Since this a long term issue, I have decided to make this a page.

The Constitution and Discrimination Against Independent Candidates

The Canadian Charter of Rights guarantees that all citizens are eligible for membership in the House of Commons.

S. 3 Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

One would think that eligibility for membership in the House would include the right to campaign and otherwise “market” oneself in a campaign. These rights should be without discrimination.

S. 15 of the Charter of Rights (the Equality Rights section) reads as follows:

“15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The right to equality, non-discrimination and equal protection are general rights. The specific grounds listed are for the purposes of example and reinforcement with respect to those grounds. It is interesting that the first course the Supreme Court of Canada decided under S. 15 was based on citizenship discrimination and NOT based on one of the enumerated grounds.

Therefore, given fact that the right to eligibility for membership in the House of Commons is a constitutionally protected right, any sort of discrimination in relation to campaigns should attract S. 15 scrutiny.

Possible Grounds Of Discrimination:

At least two Independent candidates (Kirk Schmidt and Bill Casey) have explained how the financing provisions of the Elections Act treat Independent candidates differently from party candidates.

The legal question should include:

Do the financing provisions (and any other provisions) of the Canada Elections Act treat Independent candidates differently form party candidates in a manner that constitutes a violation of S. 15 of the Canadian Charter of Rights?

If so, can the difference in treatment be justified under S. 1 of the Charter of Rights because it is the kind of discrimination that can be demonstrably justified as being necessary in a free and democratic society? It seems unlikely to me that laws that burden Independent candidates (and therefore burden the democratic process) could be justified as necessary in a free and democratic society!

Who knows? Time may tell!