Citation: Tan v. The Chief Electoral Officer of British Columbia



2001 BCSC 704



Registry: Vancouver











The petitioner Sa Tan
appearing in person
Counsel for the respondent

John W. Waddell, Q.C.

Counsel for the Attorney General of the Province of British Columbia:

Neena Sharma
J. Gareth Morley

Date and Place of Hearing/Trial:

May 8, 2001

Vancouver, B.C.

[1] This is an application for an injunction to stop the provincial election in the Point Grey riding.

[2] The applicant is a member of the Rhino party. He was seeking to run as a candidate in the Point Grey riding but was refused the opportunity and was not put on the ballot because he did not pay the $100 fee as required by the Elections Act, R.S.B.C., 1996, c. 106.

[3] The applicant argued that he has been denied his Section 3 Charter rights.

[4] Section 3 of the Canadian Charter of Rights and Freedoms provides as follows:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

[5] His argument is that he cannot afford the $100 fee and has been denied the right to run in an election because he is poor.

[6] Based on the arguments I have heard, I think the applicant has a very strong case, however, it is by no means certain.

[7] The nature of the challenge is to strike down provincial legislation.

[8] In Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764 the Supreme Court of Canada made it clear, that the courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good, are inoperable in advance of a complete constitutional review, which is always a complex and difficult matter. Only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed (paragraph 9).

[9] In that case the Court was dealing with a statute which restricted freedom of expression by limiting spending on elections. The Court restated (para. 4) the considerations the court must take into account when granting interim injunctions, which are:

(1) whether there is a serious issue to be tried;

(2) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and

(3) the balance of convenience.

[10] In my view, there is a serious issue to be tried. The applicant meets the first test.

[11] The applicant was not able to point to any specific irreparable harm that would befall him in the absence of the injunction, except to say that if the election in the Point Grey riding were not stopped, the citizens of that area would be denied the right to vote for the candidate of their choice. The applicant would of course be denied his constitutional right to participate in an election.

[12] If I stop the election, the applicant would not be able to run nor would anyone else. The applicant would then require an order that the election in the Point Grey riding be conducted with his name on the ballot.

[13] With regard to the balance of convenience, I have concluded that the respondent has made a better case. In particular, the applicant argued that it may take a long time to have the trial of this matter heard. If that is the case, and an interim injunction is in place, the citizens of the Point Grey area will be unrepresented in the Legislature for that period of time. It is particularly important in relation to the Point Grey area because the Leader of the Liberal Party is running in that riding, and should his party be elected, the leader of the party would not have a seat in the House pending a hearing of this application. These considerations must be balanced against the applicant being shut out of the electoral process for the period of time it takes to try the constitutionality of the impugned section.

[14] If the election goes ahead, the applicant can still bring an application to have the election in that district set aside and any harm that he suffered can be corrected at that time. On balance, I think that the various interests can best be protected by allowing the election to go ahead and then setting it aside if the applicant is successful in his Charter challenge.

[15] The Supreme Court of Canada in Harper, appears to put a high value on maintaining the legislation as a matter of public interest even though it may infringe on some constitutional rights. At paragraph 11 of that decision, the Court makes the following comment:

Applying the principles enunciated in previous decisions of this Court, and without prejudging the outcome of any appeal from the injunction, we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to the 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 [1004] 1 S.C.R. 311, we must take as a 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.

[16] For the purposes of an interim injunction and assessing the balance of convenience, I am required to assume that the legislation is in the public interest, and serves a valid public purpose, (see Harper at paragraph 9) although I must say I find it difficult to see how imposing a $100 fee on the right to be a candidate is in the public interest. Although I think the applicant has a good case, the government may well be able to convince a court that the imposition of the fee does serve the public interest.

[17] Were it not for the admonition of the Supreme Court of Canada, I might well have granted the injunction in this case. However, taking the law as it is following Harper, I do not think it is open to me to grant the injunction.

[18] The application is dismissed.

"F. Maczko, J."
The Honourable Mr. Justice F. Maczko

May 18, 2001 -- Memorandum to the Legal Publishers advising that the Counsel for the Attorney General of Province of British Columbia had been inadvertently omitted and will now read:

"Counsel for the Attorney General of British Columbia:

Neena Sharma and J. Gareth Morley"

June 6, 2001 -- Corrigendum to the Legal Publishers issued by Mr. Justice Maczko advising that on the first page of my written reasons released May 11, 2001 under citation 2001 BCSC 704, reference to counsel for the Attorney-General of the Province of British Columbia was inadvertently omitted. It is now added and will read:

Counsel for the Attorney General Neena Sharma
for the Province of British Columbia J. Gareth Morley

In all other aspects, the reasons remain the same.