The Toronto Star
Friday, October 10, 1997

Referendum law ruling hailed as `great victory for democracy'

by Sandro Contenta

MONTREAL -- A Supreme Court of Canada ruling quashing part of Quebec's referendum law is ``a great victory for democracy'' that will result in the acquittal of Canadians charged over the 1995 unity rally, says the lawyer who won the case.

``Anyone accused under the present (referendum) law will necessarily be acquitted if they're charged under the spending clauses of that law'', Julius Grey told reporters yesterday.

Some 20 individuals and organizations were charged for violating the spending restrictions outlined in Quebec's referendum law when they took part in the giant unity rally in downtown Montreal three days before the Oct. 30, 1995, vote on sovereignty.

PQ denounces ruling

They were charged with violating sections of the law that ban spending during a referendum campaign unless the spending is approved by either of the official Yes or No committees.

But those sections of the law were ruled unconstitutional in a Supreme Court decision released yesterday. The ruling, which provoked a furious response from the Parti Québécois government, said the sections of the law violate freedom of expression and freedom of association.

``Political expression is at the very heart of the values sought to be protected by freedom of expression and the impugned provisions restrict that freedom'', the court said.

In fact, the rights of some individuals are restricted so much it comes ``close to being a total ban'' on their freedom of speech, it said.

However, the court said some limits are both laudable and necessary to ensure a balanced campaign.

It even implicitly invited Ottawa to restore some limits on third-party advertising in federal campaigns.

But the Quebec law goes too far, the court said. It struck down all or part of eight sections of the law, leaving it to the Quebec national assembly to rewrite them to comply with the ruling.

Quebec's chief electoral officer, François Casgrain, refused to comment on whether his office would now drop the charges in the unity rally spending cases. A spokesperson said the ruling was being studied.

The legal challenge was filed in 1992 by Robert Libman, then head of the anglophone-based Equality party. Libman was opposed to the 1992 Charlottetown constitutional accord and that legally put him in the No committee headed by political rival and separatist Jacques Parizeau.

Libman disagreed with the accord for reasons that had nothing to do with sovereignty but he couldn't get money to publicize his case unless Parizeau's committee approved it.

Both Quebec's Superior Court and Appeal Court upheld that section of the referendum law but the Supreme Court struck it down.

The high court noted that under the current law, individuals or groups who want to campaign separately are limited to spending $600 to organize a meeting.

``It is therefore impossible, for example, for them to pay to have flyers, pamphlets or posters printed that present their point of view'', the court said.

It suggested that a ceiling of $1,000 might be appropriate and that it not be limited to organizing a meeting. But it said it would be proper for Quebec to prohibit people from pooling their individual amounts.

The court stressed that the aim of the referendum law is laudable.

``In its egalitarian aspect, the act is intended to prevent the referendum debate being dominated by the most affluent members of society.

``At the same time, the act promotes an informed vote by ensuring that some points of view are not buried by others.

``This highly laudable objective, intended to ensure the fairness of a referendum on a question of public interest, is of pressing and substantial importance in a democratic society.''

The ruling allows individuals - not groups - to operate outside the official committees in a referendum and get funding to conduct their campaign, Libman said.

``This is, in our view, a great victory for democracy and free speech. The full range of political opinion may now flourish during a referendum campaign'', Libman said.

The Supreme Court basically says ``we can't force someone to associate'' with a group, Libman added.

The Supreme Court has effectively ruled that ``there's no democracy without freedom of expression'', added Grey, Libman's lawyer.

It's the first time that the Supreme Court has clearly pronounced itself on freedom of association, also describing it as fundamental to democracy, he said.

Grey said he was surprised by the virulent attack against the ruling by the Parti Québécois. The Supreme Court upheld other aspects of the law that cap spending in referendum campaigns, thereby ensuring that rich and powerful lobby groups don't try to influence a vote with massive amounts of publicity, Grey said.

Jacques Frémont, a constitutional lawyer at the University of Montreal, agreed with Grey.

``I don't know why they're tearing their shirts'', Frémont told the RDI news network, referring to the PQ.

``The Supreme Court seems to say the referendum law is an excellent law but there are small, technical problems that have to be adjusted'', Fremont added.

By making the minor amendments, the PQ would reinforce the legitimacy of a referendum outcome because it would then be conducted under a law that the Supreme Court has upheld, Grey said.

With this ruling, individuals are now free to campaign against the referendum question itself - rather than on whether they reject or accept it - or produce satirical material attacking it, Grey said.

Meanwhile, the court's decision to allow limits on independent spending opens the door for Ottawa to again try to restrict third-party spending on advertising during federal elections.

A 1996 decision of the Alberta Court of Appeal, which the Supreme Court cited, said federal rules preventing third parties from spending more than $1,000 on advertising in elections were unconstitutional. The Alberta decision was never appealed to the Supreme Court.

with files by Edison Stewart

Copyright © 1997 by The Toronto Star. All Rights Reserved. Reprinted with permission.