Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 SCR 764

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764

The Attorney General of Canada                                                     Applicant

v.

Stephen Joseph Harper                                                                     Respondent

Indexed as:  Harper v. Canada (Attorney General)

Neutral citation:  2000 SCC 57.

File No.:  28210.

2000:  November 10.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

motion for a stay

Practice ‑‑ Stay ‑‑ Federal elections ‑‑ Spending limits ‑‑ Plaintiff granted interlocutory injunction against enforcement of third‑party spending limits pending decision on his constitutional challenge to legislation ‑‑ Whether injunction should be stayed.

The respondent sought a declaration that the provisions in the Canada Elections Act , S.C. 2000, c. 9 , imposing limits on third‑party spending on advertising in the course of a federal election campaign are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2( b )  of the Canadian Charter of Rights and Freedom s .  The issue has gone to trial but judgment has not yet been rendered.  An election writ has been issued with a polling date of November 27, 2000.  The respondent immediately applied for an interlocutory injunction restraining the enforcement of the third‑party spending limits, pending the decision in the action.  The same judge who heard the trial granted the injunction, which was upheld by the Court of Appeal.  The Attorney General of Canada applies to this Court for leave to appeal from the interlocutory injunction and, in the interim, for a stay of the injunction.

Held (Major J. dissenting):  The stay should be granted.

Per McLachlin C.J., L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.:  In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers:  (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience.  This case turns on an analysis of the third ground -‑ the balance of (in)convenience.

The public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits.  To leave the injunction in place is to grant substantial success to the respondent even though the trial has not been completed.  It is taken as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose.  Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, the balance of convenience favours staying the injunction.  Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter.  It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.

Per Major J. (dissenting):  The interim injunction furthers the Charter ’s guarantee of freedom of expression, and the respondent has displaced the assumption that the government suffers a greater harm than he does.  Thus, the balance of convenience tips sharply in favour of the respondent.  The chambers judge made no error and was entitled to reach the conclusion that the balance of convenience favoured injunctive relief.  We should be loathe to interfere with political speech, especially in the midst of a federal election.

The Attorney General admitted that there was a violation of s. 2( b )  of the Charter , but did not offer any evidence to show that the injunction would cause some harm.  The presumption that legislation generally identified as serving a public interest is prima facie valid should not be conclusive where it competes against the acknowledged impediment to an individual’s free speech unless there is some evidence demonstrating an impediment of a public interest.  Furthermore, the assumption that the public interest will suffer irreparable harm when an injunction stops an authority from protecting the public good can be overcome when an applicant demonstrates that the injunction itself serves the public interest.  Finally, this case falls within an exception to the principle that the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity.

Cases Cited

By McLachlin C.J. et al.

Applied:  Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Haig v. Canada, [1993] 2 S.C.R. 995; RJR‑-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; referred to:  Thomson Newspapers Co. v. Canada (Attorney General), Bulletin of Proceedings of the Supreme Court of Canada, 1997, p. 882.

By Major J. (dissenting)

Switzman v. Elbling, [1957] S.C.R. 285; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR-‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Attorney General of Canada v. Gould, [1984] 1 F.C. 1133, aff’d [1984] 2 S.C.R. 124.

Statutes and Regulations Cited

Canada Elections Act , S.C. 2000, c. 9 , s. 350(1) , (2) , (3) , (4) .

Canadian Charter of Rights and Freedoms , ss. 1 , 2( b ) .

Authors Cited

Berryman, Jeffrey.  The Law of Equitable Remedies.  Toronto: Irwin Law, 2000.

Cassels, Jamie.  “An Inconvenient Balance:  The Injunction as a Charter Remedy”, in Jeffrey Berryman, ed., Remedies:  Issues and Perspectives.  Scarborough, Ont.: Carswell, 1991, 271.

Roach, Kent.  Constitutional Remedies in Canada.  Aurora, Ont.:  Canada Law Book (loose‑leaf updated 2000, release 7).

Sharpe, Robert J.  Injunctions and Specific Performance.  Aurora, Ont.:  Canada Law Book (loose‑leaf updated 1999, release 7).

MOTION to stay a judgment of the Alberta Court of Appeal, [2000] A.J. No. 1240 (QL), affirming an order of the Court of Queen’s Bench, [2000] A.J. No. 1226 (QL), enjoining the enforcement of s. 350(1) , (2) , (3)  and (4)  of the Canada Elections Act.  Motion granted, Major J. dissenting.

Written submissions by Graham Garton, Q.C., and Thomas W. Wakeling, for the applicant.

Written submissions by Alan D. Hunter, Q.C., and Eric Groody, for the respondent.

The following is the order delivered by

1                                   The Chief Justice and L’Heureux-Dubé, Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ. –  On May 31, 2000, Parliament passed the Canada Elections Act , S.C. 2000, c. 9  (the “Act ”), imposing limits on third-party spending on advertising in the course of a federal election campaign. The law came into force on September 1, 2000.  Our reasons in this application relate solely to the issue of whether an injunction which suspended  the enforcement of certain provisions pertaining to third-party spending limits should be stayed.  They do not deal with the granting of leave to appeal the injunction order nor any ensuing appeal.  They also do not deal with the question of whether the Act  is unconstitutional.

2                                   The respondent Stephen Joseph Harper commenced an action on June 7, 2000 before the Alberta Court of Queen’s Bench, seeking a declaration that the spending limits are unconstitutional because they unjustifiably limit the right of free expression guaranteed by s. 2( b )  of the Canadian Charter of Rights and Freedoms .  The trial commenced on October 2 and adjourned on October 13, after nine days of evidence. 

3                                   On October 22, an election writ was issued, with a polling date of November 27, 2000.  Mr. Harper applied to the same trial judge (Cairns J.), who heard  the action seeking a declaration that the spending limits are unconstitutional, for an interlocutory injunction restraining the Chief Electoral Officer of Canada and the Commissioner of Canada Elections  from enforcing the third-party spending limits, pending the decision in the action.  The trial judge granted the injunction ([2000] A.J. No. 1226 (QL)), and the Alberta Court of Appeal upheld it ([2000] A.J. No. 1240 (QL)).  The Attorney General of Canada now applies to this Court, seeking leave to appeal from the interlocutory injunction and, in the interim, a stay of the injunction.  The application for leave to appeal is granted, by separate order, released concurrently.  This leaves the question of whether the injunction restraining the enforcement of the law imposing spending limits should be stayed. 

4                                   In considering whether an injunction should be granted, and by extension whether an injunction should be stayed pending appeal, the Court considers: (i) whether there is a serious issue to be tried; (ii) whether absent an injunction there will be irreparable harm to the individual seeking the injunction; and (iii) the balance of (in)convenience.  Without prejudging the appeal, we are satisfied there is a serious issue to be tried. The issue is no less than the constitutionality of provisions of the electoral law passed by the Parliament of Canada which no court has held to be invalid. This is a serious issue not only because the constitutionality of the provisions is challenged, but because it is common ground that the determination of the constitutionality will turn on the application of s. 1  of the Charter , which is always a complex factual and legal analysis.  We also assume  that the provisions in issue may occasion “irreparable harm” to the capacity of third parties to participate as they wish in the election campaign to the extent of the spending limits on advertising imposed on them.  This leaves the third ground, the balance of convenience.

5                                   Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience.  On the one hand stands the benefit flowing from the law.  On the other stand the rights that the law is alleged to infringe.  An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of  granting effective victory to the applicant before the case has been judicially decided.  Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough: R. J. Sharpe, Injunctions and Specific Performance (loose-leaf ed.),  at para. 3.1220. 

6                                   The trial judge found that the freedom of speech interest raised by the applicant Harper to be of great importance.  On the other side of the balance, he found that the Attorney General of Canada had called no evidence on the harm that would result from suspending the operation of the law. In the absence of evidence, he characterized this harm as “notional unproven unfairness” (para. 35).  Accordingly, he found that the balance of convenience favoured the grant of an injunction.

7                                   We cannot, with respect, agree.  This application is governed by the principles set forth in previous cases.  On appeal the applicant Harper may seek alteration of these principles, but for the moment they govern.  Applying these principles, the balance of convenience in this case favours granting the stay of the injunction.  One of these principles is the rule against granting the equivalent of final relief in interlocutory challenges to electoral statutes, even in the course of elections governed by those statutes: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; see also  Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, per Beetz J., at p. 144;  Haig v. Canada, [1993] 2 S.C.R. 995.  In this case, allowing the injunction to stay in place will in effect give Mr. Harper the ultimate relief he seeks in his action, at least with respect to the current election.  The trial judge, however, did not address this factor, nor the case law which addresses it.

8                                   It may also be noted that, in Thomson Newspapers Co. v. Canada (Attorney General), S.C.C., No. 25593, May 7, 1997 (published in the Bulletin of Proceedings of the Supreme Court of Canada, 1997, at p. 882), this Court refused to grant a stay suspending the enforcement of the provisions mandating publication bans on opinion polls set forth in the Canada Elections Act, R.S.C., 1985, c. E-2, s. 322.1.  In so doing, the Court relied on its previous decision in Gould, supra.  The Court refused the stay even though the ultimate decision found the poll prohibition to be unconstitutional.

9                                   Another principle set out in the cases is that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law, it is wrong to insist on proof that the law will produce a public good.  Rather, at this stage of the proceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-49:

When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect.  It must be assumed to do so.  In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.

It follows that in assessing the balance of convenience, the motions judge must proceed on the  assumption that the law -- in this case the spending limits imposed by s. 350  of the Act  -- is directed to the public good and serves a valid public purpose. This applies to violations of the s. 2(b) right of freedom of expression; indeed, the violation at issue in RJR--MacDonald was of s. 2(b).  The assumption of the public interest in enforcing the law  weighs heavily in the balance.  Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed. 

10                               Again, the trial judge appears not to have applied this principle in weighing the benefits of the law against its impact on free expression.  Instead of assuming that the legislation has the effect of promoting the public interest as RJR--MacDonald directs, the trial judge based his conclusion on the  fact that the Government “has not adduced any evidence to illustrate unfairness in any of these elections in Canada caused by third-party spending limits” (para. 33).  He went on to repeat that the “Government simply asserts that third-party spending limits, if not controlled, may (and that is notional only) impact adversely on the fairness of elections” (para. 34), and moved directly from this to the conclusion that leaving the spending limits in place “would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government” (para. 35).  Moreover, the trial judge made no mention of the fact that the law may be seen not only as limiting free expression but as regulating it in order to permit all voices during an election to be heard fairly.

11                               Applying the principles enunciated in previous decisions of this Court, and without prejudging the outcome of any appeal from the injunction, we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits.  To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed.  Moreover, applying RJR--MacDonald, we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose.  Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge. 

Conclusion

12      We therefore conclude that a stay of the order enjoining the enforcement of s. 350(1) , (2) , (3)  and (4)  of the Canada Elections Act  should be granted.

The following are the reasons delivered by

13                               Major J. (dissenting) — The facts that accompany this application by the Attorney General of Canada for a stay of the injunction obtained in Alberta are not in dispute.  The chambers judge, relying on the pleadings and the evidence at the trial, faced the concession that the plaintiff Mr. Harper’s freedom of expression was restricted by the legislation.  Weighed against this was the inability of the Attorney General to demonstrate that the injunction would cause any inconvenience (see [2000] A.J. No. 1226 (QL), at paras. 34-35, per Cairns J.):

The Government simply asserts that third-party spending limits, if not controlled, may (and this is notional only) impact adversely on the fairness of elections.  Yet, it can point to no evidence to illustrate unfairness in the Canadian elections caused by third-party spending.

In my judgment, the spending limits having the deleterious effect of fettering the core freedom of expression and speech as enshrined in the Charter , as they do and as admitted by the Attorney General of Canada, would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government.

14                               As described in the reasons of the majority, an injunction should be granted where:  (1) there is a serious question to be tried, (2) there is irreparable harm to the person seeking the injunction if no injunction is issued, and (3) the balance of convenience favours an injunction.

15                               It is on the determination of the balance of convenience that I disagree with the  majority.  The chambers judge, who was also the trial judge in the recently concluded trial, was in a unique position to weigh the balance of convenience.

16                               The trial judge did not, nor do I, intend the interim injunction to reflect on the validity of the new elections legislation.  The question of whether the limits on election spending are constitutional will only be decided once there is a determination on the merits.

17                               It is inescapable to me that the balance of convenience tips sharply in favour of the plaintiff.  The proposition advanced to counter the obvious inconvenience to Mr. Harper is that legislation generally identified as serving a public interest carries a prima facie assumption of validity.  But that presumption should not be conclusive where, as here, it competes against the acknowledged impediment to the plaintiff’s free speech unless there is some evidence demonstrating an impediment of a public interest.  Here there is none.

18                               The chambers judge was careful to note that the interim injunction was just that.  He stated that his ultimate disposition may be that the legislation is constitutional.  But he could not ignore the evidence produced during the two-week trial to the extent it bore on granting an interim injunction.

19                               The interim injunction would safeguard important constitutional rights guaranteed by the Canadian Charter of Rights and Freedoms  and protect the freedom of political speech during a federal election.  The law is clear that — in the absence of an error in principle — the trial judge has the discretion, and is entitled to appellate deference.

20                               In this application, we are dealing with one of the most valuable forms of speech:  political speech.  Canadians cherish the unimpeded diffusion of political ideas and opinions, and this Court has long recognized that freedom of expression is “essential to the working of a parliamentary democracy such as ours” (Switzman v. Elbling, [1957] S.C.R. 285, per Abbott J., at p. 326).  Hence we must tread carefully in limiting political speech.  It is speech that we recognize as invaluable, given its significance in our democratic process.  We should be loathe to interfere with it, especially in the midst of a federal election.

21                               I am of the view that the trial judge did not err in applying the three-part test for an injunction in a constitutional context, as set out in Manitoba (Attorney General) v. Metropolitan Stores  Ltd., [1987] 1 S.C.R. 110, and RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, both cases that the trial judge referred to and relied upon.  As stated, I agree with the majority that the first two requirements are met.

22                               The third requirement is that the balance of convenience favours granting the injunction.  This requirement subsumes the question of what irreparable harm the defendant faces.  After nine days of trial, there was no evidence before the Alberta Court of Queen’s Bench that the injunction would cause any “inconvenience” or “irreparable harm”.  Nor has the Attorney General in this application referred this Court to any evidence showing what harm would result from the injunction.  Instead, the Attorney General states as a conclusion that suspending the spending limits would result in unfairness, and so the legislation must be applied “in the interests of fairness for all”. 

23                               The Attorney General admitted that there was a violation of s. 2(b), and offered not a scintilla of evidence showing that the injunction would cause some harm.  In this light, the trial judge concluded that the balance of convenience favoured injunctive relief.  Given the restriction upon a cherished constitutional freedom and the absence of anything tilting the other way, Cairns J. was entitled to reach this conclusion.

24                               I acknowledge that in the majority of cases, it may be acceptable to assume that there is irreparable harm to the public interest when an injunction stops an authority from protecting the public good:  RJR--MacDonald, supra, at p. 346.  But that is an assumption only (as Sopinka and Cory JJ. suggest at p. 349), and it can be overcome when an applicant demonstrates that the injunction itself serves the public interest.  In this case, the injunction furthers the Charter ’s guarantee of freedom of expression, and Mr. Harper has displaced the assumption that the government suffers a greater harm than he does.

25                               I find that the suggestion of “irreparable harm” to the government or the public interest is strained and unpersuasive.  To date, Canadian federal elections have not been governed by limits on third-party spending.  It is difficult to see how the consequences of undergoing one more election without these limits would somehow cause “irreparable harm” to our democratic institutions, particularly since no such harm occurred in past elections.  In my view, the public interest favours granting, rather than refusing, the injunction.  Dean Cassels is right to suggest that the “public interest” does not belong exclusively to the Attorney General, and I agree with his rejection of the “assumption that only one party speaks for the public interest” (J. Cassels, “An Inconvenient Balance:  The Injunction as a Charter Remedy”, in J. Berryman, ed., Remedies:  Issues and Perspectives (1991), 271, at pp. 303-5).  The question is:  will the injunction serve the public good by protecting constitutional rights?   Given the need to protect free speech, particularly during an election, it seems reasonable to require the Attorney General to provide something more than a pro forma statement about unfairness.  In the absence of anything beyond speculation, and in the face of a serious denial of Charter-protected freedoms, the balance of convenience clearly favours the injunction.  I would add that while the Attorney General argues that the public interest is served by seeing the legislation enforced, that argument is countered by the compelling public interest in seeing fundamental Charter-protected freedoms upheld:  J. Berryman, The Law of Equitable Remedies (2000), at p. 51.

26                               “Because the granting of an interlocutory injunction is a discretionary matter appellate courts have limited the role of review”:  Berryman, The Law of Equitable Remedies, supra, at p. 37.  This Court endorsed the deferential approach in Metropolitan Stores, supra, at pp. 154-56.  The standard is high; the reviewing court “must not interfere with [the trial judge’s exercise of discretion] merely on the ground that the members of the appellate court would have exercised the discretion differently”:  Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 (H.L.), per Lord Diplock, at p. 1046.  To interfere, there must be a clear mistake on the law or the evidence, or some other glaring error.  There is no such mistake here.

27                               Cairns J. is entitled to appellate deference.  He was, in fact, unusually well-placed to grant the injunction.  The typical judge faced with this sort of injunction would not have the benefit of having presided over the trial on the merits of the constitutional challenge.

28                               It is true, as the majority suggests, that in all but exceptional cases, the effect of democratically enacted legislation should not be suspended before a finding of unconstitutionality or invalidity: Attorney General of Canada v. Gould, [1984] 1 F.C. 1133 (C.A.), aff’d [1984] 2 S.C.R. 124.  But this case falls in the narrow category of exceptions.  I reach that conclusion for three reasons.

29                               First, there is the timing of the challenge.  The new Canada Elections Act , S.C. 2000, c. 9 , was given royal assent on May 31, 2000.  The plaintiff’s statement of claim was issued within seven days.  The legislation would ordinarily have come into force after the November 27 general election, but it was activated, so to speak, by publication of notice in the Canada Gazette on September 1, 2000.  The Attorney General of Canada introduced this legislation in a manner that virtually sealed it from meaningful constitutional scrutiny before the election.  These circumstances demand scrutiny.  The prospect arises that governments could pass unconstitutional laws immediately prior to an election and leave affected citizens with no remedy.  The state could effectively place its election legislation beyond constitutional scrutiny by virtue of when that legislation is enacted.  I note that the situation here is unlike that in Gould, supra, where the impugned provision had been in force for years but was challenged only on the eve of an election.

30                               Another compelling factor is that the judge who handled the application for an interlocutory injunction knew the case; he had recently presided over a two-week trial in which the constitutionality of the legislation was debated in great detail.  That fact distinguishes this case from Gould, supra, where the judge who granted the injunction had not heard arguments on the constitutionality of the provisions governing prisoners’ voting rights.  The fact that the same judge heard both the trial and the application for an injunction here argues in favour of considerable deference to his decision.

31                               Finally, there is the nature of the constitutional challenge at issue.  The speech that is limited here is political expression.  It is the epitome of speech that furthers the aspirations of a democratic society.  That expression would be limited at its most important moment, during an election, while the Attorney General offers no evidence that the injunction would cause harm.

32                               The majority, at para. 7, accepts the Attorney General’s submission that an injunction “effectively grants [Mr. Harper] the final relief that he seeks in the trial still under way”.  I do not, because the “final” question is the constitutionality of the legislation, and that question cannot be answered in these interlocutory proceedings.  In any event, it could equally be said that staying the injunction gives the government the final relief it is most concerned about.  That argument cuts both ways and does not get us far.

33                               This Court, as Professor Roach points out in Constitutional Remedies in Canada (loose-leaf ed.),  at p. 7-7, has “clearly rejected reliance on a presumption that legislation is constitutional in deciding interlocutory applications”.  In Metropolitan Stores, supra, at p. 124, Beetz J. held that “the presumption of constitutional validity . . . is not compatible with the innovative and evolutive character of [the Charter ]”.  It could be said that the majority improperly veers toward an automatic presumption of constitutionality.

34                               In RJR–MacDonald, at pp. 333-34, Sopinka and Cory JJ. considered the factors that must govern the balancing process:

On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect.

On the other hand, the Charter  charges the courts with the responsibility of safeguarding fundamental rights.  For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter  rights.  Such a practice would undermine the spirit and purpose of the Charter  and might encourage a government to prolong unduly final resolution of the dispute.

I find those words apt.  I would deny the application for a stay.

Motion granted, Major J. dissenting.

Solicitor for the applicant:  The Deputy Attorney General of Canada, Ottawa.

Solicitors for the respondent:  Gowling Lafleur Henderson, Calgary.