Libman v. Quebec (Attorney General)

Libman v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
1997-10-09
Report
[1997] 3 SCR 569
Case number
24960
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Constitutional law
Elections
Notes
SCC Case Information: 24960
Decision Content
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, no 17, pp. 708, 710.
Quebec. Assemblée nationale. Journal des débats: Commissions parlementaires, 2e sess., 31e 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, 3e sess., 31e lég. Commission permanente de la présidence du conseil et de la constitution. Étude du projet de loi no 92 ‑‑ Loi sur la consultation populaire, 7 juin 1978, no 114, pp. B‑4505 à B‑4509; 12 juin 1978, no 126, pp. B‑4930 à B‑4941; 16 juin 1978, no 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