Harper v. Canada (Attorney General)
From Ad IDEM / CMLA
May 18, 2004
Freedom of expression, once again, takes a back seat to deference to the government, and on this occasion, it is our most valuable form of expression: political expression, that has been put in its place. The Supreme Court of Canada now gives lip service to the Oakes test. The contexual analysis it relies on more and more makes the application of its Charter measuring stick difficult to predict. The majority's gloss over the lack of evidence supporting the notion that the wealthy will "dominate" political debate if third parties are permitted to spend real money in electoral discourse is breathtaking and disappointing. Their test: "Given the difficulties in measuring this harm, a reasoned apprehension that the absence of third party election advertising limits will lead to electoral unfairness is sufficient." Surely the requirement in Oakes for evidence should mean something. The practical reality, however, is that new forms of communication, like the internet, remain permitted to third parties and can be both pervasive and persuasive. Ironically, despite the now approved restrictions, third party messages will still get to voters, but in a different form.