The Figueroa v. A-G of Canada case: The Communist Party’s legal Challenge to Anti-Democratic Aspects of the Canada Elections Act

After a thirteen-year legal and political struggle against various anti-democratic aspects of the Canada Elections Act, the Central Executive of the Communist Party of Canada announced in July 2006 that a final settlement with the federal government had been reached.

The case, Figueroa v. Canada (Attorney General), 1 S.C.R. 912, continues to be a leading Supreme Court of Canada decision. The ruling pertains to the right to participate in a federal election under section 3 of the Canadian Charter of Rights and Freedoms, which re-defines the role of small parties, and Canadian Parliamentary democracy. It was a significant victory for democracy and has impacted on the rights and freedoms of all Canadians to free political expression and free political association.

Background – democracy under attack

The Communist Party of Canada is the only political party in Canada to have consistently suffered from anti-democratic measures imposed by the Canadian state and ruling class since its creation. Each time an attack on the Communist Party has been launched, it has had broader implications for the struggle of the working class and peoples of Canada; and each time a public fight back has successfully confronted such measures, it has marked a major victory for democratic rights and freedoms in Canada.

Discussions to organize a Communist Party in Canada began in 1919, but were frustrated when many of the initial organizers were thrown in jail. Nevertheless, the CPC was founded three years later in a barn near Guelph, Ontario, under conditions of illegality. Despite the First World War being long over, the War Measures Act was still in effect. The legislation’s anti-democratic reach had actually been expanded by parliament in response to the October Socialist Revolution in Russia. The Communist Party of Canada therefore operated openly as the Worker’s Party of Canada. In 1924, after a successful public campaign, the War Measures Act was lifted and the party was legalized.

On August 11, 1931, however, the R.C.M.P. again carried out simultaneous raids upon party offices and the homes of party leaders in various parts of the country.  From 1931-1936 the Communist Party was banned under Section 98 (s. 98) of the Criminal Code of Canada (another anti-democratic law enacted after the Winnipeg General Strike banning “unlawful associations.”) In jail there were attempts to assassinate the General Secretary of the Party at the time, Tim Buck.

A massive public campaign resulted in the over-turn of the legislation and the release of the prisoners.  The freedom was relatively short-lived however; in 1939 the government brought-in the mis-titled Defense of Canada Regulations and the next year the Party was banned again because of its anti-war stance.  Members of the Communist Party were interned in camps, later Party offices were locked. Again a massive public campaign resulted in the release of the internees and the creation of a legal political party under the name Labour Progressive Party of Canada (LPP).

However, it was not until the 1950s that the Communist Party was again able to run under its own name in elections (during this time it had elected two members to the Federal Parliament under the Labour Progressive and Progressive Farmer banners, who both tabled legislation to protect civil and democratic rights in Canada). In 1956 the legal barriers to the Communist Party operating openly were lifted. In 1957 the Party organized a legal challenge of the Padlock laws of Quebec, which were struck down in a Supreme Court ruling. At Convention in 1959, the LPP renamed itself the CPC.

But throughout the 1950s, 60s, 70s and 80s the Party faced more challenges including RCMP surveillance, exposed in a public inquiry that shocked Canadians. In a notorious period in Canadian history, Party offices were bugged, members were harassed, and Communist labour activists were expelled from their unions. The Communist Party bravely resisted this intimidation which was not only directed toward it but also against peace forces and the left in general. Despite major set-backs during the Cold War the Party successfully grew and became an active force in the struggles of Canadians and in the labour, peace and women’s movements.

From the Communist Party’s perspective, as a revolutionary party these attacks are understandable but not acceptable.  As the Party observed recently:

Our policies and strategy have the potential to bring down governments, and change the direction of Canada. When these liberating ideas and demands are taken up by the masses of the people, they become a material force for change. This is why the ruling class and the state loathe socialist ideas, and will do everything possible to blunt the growth of the left forces, and especially the Communist Party.

Opportunist currents within the working class and left forces draw a different conclusion, and these perspectives were particularly strong in the late 1980s and early 1990s with the crisis in the communist and socialist movements associated with the counter-revolution in the Soviet Union and the socialist countries. After a decisive internal debate, those advocating for the liquidation of the Communist Party departed — but not before a cabal of former leaders of the Party, and some self-seeking individuals outside our ranks, conspired to seize a substantial portion of the Party’s assets. A major printing house, offices, and bookstores, were effectively shut down, sold and the revenue stolen. The  internal battle left the Party in the early 90s facing reduced members, staff and resources, as well as the serious challenge of re-organization of all offices, membership records, and daily operations.

The 1993 changes in the Federal election act thus occurred after along-standing anti-democratic attacks, as well as a junction within the Party’s history where it was facing significant organizational challenges.  This underscores the determination of the Party at this time.

The 1993 changes to the election act

In spring 1993, on the eve of a federal election, the Mulroney Conservative government passed serious amendments to the Canada Elections Act. Following the election, the Communist Party of Canada was the first of the small parties to be tripped of its money and assets, to be denied the rights to spend or collect money, to be identified on the ballot and the hustings during elections, to purchase advertising and to participate in public debates during elections, to broadcast, televise or publish.

The Mulroney Conservative’s changes to the Elections Act stripped political parties of their federal registered status that failed to field 50 or more candidates in the general elections held that year. The most shocking amendment to Section 31 of the Elections Act put new penalties into previous sections on the de-registration of parties. Parties which had previously been registered (such as the CPC) but then lost that status (by nominating less than 50 candidates), were forced to liquidate all their assets, pay off all outstanding bills, remit any balance to the Receiver General and, for all intents and purposes, shut down.

De-registered Parties could not list their name next to their candidates on the ballot.

Another undemocratic amendment raised the deposit to nominate a federal candidate from $200 up to $1,000. This forced small parties to raise $50,000 just to nominate the 50 candidates required to reach or maintain their registered party status. Only half of that deposit ($500) was refundable to all candidates who completed their post-election paperwork properly, though the process takes four to five months. A portion of the remaining $500 was refundable to candidates receiving over 15% of the vote in their ridings, i.e., normally just candidates of “major parties.”

For the Communist Party, this meant that as of Sept. 27, 1993 – nomination day for that year’s federal election – the party could not spend a penny on the campaigns of its eight nominated candidates. The CPC was given six months to wind up its financial affairs, turning over $1,113 to the federal government at the end of that period.

The amendments were passed with little debate by the House of Commons in April 1993, with the support of all parties represented at that time: Tories, Liberals, NDP, and Bloc Quebecois. When the CPC attacked the amendments during the federal election later that year, a number of NDP and Liberal MPs stated that they had not been aware of the full impact of C-114, and backed calls to change the Act.

However it was left to the Communist Party to actually fight those draconian provisions of the Act which attacked the rights of smaller political parties to function in Canada. It launched public campaign and a formal Charter challenge to the provisions through the courts. Because political parties had no legal standing under the law at the time, the challenge was undertaken by CPC leader Miguel Figueroa on behalf to the Party and its members cross Canada.

Battle for public opinion

A political campaign began soon after the legislation was passed, in the 1993 federal election. Importantly, the decision was made not to limit the fight to members and friends of the Communist Party, or those to the left, but to include all defenders of democratic rights. An Ad Hoc Committee for the Repeal of Section 31 launched a cross-Canada petition which gathered thousands of names. The Committee was sponsored by a wide range of leading figures in the labour and social justice movements, and by prominent Communists, NDPers, Liberals, Greens and even Reformers.

Hundreds of people across the country, including many with political outlooks different from the CPC, made generous donations towards legal costs of the case.  Rallies were held outside the court house.  Thousands of Canadian citizens, and many organizations, signed petitions, passed resolutions, wrote letters, and sent telegrams in opposition to the draconian legislation. The Communist Party received letters of support from progressive groups around the world.

The broad campaign was able to break the media silence. Several major newspapers, including the Globe and Mail and the Vancouver Sun, carried editorials against the legislation.

The campaign shamed the politicians who had been silent in 1993.  After the first legal victory, the same message was given at a news conference on Parliament Hill by Communist Party leader Miguel Figueroa, along with NDP MP Libby Davies (Vancouver East), Reform Party MP Ted White (North Vancouver), independent MP John Nunziata (York South-Weston), and a representative of the Green Party of Canada.

Landmark decisions in Court

A number of landmark court rulings on the Figueroa v. the Attorney-General of Canada case ordered the federal government to amend election legislation on four separate occasions. Throughout the many cases, Figueroa and the Party were represented by solicitor Peter Rosenthal of Roach, Schwartz & Associates.

A few weeks before the June 1997 federal election, Justice Anne Molloy ruled that Miguel Figueroa should be allowed to have his party affiliation on the ballot in Toronto’s Davenport riding where he was a candidate, but that ruling was struck down by an appeal court. The full legal case, presented by the party’s attorney, Peter Rosenthal of Toronto, was finally heard by Justice Molloy in January 1998, with her ruling handed down fourteen months later.

On March 10, 1999, Madame Justice Molloy of the Ontario Court (General Division) declared several sections of the Canada Elections Act to be unconstitutional.

Her decision concluded that:

• First, it is unconstitutional to require that a party nominate 50 candidates to remain registered; nomination of two candidates is sufficient.
• Second, it is unconstitutional to require that 15% of the vote be obtained in order to get a portion of the deposit refunded.
• Third, it is unconstitutional to deny candidates of parties that fail to field 50 candidates the right to have their party identified on the ballot.
• Fourth, it is unconstitutional to liquidate a party’s assets for failure to nominate 50 candidates.

The federal Liberals appealed only one part of Madame Justice Anne Molloy’s March 10 ruling. As a result, the mandatory seizure of assets of deregistered federal parties became a thing of the past, and the $1,000 deposit for candidates is now fully refundable in future elections, not just $500.

The deposit ruling alone was strongly beneficial to other smaller parties like the Green Party, for example, who reduce its expenses by tens of thousands of dollars.

However, on April 8, 1999, precisely at the thirty day limit, the Liberals filed a notice of motion to appeal the third major element of the Molloy judgement: her ruling that parties be required to nominate just two candidates, not 50, to become registered and to have the affiliation of their candidates on the ballot.

The fight continues

The Communist Party said the appeal was an admission by the government that the stricken sections of the Act were indefensible from any point of view and vowed to continue the challenge. ”Continued efforts to bleed us financially and to prevent us, and all of the small parties, from participating in the political life of the country, will not dissuade us from pursuing such fundamental rights,” Party leader Miguel Figueroa told the media.

The case then proceeded to the Ontario Court of Appeal. In 2001, the Court of Appeal rendered a split decision, holding that while in its opinion the 50-candidate rule itself was constitutional, it was unconstitutional to fail to provide the party identifier on the ballot, as this denied important information about candidates to electors when completing their ballot. The Court instructed Parliament to establish a lower threshold in such cases. Following this ruling, Parliament again amended the Act to set a 12-candidate threshold for the party identifier, meaning that parties fielding at least 12 candidates in a general election would have the party name included on the ballot next to their candidates’ names.

Then the Party sought to appeal this judgement to the Supreme Court of Canada, arguing that the ruling of the Ontario Court of Appeal was flawed in interpreting the Charter of Rights and Freedoms, and that the 50-candidate rule did in fact constitute discrimination against smaller parties under the Charter. The Supreme Court granted leave to appeal this important constitutional case, which was then argued before the SCC in 2002.

Mister Justice Iacobucci, writing for the majority, stated that section 3 protects not just the right to vote but also provides the right of every citizen to participate in politics. The right ensures that each citizen can express an opinion about the formation of the country’s public policy and the country’s institutions. However, Iacobucci noted that section 3 does not protect unlimited participation. Rather it protects:

the right of each citizen to play a meaningful role in the process; the mere fact that the legislation departs from absolute voter equality or restricts the capacity of a citizen to participate in the electoral process is an insufficient basis on which to conclude that it interferes with the right of each citizen to play a meaningful role in the electoral process

For a violation to be found there must be a prohibition against “meaningful” participation.

See the full ruling here.

“This decision,” the Party said, “is not only a vindication of all that we have had to go through as a result of our de-registration in 1993, the seizure of our Party’s assets, and so on. It is also a victory for all smaller parties who have had to face the discriminatory and draconian aspects of the Canada Elections Act, especially newer political parties and those – like ourselves – that are working class and grass-roots parties which are not reliant on, nor receive the support of powerful financial and corporate interests.  Most of all, this decision is a victory for the principles of democracy itself, and the right of all Canadians, regardless of their political and ideological views and beliefs, to express those views through the electoral process, to come together to form political parties to advance those shared beliefs, and to participate in the political life of the country without undue hindrance and discrimination.”

The final step and more challenges

The final step in the legal process related to financial compensation for losses suffered by the CPC resulting from its unconstitutional de-registration. After some consideration, it was agreed by federal government and the CPC to reach an out-of-court settlement of this outstanding claim.

The key section of the settlement reads: “To avoid further costs for both parties and to bring this matter to a close after 13 years of litigation, the action for damages started by Miguel Figueroa on behalf of the Communist Party of Canada has been settled by the parties for the amount of $65,000. The settlement does not in any way constitute an admission of fault or liability on the part of the Government of Canada.”

“From our point of view, the terms of the settlement are very modest, considering the amount of time, energy and resources we have put into this epic legal battle over the years, not to mention the financial costs incurred in the form of forgone donations that we did not receive during the period of our de-registration,” Figueroa said in announcing the settlement. ”But we did not undertake this struggle to seek financial reward,” he added. “It was never about the money – it was about defending the democratic rights of our Party, and those of other small parties in this country. Our successful struggle marks a significant victory in the ongoing battle to defend and extend democracy in Canada.”

The party subsequently spear-headed a coalition of smaller parties including the Canadian Action Party, the Marijuana Party, and the Green Party, to challenge a law that provides registered federal parties with $1.75 annually for each vote they received in the previous federal election — but only if the party won more than two per cent of the total vote, or whose candidates received five percent in particular ridings. On Oct. 12, 2006, Ontario Superior Court judge Ted Matlow struck down the discriminatory 2% threshold clause, based on the historic and precedent-setting Figueroa case. However, the Matlow decision was subsequently overturned by the Ontario Court of Appeal.

The Figueroa case is the only Canadian litigation on record that has been responsible in forcing the government to amend legislation on four separate occasions.