You do not have to be a serious observer of Canadian politics to figure that a spring election is somewhat likely. Neither the NDP nor The Bloc have any interest in allowing the new Liberal Party Leader get his feet under him and start running. The Tories are in a similar situation but have to play more coy. As such there is little chance that the 2007 budget will be passed and we will find ourselves at the polls. There is little time then to tackle a few issues that need tackling and we should start with free speech.

This writer is calling for the repeal of Part 17 of Canada Elections Act which places spending limits on third parties during elections. The Limit is $150,000 with no more than $3000 in any riding. The alleged purpose of this act was to protect the public, who clearly must be stupid and/or gullible and/ r selfish from being influenced by non registered political parties. In other words, it protects state sanctioned speech. Here are sections 350 -352 of the Act:

350. (1) A third party shall not incur election advertising expenses of a total amount of more than $150,000 during an election period in relation to a general election.  

Spending limit electoral district

(2) Not more than $3,000 of the total amount referred to in subsection (1) shall be incurred to promote or oppose the election of one or more candidates in a given electoral district, including by

(a) naming them;

(b) showing their likenesses;

(c) identifying them by their respective political affiliations; or

(d) taking a position on an issue with which they are particularly associated.  

Expenses re party leader

(3) The limit set out in subsection (2) only applies to an amount incurred with respect to a leader of a registered party or eligible party to the extent that it is incurred to promote or oppose his or her election in a given electoral district.  

Spending limit by-election

(4) A third party shall not incur election advertising expenses of a total amount of more than $3,000 in a given electoral district during the election period of a by-election.

Third party inflation adjustment factor

(5) The amounts referred to in subsections (1), (2) and (4) shall be multiplied by the inflation adjustment factor referred to in section 414 that is in effect on the issue of the writ or writs. No combination to exceed limit 351. A third party shall not circumvent, or attempt to circumvent, a limit set out in section 350 in any manner, including by splitting itself into two or more third parties for the purpose of circumventing the limit or acting in collusion with another third party so that their combined election advertising expenses exceed the limit. Advertising must name third party 352. A third party shall identify itself in any election advertising placed by it and indicate that it has authorized the advertising.

One would think that it is indefensible and that the Supreme Court of Canada would never allow this violation of free speech. Think again. Apparently the majority of the Court believed that when harm cannot be defined it is best to err on the side of regulating speech. The majority worked around the obvious and adopted the statist position that equalityt is found at the finish line, not the starting blocks. The reasoning of the Chief Justice in dissent makes much more sense, though it still is not completely satisfactory. Here is an excerpt:

35 On the other side of the equation, the infringement on the right is severe. We earlier reviewed the stringency of the limits. They prevent citizens from effectively communicating with their fellow citizens on election issues during a campaign. Any communication beyond the local level is effectively rendered impossible, and even at that level is seriously curtailed. The spending limits do not allow citizens to express themselves through mail-outs within certain ridings, radio and television media, nor the national press. Citizens are limited to 1.3 percent of the expenditures of registered political parties. This is significantly lower than other countries that have also imposed citizen spending limits. It is not an exaggeration to say that the limits imposed on citizens amount to a virtual ban on their participation in political debate during the election period. In actuality, the only space left in the marketplace of ideas is for political parties and their candidates. The right of each citizen to have her voice heard, so vaunted in Figueroa, supra, is effectively negated unless the citizen is able or willing to speak through a political party. 36 On this point, this case is indistinguishable from Libman, supra, where the Court held that the spending limits imposed on citizens in the course of a referendum campaign did not satisfy the requirement of minimal impairment. The Court held that the legislature in a case such as this must try to strike a balance between the right to free expression and equality among the citizens in expressing their views. The limits imposed failed to meet the minimal impairment test in the case of individuals and groups who could neither join nor affiliate themselves with the national committees. The Court stated that the restrictions were so severe that they came close to being a total ban and that better, less intrusive alternatives existed. The situation is precisely the same here. 37 In Libman, supra, at para. 63, the Court stated that “[i]t can be seen from the evidence that the legislature went to considerable lengths, in good faith, in order to adopt means that would be as non-intrusive as possible while at the same time respecting the objective it had set.Here, too, Parliaments good faith is advanced, said to be evidenced by the ongoing dialogue with the courts as to where the limits should be set. But as in Libman, good faith cannot remedy an impairment of the right to freedom of expression.

38. There is no demonstration that limits this draconian are required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair. On the contrary, the measures may themselves exacerbate these dangers. Citizens who cannot effectively communicate with others on electoral issues may feel they are being treated unequally compared to citizens who speak through political parties. The absence of their messages may result in the public being less well informed than it would otherwise be. And a process that bans citizens from effective participation in the electoral debate during an election campaign may well be perceived as unfair. These fears may be hypothetical, but no more so than the fears conjured by the Attorney General in support of the infringement. 39 This is not to suggest that election spending limits are never permissible. On the contrary, this Court in Libman has recognized that they are an acceptable, even desirable, tool to ensure fairness and faith in the electoral process. Limits that permit citizens to conduct effective and persuasive communication with their fellow citizens might well meet the minimum impairment test. The problem here is that the draconian nature of the infringement to effectively deprive all those who do not or cannot speak through political parties of their voice during an election period overshoots the perceived danger. Even recognizing that [t]he tailoring process seldom admits of perfection (RJR-MacDonald, supra, at para. 160), and according Parliament a healthy measure of deference, we are left with the fact that nothing in the evidence suggests that a virtual ban on citizen communication through effective advertising is required to avoid the hypothetical evils of inequality, a misinformed public and loss of public confidence in the system.

In any event, the time has come for the law to be repealed. This is particularly so if you look at the nominal plaintiff in the Charter challenge to the Supreme Court (Hint: He is the Prime Minister of Canada). The Harper Government can give people back their voice, allow them to organize and to attempt to influence people to subscribe to their point of view. Perhaps you will not like the position of someone. Perhaps you will find it offensive. Perhaps it will motivate you to get involved in the process and work for a particular candidate or party. Or, perhaps the advertising and spending will have no influence on you at all. The fact is that the ability of individuals to express themselves as they see fit is worthy of protection while the electorate need less protection from themselves than the social scientists happen to believe. So, Mr. Harper, if you happen to be reading, repeal the third party election spending provisions of the Canada Elections Act. There will not be a public outcry and you will make some friends on the Libertarian side of the fence. And while you are in the mood for good policy, drop the three strikes and you're out idea.

Update: I forgot to comment that now that the Tories are in Government and the Act is particularly helpful in protecting incumbents, I doubt we will hear much about this.

As well, there have been developments in the Supreme Court of The United States on McCain-Feingold