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)
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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.
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