aware of the major impact of this conclusion on the provisions of the Referendum Act and of the Special Version relating to control of referendum spending.  Since practically all the provisions concerning referendum spending are based on the concept of “regulated expenses”, they become pointless owing to the declaration that the impugned provisions are of no force or effect.  It will be up to the legislature to make the appropriate amendments.  We would have arrived at the same result had the case been resolved on the basis of the Quebec Charter of Human Rights and Freedoms.

87                      We would allow the appeal with costs to the appellant.

Appeal allowed with costs.

Solicitors for the appellant:  Grey Casgrain, Montréal.

Solicitors for the respondent:  Bernard, Roy & Associés, Montréal.