Date: 20081003
Docket: T-1500-08
Citation: 2008
FC 1119
Ottawa, Ontario, October 3, 2008
PRESENT: Madam Prothonotary Roza Aronovitch
BETWEEN:
DUFF
CONACHER and DEMOCRACY WATCH
Applicants
and
THE PRIME MINISTER OF CANADA,
THE GOVERNOR IN COUNCIL OF CANADA and
THE GOVERNOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
This
is a motion to expedite the hearing of the underlying application. The applicants
who filed their notice of application on September 26, 2008, impugning the
legality of the actions of the Prime Minister, the Governor General of Canada, and
of Governor in Council culminating in the calling of the forthcoming general election,
and alleging breaches of the Canadian Charter of Rights and Freedoms, are
asking that the case be heard in less than a week, on October 8, 2008.
Conclusion
[2]
For
the reasons that follow I will deny the motion. In sum, the applicants waited
too long. They have not satisfactorily explained their delay in bringing these
proceedings or satisfied the Court of the urgency and necessity of expediting
the hearing of the application issued on the eve of the election.
[3]
The
applicants have relied on the fact that they could not have earlier moved for
an interlocutory injunction to stop the election. It would have been denied
given that the balance of convenience would have favoured proceeding with the
election. All the more reason not to have waited until the eve of the election
to bring this proceeding.
[4]
The
case raises novel and complex, constitutional issues, including a Charter
challenge alleging that the rights of Canadians to participate in fair
elections is infringed. Expediting the hearing in these circumstances, would
require that serious issues be determined, essentially on the fly, without a
fair opportunity to the Attorney General to respond and without the benefit to
the Court of considering weighty issues of broad consequence on the basis of a full
and complete record.
[5]
As
a result of denying this motion, part of the relief sought by way of orders to
quash the impugned decisions and to stop the election will be rendered moot.
It is, in my view, justified in the circumstances. The applicants have sat on
their rights with the consequence that the respondents will be prejudiced in
making their best case in response. I bear in mind that the applicants are not
precluded from pursuing their declarations as to the legality of the election
and the alleged breaches of the Charter after the election, and that
they stand prepared to do so.
[6]
Finally,
I note below that in determining whether the hearing of an application for
judicial review should be expedited I am not called upon and to assess the
merits of the case and take no position on the matter.
Background
[7]
The
applicants are Duff Conacher and Democracy Watch. Democracy Watch is a
non-partisan not-for-profit organization that advocates democratic reform,
citizen participation in public affairs, government and corporate
accountability, and ethical behaviour in government and business in Canada. Mr.
Conacher is the coordinator of the organization.
[8]
On
September 7, 2008, the Governor General issued a Proclamation dissolving
Parliament and a Proclamation issuing the Writs of Election setting forth
October 14, 2008 as the date of the general election. Democracy Watch’s application
was filed on September 26, 2008, and served on the respondents along with this
notice of motion, on September 29, 2008.
The nature of
the application
[9]
The
application which Democracy Watch would like heard next week puts at issue the
scope of constitutional, prerogative, and statutory powers relating to the
dissolution of Parliament and the issuance of writs for general election.
[10]
The
powers are governed, in part, by section 56.1 and subsection 57(1) of the Canada Elections
Act
(Act) which provide as follows:
|
Powers of Governor General preserved
56.1 (1)
Nothing in this section affects the powers of the Governor General, including
the power to dissolve Parliament at the Governor General’s discretion.
Election dates
(2)
Subject to subsection (1), each general election must be held on the third
Monday of October in the fourth calendar year following polling day for the
last general election, with the first general election after this section
comes into force being held on Monday, October 19, 2009.
…
General election — proclamation
57. (1)
The Governor in Council shall issue a proclamation in order for a general
election to be held.
|
Maintien des pouvoirs du gouverneur général
56.1 (1)
Le présent article n’a pas pour effet de porter atteinte aux pouvoirs du
gouverneur général, notamment celui de dissoudre le Parlement lorsqu’il le
juge opportun.
Date des élections
(2) Sous réserve du paragraphe (1), les élections
générales ont lieu le troisième lundi d’octobre de la quatrième année civile
qui suit le jour du scrutin de la dernière élection générale, la première
élection générale suivant l’entrée en vigueur du présent article devant avoir
lieu le lundi 19 octobre 2009.
…
Élection générale :
proclamation
57. (1) Pour déclencher une élection
générale, le gouverneur en conseil prend une proclamation.
|
[11]
More
precisely, the applicants are asking for orders:
-
quashing
the action
by the Prime Minister advising the Governor General to dissolve Parliament on
September 7, 2008;
-
quashing
the decision of the Governor General to dissolve Parliament and ordering that
the Writs of Election set forth October 14, 2008 as the polling day; and
-
quashing
the action of the Governor in Council in issuing a proclamation of a general
election to be held on October 14, 2008.
[12]
In
the alternative, the applicants are seeking declarations to the effect that:
-
the action of the Prime
Minister advising the Governor General to dissolve Parliament on September 7,
2008 contravened section 56.1 of the Act and section 3 of the Canadian
Charter of Rights and Freedoms (Charter);
-
given
the illegality of the Prime Minister’s advice, the Governor General improperly
exercised her discretion to dissolve Parliament; and
-
the
Governor in Council’s proclamation of a general election was in contravention
of section 56.1 of the Act and section 3 of the Charter.
[13]
The
grounds for the challenge to the “legality” of the impugned actions, in essence,
is as follows. Democracy Watch maintains that the amendment to the Elections
Act which came into force on May 3, 2007, setting October 19, 2009, as the date
for the next general election, is to be read as limiting the discretion of the
Governor General to dissolve Parliament such that she may only exercise that
discretion once there has been a vote of non-confidence in the House. There
has not been such a vote, therefore, say the applicants, the election call
contravenes section 56.1 of the Act, and is unlawful.
[14]
The
other grounds of the application are the alleged breaches of section 3 of the Charter,
which confers on citizens the right to vote in the election of members of the House
of Commons and the provincial legislative assemblies, and to be qualified for
membership therein. In other words, to vote and to run for office.
[15]
The
applicants point out that electoral fairness is a fundamental value in Canadian
society, and that such elections must be both free and fair. With regard to the second
ground of their application, the applicants say that because the Prime Minister
called the election unexpectedly, that is to say without a confidence vote, his
party will have an unfair advantage in the election. The lack of fairness is
said to be exacerbated because there was no notice of the election, such that
members of the public who intended to run as candidates, volunteers and the
voters themselves will have been hindered from participating in a fair election,
in contravention of the Charter.
Criteria to
be met to expedite a proceeding
[16]
The
following factors are to be considered by the Court in exercising its
discretion to grant a motion to expedite:
- Is the proceeding really urgent or does the
moving party simply prefer that the matter be expedited?
- Will
the respondents be prejudiced if the proceeding is expedited?
- Will
the proceeding be rendered moot if not decided prior to a particular event?
- Would
expediting the proceeding result in the cancellation of other hearings?
[17]
I
will address these questions in turn. Given the serious nature of this
application, I begin by noting that I need not have regard to the last of the
factors.
Is the proceeding really urgent or does
the moving party simply prefer that the matter be expedited?
[18]
The
party seeking to expedite the hearing of a judicial review application bears
the burden of demonstrating there is an urgency to warrant such an order, which
is granted only in exceptional cases.
[19]
The
applicants have provided little evidence to support the motion to expedite. That
is to say, they address the merits of the underlying application but not the test
to be met in seeking to expedite a hearing. There is no evidence, indeed, no
explanation of any kind, to explain why the applicants waited three weeks to
bring their application with the result that they now ask that this judicial
review application be heard only days after it was filed, and some two to three
working days before the date of the scheduled general election.
[20]
The
applicants explain that they could not have moved for a stay of the election or
sought to prevent it by applying for an interlocutory injunction because “the
balance of convenience” would always favour proceeding with the election. All
the more reason to have moved immediately on the merits.
[21]
The
applicants point to the fact that the time between writs being issued and the
holding of an election would never be sufficient to permit the question of the
legality of an election call to be adjudicated within the time normally
prescribed for the prosecution of a typical application for judicial review.
Cognizant of this, Democracy Watch did not act sooner, certainly not with the
urgency that is warranted in the circumstances. The time constraints and
crisis now invoked by the applicants, it would appear, is of the applicants’
making.
Will the
respondents be prejudiced?
[22]
Contrary
to the submissions of the applicants in this regard, the issues raised in the
underlying application are weighty, substantial and complex. They do not
simply call for a determination of law to be made following legal argument. The
allegation that the election contravenes section 3 of the Charter, in
particular, needs to be adjudicated on the basis of a full factual record. The
Supreme Court of Canada has repeatedly observed that Charter questions
can not be decided in the absence of a proper evidentiary record.
[23]
Recognizing
the factual complexity presented by the Charter challenge, counsel for
the applicants at the hearing of this motion, offered to withdraw the expert
affidavits of Professors Leduc and Mendes which the applicants proposed to file
on the merits. The applicants also undertook not to require, that the Crown
provide them with certified copies of all documents relating to the impugned decisions.
They would be content to rely on the press releases and excerpts from the Hansard
that speak to the government’s own pronouncements as to the effect of their
legislation fixing the next election date. Together, these documents comprise
the 13 exhibits to the affidavit of Duff Conacher submitted in support of this
motion.
[24]
By
the same token, Democracy Watch maintains that the respondents would remain free
to adduce any evidence it wishes, albeit in the less than two days that would
be allotted to it. The Attorney General responds that he is prejudiced and would
not have a fair chance to make his case. At best, if the matter were to be
heard before October 14, the respondents would have until Monday next to adduce
its evidence to respond to the Charter challenge.
[25]
All
cross-examinations would have to be completed in one day, on Tuesday. The
parties would then have to file their respective records on Tuesday and
Wednesday, for a hearing on the merits on Thursday of next week. This proposal,
in my view, is unreasonable, unwarranted and prejudicial. Whether or not applicants
forgo their right to adduce more ample evidence, the respondents are entitled to
make a full defence and to provide a complete factual record to rebut the
allegation that the Charter rights of Canadians to participate in a fair
election have been infringed. I would add that it would hardly serve the
interests of justice to have a decision made in relation to such weighty issues
on a reduced and inadequate record.
Would the
proceeding be rendered moot if not decided prior to October 14?
[26]
Refusing
to expedite the hearing will render moot part of the relief sought by the
applicants to quash the decisions of the Prime Minister and the Governor
General and effectively stop the election.
[27]
However,
even if the matter were heard on October 8 or 9, given the complex, novel, and
substantive issues raised by this application, it is unlikely that a judgment would
issue prior to the date of the general election. Counsel for the applicants
concedes moreover that if such a judgment were to issue prior to the election
date, the presiding judge may well choose not to quash the impugned decision, as
quashing the decision would have the effect of stopping the election. Instead,
the Court might grant only the appropriate declaratory relief. Indeed, the
applicants have conceded that it was not open to them to ask for a
interlocutory injunction to stay the election, recognizing that such an application
would not have succeeded as the balance of convenience would always favour the
election proceeding.
[28]
As
to the other relief sought by the applicants, they admit that refusing to
expedite the hearing will not render the determination of the declaratory
relief moot. The applicants maintain, moreover, that if the hearing is not
expedited, they will nevertheless pursue the adjudication of their declarations
of invalidity after the elections are held. They point out that there is
similar legislation in the provinces and the outcome of the Court’s
determination as to the legality of the impugned actions, in this case, will
inform and guide the action of governments in future elections.
The Merits
[29]
I
am not called upon to assess the merits of the case in deciding whether an application
for judicial review should be expedited. It is evident, and is not contested
by the respondents that the application raises important issues for
determination. The question is whether they are best determined in the artificially
constricted timeframes suggested. I find that they are not.
Other matters
[30]
The
applicants acknowledge that on the basis of the application as presently
constituted they will require leave of the Court pursuant to Rule 302 of the Federal
Court Rules. The applicants impugn a number of decisions within the same
application. Save with leave of the Court, the Rule limits an application to a
single order in respect of which relief may be sought.
[31]
The
applicants’ motion to bring this motion on for hearing at general sittings,
yesterday, on short notice, was not contested and will be granted on consent.
[32]
The
applicants’ motion to add the Attorney General as a party respondent will be
granted on consent, subject to the respondents’ reservation of rights.
ORDER
1. The
applicants’ motion to abridge the time for bringing the within motion is
granted, on consent.
2. The
Attorney General is added as respondent to the application without prejudice to
the right of the respondents to object to the propriety of naming the Prime
Minister of Canada, the Governor General and the Governor in Council as
respondents.
3. The
applicants’ motion to expedite the hearing of the application on the merits on
October 8 or 9, 2008, is denied, with costs.
“R. Aronovitch”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1500-08
STYLE OF CAUSE:
DUFF
CONACHER and DEMOCRACY WATCH
v.
THE
PRIME MINISTER OF CANADA,
THE
GOVERNER IN COUNCIL OF CANADA and
THE
GOVERNOR GENERAL OF CANADA
PLACE OF
HEARING: Ottawa, Ontario
DATE OF
HEARING: October
2, 2008
REASONS FOR ORDER AND ORDER: ARONOVITCH P.
DATED:
October 3, 2008
APPEARANCES:
|
Mr. Peter
Rosenthal
|
FOR THE APPLICANT(S)
|
|
Mr.
Christopher Rupar
|
FOR THE RESPONDENT(S)
|
SOLICITORS
OF RECORD:
|
Roach, Schwartz
& Associates
Toronto,
Ontario
|
FOR THE APPLICANT(S)
|
|
Department of
Justice
Ottawa, Ontario
|
FOR THE RESPONDENT(S)
|
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