Tuesday, May 21, 2013

Political reform in the first world


 

 
It is requested please that the reasons for judgment for petition 09-1067 be entered into the BC Supreme Court decision database.


The Appeal Court has produced a copy of the decision. It is stamped original.

 
The merits to disclose the decision are it is of public interest and is of fundamental importance to electoral reform. This was the first time in the history of Canada that the Court was granted jurisdiction to advance the cause of electoral reform.

 
The charter challenge was directed at the impugned Regulation 29(4)'s censorship restricting all topics in a private citizens’ electoral reform advertising message, for a quarter of year, leading up to the single transferable vote referendum, to advance our Democracy. The AG's offer to settle on a S.2b freedom of speech breach demonstrates the civil rights infraction was significant.


The petition's writ sought only a Charter Section 3 voter rights declaration though. The writ's failure to request a S.2b of the Charter freedom of speech declaration – serves as an example to others to not make the same mistake.

 
The petition filed during the referendum, waited too long to file for a petition hearing. It is hoped that the reasons for judgment made public will help others avoid the same mistake when advocating for their cause to make the world a better place.

 
Thank you for your consideration to enter the reasons for judgment into the pubic record.

 

Sincerely;

 

 

 

 

Thursday, March 21, 2013

"Democracies flourish from frequent and lively debate" -- BARACK OBAMA


“I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts, and beer.”
― Abraham Lincoln
“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
― George Washington


Is democracy served by a first-past-the-post electoral victory?   I don’t think so. There are very few democracies now that have our system. Most have gone over to proportional representation, which we desperately need.
―  David Suzuki

_____________________________________________________________________________________

Legal Arguments

For the Petitioner

_____________________________________________________________________________________


1. This is a challenge to the propaganda regulation restricting the general public from combining messages on the STV referendum with support or opposition for a particular party or candidate. It is part of the Electoral Reform Referendum 2009 Act Regulation B.C. Reg 266/2008 which sets out, inter alia, the rules regarding referendum campaign communications to be allowed. Section 29(4) of the Regulation bans:

S.29(4) Referendum advertising must not, directly or indirectly,

(a)Promote or oppose a registered political party or the election of a candidate, or

(b)Form part of election advertising.


2. The burden rests upon the Attorney General to establish that the impugned provisions constitute a reasonable limit that can be demonstrably justified in a free and democratic society. The relevant analytical framework was set out in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, with certain refinements regarding the third step of the proportionality test in Dagenais v. Canadian Broadcasting Corp. [citations omitted], as follows:

a. the law must be directed towards an objective that is sufficiently pressing and substantial to justify limiting a Charter right; and

b. the law must be proportionate, in the sense that

i. the measures chosen are rationally connected to the objective;

ii. those measures impair as little as possible the Charter right in question; and

iii. there is proportionality both between the objective and the deleterious effects of the statutory restrictions, and between the deleterious and salutary effects of those restrictions.


The Supreme Court of Canada’s instructions to Canada’s Courts are that overly restrictive political participation restrictions do undermine voting rights.

3. The Prime Minister, and (the interveners) and the former Attorney Generals of Ontario and Quebec and Manitoba, all felt political participation is Charter S.3 territory. The Supreme Court of Canada stated they could not be faulted for their position.

4. This philosophy is expressed by the majority in Harper: Per Iacobucci, Bastarache, Arbour, LeBel, Deschamps and Fish JJ.: Quote,“Spending limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to the voter; if overly restrictive, they may undermine the informational component of the right to vote. Here, s. 350 does not interfere with the right of each citizen to play a meaningful role in the electoral process. “The harm that Parliament seeks to address in this case is electoral unfairness. Given the difficulties in measuring this harm, at the stage of the justification analysis a reasoned apprehension that the absence of third party election advertising limits will lead to electoral unfairness is sufficient.”


There are difficulties with using Harper v. Canada[Attorney General] as the definitive precedent, because that challenge was complex and involved several sections of laws (times) several charter sections.

5. The Appeal Court of Alberta for good reason uttered one statement. “[30] I conclude ss. 323, 350 and 351 violate the Charter. [31] The definition of “election advertising” is not unconstitutionally vague. [32] The impugned sections are not saved under s. 1 of the Charter. The government has failed to establish the sections address a pressing and substantial concern.”

6. This affected the Supreme Court of Canada decision. This illustrates the difficulty (the same or not the same). Quote, “The Court of Appeal erred in considering the provisions on third party spending limits globally. While the regime is internally coherent, its constituent parts stand on their own and the constitutionality of each set of provisions must be considered separately.”


The legal reasons to accept S.350 are not transferable to S.29(4) -- Combining messages (a publication ban on content) is not a spending limit.

7. It cannot be said that S.29(4) is the same as quote, “The limits set out in s. 350 allow third parties to inform the electorate of their message.”

8. The impugned Section 29(4) obstructs referendum advertising messages to debate and use rhetoric. In addition, the regulation creates a feed back loop on election advertising, restricting election advertisers from disclosing candidates’ position on STV and political reform.

9. It has nothing to do with fostering debate in the referendum. The AG’s stated purpose was to serve the unlawful pre campaign period election advertising regime. S.29(4) is not in place to promote disclosure in the referendum. It is in place precisely to stop disclosure. In Constitutional analysis,  if the restriction has nothing with referendum advertising, that is a problem.

10. Quote from Harper: “Section 350 is justified under s. 1 of the Charter. While the overarching objective of the third party advertising expense limits is electoral fairness, more narrowly characterized, the objectives of the scheme are threefold: (1) to promote equality in the political discourse; (2) to protect the integrity of the financing regime applicable to candidates and parties; and (3) to ensure that voters have confidence in the electoral process. Section 350 also meets the proportionality test. First, the third party advertising expense limits are rationally connected to the objectives. They prevent those who have access to significant financial resources, and are able to purchase unlimited amount of advertising, to dominate the electoral discourse to the detriment of others; they create a balance between the financial resources of each candidate or political party; and they advance the perception that the electoral process is substantively fair as it provides for a reasonable degree of equality between citizens who wish to participate in that process. Second, s. 350 minimally impairs the right to free expression. Third party advertising is unrestricted prior to the commencement of the election period, and third parties may freely spend money or advertise to make their views known or to persuade others. Further, the definition of “election advertising” in s. 319 only applies to advertising that is associated with a candidate or party. The limits set out in s. 350 allow third parties to inform the electorate of their message in a manner that will not overwhelm candidates, political parties or other third parties while precluding the voices of the wealthy from dominating the political discourse. Third, the s. 350’s salutary effects of promoting fairness and accessibility in the electoral system and increasing Canadians’ confidence in it outweigh the deleterious effect that the spending limits permit third parties to engage in informational but not necessarily persuasive campaigns.” Emphasis added



The Law’s Objective: Is It Pressing and Substantial?

11. ” It appears the ban has nothing to do with the improving the messages for the referendum and a fair referendum. Response Quote, “Section 29(4) operates to prevent third parties from circumventing electoral advertising limits under the guise of referendum spending.”

12. Quote, Harper: “[22] Under this head we consider the reasons given by the Attorney General to justify limiting the right of citizens to freely express themselves on political issues during the election period. The Attorney General states that the objective of the legislation is to promote fair elections.”


Proportionality and Rational Connection

13. Referendum’s needs should determine the advertising restrictions.

14. Quote, Harper: “[28] The first inquiry in determining whether the infringement is proportionate to the harm done is whether there is a rational connection between the infringing measure and the pressing and substantial objective that the infringement is said to serve. In this case, the question is whether the limits on citizen spending are rationally connected to ensuring electoral fairness in the sense of giving citizens an equal voice in elections, informing the public on electoral issues and preserving public confidence in the electoral system.”


Minimal Impairment

15. It is believed that the lack of substance in the referendum yes and no side TV commercials actually caused people to vote No. The Government funded the exploiting of emotions in the NHL PLAYOFFS. Tax dollars paid for the CANNUCK’S GAME SCORE BOARD TO FLASH -- “VOTE NO” -- TO SUGGEST EQUALS A GOOD CANNUCK. It is endless; the ballot used does not use the same amount of words and looks longer and more complicated for the STV ballot. This is anti-democratic behaviour.

16. Quote, Haper: “[32] The question at this stage is whether the legislation infringes the right to free expression in a way that is measured and carefully tailored to the goals sought to be achieved. The “impairment must be ‘minimal’, that is, the law must be carefully tailored so that rights are impaired no more than necessary”: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160. The difficulty with the Attorney General’s case lies in the disproportion between the gravity of the problem — an apprehended possibility of harm — and the severity of the infringement on the right of political expression.”




Minimal impairment dispute

17. The petitioner respectfully disagrees and asserts that he could not post his posters as the AG claims. The respondent without qualifying the statement asserts that response quote, “In his case, this might require that he both register and report spending as election advertising, but it does not otherwise restrict him from postering as he proposes." The petitioner claims his referendum advertising is referendum advertising. “

18. If the petitioner’s referendum advertising is not referendum advertising -- this fact proves the point, the impairment is not minimal. Referendum advertising (with specifics) could not exist! How can there be effective representation without information in a referendum message?



Anti trust concern -- The impugned regulation is collision originating from an antiquated political monopoly

19. Quote from a UVic political science professor Dennis Pilon, “This is a typical kind of dirty pool.” “It’s a referendum on democracy and they want to limit people’s democratic rights.” Quote from Provincial Green Party Leader, “Since we’re the only party that’s advocating electoral reform for 25 years… it’s primarily restricting us.”

20. Quote, “Political parties can’t advertise [support for electoral reform] in print advertising,” said Sterk. “During the pre-election period from February 1 until May 12 the party will have to remove references to the referendum on changing the voting system from its website, she said.”  Party officials are also cancelling plans to promote a ‘yes vote’ on Green Party brochures. Yes regulation 29(6) was introduced to remove this obstruction for the Green Party, BUT not for private citizens.

21. This anti competitive, predatory regulation remained in place to obstruct private citizens like you and me.   Quote from Elections B.C. director responsible for electoral reform, “We’re glad to have it clarified.” When the petitioner registered during the referendum pre-campaign period the petitioner was informed that election advertising was not permitted in referendum advertising by private citizens. The petitioner was also informed that private citizens’ election advertisers must not advertise candidates positions for the referendum in election advertising for just the 09 election.”






Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33

22. The Supreme Court of Canada’s mandate to refute the petitioner in Harper v. (Attorney General) is founded on political affirmative action’s claim to serve and protect the basic rights of all our political voices to be heard, requires legal intervention so that the loudest voices/ aka the main stream media should not be able dictate the debate.

23. The unintended consequences of the High Court affirming the restriction of the general public’s political voices has created the very problem the Court of British of Columbia faces today with the impugned Reg 29. This is a slippery slope prudence needs to clarify. The respondent claims the Harper precedent allowed the near complete ban on specifics in the BC Referendum.

24. Quote, ”[41] The measures may actually cause more inequality, less civic engagement and greater disrepute than they avoid. In the absence of any evidence to the contrary, it cannot be said that the infringement does more good than harm.“

25. Quote, Justice Bastarache explained the essence of the egalitarian model in Harper at para. 87: “Under the egalitarian model of elections, Parliament must balance the rights and privileges of the participants in the electoral process: candidates, political parties, third parties and voters. Advertising expense limits may restrict free expression to ensure that participants are able to meaningfully participate in the electoral process. For candidates, political parties and third parties, meaningful participation means the ability to inform voters of their position. For voters, meaningful participation means the ability to hear and weigh many points of view. The difficulties of striking this balance are evident. Given the right of Parliament to choose Canada’s electoral model and the nuances inherent in implementing this model, the Court must approach the justification analysis [i.e. the s. 1 analysis] with deference. …In the end, the electoral system, which regulates many aspects of an election, including its duration and the control and reimbursement of expenses, reflects a political choice, the details of which are better left to Parliament. [Emphasis added.]”

26. Citizens are deprived of an effective voice by design places yet a further duty on the Court to hear a political petition. Quote, ”[7] The citizen’s message is thus confined to minor local dissemination with the result that effective local, regional and national expression of ideas becomes the exclusive right of registered political parties and their candidates.” “[9] It is therefore clear that the Canada Elections Act’s advertising limits prevent citizens from effectively communicating their views on election issues to their fellow citizens, restricting them instead to minor local communication. As such, they represent a serious incursion on free expression in the political realm.” Quote, “[42] What is important is that citizens have the capacity, should they so choose, to exercise their right to free political speech. The spending limits as they currently stand do not allow this. Instead, they have a chilling effect on political speech, forcing citizens into a Hobson’s choice between not expressing themselves at all or having their voice reduced to a mere whisper. Faced with such options, citizens could not be faulted for choosing the former.“

27. Harper Extract: Quote from Canada’s Chief Electoral Officer Press release,“ September 2000, Bill C-2, the new Canada Elections Act, came into effect. Introduced by the Liberal government, Bill C-2 provided for a spending limit on third party election advertising of $150,000 nationwide, of which no more than $3,000 can be spent in a given electoral district, and third party registration and reporting requirements. The amounts are adjusted according to the inflation factor; for the 2004 general election, the limits were adjusted to $168,900 nationwide and $3,378 in each electoral district. Following the adoption of Bill C-2, but before it came into effect, Stephen Harper, then President of the National Citizens Coalition, filed a challenge to the new third party provisions before the Alberta Court of Queen's Bench in Harper v. Canada (Attorney General). On June 29, 2001, the court held that s. 350, the third party spending limits, and s. 351, prohibiting third parties from colluding to circumvent spending limits, were unconstitutional. It upheld several provisions of the Act, including ss. 352–360 and 362, which provide for the registration of, and reporting by, third parties. The decision was appealed. On December 16, 2002, the Alberta Court of Appeal ruled, in a two-one decision, that all the provisions for third party activities in the Canada Elections Act were of no force and effect, except for s. 358 (prohibition on third parties using foreign contributions for advertising purposes). On May 18, 2004, the Supreme Court of Canada overturned the decision of the Alberta Court of Appeal. The nine-member court ruled unanimously that the provisions on third party registration and election advertising (ss. 350–360 and 362) were constitutional. However, in the case of section 350, which prescribes the level of third party spending limits, a minority of three justices declared that provision to be unconstitutional, as well as section 351, which prohibits third parties from colluding to circumvent the limits.”


Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995

28. Correctly read, this case contains the considerations to determine and judge whether a specific referendum is protected by S.3.

29. In September 1992, the federal government directed that a referendum be held on October 26, 1992 on a question relating to the Constitution of Canada in all provinces and territories, except Quebec. Quebec was to hold a separate referendum on the same date and on the same question but in accordance with the provincial legislation.

30. Mr. Haig sought to vote in the Quebec Referendum on the Charlottetown Accord. His legal challenge narrowed in on Canada’s Referendum Act. The Court expressed that if Mr. Haig had challenged his right to vote in Ontario, or challenged the Quebec Legislation directly, their decision may have been different. The Court also felt that the Charlottetown Accord has nothing to do with an election.

31. Quote, [50] "Haig deposed that he resided in Ottawa from June 18, 1989 until August 1992 when he moved to Hull, Quebec. Thus he did not qualify to vote in the Quebec referendum because he had not been a resident of that province for the requisite statutory period of six months. It must be remembered that Haig did not seek to challenge the validity of the Quebec legislation. Rather he sought to be enfranchised pursuant to the provisions of the federal Act."

32. Quote, “Drawing two short lines to form an "X" is the simplest act imaginable. Yet the right to so mark a ballot is as profound as the act is simple. Such marks, systematically compiled, are transformed by our beliefs and our laws into the most eloquent voice the people have.”

33. Quote from the honourable Cory J: “During the course of the hearing an argument was advanced that a referendum was distinct from and less important than an election. It was argued that, as a result, the generous principles applicable to the right to vote in elections should not apply with the same force to a referendum. I cannot accept that contention. A vast amount of public study, effort and time was expended in drafting the terms of the Charlottetown Accord. Every effort was made to advise Canadians of the importance of the referendum pertaining to it and the significance of the vote of every citizen. The number of voters exercising their franchise in the referendum was comparable to the turnout in federal elections. In the minds of most Canadians, the referendum was every bit as important as an election. If it was not, then Canadians would be clearly justified in wondering what all the fuss was about. The same principles applicable to the right to vote in elections should be applied in the same manner to the right to vote in a referendum.”


Doctrine of Deference responsibilities -- Somerville v. Canada (Attorney General), [1996] 37 C.R.R

34. In this case the Court makes an early determination. It was not required to measure all the information and perform all the required duties in a Charter S.1 application by the Government. The reasons given by the Courts of Alberta seem reasonable.

35. Extract: “In 1993, following recommendations of the Royal Commission on Electoral Reform and Party Financing (1992), the Progressive Conservative government introduced Bill C-114, which prohibited third parties from incurring election advertising expenses in excess of $1,000. These sections were challenged in the Alberta Court of Queen's Bench by David Somerville, then President of the National Citizens Coalition, in Somerville v. Canada (Attorney General). The court ruled in June 1993 that the restrictions on third party spending were unconstitutional. The decision was appealed and upheld by the Alberta Court of Appeal in June 1996. The Chief Electoral Officer issued a press release announcing the position of Elections Canada on enforcement of advertising limits for third parties stated the decision meant that there were no limits on election advertising expenses by third parties for activity anywhere in Canada. That judgment was not appealed to the Supreme Court by the Attorney General of Canada.”


Libman v. Quebec (Attorney General)

36. The Supreme Court of Canada said “No” to spending limits, and overturned the Court of Quebec, the Quebec Superior Court, and the Quebec Court of Appeal. We have a civic duty to say “No” when injustice becomes law. It is important to communicate that the Charter S.3 debate was not a consideration in Libman. It was important, but it was not in the orders before the Court.

37. The case arose from the 1992 Quebec referendum on the Charlottetown Accord. The case was of fundamental importance to the survival of Canada, because as a result of this ruling, the Chief Electoral Officer of Quebec was forced to drop charges on 20 people prosecuted (among them Canadian Patriots) under the Quebec Referendum Act for illegal spending during the 1995 referendum on sovereignty.

38. Libman case established that the monetary amount is a consideration. The BC Election Act uses the old number and contains no inflation clause (the cola) to reset the monetary spending limits through time. This specific gross negligence is sufficient for the Court to say "NO".

39. The amount over a decade latter is still 3000 in British Columbia for our Fixed Elections and therefore there is failure to comply with the fine print details. See Harper paragraph 350 on S.350 quote, (4) A third party shall not incur election advertising expenses of a total amount of more than $3,000 in a given electoral district during the election period of a by election. (5) The amounts referred to in subsections (1), (2) and (4) shall be multiplied by the inflation adjustment factor referred to in section 414 that is in effect on the issue of the writ or writs"


Bench (National Citizens' Coalition Inc. v. Canada (Attorney General)) 1984

40. The Court said “No” here to zero political participation. The Government did not seek an appeal, and the then Chief Electoral Officer, Jean-Marc Hamel, announced that the Court's decision would apply nationwide. The federal definition of political advertising was not the same, as the extremely broad definition the Attorney General of BC has provided her Court to follow.

41. Extract: “In 1983 the Liberal government introduced Bill C-169, which amended the Canada Elections Act to prohibit third parties or individuals from incurring expenses to promote the election of a candidate or to promote or oppose the election of a political party, except when authorized. The amendment further provided that anyone other than a candidate or an official agent who incurred election expenses was guilty of violating the Act. In 1984, the amendments passed in 1983 were challenged by Colin Brown of the National Citizens Coalition in the Alberta Court of Queen's Bench (National Citizens' Coalition Inc. v. Canada (Attorney General)). The Court ruled that the provisions limited freedom of expression under the Canadian Charter of Rights and Freedoms and were therefore unconstitutional.”


Reg 29 cannot accomplish the desired pareto efficiencies, since the free press is not limited, and the individual is.  

42. The Main Issue of petitioner is the pareto of not counting the loudest voice (the main stream press) in and of itself is political mischief. The egalitarian model must define the role of the media, because as Marshall McLuhan cliché states the medium is the message. Democracy is defeated by not weighting the mainstream media’s influence into the pareto considerations.

43. The Fundamental  Mistake in the Harper decision was the finding of fact Quote, ”[7] The citizen’s message is thus confined to minor local dissemination with the result that effective local, regional and national expression of ideas becomes the exclusive right of registered political parties and their candidates.” No evidence was presented to suggest these are the only actors/factors. It would appear the concern raised in Danson v. Ontario (Attorney General) 1987 is applicable that quote para 138 "More than that the court might on a sketchy record, feel constrained to make some sweeping generality which would later appear unwise."

44. It is a matter of national security that the Court view the media as representing special interests. The Court of Alberta set the bar on foreign influences infecting our Democracy. Harper v. Canada (A.G.),2002 ABCA 301 - Quote, “288] The trial judge noted that if he was wrong and the ban against the use of funds from foreign sources limits political speech, he would have “no hesitation” in invoking s.1 of the Charter. He asserted that “if s. 358 does violate s. 2(b), it is a proportionate response to the pressing and substantial objective of keeping Canadian elections Canadian.” (1 A.B. F39 at para. 177). I agree. “ “[289] Section 404 of the Canada Elections Act 2000 (16 A.B. E2290) prohibits political parties and candidates from receiving contributions from foreign sources. A third party may receive funds from foreign sources.


The Court of British Columbia has a history of ceding rights to the loudest voices and therefore affirming 29(4) would create a double standard.

45. The Court of British Columbia has ceded rights to pollsters and the free press in Pacific Press v. British Columbia (Attorney General), [2000] and Thomson Newspapers Co. v. Canada (Attorney General), [1997] decisions. Catch 22.

46. The general public has a right to be protected against potential mischief. The Court has a responsibility to debate in its Charter analysis that there are voices that are off the radar and are not regulated, that affect the political discussion, specifically: the main stream media and news broadcasts and polling information. TV and newspapers programming influences the political debate, way more than third party political adverting does. The general public has a right to a rebuttal. Grass roots, small voices do not flourish in a political landscape dominated by powerful voices like the mainstream press.

47. Lord Bingham almost has it right, just need to add in the mainstream media control of the debate to complete the picture. Quote: “The observations of Lord Bingham in R (Animal Defenders) v. Secretary of State, [2008] UKHL 15, [2008] 3 All ER 193 at Para. 28: [28] … [I]t is highly desirable that the playing field of debate should be so far as practicable level.... It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect, must, in my judgment, include a right to be protected against the potential mischief of partial political advertising. [Emphasis added.]”



The importance of not limiting debate while the Legislature is sitting

48. The Petitioner had a right to point out the failures in our Democracy, like the invoking of Standing Order 81, as a valid reason to support political reform. For all practically purposes the emergency session of the Legislature and referendum ban period of over a quarter of a year are together in time.

49. Quote, Wikipedia, “On January 12, 2009 Vancouver Mayor requested an amendment to the Charter to allow the city to borrow $458 million contingent liability to fund the completion of the 2010 Olympic Village in False Creek False without seeking approval from taxpayers in an election-day plebiscite.] Robertson said this was due to extraordinary circumstances.] The amendment was passed on January 4, 2009 in an emergency session of the BC Legislative Assembly. ” ”Opposition NDP leader said “By calling the emergency session on a weekend, the government avoided fielding questions from the NDP. ”Under legislative rules, there is no question period during weekend sessions.” Province newspaper quote on that day, “The NDP had hoped to extend debate on the bill to three days, hoping for the chance to pose a list of questions about the village and the Games budget to a government that faces a provincial election in May. But House Speaker Bill Barisoff ruled the situation sufficiently urgent to cram three readings of the bill into a one-day special sitting.” The provincial government passed an emergency bill early Sunday to allow Vancouver to borrow at least $458 million more to ensure the Olympic Athletes' Village is built in time for the 2010 Olympics. Provincial politicians passed Bill 47 after a rare all-night session in Victoria.” Mr. Speaker:” Hon. Members, I've carefully considered the submissions of the two House Leaders, and in my view, this occasion is clearly one of urgency and scope which qualifies under Standing Order 81. Standing Order 81, which provides an alternative process for considering legislation on an extraordinary occasion, should be used sparingly.” “The bill was made law by Lt.-Gov. Steven L. Point around 8:30 a.m. local time.”

50. Quote BC Court of Appeal Teachers, ”[72] Counsel for the Attorney General made the point in his oral argument that it would be almost impossible to compose an effective definition of election advertising, designed to operate in the pre-campaign period, that would not capture all political advertising. For this reason, he says the trial judge erred in failing to pay deference to the reasonable attempts of the legislature to balance the interests at stake. I am not persuaded that there are not other ways of dealing with election advertising that do not interfere with political speech while the Legislature is in session.”





Beacons protecting Democracy in the womb

51. The episode of restricting Legislature members’ privileges in the general election, without the proper disclosure mechanism in place on Hansard, is troubling. The lack of debate in the three readings of the Electoral Reform Referendum 2009 Act, by both sides of the house does not inspire confidence.

52. The amendment of S.29(6) to permit for the combining of messages -- for Legislative members and other parties and candidates -- should be seen by the Court, that even the respondent lacks confidence in the regulation S29(4). Electoral Reform Referendum 2009 Act Regulation Section 29(6)Despite subsection(4), candidates and registered political parties may engage in referendum advertising, and, for the this purpose, the referendum advertising is deemed to be election advertising under the Election Act.

53. Though the amendment S29(6) was a step in the correct direction, the amendment creates an inequality infringement. The general public voter rights restriction is still in place and equals a patent unfairness when S.29(6) is entered into the calculations.

54. Quote from BC Court of Appeal in the Teachers. It comments on this type of rationale exposed by S.29(6). “[265] The underlying premise of the Attorney General’s position is that unrestricted third party spending prior to the beginning of the campaign would drown out the voices of the candidates and political parties. The credible evidence, however, is that it is not effective to spend large amounts of money prior to the commencement of the campaign. Moreover, to the extent that the Attorney General’s position rests on the proposition that restrictions on third party election advertising are necessary during the pre-campaign period to protect the financing regime, since spending restrictions have been imposed on political parties and candidates during that same period, the reasoning is circular. If those limits on political parties and candidates did not exist (and there is no evidentiary or logical basis for their necessity), then that rationale for restricting third party spending evaporates. Consequently, the legislation does not achieve the objectives of promoting equality in the political discourse and protecting the integrity of the financial regime applicable to candidates and parties.”

55. Quote, “[266] Even according the Attorney General a healthy measure of deference, I am not satisfied that the harm sought to be addressed by extending the third party spending restrictions into the pre-campaign period has been adequately demonstrated. On the other hand, I consider their effect in impairing the plaintiffs’ s. 2(b) freedoms to be anything but minimal.”

56. The Court has the right to comment on Legislature deliberations. Quote, “The AG’s position is that no discovery should be permitted except as it pertains to the Legislature’s deliberations.” This is position was offered in the preliminary in British Columbia Teachers’ Federation v. Attorney General of British Columbia 2008 BCSC 1699.



57. History of Regulation: On 12 September 2005, the Speech from the Throne, indicated that the government would schedule another referendum at the same time as the November 2008 municipal elections. On May 25th 2006 the date scheduled for the second referendum was then changed to occur in tandem with the May12th 2009 General Election. The Parliament of Canada states the BC Elections Chief Electoral Officer requested the Referendum date was changed. The original Electoral Reform Referendum Regulation 29 was gazetted on Oct 9th, 2008 and then repealed -- added S29(6) -- by the Lieutenant Governor in Council on Dec 11th, 2008 which at first banned Members of the Legislature and candidates from combining election advertising and political reform advertising. The Legislature dates were: the first reading was on Thursday, March 6th 2008; the second reading Monday, March 10th, 2008; and third reading Monday, March 31st 2008.


There is a profound responsibility to get it right, when the Court sustains the expropriation of political participation rights.

58. The Court of British Columbia has spoken three times & has every time rejected  the use of a pre campaign period censorship approach, as anti democratic behaviour. The British Columbia very broad, election advertising definition is already determined by the Court which forms a substantial part of the information requirement.


The regulation and its restrictions would not be in place, if the Election and the Referendum were not at the same time!?

59. The recommendation of the Chief Electoral Officer recommending the tinkering of the referendum date should be disclosed in the judgment. Full disclosure of the truth is upon which are Democracy relies upon. The Parliament of Canada in a report states openly  that the local Chief Electoral Officer recommended the referendum date be changed.

60. The BC Court of Appeal in teachers disclosed the role of the Chief Electoral Officer in their decision. Quote, ”[7] The initiation of fixed-date elections brought with it questions in the Legislature about limiting the amount of money that could be spent on election advertising. With the date of the election fixed in place, and perhaps with an eye on the experience in the United States, the question for government became whether interested parties would see fit to begin advertising campaigns promoting the election of candidates or parties much earlier than in the past, when election dates were uncertain. Some worried about the development of a spending “free-for-all” in the days preceding the campaign period. After the Chief Electoral Officer of British Columbia made recommendations, the government of British Columbia acted to amend the legislation with respect to election advertising. Those amendments came into force on May 29, 2008.” [Emphasis added.]


Failed to accord sufficient – or indeed any – weight to the presence of similar spending restrictions in other free and democratic societies.

61. International law dictates that the founding vote infringement & the forgiveness process are not moot. The wrong needs to be addressed by the district court. Society from the very beginning has debated political participation and fought over it. The journey of humanity falters when democracy ceases to evolve, this is nature’s law. The mandate to encourage voter participation is universal.

62. British Columbia’s democracy is improved by the declaratory orders. Nearly half of British Columbians did not vote in the election/referendum. The political reformers seek a stronger democracy to encourage voter participation. The founding vote won improved the chances for voters to experience effective representation -- to combine facts and issues and accountability -- when voting for specific candidates that now would stand a chance at winning -- instead of the brand name parties, in a general election.

63. Sadly said, Democracy is broken – and the Court with the help of all the king's horses and all the king's men have to put Humpty together again. In this quest, the Court of the past protects Democracy in the womb, by finding that S29(4) is an insult to Democracy. The Supreme Court of Canada only said Yes to S.350 to help Humpty Dumpty.


The legal words (directly or indirectly and by any means) and all candidates’ positions are election advertising, are not minimal.

64. Teachers BC Appeal Court quote ,”[66] This definition includes advertising which takes a position on “an issue with which a registered political party or candidate is associated”. Thus, it is bound to include what some have called “pure issue advocacy”. Pure issue advocacy has been defined by one author as, “paid communication concerned with public issues and bearing no connection to an election” (see Colin Feasby, Issue Advocacy and Third Parties in the United Kingdom and Canada (2003) 48 McGill LJ 11).



List of all the issues forbidden to be combined with in a referendum message

65.  British Columbia’s definition of election advertising is not the traditional definition.

66. Quote, B.C. Teachers’ Federation v. B.C. (Attorney General) 2009 BCSC 436: [246] ”Practically speaking, it is not readily apparent when an issue is not associated with a candidate or political party. The Liberal Party’s campaign platform for the 2005 election demonstrates the extent to which this is the case. Entitled A Proven Plan for a Golden Decade, the document (BC Liberal Party: 2005) sets out the party’s platform regarding a wide range of topics: education, including life-long learning and advanced education; the arts; cultural diversity; healthier living and physical fitness; health care; seniors; children and families; First Nations; women; public safety; democratic reform; partnerships with local governments; parks; environmental protection; job creation; free enterprise; income taxes; research and technology; forestry industry; sustainable development in the energy and mining industries; the 2010 Olympics; tourism; new “gateways” to the Asia Pacific; transportation; northern development; regional growth; and relations with the federal government and other provinces. Against this platform, it is difficult to conceive of an issue that is not associated with the Liberal Party.”


In conclusion: Statements from the AG Spokesman
67. Quote, “There was a lack of clarity in the existing regulation.” “The intention was never to restrict discussion of the referendum.” The Courts should never affirm censorship on private citizens if it was not the AG’s intention?!

Rescue mission to have the Court of British Columbia participate in the BC Legislature’s Electoral Reform Referendum

We must be able to stand on guard for Canada
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____________________________________________________________________________

PETITION RECORD ARGUMENTS

The Rebuttal to the Respondent’s DE MINIMIS application to quash under BC Court Rule 9-5(1)

_____________________________________________________________________________________


Part A: "Can the Petitioner seek a declaration of constitutional invalidity by petition?" AG objections include an application to strike under Court Rule 21(3)

Part B: “The petition is not supported by a sufficient factual basis to allow for proper constitutional adjudication.” “Furthermore, where the evidence before the Court suggests the petitioner sought to make a particular political statement, it may be his rights to expression are relevant by not his voting rights.”

Part C: “With respect, this [Mootness and Futility] should be determinative and put an end to this matter.”

Part D: ”[T]his petition should be dismissed, in any event, because there is no breach of section 3 to be found on the facts of the case. The Attorney General says that any limits imposed by the Regulation on referendum and election advertising do not infringe the right to vote.”

Part E: “From the materials it is unclear whether a declaration pursuant to section 24(1) of the Charter or section 52 of the Constitution Act”




Part A:  Can the Petitioner seek a declaration of constitutional invalidity by petition? Here is an application to strike under BC Court Rule 21(3).

1. This would be the second time the rule was used in the file.

2. In the preliminaries, on 11 March 2009, the Court refused to wave the Court fees for the application. The underlining proceeding must be in the form of a petition, when the action includes an interlocutory injunction. The Proceeding must be started by petition when the application for relief includes the nature of mandamus, prohibition, certiorari or habeas corpus are governed by these Supreme Court Civil Rules and must be started by petition under Rule 16-1. The action was changed to a petition and was accepted by the Court on 18 March 2009.

3. The injunction now moot does not nullify the proceeding. The doctrine of deference advocates political injunctions are to be rebuffed. Political decisions are to be decided after the fact. This mandatory  mootness cannot be used to strike the action based on it being in the form of a petition, as this would be a patent unfairness.

4. This issue can be disposed of readily. Scory v. Langley (Township) 2012 CarswellBC 1862 Subject: Public; Property; Torts; Civil Practice, para[12] “A number of issues raised at this hearing can be disposed of readily. First, the defendant applies to dismiss the plaintiff's claim on the basis that the proceedings should have been brought by way of a petition under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 and not by notice of claim. The pleading, as filed, seeks a court order compelling the Township to issue a building permit. That relief can only be obtained under the Judicial Review Procedure Act and must be brought by petition under Rule 21-3.” [Formerly Rule 63.] [13] However, the building permit has now been issued, and the plaintiff's remaining claim is primarily for damages for malfeasance of public office. Accordingly, I dismiss the defendant's application to strike the plaintiff's claim on the basis that it has been brought in the wrong form.”

5. The petition is a charter challenge ONLY and contains no additional orders. This is one of many distinct differences from Transpacific Tours Limited v. Director of Investigation and Research (1985) see para 5: “[C]ounsel for the petitioners made it clear that the relief sought is not merely a constitutional remedy. The lack of additional orders changes the sufficient factual basis requirement.”

Part B: Constitutional political challenges involving BC Court Rule 9-5(1)

6. The petition in Pacific Press v. Pacific Press v. British Columbia (Attorney General), 1998 CarswellBC 2631 is the recognized standard for political challenges involving BC Court Rule 9-5(1). The respondent was told this then -- there exists an established stare decisis for political participation already, by the Higher Court, in the Harper, Libman, & Somerville cases. The BC Appeal Court affirmed the chambers decision.

7. The BC chamber’s decision paragraph [12] comments on the benefit of a new novel, political approach on the information, quote “Such an information process does not easily lend itself to the type of summary determination sought here.”  The Pacific decision is our province’s legal information requirement for an undertaking by the Court for a political participation dispute. To invoke BC Court Rule 9-5(1) - quote para 29, "The Court must be satisfied that it is plain and obvious that no case can be established or the plaintiff's claims are certain to fail."


Petitioner submits there is a factual basis

9. The response seems to concede that there is a sufficient factual basis to make this other conclusion.  Response quote, “Furthermore, where the evidence before the Court suggests the petitioner sought to make a particular political statement, it may be his rights to expression are relevant by not his voting rights.”

10. The essential facts are established: The petitioner registered and felt obstructed. The petitioner went to BC Elections to clarify the censorship and was instructed that election advertising could not be part of the referendum message.

11. Please consider Hunt v. T&N [1990] S.C.R. 216 (Civil practice and procedure and BC Court Rule 9-5(1)).  It would be wrong to strike out the petition early -- when the respondent’s claims/tactics depicting the information can be simply dealt with and are peripheral issues. The Court had a moral responsibility. In Hunt, the issue involved asbestos and the harm caused.

12. The factual basis arises also from the respondent’s response quote, “Section 29(4) operates to prevent third parties from circumventing electoral advertising limits under the guise of referendum spending.”


It is the respondent who provides scant evidence to justify regulation 29(4)

13. Similar to the Harper v. Canada (Attorney Genera), the respondent has not one scintilla of evidence to support why the Court should save the impugned regulation. Harper v. Canada [Attorney General] political participation precedent (new law) established the standard for the degree of proof the fact finder requires to render a decision. The Pacific decision reflects this position that democracy is based on principles. To decide voting rights on a sufficient factual basis standard would prejudice, thus the best practice is to use principles and reasoning to decide Charter S.3 disputes.

14. Quote from Harper, “[26] A theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis.”

15. Quote from Harper, “[34] Here the concern of the Alberta courts that the Attorney General had not shown any real problem requiring rectification becomes relevant. The dangers posited are wholly hypothetical. The Attorney General presented no evidence that wealthier Canadians — alone or in concert — will dominate political debate during the electoral period absent limits. It offered only the hypothetical possibility that, without limits on citizen spending, problems could arise. If, as urged by the Attorney General, wealthy Canadians are poised to hijack this country’s election process, an expectation of some evidence to that effect is reasonable. Yet none was presented. This minimizes the Attorney General’s assertions of necessity and lends credence to the argument that the legislation is an overreaction to a non-existent problem. 35 On the other side of the equation, the infringement on the right is severe.”


If the petitioner’s referendum advertising is not referendum advertising -- this then proves the point -- that referendum advertising (with specifics) could not exist!

16. The petitioner’s referendum advertising is further obstructed by the suggestion, “In [chief's] case, this might require that he both register and report spending as election advertising, but it does not otherwise restrict him from postering as he proposes." The petitioner  respectfully disagrees, and claims his referendum advertising is referendum advertising.”


“Furthermore, in light of the scant evidence, the Court (as well as the respondent) has no sense of the effects of the impugned law on the petitioner’s right to vote and cannot easily find necessary to undertake proper consideration of the Regulation against recognized standards of constitutional law.”

17. In one single ruling -- Harper v. Canada (Attorney General) -- the entire established legal philosophy to enshrine Democracy was changed. New law was made. The government of the moment has manipulated this spending limits ruling into their warped election advertising definition – which has snowballed into censorship, restricting the combining of facts.

18. This new precedent on spending limits is now being misused -- by the respondent to go off reservation and into the pre campaign period. This is the answer to why the respondent cannot easily find necessary to undertake proper consideration of the Regulation against recognized standards of constitutional law.” This also may answer why no S.1 application is before the bench.


Probative facts to be given little weight , as equality is moot

19. The adjective law is established. When considering spending limits, the Law does not allow the prime facie case to be made for equality in a Charter S.3 decision.

20. The issue is effective representation. Reference re Provincial Electoral Boundaries (Sask),[1991] 2.S.C.R. 158 “It is my conclusion that the purpose of the right to vote enshrined in s.3 of the Charter is not equality of voting power per se. but the right to “effective representation.”   When the Court is entertaining Democracy -- affidavit’s probative facts (facts which the ultimate and decisive facts may be properly inferred – and the Probative value: the relative weight properly accorded particular evidence) are to be given little weight -- in the decision the Court pleases.


Knowledge is power

21. The more the AG also claims information is important in the decision process, only further demonstrates that We the People would benefit from knowledge in the referendum and in the legislature. The Danson and MacKay cases dictate information is important in the decision process.   Both the petitioner and respondent agree that  there is a mountain of evidence to suggest that combining a message with information is important.  An effective message needs to be combined with information. People have brains and need to won over.


The beast of restricting political information undermines the information excuse from being listed as the reason by the Court to quash.

22. The actions of the State obstructing the normal mechanisms for communicating in the pre campaign period – has created a REAL tort liability that protects the inquiry from being dismissed.


Contains pleadings that the information factual basis is not absent

22. BC’s unique election advertising definition and pre campaign period has a substantial factual basis in BC Court decisions. The public record now benefits from the reasons given in the teachers appeal to help create the basis of a full factual record for the referendum infringement.

23.  Furthermore, the public record in Reference re Election Act (BC), 2012 BCCA 394 the AG entered a covenant with the Court that mandates the conclusion -- the information is sufficient to continue for the petition 09-1067. Quote, "[4] The Attorney General (through counsel) advances the case for the government contending the current amendments fully address the offending aspects of the legislation considered in BCTF, thereby rendering the limitations imposed on election advertising by third parties in advance of the campaign period now constitutionally sound."

24. Tradition is re Air Canada (1999),241 N.R. 157 (Fed. C.A.) --- "In order for the reference procedure to work properly, there must be no real argument between the parities, as to the material facts that will form the basis for the answers the Court is asked to give."  Thus, the recent constitutional reference question prevents the excuse of sparse information to quash petition 09-1067.




Right to declaratory relief

25. The petitioner bows to the Doctrine of Sovereign Immunity. The petitioner bows to standard bestowed in Guimond v. Quebec (Attorney General) [1996] S.C.R.347 which states that damages can be awarded for the enactment of legislation that is subsequently declared to be unconstitutional, except in the event of good faith, and cases were wrongful conduct does not exist on the part of government institutions.

26. To aid the Court, most all issues are presented as moot. This position offered should not be turned around to say there is insufficient information so the petition is moot. Catch 22. The lack of claims beyond the orders on the table makes it known that the petition is being nice. Since S.29(4)restricted most all topics, this MUST permit the disclosure of the topics censored, does it not? How can a topic be censored AND banned from the decision to right the wrong? BUT Let us not walk the low road. Let us walk the high road.

27. Obviously, the issues are not moot, and especially the post-election HST announcement/provincial pre-post-election budget deficit flip flop announcements right after the ban ended. The impugned regulation restricted several sensitive topics that are off limits to censorship for example:(a) the nearly billion dollar BC Rail tax indemnity contingent liability removal from the 2005 Public Accounts by the Comptroller General, who was then promoted to Auditor General, and then asked to leave.  Revenue Canada is out nearly a billion dollars from the BC Rail tax indemnity.    [The word contingent liability and the accounting term is off limits see recent decision Auditor General v. Attorney General.] (b) the shredding of bc rail email information made known after the election; (c) two days after the General Election the Provincial Deficit disclosed in the Election was changed from 495 million, by government officials. (d) the HST post-election announcement; (e) and the feelings of the People of BC post Election/Referendum AND the near Revolt and exodus of the Premier -- are not good but democracy needs to look good so these issues are moot, as not to prejudice our Democracy. The mandate to encourage voter participation is a civic duty we all share. Please appreciate the subjects are thus moot, reducing the need to access the volumes of evidence. Thus the affidavit evidence is limited and is presented as such. Put simply the petitioner’s reasons for political reform do no concern the orders.

28. Nominal damages can be award as a trivial sum as a recognition that a legal injury was sustained. Nominal damages are awarded to vindicate the plaintiff’s claim where no recoverable loss/force can be established. The protection of a declaratory relief is codified in: Supreme Court Rule 20-4 — Declaratory Relief (1) A proceeding is not open to objection on the ground that only a declaratory order is sought, and the court may make binding declarations of right whether or not consequential relief is or could be claimed.




Part C:  Objections: Mootness and Futility

“Mootness and futility are distinct doctrines. Mootness is a quality of a proceeding. A proceeding is moot when it no longer arises from a live controversy or concrete dispute. Futility in contrast is a quality of remedies. A remedy is futile when it will have no practical effect.”


Mandated mootness

29. It stands to reason that a temporary law can be judged.

30. In Conacher v. Canada (Prime Minister) [2008] Federal Court 3628 a democratic reform organization registered a judicial review application to be heard immediately before the federal election and was told “No”. The issue was made moot by hearing the matter only after the election.

31. Canada’s doctrine of deference advocates thee best practice is to wait till after the political event to hear the petition and intervene. By definition, most election/referendum charter challenges are moot when before the bench. Similarly, the United States, the land of the most plebiscites in history, their best practice advocates that the legal issues around plebiscites are best left to be decided after the People vote for good reason.


The AG -- already being found guilty for violating the Charter in the Election -- must be factored into the moot decision for petition 09-1067

32. The election infringement record of the AG is not a moot consideration, when determining the mootness of petition 09-1067. It sends the wrong message to those that would exploit weaknesses in our Democracy for political gain that the Court thinks this moot. This breeds corruption.   Appreciate please, there a millions of Canadians that believe our Democracy is broken, and by the Court declaring the founding vote moot, would play into this. Therefore, the Court cannot use the moot excuse, as there are Public Interest considerations to respect.


No evidence has been placed before the court detailing why the declaratory Orders would be nugatory and of no practical value.

33. Quote from Friends of the Oldman River, para 109, “Prerogative relief should only be refused on the ground of futility in those few instances where the issuances of a prerogative writ would be effectively nugatory.” “It is a different matter, though, where it cannot be determined a priori that an order in the nature of prerogative relief will have no practical effect.”

34. The terms a priori ("from the earlier", pure reason) and a posteriori ("from the later", experience) are vantage points to determine futility. Each supports the ideas that voters deserve specifics. Common sense and experience like knowledge, obviously. So yes, philosophy preaches information is good -- and is a truism and is an a priori. The importance of independent voices in the political process is an effective representation a priori.

35. Let us not miss the point though, the infraction S29(4) was real and the orders address a wrong. The orders are not hypothetical.


Future Citizens Assemblies on electoral reform benefit from the orders.

36. The BC Citizens Assembly Final Report 2004 makes not reference for this need for censorship. Be assured, the Assembly would have made a fuss, if they knew about 29(4).  Therefore, the orders are not nugatory. In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 the Court declared the Province has a responsibility to consult stakeholders.  The decision of the Court serves and protects the future of Canada and the Provinces. This is an incredibly valuable gift the Court can give to our Great Nation.


National importance

37. Quote: Haig v. Canada (Chief Electoral Officer), - [1992] 3 S.C.R. 163 - 1992-10-22 “Having granted leave, we are obviously of the view that this appeal will raise issues of public, indeed, national, importance. The decisions of this Court, being the court of final appeal, are binding upon all other courts in the land.”

38. Quote: Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995. The Supreme Court comments: “ [160] Under the circumstances, as the referendum has already taken place, any remedy is more theoretical than real.” “Hopefully, the Canada Elections Act or Referendum Act provisions will be clarified if Parliament decides to hold a referendum in the future.”


Badge of Honour for the Court to defend democracy and say “NO”

39. Quote from the honourable Cory J in Haig: ”All forms of democratic government are founded upon the right to vote. Without that right, democracy cannot exist. The marking of a ballot is the mark of distinction of citizens of a democracy. It is a proud badge of freedom. While the Canadian Charter of Rights and Freedoms guarantees certain electoral rights, the right to vote is generally granted and defined by statute. That statutory right is so fundamental that a broad and liberal interpretation must be given to it. Every reasonable effort should be made to enfranchise citizens. Conversely, every care should be taken to guard against disenfranchisement.”


The Court mandate to encourage voter participation enshrines the founding vote

40. The current mode of operation of the BC Legislature is born from the referendum.  The doctrine of deference requires this not be belittled. There is a symbolic significance to this past event. Credibility requires that political censorship affecting this be reviewable.    It would prejudice democracy to find this moot.


Limits placed on using the word moot when encouraging voter participation

41. It is an error of law to make the finding that the petitioner’s advertising is moot and futile. Harper [44] “This amounts to saying that even if the breach … is not justified; it does not matter because it affects only a few people. Charter breaches cannot be justified on this basis.”   Said another way, it is a colour of law offense to use the excuse that the petitioner is tiny and irrelevant, therefore his political rights are moot.    


Federal Court Practice

42. Quote from Carswell Federal Court Practice, "The Court is reluctant to entertain motions to strike judicial review applications. Generally, the proper way for a respondent to contest an application which it believes to be without merit, is to appear and argue at the hearing of the application itself. A motion to strike should only be brought where the application is so clearly improper as to be without any possibility of success.”


Tradition

43. The courts have always recognized the fundamental importance of the vote and the necessity to give a broad interpretation to the statutes which provide for it. This traditional approach is not only sound it is essential for the preservation of democratic rights.

44. Quote, “Cawley v. Branchflower (1884), 1 B.C.R. (Pt. II) 35 (S.C.). Crease J. wrote at p. 37: The law is very jealous of the franchise, and will not take it away from a voter if the Act has been reasonably complied with. . . . It looks to realities, not technicalities or mere formalities, unless where forms are by law, especially criminal law, essential, or affect the subject-matter under dispute. [Emphasis added.]”

45. Quote, “To the same effect in Re Lincoln Election (1876), 2 O.A.R. 316, Blake V.C. stated (at p. 323): The Court is anxious to allow the person who claims it the right to exercise the franchise, in every case in which there has been a reasonable compliance with the statute which gives him the right he seeks to avail himself of. No merely formal or immaterial matter should be allowed to interfere with the voter exercising the franchise . . . .”

British Columbia case law on amending petitions

46. Merit counts in accepting an amended petition. Leave can be granted for clarification and particularization purposes. The amended petition was for particularization. The Province is not a private citizen is a key distinction. The British Columbia Court has commented on the State is different and therefore there are a different set of measures in Haida Nation v. British Columbia(2000) 2067.

47. Merit is the established standard in British Columbia. Chaudhry v. British Columbia (2005) 1361: Quote: “The original petition was filed 1998. It refers to events in 1995 and 1997. The amended petition was filed 2004, more than six years after the events complained of. As mentioned, the amended petition was presented without leave first having been obtained. It is the applicant's position that Rule 24 (1)(a) [BC Supreme Court rules renumbered in 2010] permits an amendment without leave so long as the matter is not set down for a hearing. The Court standard to dismiss is based on quote: “Having concluded that there is no merit in the matters sought to be appealed and no reasonable prospect that a division of this Court would allow the appeal, I dismiss the application for leave.” [Emphasis added.]

48. Halvorson v. British Columbia (Medical Services Commission) [2010] BC Court of Appeal 1336: Quote, “In unusual circumstances of case, it was best for parties to step back from further amended petition and statement of claim and begin again.” “The judge found that some further particularization was also required in order to understand[.] “Procedural issues were significant to claim, which had been stalled for over five years, and significant to practice of class actions.”


The petitioner’s  reasons for delay

49. The petitioner’s  reasons for delay include the filing a leave to appeal to challenge the BC Constitutional Questions Act writ of mandamus issued by the Attorney General , and to appeal the affirmed Charter S.2d association & S.3 determinations: The Court number is: B.C. Teachers’ Federation v. B.C. (Attorney General), BC COURT OF APPEAL (file no. 38495).


No charges pending

50. The respondent’s first response clarifies that no charges are pending for Electoral Reform Referendum 2009 Act Regulation Section 29(4). The State’s still obstructed the petitioner’s political reform activities.


The AG’s list of authorities include the right to life case Borowski

51. The Borowski v. Canada (Attorney General)[1989] 1 S.C.R. 342 right-to-life case law example, supports the right of petition 09-1067 to a determination, as the charter challenge is not yet determined and is a real issue as defined in Borowski.  The Borowski writ was made moot because of a prosecution in a separate proceeding which meant the Court had already dealt with the underlying issue. The underlying issue has not been dealt with in petition 09-1067, which is a key difference from Borowski.

52. Metaphorically, this is also a right to life case. Democracy was giving birth and was attacked. Democracy cries for justice from Her Court. In no way is this moot. This is the foundation stone of the doctrine of deference.   


The Caveat in MacKay v. Manitoba, paragraph 22 concerning information

50. The Arbitrator has no duty to act and can end the inquiry if there is an enhancement. But, when the political interference does not improve our political activities, now the MacKay precedent affirms the (political participation) writ’s right to a determination. The MacKay paragraph [22] quote defending democracy, “The Act does not prohibit a taxpayer or anyone else from holding or expressing any position or their belief in any position, Rather the Act seems to foster and encourage the dissemination and expression of a wide range of views and positions.”


Part D: Jurisdiction

The Court’s expedition to the charter mountain range and climb up charter 3 mountain.  

Response quote [47] ”[T]his petition should be dismissed, in any event, because there is no breach of section 3 to be found on the facts of the case. The Attorney General says that any limits imposed by the Regulation on referendum and election advertising do not infringe the right to vote.”


Section 33 of Charter permits local politicians to remove the Court's jurisdiction to guard civil rights

52. To find there is no jurisdiction here is profound. This translates the Legislature building blocks are subject to Section 33’s notwithstanding provision. This would be a clear and present danger to Canada. Canada’s founding document by design removed the right of locals to invoke Section 33 for this material. The Courts MUST have the absolute authority to make a decision in a Charter S.3 breach.   We must be able to stand on guard for Canada.
53. In Baier v. Alberta [2004] ABQ 669 there is a discussion of the jurisdiction differences between s2b and s.3. It points out that Section 3 is protected from s.33; whereas s.2b is not. In Baier the case was not s.3 material, as it involved school board democracy.

Petition 09-1067 Order One deals with the Referendum &Order Two deals with the Election

54. Even if the interpretation is that the Referendum is not protected by section 3, there is still the issue of Order 2 concerning the election infringement. The orders are independent and mutually exclusive. And as such, the claim there is not jurisdiction must climb two separate mountains to dismiss on jurisdiction.   


There are legal complexities using the precedent in B.C. Teachers’ Federation v. B.C. (Attorney General), 2009 BCSC 436 to assert that there is no s.3 jurisdiction. The reasons given indicate there was jurisdiction to give a s.3 analysis.

55. The AG commanding the Court with a writ of mandamus impacted the Court's decision. This reduces the authority of the AG to use this example to define jurisdiction in other cases. For good reason, Court decisions must not infringe s.3. In addition, the AG is not claiming as it did in that case that para 104 quote " Thus, says the Attorney General, the restrictions are supportive of the democratic interests that animate the s. 3 right to vote."

56. Quote para 105, "Contrary to the submissions of the plaintiffs and as I discuss elsewhere in these Reasons, I find that a modest informational campaign is the standard for a constitutionally acceptable advertising campaign, and that the impugned restrictions allow for such campaigns."


If and only if there is a s. 3 breach allows a spending limit to be declared no force and effect.

57. The Supreme Court of Canada's logic in Harper establishes that s.3 is the determining factor whether or not to affirm a spending limit. Obviously, spending limits do infringe s2b, BUT since s.3 requires it, the s.2b freedom of speech infringement is saved under s.1. Therefore, the legal debate to affirm is a consequence of the s. 3 consideration. It is an error of law to equate that there was no s.3 infringement, means there is no s.3 jurisdiction.


Even if, spending limits are not protected by s.3 as the AG presents, it still does not determine the jurisdiction on content

58. The Harper spending limit decision does not restrict content.  Quote, "The limits set out in s.350 allow third parties to inform the electorate of their message."   The same cannot be said for 29(4) that it allows third parties to inform the electorate of their message. A spending limit does not limit content. A spending limit by definition only limits the amount of times it can be reproduced. This suggests it is an error of law to misuse the Harper case law to say what it does not say,  to remove the Court's jurisdiction.


Discussion on spending limits DOES NOT determine the jurisdiction on a ban on content. Not the same.

59. Fundamental difference between a spending limit and restricting content.   In the book by J. Patrick Boyer, titled Political Rights - The Legal Framework of Elections in Canada,  the theme is content is not a subject matter the Court regulates in a democracy. The book pre dates the Charter,  represents our tradition that the people’s faith in Democracy is a consequence of the Court maintaining the right of citizens to express their range of ideas. The book quotes the 1968 Ontario Law Reform Commission, "An informed electorate is the bed-rock of our democracy."


The BC Attorney General is on record in Pacific Press v BC (AG) that the Quebec referendum on the Charlottetown Accord conclusively determined the constitutionality on voting rights for spending limits.

60. Paragraph 2 quote from BC Court of Appeal  "The appellant [THE AG]  contends that the chambers judge erred in refusing to strike the claims on the grounds that the Supreme Court of Canada has already conclusively determined the constitutionality of the impugned provisions of the Election Act in its reasons for judgment in Libman c. Quebec (Procureur general) 1997."


The Haig case established that a referendum does have s.3 rights when the referendum involves our right to vote.

61. A strong case can be made that the BC Legislature Founding Vote meets the criteria in Haig to establish s.3 jurisdiction. Quote from the Honourable Cory J in Haig, “During the course of the hearing an argument was advanced that a referendum was distinct from and less important than an election. It was argued that, as a result, the generous principles applicable to the right to vote in elections should not apply with the same force to a referendum. I cannot accept that contention. A vast amount of public study, effort and time was expended in drafting the terms of the Charlottetown Accord. Every effort was made to advise Canadians of the importance of the referendum pertaining to it and the significance of the vote of every citizen. The number of voters exercising their franchise in the referendum was comparable to the turnout in federal elections. In the minds of most Canadians, the referendum was every bit as important as an election. If it was not, then Canadians would be clearly justified in wondering what all the fuss was about. The same principles applicable to the right to vote in elections should be applied in the same manner to the right to vote in a referendum.”




Part E: The respondent asks, “From the materials it is unclear whether a declaration pursuant to section 24(1) of the Charter or section 52 of the Constitution Act”

62. Quote, "[70] The remedy proposed by Constable Ferguson is thus distinct from a s.52 remedy." Whereas, the petition 09- 1067 orders are not distinct from a s.52 remedy.

63. Quote from R. v. Ferguson [2008] 1 S.C.R. 96, “[59] The jurisprudence affirming s.52(1) as the appropriate remedy for laws that produce unconstitutional effects is based on the language chosen by the framers of the Charter. [60] Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts committed under the authority of legal regimes which are accepted as fully constitutional.” “[61] Thus this Court has repeatedly affirmed that the validity of laws is determined by S.52 of the Constitutional Act, 1982, while the validity of government action falls to be determined under s.24 of the Charter."

64. Quote “[63] The jurisprudence of this Court allows a s.24(1) remedy in connection with a s.52(1) declaration of invalidity in unusual cases where additional s.24(1) relief is necessary to provide the claimant with an effective remedy. “ Again there is no additional relief. The order challenging the validity of the law was registered while the short term law was real. The effective remedy to denounce the expired temporary law, may require a connection of a s.24(1) remedy if the Attorney General’s deems this necessary. To negate the political interference of the AG to an unconstitutional government act s.24(1) (category: a personal remedy) is the domain of the Court to determine.

65. The PER CURIAM repeatedly affirms that s.24(1) cannot provide a stand-alone decision when the constitutionality of a law is challenged. Unconstitutional laws are deprived of effect to the extent of their inconsistency, are not left on the books subject to discretionary case by case s.24(1) remedies.