Figueroa v. Canada (Attorney General)
Encyclopedia
Figueroa v. Canada, [2003] 1 S.C.R. 912 is a leading Supreme Court of Canada
decision on the right to participate in a federal election under section 3
of the Canadian Charter of Rights and Freedoms
. The Court struck down a provision requiring a political party to nominate 50 candidates before receiving certain benefits.
, the leader of the Communist Party of Canada
, challenged the constitutionality of section 24 and 28 of the Canada Elections Act
providing for a 50 candidate threshold as a violation of section 3 of the Charter.
The court challenge originated after the 1993 general federal election, when the CPC failed to field at least 50 candidates. Under the then Canada Elections Act
, which had been amended just prior to the 1993 vote by the former Conservative government of Brian Mulroney
, a registered federal party which fails to run at least 50 candidates in a general election would not only be automatically de-registered, but would also be stripped of its net assets which would then be turned over to the Government of Canada.
Miguel Figueroa
, acting on behalf of the Communist Party's membership, challenged these provisions in the Act, arguing that the 50-candidate rule, combined with the increase in candidate deposits - which for smaller parties would be only partially refundable - and the seizure of party assets, together constituted draconian and unfair discrimination against smaller political parties. In 1999, Justice Anne Molloy of the Superior Court of Ontario (General Division) struck down many of the Act's provisions as unconstitutional, including the seizure of party assets and the non-refundability of candidate deposits for those failing to garner at least 15% of the vote in an election. Justice Molloy also struck down the 50-candidate threshold requirement for federal parties to maintain their registration.
The Attorney-General, on behalf of the Government of Canada, did not appeal the Molloy rulings on the seizure of assets and the non-refundability of candidate's deposits; these sections of the Canada Elections Act were subsequently changed by the Parliament of Canada.
However, the A-G did appeal Molloy's decision striking down the 50-candidate threshold rule. The case then proceeded to the Ontario Court of Appeal. In 2001, the Court of Appeal rendered a split decision, holding that while in its opinion the 50-candidate rule itself was constitutional, it was unconstitutional to fail to provide the party identifier on the ballot, as this denied important information about candidates to electors when completing their ballot. The Court instructed Parliament to establish a lower threshold in such cases. Following this ruling, Parliament again amended the Act to set a 12-candidate threshold for the party identifier, meaning that parties fielding at least 12 candidates in a general election would have the party name included on the ballot next to their candidates' names.
Figueroa, represented by Peter Rosenthal, then sought to appeal this judgment to the Supreme Court of Canada, arguing that the ruling of the Ontario Court of Appeal was flawed in interpreting the Charter of Rights and Freedoms, and that the 50-candidate rule did in fact constitute discrimination against smaller parties under the Charter. The Supreme Court granted leave to appeal this important constitutional case, which was then argued before the SCC in 2002.
, writing for the majority, stated that section 3 protects not just the right to vote but also provides the right of every citizen to participate in politics. The right ensures that each citizen can express an opinion about the formation of the country's public policy and the country's institutions.
However, Iacobucci noted that section 3 does not protect unlimited participation. Rather it protects:
For a violation to be found there must be a prohibition against "meaningful" participation.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on the right to participate in a federal election under section 3
Section Three of the Canadian Charter of Rights and Freedoms
Section Three of the Canadian Charter of Rights and Freedoms is a section of the Charter that constitutionally guarantees all Canadian citizens the democratic right to vote in a general federal or provincial election and the right to be eligible for membership in the House of Commons or of a...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court struck down a provision requiring a political party to nominate 50 candidates before receiving certain benefits.
Background
Miguel FigueroaMiguel Figueroa
Miguel Figueroa has been the leader of the Communist Party of Canada since 1992.- Early political career :Figueroa was born in Montreal, and has been a member of the CPC since 1977. He has held many positions within the CPC, including party organizer in Vancouver from 1978 to 1985, and leader of...
, the leader of the Communist Party of Canada
Communist Party of Canada
The Communist Party of Canada is a communist political party in Canada. Although is it currently a minor or small political party without representation in the Federal Parliament or in provincial legislatures, historically the Party has elected representatives in Federal Parliament, Ontario...
, challenged the constitutionality of section 24 and 28 of the Canada Elections Act
Canada Elections Act
Canada Elections Act is an Act of the Parliament of Canada respecting the election of members of parliament to the Canadian House of Commons, repealing other Acts relating to elections and making consequential amendments to other Acts....
providing for a 50 candidate threshold as a violation of section 3 of the Charter.
The court challenge originated after the 1993 general federal election, when the CPC failed to field at least 50 candidates. Under the then Canada Elections Act
Canada Elections Act
Canada Elections Act is an Act of the Parliament of Canada respecting the election of members of parliament to the Canadian House of Commons, repealing other Acts relating to elections and making consequential amendments to other Acts....
, which had been amended just prior to the 1993 vote by the former Conservative government of Brian Mulroney
Brian Mulroney
Martin Brian Mulroney, was the 18th Prime Minister of Canada from September 17, 1984, to June 25, 1993 and was leader of the Progressive Conservative Party of Canada from 1983 to 1993. His tenure as Prime Minister was marked by the introduction of major economic reforms, such as the Canada-U.S...
, a registered federal party which fails to run at least 50 candidates in a general election would not only be automatically de-registered, but would also be stripped of its net assets which would then be turned over to the Government of Canada.
Miguel Figueroa
Miguel Figueroa
Miguel Figueroa has been the leader of the Communist Party of Canada since 1992.- Early political career :Figueroa was born in Montreal, and has been a member of the CPC since 1977. He has held many positions within the CPC, including party organizer in Vancouver from 1978 to 1985, and leader of...
, acting on behalf of the Communist Party's membership, challenged these provisions in the Act, arguing that the 50-candidate rule, combined with the increase in candidate deposits - which for smaller parties would be only partially refundable - and the seizure of party assets, together constituted draconian and unfair discrimination against smaller political parties. In 1999, Justice Anne Molloy of the Superior Court of Ontario (General Division) struck down many of the Act's provisions as unconstitutional, including the seizure of party assets and the non-refundability of candidate deposits for those failing to garner at least 15% of the vote in an election. Justice Molloy also struck down the 50-candidate threshold requirement for federal parties to maintain their registration.
The Attorney-General, on behalf of the Government of Canada, did not appeal the Molloy rulings on the seizure of assets and the non-refundability of candidate's deposits; these sections of the Canada Elections Act were subsequently changed by the Parliament of Canada.
However, the A-G did appeal Molloy's decision striking down the 50-candidate threshold rule. The case then proceeded to the Ontario Court of Appeal. In 2001, the Court of Appeal rendered a split decision, holding that while in its opinion the 50-candidate rule itself was constitutional, it was unconstitutional to fail to provide the party identifier on the ballot, as this denied important information about candidates to electors when completing their ballot. The Court instructed Parliament to establish a lower threshold in such cases. Following this ruling, Parliament again amended the Act to set a 12-candidate threshold for the party identifier, meaning that parties fielding at least 12 candidates in a general election would have the party name included on the ballot next to their candidates' names.
Figueroa, represented by Peter Rosenthal, then sought to appeal this judgment to the Supreme Court of Canada, arguing that the ruling of the Ontario Court of Appeal was flawed in interpreting the Charter of Rights and Freedoms, and that the 50-candidate rule did in fact constitute discrimination against smaller parties under the Charter. The Supreme Court granted leave to appeal this important constitutional case, which was then argued before the SCC in 2002.
Opinion of the court
Mister Justice IacobucciFrank Iacobucci
Frank Iacobucci, CC was a Puisne Justice on the Supreme Court of Canada from 1991 to 2004 when he retired from the bench. He is an expert in business and tax law.-Early career:...
, writing for the majority, stated that section 3 protects not just the right to vote but also provides the right of every citizen to participate in politics. The right ensures that each citizen can express an opinion about the formation of the country's public policy and the country's institutions.
However, Iacobucci noted that section 3 does not protect unlimited participation. Rather it protects:
- the right of each citizen to play a meaningful role in the process; the mere fact that the legislation departs from absolute voter equality or restricts the capacity of a citizen to participate in the electoral process is an insufficient basis on which to conclude that it interferes with the right of each citizen to play a meaningful role in the electoral process
For a violation to be found there must be a prohibition against "meaningful" participation.