The Canadian Nationalist Party has filed a civil lawsuit against the City Of Saskatoon, claiming an infringement of constitutional rights to peacefully assemble and freely express themselves during the recent 43rd Federal Election: Canadian Nationalist Party – Statement Of Claim
STATEMENT OF PLAINTIFF’S CLAIM
- The PLAINTIFF, Canadian Nationalist Party Inc., is the Chief Agent of the federally-registered political party Canadian Nationalist Party (Nationalist).
- The DEFENDANT, City Of Saskatoon, is a municipality incorporated in Saskatchewan.
- During the recent 43rd Federal Election, and after the drop of the writ, the PLAINTIFF requested from the DEFENDANT the use of public property at City Hall to assemble and communicate their policies for the sake of informing voters and nominating candidates. This request was not permitted to proceed for reasons stated ‘denominational’.
- The DEFENDANT continues to permit the use of the space to adjacent, competing political parties but has denied requests from PLAINTIFF on three separate occasions.
- The PLAINTIFF states that the cost of this denial has directly affected their electoral viability, as well as financial costs associated with obtaining federal eligibility, marketing costs associated with promoting the visibility of the organization, and travel/accommodation expenses of the Canadian Nationalist Party members and existing candidates.
- By disallowing the Canadian Nationalist Party a permit to assemble publicly, the City of Saskatoon is openly violating the democratic rights protected by the Charter Of Rights And Freedoms (Section 2) of a political party sanctioned by the Canadian Government.
THE PLAINTIFF, THEREFORE, CLAIMS:
- judgment by way of public acknowledgement that the ability of the plaintiff to democratically compete in the recent 43rd Federal Election has been infringed.
- judgement in the sum of $34,850;
- interest pursuant to Canada Elections Act & The Pre-Judgment Interest Act; and
- such further costs as this Honourable Court may deem just.
Constitutional law – Charter of Rights – Fundamental Freedoms (Section 2) – Right to freedom of peaceful assembly
Constitutional law – Charter of Rights – Fundamental Freedoms (Section 2) – Right to freedom of expression
6:03 MEANING OF “FREE AND DEMOCRATIC SOCIETY”
R. v. Oakes, [1986] 1 S.C.R. 103, D:0017, at p. 136, Dickson C.J., for the Court, stated that the phrase “free and democratic society”
… refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
Since Section 1 constitutionally guarantees the rights and freedoms which follow in the Charter, “any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms – rights and freedoms which are part of the supreme law of Canada”: R. v. Oakes, [1986] 1 S.C.R. 103, D:0017, at p. 135.
The phrase “free and democratic society” is significant – “the underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified”: R. v. Oakes, at p. 136.
The Supreme Court of Canada set out its basic test for determining whether a legislative provision is justified in R. v. Oakes. According to the Court, s. 1 imposes a “stringent standard of justification”. A stringent standard of justification must be adopted because of the meaning of “free and democratic society” (see para. 6:03) and because the justification analysis is being undertaken after the Court has found that constitutionally guaranteed rights have been violated. The test adopted by the majority of the Court in Oakes is as follows:
(1) the objective, which the legislation in issue is designed to advance, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”; and
(2) a three-fold proportionality test must be satisfied:
(a) the legislation must be rationally connected to the achievement of the objective in question – it must not be arbitrary, unfair or based on irrational considerations;
(b) the legislation should impair as little as possible the right or freedom in question; and
(c) there must be a proportionality between the effects of the legislation which is responsible for limiting the Charter right or freedom and the objective which has been identified as having sufficient importance. (Oakes, at pp. 138-40)
The issue of justification is to be assessed “objectively” and not from the standpoint of the legislators.
In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, D:0147, La Forest J. Stated: (at pp. 280-1):
“The matter must, as earlier cases have held, involve a test of proportionality. In cases of this kind, the test must be approached in a flexible manner. The analysis should be functional, focusing on the character of the classification in question, the constitutional and societal importance of the interests adversely affected, the relative importance to the individuals affected of the benefit of which they are deprived, and the importance of the state interest.”
The majority of the Court in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, D:0160, held that the blanket exclusion of person from distributing leaflets in non-security areas of a federal airport was overbroad. L’Heureux-Dube J. Helf that the impugned provision was so broad, especially given the terms “undertaking”, “otherwise”, “solicit” and “advertise”, that it could include just about any activity. She noted that the impugned provision prohibited all expressive activity in the airport simply because some activities may be disruptive. McLachlin J. Agreed that the regulation was overbroad. The prevention of “political propaganda activities” constituted a blanket exclusion of political solicitation in the airport unrelated to concerns for the function of the airport and devoid of safeguards to protect against over-reaching application. These same two Justices also appeared to support a deferential approach to the application of s. 1. See para. 6:05[6].
The onus of proving that a limit on a right or freedom is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, D:0003, at p. 169; R. v. Oakes, [1986] 1 S.C.R. 103, D:0017, at pp. 136-7. In Oakes, Dickson C.J. referred to a “presumption” that the rights and freedoms are guaranteed unless the party invoking s. 1 can bring itself within the “exceptional” criteria which justify their being limited.
In Canadian Human Rights Commission v. Taylor, [1990] 3 S.C.R. 892, D:0154, McLachlin J., held that the deleterious effects of the impugned provision outweighed the importance of the objective. She stated (at pp. 968-9):
“The significance of the infringement of the right at issue in this case is most serious. The limitation touches expression which may be relevant to social and political issues. Free expression on such matters has long been regarded as fundamental to the working of a free democracy and to the maintenance and preservation of our most fundamental freedoms. The right to express oneself freely on such matters is not lightly to be trammeled; a limitation on such expression must be proportionate to the evil and sensitive to the need to preserve as much freedom of expression as may be compatible with suppressing that evil.”
Party Leader Travis Patron recently issued a statement on the state of the 43rd Federal Election and the Canadian Nationalist Party’s inability to access publicly-funded infrastructure entitled The Emperor Wears No Clothes.
