Issues concerning mandatory voting and election budgets leave the Liberals' democratic reform agenda in constitutional limbo.

Co-blogger Emmett Marfarlane has given us an instructive, in-depth, look at the mandate letter from Prime Minister Justin Trudeau to the Justice Minister, Jody Wilson-Raybould. If this mandate is carried out, the government of Canada will find itself offside of the constitution, and the courts, a good deal less often than it has in the last ten years. But another mandate letter, this one to the Minister of Democratic Institutions, Maryam Monsef, suggests that the Department of Justice lawyers tasked with defending the constitutionality of federal legislation will not be going out of business under the Trudeau administration.

Two key items on Ms. Monsef’s to-do list are likely to be sources of constitutional difficulties, although the concrete policy shape that they might take is still unclear. The first is mandatory voting ― although the mandate letter does not require the Minister to actually bring forward legislation to implement it, but only to ensure that it is explored, along with other reforms to the democratic process, by a Parliamentary committee. The second is the demand that the Minister “[r]eview the limits on the amounts political parties and third parties can spend during elections, and propose measures to ensure that spending between elections is subject to reasonable limits as well.” Here too, we do not know what proposals might result from this agenda item, but there is a good chance that they will further curtail the already limited ability of “third parties” ― that is to say, citizens and organizations that are part of civil society ― to express their political views.

Since we do not yet have any specific policies to consider, I will not engage in a full analysis of either of these proposals, but the constitutional difficulties that they raise are still worth briefly highlighting. While we lack definitive guidance from the Supreme Court on many of the key issues, so that it is impossible to assert that these proposals are indeed unconstitutional, these difficulties serious, and would be sure to trigger litigation.

The constitutionality of mandatory voting is very questionable indeed. As I have argued here (and in greater detail over on my own blog, Double Aspect) the arguments in favour of even a moral duty to vote cannot stand up to scrutiny. An attempt to enshrine such a duty into law could be challenged as contravening section 3 of the Canadian Charter of Rights and Freedoms, which provides that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons” (emphasis mine). As a textual matter, there is a strong argument to be made that, just as the right to freedom of expression encompasses a right to remain silent, and the right to freedom of religion encompasses a right not to hold, or not to express, religious views, the right to vote encompasses a right to abstain. If that argument prevails, the government would have to justify its infringement so as to show that it is “demonstrably justified in a free and democratic society.” As there are no compelling arguments in favour mandatory voting, the government may be unable to do so.

The prospect of a lowering of election spending spending limits and, even more so, of the imposition of spending limits between elections is even more disquieting. Now, I don’t suppose that there could be any constitutional objection to reversing a rule change introduced by the Harper government that allowed election spending limits to be raised for campaigns longer than the usual 37 days. (Whether such a reversal would be a good idea, I am not sure.) In addition, it may well be possible to lower the parties’ spending limits during election campaigns, at least to some extent, without raising constitutional concerns. (Again, I do not know whether this would be a good idea, on policy grounds. I am pretty skeptical.) Lowering the limit on what “third parties” are allowed to spend would be more problematic. The current limits were upheld by a divided Supreme Court in Harper v. Canada (Attorney General), in 2004. As the dissent in that case pointed out, these limits are already so low as to make it impossible for a “third party” to engage in a meaningful nation-wide advertising campaign. It is not clear that the Court would allow these limits to be further decreased.

But the most constitutionally suspect, not to mention disturbing, part of Ms. Monsef’s mandate would be an introduction of spending limits outside the election period. Now, it is not quite clear whether Mr. Trudeau wants between-elections spending limits to be imposed only on political parties or on third parties as well. While I am not at all sure that this is the case, it might be easier to justify the imposition of such limits on political parties than on “third parties.” With respect to the latter, it is important to note that in Harper, the majority judges defended low spending limits during the election period by pointing to “the fact that third party advertising is not restricted prior to the commencement of the election period. Outside this time, the limits on third party intervention in political life do not exist. Any group or individual may freely spend money or advertise to make its views known or to persuade others.” Rightly or wrongly, the Harper majority believed that spending restrictions in the short period were an acceptable price to pay to secure to fairness of the electoral process. But it is doubtful that they would have accepted the extension of these limits beyond the duration of an election campaign. More recently, the British Columbia Court of Appeal twice ruled that the imposition of spending limits on “third parties” for the duration of a (still limited) “pre-campaign period” was unconstitutional. (I reviewed the second of these decisions over at my blog.)

It is important to appreciate just how far-reaching an attempt to control “third party” spending between elections would be. It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

It is still the early days of Mr. Trudeau’s administration, and one can still hope for the best. So here is hoping that he and his Minister for Democratic Institutions take constitutional concerns seriously, and not try to undermine our democratic rights and freedom of expression in the name of democracy.