MacKay v. Manitoba,  2 S.C.R. 357
IN THE MATTER of The Elections
Finances Act, c. 45, Statutes of Manitoba
Murdoch MacKay, Herold L. Driedger, Ben
Hanuschak, Charles E. Lamont, Max Hofford,
Joel Morassutti and Arthur Z. Green Appellants
The Government of Manitoba Respondent
The Attorney General of Canada,
the Attorney General for Ontario and
the Attorney General of Quebec Interveners
indexed as: mackay v. manitoba
File No.: 19671.
1989: March 14; 1989: September 14.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka and Cory JJ.
on appeal from the court of appeal for manitoba
Constitutional law ‑‑ Charter of Rights ‑‑ Charter litigation ‑‑ Factual basis ‑‑ Declaration sought without factual basis on which to decide issue ‑‑ Whether or not Charter issues should be decided in absence of factual basis.
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Act providing for payment of portion of election expenses if candidates and parties received fixed proportion of votes ‑‑ Whether or not Act infringing freedom of expression ‑‑ The Elections Finances Act, S.M. 1982‑83‑84, c. 45 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
The appellants alleged that the Charter right to freedom of expression was infringed by those sections of The Elections Finances Act which provided for the province's paying a portion of the campaign expenses of candidates and parties receiving a fixed proportion of the votes in the provincial election. No evidence was submitted to support the claim. Respondent did not question the status of the appellants to bring the action and preferred to have the case decided on its merits, rather than have it defeated on the technical basis that it had no factual basis. Appellants conceded that the legislation did not discriminate against them and as a result s. 15 of the Charter did not need to be considered. The trial judge held that the legislation in question did not infringe the guarantee of freedom of expression set out in s. 2(b) of the Canadian Charter of Rights and Freedoms. The majority of the Court of Appeal upheld this decision.
Held: The appeal should be dismissed.
The presentation of facts is essential to a proper consideration of Charter issues and not a mere technicality to be dispensed with by the consent of the parties. Here, the absence of a factual base was not just a technicality to be overlooked but a fatal flaw. The effects of the legislation, and not its purpose, were alleged to have infringed the Charter. If the deleterious effects were not established there could be no Charter violation and no case, accordingly, could be made out. In appropriate circumstances, taking judicial notice of broad social facts could overcome the fact that no evidence was put before the Court.
The Act did not prohibit a taxpayer or anyone else from holding or expressing any position or their belief in any position. Rather, it fostered and encouraged the dissemination and expression of a wide range of views and positions.
Referred to: R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713.
Statutes and Regulations Cited
Elections Finances Act, S.M. 1982‑83‑84, c. 45.
Morgan, Brian G. "Proof of Facts in Charter Litigation," in R. J. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987.
APPEAL from a judgment of the Manitoba Court of Appeal (1985), 39 Man. R. (2d) 274, 24 D.L.R. (4th) 587,  2 W.W.R. 367, 23 C.R.R. 8, dismissing an appeal from a judgment of Monnin J. (1985), 34 Man. R. (2d) 118, 19 D.L.R. (4th) 185. Appeal dismissed.
Sidney Green, Q.C., for the appellants.
Brian Squair, Q.C., for the respondent.
Graham Garton, Q.C., for the intervener the Attorney General of Canada.
Rebecca Regenstreif and Lori Sterling, for the intervener the Attorney General for Ontario.
Jean Bouchard, for the Attorney General of Quebec.
The judgment of the Court was delivered by
CORY J. -- A determination must be made at the outset of this appeal as to whether there has been sufficient evidence presented to enable the Court to consider the Charter issues raised by the appellants.
The appellants have challenged the constitutionality of those sections of The Elections Finances Act, S.M. 1982-83-84, c. 45, which provide for the payment from the Consolidated Fund of the Province of Manitoba of a portion of the campaign expenses of those candidates and parties who receive a fixed proportion of the votes in the provincial election. The Act provides that those parties and candidates who receive more than 10 per cent of the votes cast in an electoral division may file a certificate with the Chief Electoral Officer. That officer then calculates the total expenses permitted under the Act, reviews the total expenses incurred and fixes the amount of the eligible reimbursement. The reimbursement is the lesser of either 50 per cent of the total election expenses permitted, or 50 per cent of the actual election expenses incurred, excluding donations in kind. When the Minister of Finance receives a certificate from the Chief Electoral Officer as to the amount owing, payment is made out of the Consolidated Fund.
The Courts Below
The trial judge held that the legislation in question did not infringe the guarantee of freedom of expression set out in s. 2(b) of the Canadian Charter of Rights and Freedoms. The majority of the Court of Appeal was of the same view, while the minority found that the impugned sections did indeed contravene s. 2(b) of the Charter and were not saved under s. 1.
The Position of the Appellants
At the outset the appellants advised that they were in agreement that the appeal could not succeed if it were found that the payments made to the political parties from the Consolidated Fund could not be traced to the funds the appellants contributed as taxpayers. The appellants further reduced the matters in issue by frankly conceding that the legislation did not discriminate against them and as a result s. 15 of the Charter did not need to be considered.
The appellants argued that to provide funding for political parties with taxpayers' dollars constituted an infringement of their freedom of expression guaranteed by s. 2(b) of the Charter. This the appellants submitted would occur when totalitarian or extremist groups obtained 10 per cent of the vote and, pursuant to the impugned provisions of the statute, received financing from the Consolidated Fund to propagate their views which would be diametrically opposed to those of the appellants. In a somewhat contradictory submission, the appellants also argued that the impugned legislation, by instituting a "10 per cent of the popular vote" requirement worked solely for the benefit of the three established parties with the result that splinter groups or new parties could not get access to the funds. Lastly, the appellants submitted that the statutory funding forced taxpayers to support a candidate or candidates with whose views they were in fundamental disagreement. This enforced support of a contrary view was said to constitute an infringement of the taxpayers' constitutional rights to freedom of expression.
The Position of the Respondent
The respondent did not question the status of the appellants to bring the action. As a result, this important issue was not considered by the Court and for the purposes of this appeal it is assumed that the appellants had the requisite status to bring the action. Nor did the respondent criticize the complete lack of any evidentiary basis for the appellants' claim. Rather, it was said that the respondent preferred to "have the case decided on the merits" and not defeated on the "technical" basis that there was no factual foundation for the claim. The respondent took the position that the legislation did not in any way infringe the appellants' guarantee of freedom of expression.
The Position of the Interveners, The Attorney General of Canada, The Attorney General for Ontario and The Attorney General of Quebec
The position of the interveners was that this appeal could not and should not be resolved in the factual vacuum in which it was presented. This submission should be accepted.
The Essential Need to Establish the Factual Basis in Charter Cases
Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society. For example, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives of Canadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts.
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
This Court has stressed the importance of a factual basis in Charter cases. In R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713, at p. 762, Dickson C.J. stated:
Accordingly, there is no evidentiary foundation to substantiate the contention of some of the retailers that their freedom from conforming to religious doctrine has been abridged. The second form of coercion allegedly flowing from the Retail Business Holidays Act has not been established in these appeals.
He also stated at pp. 767-68:
In the absence of cogent evidence regarding the nature of Hindu observance of Wednesdays or Moslem observance of Fridays, I am unwilling, and indeed unable, to assess the effects of the Act on members of those religious groups. The record includes only the testimony of Bhulesh Lodhia, the Hindu retailer who testified at the trial of Longo Brothers. Mr. Lodhia acknowledged that the Hindu religion did not have a Sabbath Day, but said that Wednesday was observed as "a day of prayer and that's the day we would prefer closing if given the choice". I infer from this evidence that there is no religious prohibition enjoining adherents from working on Wednesdays, but that there exists some moral obligation to pray on that day. It is unclear to me whether the entire day is to be spent in prayer or whether only a portion or portions of the day are to be set aside for that purpose. The degree to which the Act interferes with the religious practices of Hindus has not been established with sufficient precision to warrant a finding that the Act abridges the religious freedoms of Hindus, particularly in the context of the present cases in which none of the retailers is a member of that fait.
The evidence regarding the Islamic faith is even less adequate. It is contained in its entirety in the following exchange during Mr. Lodhia's examination-in-chief:
Q. . . . You're a Hindu, what is, to your knowledge, the Sabbath of the Moslem Religion?
A. I believe it is Friday.
This is not a satisfactory foundation upon which to mount a constitutional challenge. Whether the Act infringes the freedom of religion of Hindus or Moslems is a question which accordingly ought not to be answered in the present appeals.
To the same effect is the very useful article by Brian G. Morgan, "Proof of Facts in Charter Litigation", in R. J. Sharpe, ed., Charter Litigation (1987).
Submissions, Unsupported by Evidence put Forward in this Case
In this case there has been not one particle of evidence put before the Court. It will be remembered that the appellants put forward two specific concerns as to the effect of the funding legislation. First it was said that splinter parties such as the Neo-Nazis might obtain 10 per cent of the vote and thus obtain public funding although they espoused principles which were diametrically opposed to that of a democratic society. They contended that their tax funds could be used to support views to which they were fundamentally opposed. Secondly, it was said that the system of funding which required a candidate to get at least 10 per cent of the total vote favoured the three established parties to the detriment of all others.
In support of this position the appellants, in oral argument, put forward a number of unsubstantiated propositions. The problems arising from this procedure can best be illustrated by setting out but some of those submissions.
For example, counsel referred to the political process of Canada in these words:
If Your Lordship will look back to the federal legislation, since the enactment of the federal legislation insofar as political parties are concerned, the only political parties that have benefited from the legislation are the political parties that have voted for it, the three major parties in this country.
. . .
But no political party has received over 10 percent of the vote, and I think one of the interveners say [sic] that the applicants make the bald statement that there are many political parties who do not receive 10 percent of the vote, but there is no Affidavit evidence to that effect. Well, Your Lordships, I say with respect that jurisprudence permits me to make the bald statement because what I am saying is so part of our process that it is universally known. There is the COR party that did not get 10 percent, there is the Libertarian party that did not get 10 percent, there is Western Canadian Concept that did not get 10 percent, that there is the Rhinoceros Party that may have got 10 percent in some constituencies but not throughout the country. No political party -- and in Manitoba, again, there would be three or four parties at least that did not get 10 percent of the vote.
These submissions were of particular importance to the argument and yet there is no factual basis put forward to support it.
Counsel then referred to the international political situation in these words:
In Germany, the Nazi party obtained through the democratic process well over 10 percent of the vote, and there are candidates in the province of Manitoba and in the country who would express views which this group would defend their right to express, even though Parliament had made them illegal. Parliament had not seen fit to prevent these people from running for office that would get 10 percent of the vote.
. . .
Your Lordships will note that yesterday's The Toronto Star said that the Neo-Nazis are up to 7 percent in Germany. If they were in running in Canada and they got another 3 percent, they are entitled to 50 percent of the state for the financing of their political party. What is the purpose of all this?
Once again there had been no factual foundation constructed to support these submissions nor any attempt to relate the statistics pertaining to Germany and Canada.
There then followed a reference to the historical evolution of Canada's political parties and processes which was put this way:
Since the Elections Finances Act, at the federal scene, no political party has ever achieved 10 percent of the vote. But before the Elections Act, a party went from nothing to 19 percent, and the Social Credit Party, which was a radical, anti-establishment view, was not prohibited from expressing its view and, indeed, successfully expressed it. There is absolutely no basis for my learned friends to say that they will be more successful if they had money. I say, with respect, that there is every equal reason saying that they will be less successful.
Counsel then continued and made submissions pertaining to the effect of the elections expenses legislation on political campaigns and the results that might be expected.
Indeed in the most recent election campaign, there were millions of dollars spent by non-political parties pursuing the issues of the political parties and the complaints afterwards that you have to somehow prevent this by tightening up the legislation.
. . .
It has not resulted in the party spending less money, it has resulted in them spending more money. It has resulted -- and I do this now on the face of the legislation. I don't have to give you an affidavit, what is available.
. . .
The statement made by Mr. Justice Monnin, the trial judge, implies that opinions cannot effectively be expressed without finances. I ask Your Lordships to find that that is not the case, to find at least that there is no substantiation for that position, that often the finances result in opinions not being expressed, that they are not used for the expression of opinion, that they are used for selling soul, that the more one has finances, the more one abandons trying to get across a position and tries to indulge in selling snake oil through signs, through banners, through different things.
The party with no money relies on a policy statement being advertised in the paper or hectographed on a sheet of paper trying to express his opinion. The party with money puts up all kinds of signs saying the name of the candidate in fine colour. There is no basis for any suggestion that people were prohibited from stating their opinions prior to the legislation having been enacted.
. . .
When one says that they can be disseminated better on television, I say with respect to Your Lordship that it is very, very difficult to get across in a 30 minute ad or a five minute ad a policy statement, and they don't do it. It is, "He is your kind of man, et cetera, leader --" I mean, I could go through the entire litany of these alleged expressions of opinion, and that is not what money does in an election campaign.
. . .
Your Lordships, in 1969, of which I am able to speak, and again I don't have to have affidavits. Your Lordships can take judicial notice . . . . In 1969, a government was elected in the Province of Manitoba on virtually no money. The same government lost a year ago having spent $3 million out of -- of my money, and of people who pay income tax.
. . .
We don't have such a thing as a presidential election, we don't even have a prime ministerial election, we have elections in the constituencies, which does not mean that they have to spend $20 million to get elected.
These submissions pertaining to the financing of political parties and the effect of contributions to campaign expenses were as well of great importance to the argument, yet no evidence was submitted. It may well be that one could take judicial notice of some of the broad social facts referred to by the appellants, but here there is a total absence of a factual foundation to support their case.
A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position.
These issues raise questions of importance pertaining to financing candidates in provincial elections that are obviously of great importance to residents of Canada or to any democracy. It would be irresponsible to attempt to resolve them without a reasonable factual background.
The appellants also argued an issue that does not require a factual foundation. It was said that the statutory funding of candidates could, whenever a losing candidate or candidates received 10 per cent of the vote, force a taxpayer to support a candidate whose views are fundamentally opposed to that of the taxpayer. This enforced support of a contrary view was said to infringe the taxpayer's right to freedom of expression. I cannot accept that contention. 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. In this way it enhances public knowledge of diverse views and facilitates public discussion of those views.
In the result the appeal must be dismissed but in the circumstances, particularly in light of the position taken throughout by the respondent, without costs.
Solicitor for the appellants: Sidney Green, Winnipeg.
Solicitor for the respondent: Tanner Elton, Winnipeg.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: Richard F. Chaloner, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.