T-2133-88
Alan Riddell (Applicant) .
v.
Jean-Marc Hamel and Jean-Robert Gauthier
(Respondents)
INDEXED AS: RIDDELL V. HAMEL
Trial Division, Muldoon J.—Ottawa, November
15 and 17, 1988.
Elections — Application for declaration Canada Elections
Act, s. 72 valid, mandamus requiring enforcement of s. 72, and
order for removal of campaign signs misnaming official agent,
thereby not complying with s. 72 — Alberta Court of Queen's
Bench declaring s. 72 inconsistent with Charter, s. 2(b) in
Citizens' Coalition case — Sufficient justification for Chief
Electoral Officer's refusal to enforce s. 72, until disapproved
by court of concurrent or superior jurisdiction — No evidence
supporting speculation of danger to democracy if s. 72 not
enforced — No notice of proceedings to provincial attorneys
general — No urgency shown — Serious questions to be tried,
including whether s. 72 contrary to Charter, whether Chief
Electoral Officer or Commissioner of Canada Elections
responsible for enforcement of Act, and whether such officials
immune from judicial review — Motion dismissed without
prejudice to right to bring action within fixed period of time.
Federal Court jurisdiction — Trial Division — Application
for declaration, mandamus and order requiring federal elec
tion candidate to remove campaign signs not complying with
Canada Elections Act, s. 72 — Court lacking jurisdiction over
candidate as not federal board, commission or other tribunal.
Practice — Costs — Application concerning validity,
enforcement of Canada Elections Act denied, as against candi
date, for want of jurisdiction — Award of costs reduced due to
counsel's unfounded allegations of malice, bad faith, dis
honesty and unethical behaviour.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, ss.
2, 3(7), 4(1 )(a),(b),(c), 23(2)(a) (as am. by S.C. 1977-
78, c. 3, s. 21), 26(1), 62(1) (as am. by S.C. 1980-81-
82-83, c. 164, s. 10), (1.2) (as enacted idem), (2) (as
am. idem), 70(3) (as am. by S.C. 1977-78, c. 3, s. 45),
70.1 (as added by S.C. 1973-74, c. 51,s. 12), 72(1) (as
am. by S.C. 1980-8I-82-83, c. 164, s. 15), (2) (as am.
idem), 77(1), 78(1), 99(2),(3),(4) (as am. by S.C.
1973-74, c. 51, s. 13).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 2(b).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Wilson v. Minister of Justice, [ 1985] 1 F.C. 586 (C.A.).
REFERRED TO:
Nat. Citizens' Coalition Inc. Coalition Nat. des Citoyens
Inc. v. A.G. of Can., [1984] 5 W.W.R. 436 (Alta. Q.B.);
Operation Dismantle Inc. v. The Queen, [ 1984] 2 F.C. 98
(T.D.); Hamel v. Union Populaire, [1980] 2 F.C. 599;
118 D.L.R. (3d) 484 (C.A.).
APPEARANCE:
Alan Riddell on his own behalf.
COUNSEL:
Yvon Tarte for respondent Jean-Marc Hamel.
Gérard Lévesque for respondent Jean-Robert
Gauthier.
APPLICANT ON HIS OWN BEHALF:
Alan Riddell, Ottawa.
SOLICITORS:
Deputy Attorney General of Canada for
respondent Jean-Marc Hamel.
Lévesque & Terrien, Ottawa, for respondent
Jean-Robert Gauthier.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant seeks:
I. a declaration that section 72 of the Canada Elections Act
R.S.C., (1st Supp.) Chap. 14 is valid;
2. an order of mandamus requiring the respondent, Jean-Marc
Hamel to enforce compliance of section 72 of the Canada
Elections Act pursuant to paragraph 4(1)(a) of the said Act;
and
3. an order requiring the respondent Jean-Robert Gauthier to
remove all campaign signs and replace them with material
which complies with the Canada Elections Act.
The stated ground for the applicant's motion is
that Mr. Hamel, the Chief Electoral Officer has
refused to enforce section 72 of the Canada Elec
tions Act [R.S.C. 1970 (1st Supp.), c. 14 (as am.
by S.C. 1980-81-82-83, c. 164, s. 15)], on the
mistaken legal premise that it is contrary to para
graph 2(b) of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)]. The applicant appeared in person and,
despite the not unusual tendency of non-lawyers to
go on too long, and quite repetitively, he raised in
an interesting manner not a few difficult points of
law. The Court allowed the applicant very great
latitude in his presentations. The applicant was
met at the outset by preliminary objections by
respective counsel on behalf of the respondents.
Before dealing with the arguments, the Court
prefers to set out some background facts and
information.
The legislative provisions cited by the applicant
are as follow. Paragraph 4(1)(a) of the Act runs as
follows:
4. (1) The Chief Electoral Officer shall
(a) exercise general direction and supervision over the
administrative conduct of elections and enforce on the part of
all election officers fairness, impartiality and compliance
with the provisions of this Act;
Indeed, it would appear in light of one particu
lar argument about the status of the respondent
Gauthier and his official agent, that the applicant
would also need to invoke paragraph (b) of that
same section, thus;
4....
(b) issue to election officers such instructions as from time to
time he may deem necessary to ensure effective execution of
the provisions of this Act . ....
Section 72 of the Act is manifested in two
subsections:
72. (I) Every printed advertisement, handbill, placard,
poster or dodger that promotes or opposes the election of a
registered political party or candidate and that is displayed or
distributed during an election by or on behalf of a registered
party or a candidate shall indicate that it was authorized by the
registered agent of the party or by the official agent of the
candidate, as the case may be, and bear the registered agent's
or official agent's name.
(2) Every one who prints, publishes, distributes or posts up,
or who causes to be printed, published, distributed or posted up,
any document referred to in subsection (1) is, unless it bears
the name and authorization required under that subsection,
guilty of an offence against this Act.
The reason for which the applicant seeks to have
this Court declare the above recited section 72 to
be valid, is that in 1984, Mr. Justice Medhurst of
the Alberta Court of Queen's Bench declared
section 72 inter alia to be inconsistent with para
graph 2(b) of the Charter and to this extent of no
force or effect. The decision of Medhurst J. is
reported as Nat. Citizens' Coalition Inc. Coalition
Nat. des Citoyens Inc. v. A.G. Can., [1984] 5
W.W.R. 436 (Alta. Q.B.), hereinafter the Citi
zens' Coalition case.
The applicant is a duly qualified elector in the
federal electoral district of Ottawa-Vanier, and is
the canvass chairperson in the campaign organiza
tion for one of the candidates therein, Gilles Gué-
nette. The applicant tenders in substantive support
of his motion, two affidavits by one, Bruce McIn-
tosh, a businessman, who is assistant campaign
manager for the said candidate. They allege that
various printed pamphlets, signs and election ma
terial promoting another candidate in Ottawa-
Vanier, the respondent Jean-Robert Gauthier,
bear the statement "Authorized by Robert Cusson,
official agent" when, in fact, the candidate's offi
cial agent is Vincent Gauthier. A sample was
exhibited. Despite the fact that Mr. Gauthier's
printed literature does not bear the name of his
actual official agent, the respondent Chief Elec
tions Officer declines to attempt to enforce section
72 of the Act. The deponent McIntosh relies on
the Notice of Grant of a Poll issued by the Return
ing Officer, provided for in subsection 62(1.2) [as
enacted by S.C. 1980-81-82-83, c. 164, s. 10] of
the Act, but does not purport to negative the
applicability of subsection 62(2) [as am. idem]
which considers the appointment of another offi
cial agent in certain circumstance. In any event,
the respondent Gauthier's counsel made no con
trary allegation and hardly had sufficient time
even to notify his intention, if any, to cross-exam
ine Mr. McIntosh on his affidavit.
Now, the respondent Gauthier's counsel
advanced certain preliminary objections one of
which was effective and many of which were
simply objectionable. Among the latter are those
which imputed malice, bad faith, dishonesty, and
unethical behaviour on the part of the applicant,
all without a scintilla of evidence. Although Mr.
Gauthier was importuned out of the blue with
little notice, he cannot expect to be awarded a full
measure of costs when his counsel takes such an
approach. Those who seek to uphold the law are
not to be reviled.
The respondent Gauthier's counsel suggested
that to seek to enforce a non-existent provision of
law is abusive. He would be on stronger ground
there, had he not overlooked that the applicant's
first request is to declare that section 72 is revived
and fully valid. Counsel's objection that this Court
has no jurisdiction over the respondent Gauthier is
all counsel needed to advance. The applicant
ingeniously asserted that every candidate, Mr.
Gauthier included, with their and his offficial
agent, is a "federal board, commission or other
tribunal" because he exercises functions pursuant,
for example, to paragraph 23(2)(a) [as am. by
S.C. 1977-78, c. 3, s. 21] and subsections 26(1)
and 62(1) [as am. by S.C. 1980-81-82-83, c. 164,
s. 10] of the Canada Elections Act. What the
cadidate is permitted to do in his own interest, or
required to do in the public interest, does not
render him a federal board or other tribunal. The
Court would have permitted Mr. Gauthier to
intervene as an interested person in these'proceed-
ings had he sought such standing, but it `will not
purport to impose its jurisdiction over him. The
applicant's motion is accordingly struck out in so
far as it aims to implead Jean-Robert Gauthier in
these proceedings, and Mr. Gauthier is awarded
only two-thirds of his taxed party-and-party costs
(in view of counsel's extravagant and unproved
allegations) against the applicant who is ordered to
pay the same.
In common with the respondent Gauthier, the
Chief Electoral Officer objected to short notice of
these proceedings which was served only the previ
ous day. In fact, the Court is not well equipped to
deal on an emergency basis—except perhaps for
interim injunction with an undertaking as to dam
ages or bond—in matters like this of only evanes
cent duration. When an extraordinary remedy is
sought in such matters, and not constabulary
action, the Court should have the necessary tools,
if needed in matters of great urgency.
This is not a matter of great urgency. The Court
of course upholds the imperative to obey the law,
but among the offences denounced by the elections
legislation, a breach of subsection 72(1) is not
among those which Parliament itself has charac
terized as the most heinous. It bears the general
penalties prescribed by section 78. But, for exam
ple, removing or tampering with official notices
without authority so to do, carries twice the possi
ble term of imprisonment on summary conviction
pursuant to subsection 77(1), and subsection 99(4)
[as am. by S.C. 1973-74, c. 51, s. 13] carries five
time the monetary fine on summary conviction for
breach of subsections 99(2) and (3). This is not a
matter of deceiving, obstructing or intimidating
voters. In fact Parliament does not provide any
deterrent or more draconian measure than pros
ecution pursuant to subsection 72(2) which in turn
is pursuant to subsection 78(1).
Now, the applicant speculated that the evil so
deliberately minimized by Mr. Justice Medhurst
in the Citizens' Coalition case will arise. That is:
that affluent combinations, unions or coalitions
will intervene with undue influence, compared
with their principals' individual voting power,
because they have the money to buy access to the
mass media or, at least to turn on the printing
presses; and that such wealth will be ruthlessly
deployed to smother that hot house plant: democ-
racy. (It is just that, for it goes against nature to
accord the weak equal political power—the
individual ballot—with the strong in shaping gov
ernmental policies and actions.) The applicant
brought no evidence to that effect upon which he
speculated.
The Court would not be unresponsive to cogent
evidence of such an intended assault by sheer
shadowy money on the political parties' abilities to
compete among themselves in the public eye for
the electorate's votes. Such potential responsive
ness on the Court's part was indicated in analo
gous circumstances in Operation Dismantle Inc. v.
The Queen, [1984] 2 F.C. 98 (T.D.), at page 108.
A cogent demonstration of real and proximate
danger to this country, the people or their demo
cratic institutions would certainly induce the Court
to exert its powers. The applicant presents no such
evidence, but he lamely suggests that he can get
some. A court of law and equity does not act
precipitously and on mere suspicion, no matter
how compelling, such as an established counter-
sabotage unit might justifiably do. If the applicant
really has such evidence, it is the very sort of
evidence upon which sections 70.1 [as added by
S.C. 1973-74, c. 51, s. 12] and 72 of the Act could
well be supported pursuant to section 1 of the
Charter.
The application which the applicant says he
might have brought could well be serious enough
to move the Court to exercise its powers in the
public interest. By comparison, the application
which the applicant has brought—the misnamed
official agent on partisan propaganda—is relative
ly trivial and certainly not urgent. The Citizens'
Coalition case, until disapproved by a court of
concurrent or superior jurisdiction, provides the
Chief Electoral Officer with sufficient justification
not to have enforced section 72 of the Canada
Elections Act during the current election cam
paign. In the privileged shelter of the court room
his counsel intimated that the Chief Electoral
Officer thinks that the effect of that Citizens'
Coalition case has been positively harmful and he
would be pleased to see it reversed. The defendant
in that 1984 case, the Attorney General of
Canada, took no appeal and the Chief Electoral
Officer was not impleaded in the matter.
Now the Chief Electoral Officer's counsel also
took the view that the Chief Electoral Officer is
the wrong respondent in any event because the
official directly made responsible for enforcement
and compliance, pursuant to subsection 70(3) [as
am. by S.C. 1977-78, c. 3, s. 45] of the Act, is not
he himself, but is rather the Commissioner of
Canada Elections (hereinafter: the C.C.E.). He
argues that the direct designation of the C.C.E. in
subsection 70(3) "to ensure that the provisions of
this Act are complied with and enforced" is far
more indicative of the will of Parliament than the
somewhat more diluted provisions, designed princi
pally for internal organizational administration;
found in paragraph 4(1)(a) [or even (c)].
The above summarized arguments seems more
plausible than the next, which is to the effect that,
in any event, the Chief Electoral Officer and the
C.C.E. being appointed by or through the House
of Commons are both immune from the judicial
supervision of this Court. This is as if in federal
Canada today the ultimate appellate Court were a
committee of the House of Lords which would
thereby be called upon to adjudicate upon the
rights and privileges of the Commons, a prospect
long considered a potential malaise of the body
politic in unitary Britain. The argument smacks of
the mentality of colonial deference to the norms of
a motherland which have no application here. Sec
tion 3 of the Act makes the Chief Electoral Officer
a very independent high official of state and the
provisions, in particular, of subsection 3(7) where
by he is removable "only for cause by the Gover
nor General on address of [both] the Senate and
the House of Commons," still do not put him
above the law. Counsel says it is not the Chief
Electoral Officer, but the C.C.E. who would be
responsible if one or either of them be exigible at
all to this Court's supervision. Counsel says, in
effect that the applicant has sued the wrong offi
cial and ought to be dismissed on that ground.
This remaining respondent's counsel cites the
statutory duties of the C.C.E. in section 70 of the
Act, thus:
70....
(3) The Chief Electoral Officer shall appoint a Commission
er of Canada Elections (in this Act referred to as the "Commis-
sioner") whose duties, under the general supervision of the
Chief Electoral Officer, shall be to ensure that the provisions of
this Act are complied with and enforced.
The point is open to debate, for, the C.C.E. being
an "election officer" within the meaning of section
2 of the Act is still subject to motivation in the
performance of his duties by the Chief Electoral
Officer, as above indicated in paragraph 4(1)(b),
who shall from time to time instruct election offi
cers, including the C.C.E. as necessary "to ensure
effective execution of the provisions of this Act". It
may be that upon the submission of further, more
thorough and better arguments, one or even both
officials would be found to carry the legal duty to
enforce section 72 of the Act, if it be valid
legislation.
Be that as it may the respondent's counsel still
ultimately posits that neither is exigible to the
Court's supervising jurisdiction, but that both are
immune because the respondent is responsible only
to Parliament. This, too, is a debatable contention
which was raised, but not determined in Hamel v.
Union Populaire, [1980] 2 F.C. 599, at page 604;
118 D.L.R. (3d) 484 (C.A.), at page 489. In
reviewing a mandamus issued by the Trial Divi
sion, the Appeal Division of this Court merely
assumed that "the Chief Electoral Officer is sub
ject to the supervision of the courts" but did not
resolve the question. That indeed is a question
which deserves better argumentation and more
thorough deliberation than can be accorded in
summary proceedings such as these. However, it is
by no means certain that the respondent's belief
that he, an ex officio wielder of State authority
and statutory power—a quintessential paradigm of
"a federal board ... or other tribunal"—is
immune from prerogative relief is sustainable.
especially now in an era when Parliament and the
government of the day are themselves subject to
the law of the Constitution.
In any event the respondent's posture herein
does make it necessary to determine the constitu
tional validity of section 72 of the Act. No notice
of these proceedings has been served on any Attor
ney General within Canada to discover whether
any be interested in intervening in these proceed
ings. Such an opportunity should be accorded to
the attorneys general. Therefore because: the
matter is not shown to be of any appreciable
urgency; there is at least one constitutional ques
tion to be determined; and the applicant seeks not
only relief by way of mandamus and mandatory
injunction, but also by declaration of the validity
of the impugned section 72, the Court will follow
the direction given by the Appeal Division in
Wilson v. Minister of Justice, [1985] 1 F.C. 586,
at page 589:
It seems to me that, faced with an application for declaratory
relief, a trial judge has two options: he may dismiss the
application on the procedural ground without prejudice to the
right of the applicant to bring his action within a prescribed
time or he may on consent and not merely in the absence of
objection, order that the proceeding be deemed to have been
properly commenced provided the parties place on the record
an agreed statement of all the facts upon which the issues are to
be adjudicated. Failure to define the facts can lead to a
situation as we presently face. There is no certainty that issues
will be approached on appeal in precisely the same fashion as a
trial.
Since there is no consent on the respondent's
part and no possibility of an agreed statement of
facts, the applicant's motion will be dismissed,
with party-and-party costs to be borne by the
applicant if the matter stops here. However, costs
will be in the cause if the applicant proceeds to
bring an action such as he may do, without preju
dice. As prescribed by Mr. Justice Mahoney in the
Wilson case, this dismissal is effected without
prejudice to the right of the applicant to bring
action against the Chief Electoral Officer and/or
the Commissioner of Canada Elections and/or the
Attorney General of Canada as he may be advised,
for the declaratory and other relief sought here, if
so advised, before the close of business in the
Court's registry office in Ottawa on Friday,
December 9, 1988, failing which, the respondent
the Chief Electoral Officer may tax his costs and
have judgment for them against the applicant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.