IN THE SUPREME COURT OF BRITISH COLUMBIA
|
Citation: |
Independent Contractors and Businesses Association v. British Columbia, |
|
|
2018 BCSC 1597 |
Date: 20180828
Docket: S187284
Registry: Vancouver
Re: The Electoral Reform Referendum 2018 Regulation, as made by the Lieutenant Governor-in-Council on June 22, 2018 (Order-in-Council No. 313/2018)
Between:
Independent Contractors and Businesses Association, The Canada
West Construction Union, and Kenneth Baerg
Petitioners
And
Lieutenant Governor in Council of the Province of British Columbia
and Attorney General of British Columbia
Respondents
Before: The Honourable Madam Justice Gropper
Oral Reasons for Judgment
In Chambers
|
Counsel for the Petitioners: |
P.A. Gall, Q.C. A. Tomkins |
|
Counsel for the Respondents: |
K.A. Horsman, Q.C. S. Bevan |
|
Place and Date of Trial/Hearing: |
Vancouver, B.C. August 7 and 8, 2018 |
|
Place and Date of Judgment: |
Vancouver, B.C. August 28, 2018 |
[1] A referendum vote will be conducted in British Columbia between October 22 and November 30, 2018. Voters will be asked to answer two questions:
1. Which system should British Columbia use for provincial elections? (Vote for only one.)
(a) The current First Past the Post voting system
(b) A proportional representation voting system
2. If British Columbia adopts a proportional representation voting system, which of the following systems do you prefer? (Rank in order of preference. You may choose to support one, two or all three of the systems.)
(a) Dual Member Proportional (DMP)
(b) Mixed Member Proportional (MMP)
(c) Rural-Urban Proportional (RUP)
[2] If more than 50 percent of the validly cast votes are in favour of the proportional representation voting system in British Columbia, the government is bound to take steps to implement a system of proportional representation.
[3] If more than 50 percent of validly cast votes in answer to the second question favour the same system of proportional representation, then the government is bound to take steps to implement that specific proportional representation voting system.
[4] The petitioners assert that the manner by which the provincial respondents intend to proceed is inconsistent with the rule of law and with fundamental constitutional rights and values.
[5] They say the government is seeking to implement a fundamental constitutional change through a rushed and confusing referendum process that is unable to effectively ascertain whether a majority of British Columbians are in favour of replacing the present electoral system with a new proportional representation system.
[6] They also assert that the manner by which the referendum is being conducted imposes significant limitations on the rights of British Columbians under the Charter of Rights and Freedoms [Charter].
[7] The petitioners seek an interlocutory injunction against the Provincial respondents to:
1. suspend the operation of all regulatory restrictions on referendum advertising; and
2. prohibit the Chief Electoral Officer from carrying out his legislative duties to count the referendum vote and report on the results to the Speaker of the Legislative Assembly and to the electorate.
[8] Notably, the petitioners are not seeking that the referendum not be held.
[9] As the applicants for an interim injunction, the onus is on the petitioners to satisfy the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR] in order for the injunction to be granted. The test is:
1. there is a fair issue or serious question to be tried;
2. the applicant will suffer irreparable harm if relief is not granted; and
3. the balance of convenience favours the granting of the relief sought.
[10] The petitioners are private litigants who assert their discrete and distinct interests. They do not have public interest standing.
[11] The petitioners are two groups and one individual who oppose proportional representation. The Independent Contractors and Businesses Association (ICBA) is a voluntary association of construction businesses in British Columbia who advocate for free enterprise and an open-shop construction industry. The Canada West Construction Union (CWCU) describes itself as an independent union. Kenneth Baerg is the Director of Labour Relations with CWCU.
[12] The petitioners say that their opposition to proportional representation is premised on their belief that business in British Columbia is better served by having a stable majority government, which they say results from the first-past-the-post electoral system. This is the system that is currently in effect.
[13] The ICBA says that it wishes to engage in a $2.6 million advertising campaign during the referendum voting period. Mr. Baerg proposes that he would like to engage in advertising, but is dissuaded from participating because of the cost and complexity of registering as an advertising sponsor with the Chief Electoral Officer.
[14] The provincial respondents are also referred to as the government or the Legislature in these reasons.
[15] The Chief Electoral Officer is not a party to these proceedings. The Chief Electoral Officer is an independent officer of the Legislature responsible for administering electoral processes in British Columbia. The Chief Electoral Officer and his office, Elections BC, are separate from any Ministry of the Provincial Crown. Neither the Chief Electoral Officer nor his office are named in the petition, although the petitioners and the provincial respondents consider that they ought to have been, as part of the relief sought in this injunction is to restrain the Chief Electoral Officer from his functions under the impugned legislation.
[16] Counsel for the Chief Electoral Officer attended the injunction hearing, but did not make any submissions on behalf of the Chief Electoral Officer.
[17] The background to this referendum and its enacting legislation is summarized in the provincial respondents' application response. I have largely adopted their description of the background for the referendum and the enabling legislation to provide context. There may be further evidence and submissions during the petition hearing that change aspects of this description.
[18] On October 4, 2017, the government introduced Bill 6, the Electoral Reform Referendum 2018 Act, 2nd Sess., 41st Parl., 2017 into the Legislature. It received royal assent and came into force as the Electoral Reform Referendum 2018 Act, S.B.C. 2017, c. 22 [Act], on November 30, 2017.
[19] Section 2 of the Act requires a provincial referendum to be held on whether British Columbia should keep its first-past-the-post system for electing members of the Legislative Assembly or move to a proportional representation voting system. Section 2(2)(c) of the Act requires that voting in the referendum must close no later than November 30, 2018.
[20] Section 9(1) of the Act provides that the outcome of the referendum is binding on the government if more than 50 percent of validly cast ballots vote in the same way on a question stated, if the question has the option of two answers; or are in favour of the same voting system, if the question has the option of more than two answers.
[21] Under s. 9(2) of the Act, if the result of the referendum favours the adoption of a system of proportional representation and the vote is binding on the government, the government must take the steps it considers necessary to implement the result of the referendum. This includes introducing legislation necessary for a new voting system in time for the next provincial election called on or after July 1, 2021.
[22] As amended effective November 2, 2017, s. 23(2) of the Constitution Act of British Columbia, R.S.B.C. 1996, c. 66 [Constitution Act] requires the next general election in British Columbia to be held on October 16, 2021, subject to the possibility that an earlier general election might be called as a result of the Lieutenant Governor's exercise of her power to dissolve the Legislative Assembly.
[23] Between November 23, 2017, and February 28, 2018, the Attorney General undertook a process of public engagement for the purposes of providing informational and educational opportunities regarding the referendum and receiving input from citizens.
[24] This process included a website that provided the public with information on voting systems; the promotion of a public engagement process through traditional and social media; a province-wide mail-out; an online questionnaire directed at determining the values and preferences of British Columbians in relation to their voting system; and the administration of a questionnaire to a demographically-balanced panel of British Columbians.
[25] The Ministry of the Attorney General conducted a separate consultation with Indigenous individuals and groups.
[26] On May 30, 2018, the Attorney General published a report on the outcome of that engagement process entitled How We Vote: 2018 Electoral Reform Referendum Report and Recommendations of the Attorney General (How We Vote report).
[27] In the How We Vote report, the Attorney General made a number of recommendations about the process for the referendum, including the wording of the referendum ballot questions, the voting systems to be included on the referendum ballot, the campaign process, and the process for post-referendum deliberation and implementation.
[28] Regarding the referendum campaign process, the Attorney General recommended that the Chief Electoral Officer be responsible for providing neutral and factual information to voters about the referendum, including informing voters about the voting systems that appear on the referendum ballot.
[29] Feedback from the public engagement process favoured the provision of public funding for comprehensive neutral public education on the referendum.
[30] The predominant view of the public expressed through the public engagement process was that the campaign advertising and finance rules from the Election Act, R.S.B.C. 1996, c. 106 [Election Act] should apply to the referendum campaign. This included contribution limits; restrictions on third party advertising; and registration, attribution and disclosure requirements for third party advertising sponsors.
[31] The Attorney General recommended that referendum advertising sponsors be regulated in a manner similar to election advertising sponsors under Part 10 and 11 of the Election Act.
[32] The Attorney General also recommended that public funding be provided to a designated group advocating retention of the first-past-the-post voting system and to a designated group advocating a switch to proportional representation in the amount of $500,000 each, with both groups to be selected by the Chief Electoral Officer.
[33] In the section of the How We Vote report addressing matters for the post- referendum decision, the Attorney General recommended that the post-referendum design and implementation details be decided through a multi-party process. An all-party committee of the Legislative Assembly would receive input from independent experts, election administrators, and the public on the remaining design details of the voting system to be adopted and to issue a report with recommendations.
[34] On June 7, 2018, Premier Horgan announced that Cabinet had accepted all of the Attorney General's recommendations. On the invitation from the Premier, the Chief Electoral Officer subsequently provided input on the simplicity and clarity of the referendum ballot questions, which included suggestions for minor revisions.
[35] The Attorney General also recommended that if a system of proportional representation is adopted as a result of the referendum, then a further referendum should be conducted after two provincial general elections to provide voters with more than a single opportunity to use and evaluate any new voting system.
[36] The Electoral Reform 2018 Regulation, B.C. Reg. 125/2018 [Regulation] was approved and ordered under the Act on June 22, 2018. The referendum ballot question and voting process are contained within Part 2, that is the referendum ballot and date for referendum, and Part 3, conduct of the referendum in the Regulation.
[37] Section 5 of the Regulation states in its schedule the questions to be included on the referendum ballot in the form recommended by the Attorney General, but with the modifications suggested by the Chief Electoral Officer.
[38] Section 7 provides that the distribution of voting packages by Elections BC must commence no later than October 22, 2018, and that the close of voting is 4:00 p.m. on November 30, 2018.
[39] Section 8 provides that the referendum must be conducted by a mail-in ballot through distribution of voting packages to each registered voter, and to each individual who is eligible to vote and applies to Elections BC requesting a voting package.
[40] Section 13 provides instruction to voters as to how to complete the referendum ballot and return completed ballots so that they are received by Elections BC by the close of voting on November 30, 2018.
[41] Section 17 requires the Chief Electoral Officer to ensure that information respecting the referendum, including the voting systems on the ballot, is available to voters throughout the referendum campaign period of July 1, 2018 to November 30, 2018.
[42] Part 4 provides for the $500,000 in public funding for opponent and proponent groups to be selected by the Chief Electoral Officer after a prescribed application process.
[43] Parts 5 and 6 regulate referendum advertising sponsors through the adoption, with some modification, of provisions of the Election Act relating to registration, attribution and reporting requirements, and contribution limits.
[44] Section 49 establishes a referendum advertising limit of $200,000 for referendum advertising sponsors. The limit applies during the referendum campaign period from July 1, 2018, to November 30, 2018.
[45] In accordance with Division 3 of Part 3 of the Regulation, the counting of the referendum votes is to be carried out by referendum officials defined in s. 1 as the Chief Electoral Officer and individuals that he appoints. The process for counting the votes is prescribed in ss. 18 to 25 of the Regulation and may involve rounds of counting on Question 2 to derive a majority system preference from the rankings on the completed ballots that answer Question 2.
[46] The threshold for the first part of the RJR test, whether there is a serious question to be tried, is a low one. In RJR, the Court explained at 337-38 that a prolonged examination of the merits is neither necessary nor desirable on an application for an interlocutory injunction. Once satisfied that the applicant's case is neither vexatious nor frivolous, the court should generally move on to the second and third stages of that test.
[47] The Court described an exception to the general rule that a judge should not engage in an extensive review of the merits where the applicant seeks what amounts to a final relief at 338. In those circumstances a more extensive review of the merits of the case must be undertaken and the strength of the case may be considered at the second and third stages of the injunction test.
[48] The Court summarized the test of whether there is a serious issue to be tried as follows at 348:
Whether the test has been satisfied should be determined by the [judge hearing the application for an interim injunction] on the basis of common sense and an extremely limited review of the case on the merits. ... [The] court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statute can be determined as a pure question of law. Instances of this sort will be exceedingly rare.
[49] In this case, the parties have extensively outlined their positions on the first part of the test. I will outline them below, but because this part does not require that I decide that the petitioners' case is meritorious, only that it reflects that there is a serious issue to be tried on a low threshold, the outline will be general.
[50] The petitioners are not seeking what amounts to a final relief. They are not seeking to stop the referendum process entirely or an order to enjoin the vote from proceeding. Accordingly, I will not undertake a more extensive review of the merits.
[51] At the petition hearing the parties will have the opportunity to address whether the description I have adopted in these reasons ought to be changed.
[52] The petitioners raised the following challenges:
1. they challenge the referendum process
2. they challenge the referendum questions on the ballots; and
3. they challenge the restrictions on participation in the referendum process, particularly the third party advertising restrictions.
[53] The petitioners argue that the first-past-the-post system is part of Canada's constitutional architecture. They say that because altering the provincial voting system would be a fundamental constitutional change, the constitutional principle of democracy requires that the referendum be based on a clear majority of a clearly-worded question.
[54] The petitioners argue that the lack of clarity on the questions and the ballot violate the right to vote under s. 3 of the Charter They say that rural urban proportional representation, if successful, would also violate s. 3 and equality rights under s. 15 of the Charter.
[55] The petitioners say that none of the Charter violations are saved by s. 1 of the Charter, which is to say that none of the violations can be justified as “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The petitioners point out that the referendum involves a fundamental change to the democratic system and is binding on the government. The government will be required to legislatively implement the proportional representation system that is chosen, if one is chosen at all, through what they say is a confusing and misleading process.
[56] The provincial respondents say that the provincial Legislature has the unilateral authority to make a change to the voting system in accordance with s. 45 of the Constitution Act. Section 45 provides that, subject to s. 41, (that is, the amending procedure for fundamental changes to the Constitution of Canada requiring unanimous federal and provincial consent), the Legislature of each province may exclusively make laws amending the constitution of their province. On that basis, the provincial respondents say there is no concern regarding constitutional architecture in this case because any potential change following this referendum is within the Legislature’s jurisdiction. They say that argument is misplaced in this case.
[57] The provincial respondents further assert that there is no reported case in Canada that has held that the first-past-the-post system is a constitutionally-mandated electoral model in Canada.
[58] In Figueroa v. Canada (Attorney General), 2003 SCC 37, the Court held that s. 3 of the Charter does not guarantee any particular type of electoral system and notes that the Charter is entirely neutral as to the type of electoral system in which the right to vote or run for office is to be exercised (para. 37).
[59] The petitioners argue the referendum questions on the ballot are confusing and complex. The petitioners assert that this lack of clarity in the ballot questions violate the right to vote under s. 3 of the Charter. They provided the following summary of their concerns:
(a) Voters casting ballots on the first question are not choosing between particular electoral systems, but choosing between the current system and a general and undefined concept, which may result in the adoption of a broad range of very different electoral systems, unknown to the voter in advance;
(b) Voters casting ballots on the second question are not able to meaningfully participate or make an informed choice about which system to choose, because the contours of each proposed system are not clearly specified in advance, and significant details are left up to the Government's discretion after the vote;
(c) Voters casting ballots on the second question are not asked to vote on their preferred voting question, but to “rank” their ballots from the most to least preferred, and hence some of the votes will not be for a voting system of which the voter is “in favour”, as required by section 9(1)(b) of the Regulation;
(d) Voters on the second question will include voters who prefer to keep the present system, but who have a preference among the proposed new voting systems, and therefore who are not voting “in favour” of the proportional representation system at all;
(e) Voters casting ballots in favour of the Urban-Rural [proportional representation] system do not know in advance which voting system -either the Mixed Member [proportional representation system] or the [single-transferrable vote] system - their electoral district will be operating under, because that is not specified in advance;
(f) Voters may prefer one of the three proportional representation options, but may prefer the present [first-past-the-post] system to the other alternatives, and those voters are not able to express that clear preference given the wording and structure of the questions;
(g) Voters may not understand that a vote in favour of a proportional representation system effectively delegates the choice of which particular system to the complex aggregated preferences of electors, and subject to further specification and amendment by the Government after the referendum; and
(h) Voters may not understand the [proportional representation] electoral systems presented, as they are not described on the ballot or clearly specified in advance of the referendum, and the Rural-Urban [proportional representation] and the Dual Member [proportional representation] options have never been used in Canada or, indeed, anywhere in the world.
[60] In response to the petitioners' argument concerning the structure of the questions, the provincial respondents assert that the questions set out in the ballot reflect a balancing. In the interests of simplicity, information about what constitutes a proportional representation system by contrast, with the first-past-the-post system, and more particularly, information about the nature of each of the three choices under Question 2 -- dual member proportional, mixed member proportional or rural urban proportional -- has been left off the ballot.
[61] The provincial respondents say that information will be accessible to voters from other sources, such as the Chief Electoral Officer during the referendum campaign period. The ballot questions assume that voters will educate themselves and that the process incentivizes voters to become informed in advance of voting.
[62] Another process could have been adopted whereby the ballots contained full explanations on the ballot itself or to front-end the exposition of the full details of each of the three proportional representation systems offered under Question 2, or some other method, but the balance had to be struck and was a political decision.
[63] The provincial respondents say that whether a bare majority of 50 percent or some higher threshold is sufficient to constitute a clear majority is also a political question which is unsuited to determination by the court.
[64] With respect to the argument that lack of clarity on the ballot amounts to a violation under s. 3 of the Charter, the provincial respondents say that s. 3has no application to the referendum vote. They say is limited to elections of provincial and federal representatives, referring to Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995 at 1040-41. Whether there is an argument that the proportional representation system violates s. 3 must wait for legislation implementing the change following the referendum.
[65] The provincial respondents assert that the effect of the referendum, while binding on the government, is not binding on the Legislature. If the result of the referendum vote of the requisite majority is in favour of a system of proportional representation, the design of the legislation required to implement the referendum result will be the subject of recommendations of an all-party committee of the Legislative Assembly. Once finalized, a bill or bills will be introduced, debated and voted on in the Legislative Assembly in the ordinary course.
[66] Any such legislation will have the force of law when it has been passed through the ordinary procedure of the Legislative Assembly and has been given royal assent, duly signified by the Lieutenant Governor in Council on behalf of Her Majesty.
[67] The petitioners specifically challenge the portions of the Regulation that address third party advertising, which impose restrictions on the ability of individuals to participate in the referendum process through advertising, including bulk mail-outs, newspaper, radio and television advertising. They also challenge the restrictions placed on the ability of British Columbians to share information, views and opinions on the future shape of the electoral system, and to fully debate and discuss the merits of the fundamental change to the way this province is governed.
[68] The restrictions, the petitioners say, violate both freedom of expression and freedom of association under s. 2 of the Charter. Those restrictions are imposed by intricate provisions requiring reporting, disclosure, auditing and banking requirements. They assert these provisions will deter participation in the referendum process by all but the most well-resourced and sophisticated individuals and organizations. The petitioners further assert that the spending restrictions limit the ability of British Columbians to communicate through referendum-based advertising, which they say is the primary means of getting a message out to a broader audience. Through these means, the petitioners say the Regulation imposes significant restrictions on freedom of expression as guaranteed by the Charter and these restrictions are not justified under s. 1.
[69] In the case of this referendum, the petitioners assert that the Regulation imposes these restrictions for a much longer period than the courts have accepted before. The petitioners argue that the Regulation breaches freedom of expression in four ways:
1. by failing to offer clear questions and clear options, and by structuring the questions in such a way that the individual's preferences cannot be meaningfully expressed or ascertained;
2. by establishing onerous registration, reporting, disclosure, auditing and banking requirements, with a risk of prosecution or significant fines that will deter small or medium-sized groups of voters from expressing themselves at all on the proposed fundamental changes to the electoral system;
3. by establishing strict spending and contribution limits on third parties who want to express themselves on matters that fall within the core of s. 2(b), namely political expression on a fundamental constitutional change; and
4. by imposing a content-based restriction on core political communications.
[70] The petitioners assert that the restrictions constitute a clear breach of freedom of expression under s. 2(b) of the Charter. In addition, the petitioners argue that the restrictions on advertising impose restrictions on the ability of individuals and groups to associate for the purpose of making their expressive activities more meaningful and more effective, and that offends the principle of freedom of association guaranteed by s. 2(d) of the Charter.
[71] The Regulation directly limits the ability of individuals to contribute to groups engaged in expression in relation to the proposed change to the electoral system. It prohibits groups from joining together and pooling their resources to make their expressive activities more effective.
[72] The Regulation also effectively penalizes registered third parties who decide to engage in political expression in combination with other registered third parties. It does so by placing such individuals in groups under the same spending limit that is applicable to a single sponsor, and by prohibiting them from combining to sponsor advertising where it would result in over $1,200 from a single contributor being spent on a particular advertisement.
[73] The petitioners say that the restrictions on participation require anyone who wants to engage in any amount of advertising in relation to the referendum to register with the government before they engage in such expressive activities. They also must file a range of complex reporting, auditing, banking, and bookkeeping records along with other obligations.
[74] Thus, the Regulation limits the amount of individuals and groups that can represent them, for example the petitioners who will only be able to spend up to $200,000 for the entire five-month period which leads up to and includes the period of the vote.
[75] The petitioners assert that the Regulation does not restrict expression for a brief period, as has been found in other election restriction decisions, but for the entire five-month period from the beginning of July 2018 to the end of November 2018. The restrictions were brought in by the government a week after it actually announced the referendum questions and the options that would be put on the referendum ballot.
[76] The petitioners assert that the restrictions on advertising thus violate ss. 2(b) and (d). The petitioners say that while advertising limits have been upheld in elections, “[i]n this context, the importance of ensuring a fully informed electorate informed by the widest possible array of views and opinions is of the greatest possible public importance, which makes the constitutional arguments of the Petitioners stronger than in any of the challenges to provisions in election statutes to date”.
[77] In that regard the petitioners refer to Harper v. Canada (Attorney General), 2004 SCC 33 [Harper 2004], which considered a stay on election restrictions. In Harper 2004 the election advertising restrictions were in place for a much shorter time period, that is the election period of 36 days as compared to the referendum period here, approximately 150 days, prior to the general federal election.
[78] They also point out that unlike in the present case, where the restrictions on political expression and association were implemented a week after the Regulation was passed, there was a considerable period prior to the imposition of the restrictions upheld in Harper 2004. Meaningful expression on the election could take place during that time period, unrestricted to spending limits.
[79] The provincial respondents also refer to Harper 2004, but for the point that third party advertising spending limits were found to be consistent with Canada's egalitarian model of elections, which seeks to prevent the wealthy from dominating political debate.
[80] The Court in Harper 2004 upheld the provisions of the Canada Elections Act requiring third party advertisers to register with the Chief Electoral Officer, disclose advertising spending, appoint financial agents and auditors, and refrain from colluding with other advertisers to circumvent the spending limits.
[81] I am satisfied the petitioners have met the low threshold of showing that there is a serious issue to be tried under the first part of the test prescribed by RJR. Any further discussion of this part of the test would require weighing the strength of the petitioners' case, which I am not to do. I will, however, consider the strength of the petitioners' case at the second and third stages of the test.
[82] This part of the RJR test requires the court to decide whether a refusal to grant relief could so adversely affect the applicant's own interests that harm could not be remedied if the eventual decision on the merits did not accord with the result of the application for interlocutory relief. It is harm that either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages against the other (RJR, at 341).
[83] The Court noted that the assessment of irreparable harm in interlocutory applications involving Charter rights is a task that will be more difficult than in private litigation (341). The concept of irreparable harm is normally tied to financial loss, but damages are not the primary remedy in Charter cases. In this case, the petitioners are not seeking damages.
[84] The petitioners assert that they and other British Columbians will not be able to meaningfully participate in the referendum process because it prevents them from expressing themselves on the referendum or associating for that purpose. They assert that the process does not respect their fundamental freedoms and the right to vote, and that these harms are not reversible and cannot be compensated in damages. They refer to RJR and Harper 2004 in arguing that irreparable harm should be assumed.
[85] The petitioners also assert that if they are successful in their challenge to the legislation in respect of the voting process and the ballot itself and the legislation is held to be unlawful, the referendum will be tainted by unconstitutional restrictions on speech and association leading up to the vote.
[86] The petitioners say if the results of the referendum are announced before the outcome of this petition is known, and the petition succeeds and the referendum is found to be unlawful, the public will become hopelessly divided on the legitimacy of the outcome. If the outcome is in favour of changing the electoral system, the government will be bound to implement an enormous change to the democratic system, which the government may seek to then implement without a clear expression of majority through a fair and lawful referendum process.
[87] The provincial respondents say that the petitioners will not suffer irreparable harm if the injunction is not granted. Ordinary British Columbians are able to engage in personal self-expression without having to register as a sponsor with the Chief Electoral Officer. There will be publicly-funded proponent and opponent groups, which may spend up to $500,000 in public money, and each third party advertising sponsor will be able to spend up to $200,000 to advertise its perspective, in order to attempt to influence voter behaviour. Neither will the petitioners suffer irreparable harm by having to register with the Chief Electoral Officer.
[88] In response to the petitioners' argument that counting the votes will undermine the legitimacy of the electoral system if this referendum and its process are later found to be unconstitutional, the provincial respondents assert that this is not irreparable harm. If the referendum leading up to the vote is in favour of proportional representation and is found to be unconstitutional, it may have political and legal consequences, but these consequences are hypothetical at this time.
[89] The petitioners are not silenced by the restrictions imposed by the Regulation. Their argument is that advertising restrictions prevent them from meaningfully participating in the process. Their members are entitled to engage in the process, as any individual British Columbian can. The petitioners themselves are able to participate and are entitled to advertise up to the spending limit. What the petitioners seek in this injunction is an order preventing the imposition of any limits whatsoever.
[90] They have not persuaded me that unless this is granted they will suffer irreparable harm. I reiterate what is stated in RJR: irreparable refers to the nature of the harm suffered, rather than the magnitude. The petitioners concentrate on the magnitude of the harm they will suffer, expressing it as the difference between participation and meaningful participation.
[91] I have no basis upon which to conclude that what the petitioners propose to do without the restrictions imposed will be more meaningful. It is a quantitative analysis. It will be more meaningful, in the petitioners' opinion, but I cannot find that as irreparable harm.
[92] The petitioners say that once they show that their case is not frivolous, which they have done, the impact on Charter-protected interests are by their very nature irreparable. The petitioners say that failing to find irreparable harm in this case means that the provincial respondents believe they will be successful on the merits of the petition.
[93] I agree with the provincial respondents that it is hypothetical at this time and the argument ignores all of the process that is intended to follow the referendum vote. If the petitioners are successful in the petition hearing and the legislation is struck down, the provincial respondents have options, including implementing another vote if they wish to proceed.
[94] I cannot, in advance of the hearing of the petition, assume that the proportional representation voting will be constitutionally tarnished or that this represents irreparable harm.
[95] As noted in RJR, this third part of the test requires a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits. In other words, the court must ask whether the balance of convenience supports the issuance of an interlocutory injunction. The Court in RJR comments in light of the relatively low threshold of the first part of the test, and the difficulties applying the irreparable harm part of the test in Charter cases, many interlocutory proceedings will be determined at this stage (342).
[96] Special considerations arise at the balance of convenience stage, where the injunction would suspend the operation of legislation. An interlocutory injunction that may have the effect of depriving the public of the benefit of a statute that has been duly enacted and that may be held in the end to be valid and granting effective victory to the applicant, before the case has been judicially decided. I am referring to paragraphs 342-343 of RJR.
[97] At 343, following the decision of the Court in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 [Metropolitan Stores] at 149, RJR affirms that “in all constitutional cases the public interest is a ‘special factor’ which must be considered in assessing where the balance of convenience lies and must be ‘given the weight it should carry’”.
[98] At 344, the Court states:
...it is… appropriate that it be open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. "Public interest" includes both the concerns of society generally and the particular interests of identifiable groups.
[99] The balance of convenience in constitutional cases must include consideration of the public interest in the enforcement of the legislation enacted or in regulatory action taken for the broader public benefit. The public interest weighs more heavily in what are referred to in Metropolitan Stores as “suspension cases”, where the applicant seeks to suspend the effect of broad and general legislative measures that will impact many people than in “exemption cases”, where a discrete and limited number of applicants are exempted from the law. In suspension cases, such as this one, the interlocutory injunction will only be issued in rare and exceptional circumstances.
[100] A different burden of proof applies where a private litigant may assert harm to the public interest in continued enforcement of valid legislation. Where a private litigant alleges that the public interest is at risk from enforcement of legislation, rather than the public interest standing to benefit from it, such harm is not assumed and must be proven. This is because private applicants are normally presumed to be pursuing their own interests rather than those of the public at large.
[101] The other factor to be balanced in the balance of convenience is the status quo. It is expressed in RJR, at 347:
[The status quo] would seem to be of limited value in private law cases, and, although there may be exceptions, as a general rule it has no merit as such in the face of the alleged violation of fundamental rights. One of the functions of the Charter is to provide individuals with a tool to challenge the existing order of things or status quo. The issues have to be balanced in the manner described in these reasons.
[102] The petitioners argue that in this case the public interest clearly favours suspending the immediate legal effects of the Regulation pending a ruling on the petition. It says the prospect of a binding referendum on a fundamental change to the electoral system, taking place under conditions that do not respect the fundamental rights of British Columbians, would render any results illegitimate. Further, it would lead to an enormous waste of resources by the government, by voters and by third party advertisers if the petition is successful.
[103] The petitioners suggest that a delay in announcing the referendum results is necessary because the government has engaged in an unnecessarily rushed process. The petitioners suggest that the government has set up timelines to ensure that the coalition parties could benefit from a new electoral system in the next election, and it has delayed the passing of the Regulation until a week before the referendum period began.
[104] The petitioners also suggest the provincial respondents have delayed in having this matter heard on the merits. The petitioners say that the government can establish a different timeline as there is no urgency to holding the referendum at this time. If it is delayed, the petitioners argue it will ensure that the intention of the voters is clear, informed, unambiguous and beyond question, and ensure the legitimacy of the process.
[105] The petitioners assert there is no valid policy reason for denying British Columbians a fair, open and transparent opportunity to consider this important matter, especially given that it will impact how governments are elected in British Columbia likely for generations to come. If a delay in the referendum is required to provide this opportunity it is clearly in the public interest to delay the referendum.
[106] The provincial respondents assert that:
the overwhelming public interest in having the referendum proceed in the form and manner presently provided for in the Act and Regulation outweighs any limited irreparable harm to the petitioners in being deprived of the ability to engage in unrestricted spending on, and contributions to, referendum advertising during the referendum campaign period.
[107] The provincial respondents say that the balance of convenience argument requires the court to assume that Parts 5 and 6 of the Regulation were enacted in the public interest with the objectives defined by the Attorney General in the How We Vote report. These objectives motivated the recommendation for regulation of referendum advertising in a manner that is similar to election advertising.
[108] The advertising rules that apply to the referendum are meant to enhance meaningful participation for all voters by inter alia preventing the wealthy from dominating the discourse; establishing some measure of equality between voters who wish to participate; and ensuring the transparency as to the source, including the financial source, of referendum advertising.
[109] The provincial respondents say that the public interest will benefit from the enforcement of these provisions through the referendum period, including the restrictions on advertising. The provincial respondents say removing the restrictions on advertising, which is what the petitioners seek to achieve in this interlocutory injunction, would not disturb other measures designed to balance against the restrictions on third party advertisers through publicly-funded advertising and education initiatives. This includes the $1,000,000 in public funding for proponent and opponent groups and the neutral education function of the Chief Electoral Officer, the performance of which requires an anticipated $3.195 million in additional public funding.
[110] The provincial respondents say that there is irreparable harm to the public interest if unrestricted sponsorship of referendum advertising is allowed to continue through the referendum campaign period by way of an interlocutory injunction. Such an injunction would suspend otherwise valuable legislation if granted in advance of the adjudication of the petition on the merits.
[111] They say that the balance struck in the Regulation, including the assignment of a neutral education function to the Chief Electoral Officer and the restriction on third party advertising, is meant to serve the public interest.
[112] Furthermore, and contrary to the petitioners' suggestion that they speak on behalf of all British Columbians, the provincial respondents assert that the measures imposed were supported by a majority of members of the public, who expressed their view through the Attorney General's public engagement process.
[113] The provincial respondents note that the petitioners do not challenge the outcome of the referendum process, which is unknown, nor do they prospectively challenge any implementing legislation. Instead, they seek an order that the ballots not be counted, nor the results announced. This, the provincial respondents say, is no less intrusive or harmful to the public interest for three reasons.
[114] First, although not framed as such, the remedies sought by the petitioners would necessarily have to include injunctive relief prohibiting the Chief Electoral Officer from performing his statutory duties, which has specifically not been sought in this application.
[115] Second, there is an obvious risk of undermining public confidence in the referendum process itself. British Columbia voters are being asked to participate in a referendum process that requires educational engagement on their part, while granting the interim injunction will tell them that their votes might never be counted.
[116] Third, the remedy sought by the petitioners would also create the risk that the referendum could not be completed in time for the statutory deadline of July 1, 2021, for the imposition of a new voting system before the next election.
[117] The provincial respondents say that the form of relief sought by the petitioners on an interlocutory basis and prior to a full adjudication gives the petitioners the substantive relief they seek on the petition and a broader remedy than they could conceivably hope to achieve on the current state of the law.
[118] The petitioners are seeking an interim injunction that will provide them with the benefits of a successful result of their petition for alleged breaches of the Constitution Act, before the court has an opportunity to consider the case on the merits. Although the petitioners maintain that they have a very strong case, I have only concluded that it is not frivolous or vexatious and meets the low threshold required.
[119] I find their argument on the balance of convenience addresses the petitioners' convenience. It does not attempt to address balancing. Their position assumes that any voting system but first-past-the-post is undemocratic. It assumes that the government has created a process which would likely benefit the parties to the current governing coalition, and that through legislation, particularly the Regulation restricting third party advertising, the government is attempting to monopolize the debate and rushing to have the vote so it can implement the change in the voting system while avoiding an open and unrestricted public debate over the issue.
[120] The petitioners believe that the provincial respondents have engaged in a delay in respect of the hearing of this petition and are proceeding with the referendum, in spite of the petitioners' strong case.
[121] The petitioners suggest that allowing them to advertise to the extent they consider meaningful, and enjoining the Chief Electoral Officer from counting and announcing the result of the votes until their petition is heard, better addresses the public interest.
[122] I find that the petitioners are now engaged in rhetoric, conjecture and exaggeration. There is no evidence to support their assertions that the referendum process is intended to produce a particular result which the government favours, or that it is a rushed process, or that the provincial respondents have delayed the hearing of the petition.
[123] In constitutional litigation, as was noted by McLachlin C.J.C in Harper v. Canada (Attorney General), 2000 SCC 57 at para. 9:
...only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
[124] In relation to the petitioners' argument regarding freedom of expression, the Chief Justice also said at para. 11:
...the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed. Moreover, applying RJR—MacDonald Inc., we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.
[125] In spite of their increased obligation due to their Charter arguments to demonstrate that the public interest is in the enforcement of legislation enacted or regulatory action taken is for the broader public benefit, I find the petitioners have not done so. They have equated their private interests with that of the public without proof. As noted in RJR, private litigants are normally presumed to be pursuing their own interests, rather than those of the public at large.
[126] The petitioners have not overcome that presumption. They merely state it to be so. The petitioners offer their own view of the timeline of the process that is underway and suggest that it could be moved to accommodate engaging in unrestricted advertising now, before the vote is taken.
[127] I cannot prefer their suggestion of the timeline without considering the process that has been undertaken thus far. The vote is merely a stage in that process. The petitioners ignore that the public was canvassed for their opinions leading up to the How We Vote report. The legislation is intended to reflect that public canvass.
[128] Notably the petitioners did not participate in that process, although they could have. Instead, they argue the government has put in place a rushed process to avoid having their petition heard on the merits before it takes place. While the referendum is binding, the petitioners suggest that the results of the referendum will be implemented immediately. They ignore that there are many steps remaining in the process, including that post-referendum design and implementation details will be decided through a multi-party process. An all-party committee of the Legislative Assembly would receive input from independent experts, election administrators and the public on the remaining design details of the voting system to be adopted and issue a report with recommendations.
[129] The petitioners seek two particular remedies in this application:
1. suspending the operation of all regulatory restrictions on referendum advertising; and
2. prohibiting the Chief Electoral Officer from carrying out his legislative duties to count the votes and report the results to the speaker of the Legislative Assembly and to the electorate.
[130] I find that the suspension of regulatory restrictions on referendum advertising is not supported. It does not balance the convenience. It tips it entirely in favour of the petitioners. Presumably, the petitioners are of the view that, with their extensive advertising against proportional representation, that will affect the outcome of the vote, such that it will favour no change from the first-past-the-post system. This explains why they are not seeking the referendum vote itself not be cancelled.
[131] Granting the remedies sought and allowing unrestricted third party advertising will determine that the petitioners, without having their petition heard and decided, will enjoy the fruits of potential success before the court has had an opportunity to adjudicate the matter.
[132] Preventing the counting of the vote and reporting on the vote does not address the core of the petitioners' concerns that the constitutional architecture is changed by adopting a proportional representation voting system or that the public is invited to engage in a flawed vote with a flawed ballot. I find this discloses that the petitioners are more concerned with having the opportunity to engage in an unrestricted advertising campaign than they are with their express concerns about the constitutionality of the referendum process and of the vote or the ballot itself.
[133] The vote will proceed. The questions will be as they are as set out in the Regulation, even if I grant the remedy that the petitioners seek at the hearing.
[134] The petitioners also seek to restrict the Chief Electoral Officer, who has not been added as a respondent to this petition or to this application for an injunction, although the petitioners did allow that the Chief Electoral Officer should be a party. I am not granting this order either.
[135] I am not convinced that the balance of convenience favours an issuance of the interlocutory injunction in the form that the petitioners seek.
[136] The petitioners have demonstrated that the petition is not frivolous or vexatious and they have met the threshold of showing that there is a fair issue or a serious question to be tried. However, they have not satisfied the remaining criteria as showing that they will suffer irreparable harm or that the balance of convenience favours the granting of an interlocutory injunction under the test from RJR.
[137] The application is therefore dismissed.
“Gropper J.”