Greens and MT v United Kingdom [2010] ECHR 1826 (23 November 2010)

The European Court of Human Rights recently considered the United Kingdom’s continued failure to amend legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the UK.  The Court had considered the same issue five years earlier in Hirst v United Kingdom (No 2), but the UK Government had not taken steps to implement the judgment in that case.  In Greens and MT v United Kingdom, the Court applied its ‘pilot judgment’ procedure and gave the UK Government six months from the date the decision becomes final to amend its legislation and remove the blanket ban.

Facts

Prisoners have been prohibited from voting in elections in the UK since 1870.  This blanket ban is currently set out in s 3 of the Representation of the People Act 1983 (UK) (the RP Act), which provides that ‘[a] convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local election.’  Section 8 of the European Parliamentary Elections Act 2002 (UK) extends this prohibition to elections for the European Parliament.

Article 3 of Protocol No 1 to the European Convention on Human Rights states that ‘[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’

In 2005, in Hirst, the European Court held that the UK’s blanket ban on prisoners’ voting rights violated Article 3 of Protocol No 1 to the Convention.  In 2007, in Smith v Scott, the Scottish Registration Appeal Court considered Hirst and concluded that s 3 of the RP Act could not be read down in accordance with section 3(1) of the Human Rights Act 1998 (UK) in a way that would make it compatible with the Convention.  The Scottish Registration Appeal Court therefore made a declaration of incompatibility under s 4 of the HR Act in relation to s 3 of the RP Act.

In November 2010, despite formal urging from the Council of Europe’s Committee of Ministers in the lead-up to the 2009 European Parliament elections and the 2010 UK general election, the UK Government had not removed the blanket ban on prisoner’s voting rights.

The applicants in Greens and MT had been detained in prison at the time of the 2009 European election and the 2010 UK election, and had been refused enrolment on the electoral register in respect of both elections.  The applicants applied to the European Court, arguing that the UK had violated art 3.

Decision

Unsurprisingly, given that the same rights had been considered in relation to the same legislation in Hirst five years earlier, the Court concluded that s 3 of the RP Act violated art 3 of Protocol 1 to the Convention.

The more interesting aspect of the European Court’s decision in Greens and MT was its treatment of the UK Government’s continued failure to amend the RP Act.  Under art 46 of the Convention, all Council of Europe member states are obliged to implement appropriate measures to protect rights which the Court finds to have been violated.  In order to facilitate this process, the Court may adopt a ‘pilot judgment procedure’, allowing it to:

• identify the existence of structural problems underlying the violations at issue in a case;
• indicate specific measures or actions to be taken by the responsible state to remedy those violations; and
• resolve large numbers of individual cases arising from the same structural problems at a domestic level.

At the time that Greens and MT was decided, there were approximately 2500 applications before the European Court involving complaints about s 3 of the RP Act.  At any one time, there are approximately 70,000 serving prisoners in the UK — all of whom could potentially apply to the Court while the blanket ban on prisoner’s voting rights remains in force.  Given the potential volume of future applications, the Court noted that the UK Government’s continued failure to amend the RP Act was not just a contravention of its obligations under the Convention — it also represented a ‘threat to the future effectiveness of the Convention machinery’.

The Court did not consider it appropriate to recommend specific measures for the UK Government to take in relation to the violation of art 3, instead noting that:

The Court’s role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight.

However, while the Court did not consider it appropriate to specify the content of future legislation, it did set out a timetable for compliance — ordering the UK Government to introduce legislative proposals to amend s 3 of the RP Act within six months of the date on which the Court’s decision in Greens and MT became final.  In light of this deadline, the Court concluded that there was no justification for continuing to examine every application asserting that s 3 of the RP Act violated art 3 of Protocol 1 to the Convention.  Noting that the only effective remedy in any of those cases was the amendment of s 3 of the RP Act, the ECHR decided to:

• discontinue its examination of pending applications raising arguments similar to those in Hirst; and
• suspend the treatment of all applications not yet registered and all future applications raising such arguments.

Relevance to the Victorian Charter

Section 18 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) protects the right to vote and the right to participate in the conduct of public affairs.  However, following the High Court’s decision in Roach v Electoral Commissioner (2007) 233 CLR 162 that a blanket ban on prisoner’s voting rights is unconstitutional in Australia, it seems unlikely that any Australian jurisdiction would attempt to introduce a provision equivalent to s 3 of the RP Act.

The Charter contains no real equivalent to the European Court’s pilot judgment procedure.  Sections 33, 36 and 37 of the Charter allow the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and to require the relevant Minister to respond to that declaration.  However, the Minister is only required to prepare a written response to the declaration, and is not required to take any other action to remedy the inconsistency.  Further, a declaration of inconsistent interpretation does not affect the validity, operation or enforcement of the statutory provision in question.

It is not yet clear what approach the UK Government will take to amending s 3 of the RP Act.  Future decisions considering the adequacy of the UK Government’s amendments — both from the European Court and the UK courts (under the HR Act) — are likely to be relevant in Australia, particularly given that the High Court in Roach left open the possibility of restrictions on prisoner’s voting rights which did not amount to a blanket prohibition.

The decision is at www.bailii.org/eu/cases/ECHR/2010/1826.html.

Mark Hosking is a Lawyer with Allens Arthur Robinson

Henry v Canada (Attorney General), 2010 BCSC 610 (4 May 2010)

This case concerned the constitutional validity of voter identification rules, which require electors to provide proof of their identity and residence in order to vote in Canadian federal elections.  The Supreme Court of British Columbia found that the relevant provisions of the Canada Elections Act (‘the Act’) were inconsistent with the right to vote guaranteed under s 3 of the Canadian Charter of Rights and Freedoms (‘the Canadian Charter’).  However, the Court held that the Act constituted a reasonable limitation on this right, prescribed by law and demonstrably justifiable in a free and democratic society, pursuant to s 1 of the Canadian Charter.

Facts

Voter identification rules were introduced into the Act following a 2005 report by the Chief Electoral Officer of Canada (‘CEO’) on the 2004 general election, and a 2006 report by the House of Commons Standing Committee on Procedure and House Affairs.  The Committee’s report identified the potential for electoral fraud and error as a key concern for the integrity of the electoral process.  Implementing the Committee’s recommendations, the Canadian Government amended the Act to include a requirement that electors present forms of acceptable identification to establish their identity and residence, or swear an oath to be vouched for by another elector, before being permitted to vote.  These provisions came into force in June 2007.  At the time of judgment, they had governed the conduct of seven by-elections and one general election.

The plaintiffs were three Canadian citizens and registered electors who were directly affected by the legislative amendments.  Two were advocates for homeless persons and drug users on the exercise of their right to vote, and one an elderly visually impaired person with an active interest in government and public policy.  The plaintiffs argued that the voter identification requirements imposed an infringement on the right to vote.  They sought:

• a declaration that ss 143(2)-(7), 148.1(1), 161(1), (6) and (7) and 169(2) of the Act were contrary to section 3 of the Canadian Charter, could not be saved by s 1 of the Canadian Charter and were void and of no effect, due to s 52(1) of the Constitution Act 1982; and
• an order that the CEO not apply the amended voter identification rules in elections for the Canadian Parliament.

The Attorney-General of Canada, as defendant in the proceedings, contended that the legislative amendments did not interfere with or restrict the right to vote, but rather safeguarded and enhanced this right, by improving the integrity and equality of the electoral system.  The Attorney-General’s alternative submission was that the requirements were ‘reasonable limits’ on the s 3 Canadian Charter rights within the meaning of s 1 of the Canadian Charter.

Decision

Infringement of the plaintiffs’ rights

The Court described the right to vote in s 3 as a ‘core element’ of the Canadian Charter and ‘foundational to democracy’.  It held that this provision, which cannot be overridden by legislation, ‘must be given the most liberal and generous interpretation consistent with its purpose’.  However, the Court recognised that some limitations on electoral rights are ‘inherent’ in the language of s 3, such that these rights guarantee meaningful, but not unlimited, participation.

The focus of the Court’s attention was s 148.1(1) of the Act, which denies an elector permission to vote if they fail to prove their identity and residence.  Significantly, disenfranchisement for failure to comply with a procedural requirement distinguished the present case from cases in which the very purpose of the provisions was to disenfranchise specific groups of citizens based on their identity.  The Court observed that the s 3 voting rights possess both positive and negative characteristics, protecting citizens against legislation which removes the right to vote, and requiring governments to create mechanisms enabling the effective exercise of the right.

Section 148.1(1) was found to limit access to the right to vote to those who cannot satisfy the identification requirements.  On this basis, the Court concluded that s 148.1(1) was on its face inconsistent with the s 3 Charter guarantee, as it interfered with ‘the capacity of each citizen to play a meaningful role in the electoral process’.  In addition, the plaintiffs were able to establish that this provision in its effect infringed s 3 of the Canadian Charter.  The Court stressed that ‘being denied a ballot is an irretrievable deprivation’, and constituted ‘more than a trivial interference’ with voting rights.

The voter identification requirements as reasonable limitations on the right to vote

Section 1 of the Canadian Charter guarantees rights and freedoms ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.  The Attorney-General of Canada bore the onus to establish, on the balance of probabilities, that the impugned provisions of the Act constituted a reasonable limit on the right to vote protected by s 3 of the Charter.

The Court held that a degree of deference to Parliament was warranted, taking into account the difficulty of measuring the harm involved in voter fraud and error.  The defendant’s asserted objectives for the impugned provisions were (a) to protect the integrity of the right to vote; and (b) to maintain public confidence in the integrity of the electoral system.  The Court agreed that these were both ‘pressing and substantial’ objectives, and thus capable of justifying limitations on the right.

Whilst the evidence revealed no history of systemic electoral fraud in Canadian federal elections, the Court concluded that the legislation greatly reduced the potential for fraudulent or mistaken voting, and enhanced public confidence in the integrity of the electoral process.  Conversely, the Court accepted the inference that the voter identification requirements had acted as a deterrent for a ‘small number’ of Canadians, particularly the economically disadvantaged, seniors, disabled and those in rural/remote areas.  However, there was no clear evidence that any individual citizen had in fact been prevented from voting as a ‘sole result’ of the requirements, or that they had generated ‘declining faith in democracy’.

Balancing these effects, the Court held that the provisions were proportionate, with the legislation’s ‘salutary effects’ outweighing the ‘very modest’ actual or potential deleterious effects, which amounted to a ‘minor inconvenience for a minority of electors’.

Relevance to the Victorian Charter

In Victoria, there are currently no proof of identity or residence requirements for voting in local and state elections.  Were such requirements to be introduced, the Henry decision may guide the Supreme Court in its interpretation of s 18(2)(a) of the Victorian Charter (‘Taking part in public life’), which provides that ‘Every eligible person has the right, and is to have the opportunity, without discrimination to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors’.

The wording of section s 7(2) of the Victorian Charter, which addresses circumstances in which human rights may be limited, is almost identical to that of s 1 of the Canadian Charter. It provides for ‘such reasonable limits as can be demonstrably justified in a free and democratic society’.  Thus, the Victorian Supreme Court may adopt the purposive approach taken by the Court in Henry if it were to examine the compatibility of legislative provisions affecting electoral rights with the right to vote protected under the Victorian Charter.

Further, in the recent case of R v Momcilovic [2010] VSCA 50 (17 March 2010), the Victorian Court of Appeal held that interpretation of legislation in accordance with the Victorian Charter human rights framework, as provided by ss 32(1) and 7(2), required that ‘all possible interpretations of the provisions in question’ be explored, and that an interpretation be taken which ‘least infringes Charter rights’.  This approach sees Victorian law accord with the Canadian Henry decision, which found that Canadian statutory provisions are to be interpreted so as to maximise the realisation of Charter rights.

The decision is available at www.courts.gov.bc.ca/jdb-txt/SC/10/06/2010BCSC0610.htm.

Georgina Dimopoulos is a Law Graduate with Allens Arthur Robinson

Poverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5 (24 February 2010)

In Poverty Alleviation Network (‘Matatiele 3’) the Constitutional Court of South Africa effectively held that constitutional obligations owed by South African legislatures to facilitate public involvement are obligations of process rather than outcome.  Thus, so long as the public has been given a reasonable opportunity to give its views or opinions to the legislature in relation to its legislative or other processes, and the legislature has given them due consideration, there is no requirement that the legislature follows or gives effect to such views in performing its functions. 

Facts 

Matatiele 3 is the final part of a series of South African cases in relation to the transfer of the Matatiele Municipality from the KwaZulu-Natal Province to the Eastern Cape Province.  In brief, the establishment of the post-Apartheid Republic of South Africa involved the establishment of provinces (as principal sub-federal units) and municipalities (local government).  The boundaries of provinces were drawn up on a different basis to those of municipalities, leading to certain cross-boundary jurisdictional issues.  The Matatiele Municipality was not strictly a cross-boundary municipality but suffered similar issues as what the South African government termed a ‘cross-boundary jurisdictional enclave’. 

In 2005, the Twelfth Amendment Act was passed to amend the South African Constitution, altering provincial boundaries so as to rectify the issues that had arisen in relation to cross-boundary municipalities and the Matatiele Municipality.  Under the South African Constitution, such a constitutional amendment requires a special majority vote in each of the National Assembly (the lower house) and National Council of Provinces (‘NCOP’ – the upper house) and, where the amendment only concerns certain provinces, the Legislatures of those provinces must each approve the amendment.  The required votes in favour of the amendment were obtained including the approval of the KwaZulu-Natal and Eastern Cape Legislatures.

In Matatiele Municipality & Ors v President of the Republic of South Africa & Ors [2006] ZACC 2 and Matatiele & Ors v President of the Republic of South Africa & Ors (No 2) [2006] ZACC 12 the Matatiele Municipality and other organisations and groups contested the validity of the constitutional amendment (insofar as it applied to the Matatiele Municipality).  It was contended that the KwaZulu-Natal Legislature, prior to its approval of the Twelfth Amendment Bill, had not facilitated adequate public involvement in the legislative process in accordance with the South African Constitution.  It was common ground that the KwaZulu-Natal Legislature had not held any public hearings in relation to the Twelfth Amendment Act.  Therefore, the Constitutional Court held in 2006 that the Twelfth Amendment Act, insofar as it applied to the Matatiele Municipality, was invalid. 

In mid-May 2007, the federal government announced that it intended to bring a constitutional amendment in order to effect the alterations to provincial boundaries which had been struck down in 2006.  At the federal level, the Minister for Justice and the relevant parliamentary committees each separately invited written submissions in relation to the proposed amendment.  At the provincial level, a number of town-hall meetings and hearings at the KwaZulu-Natal Legislature were held in October 2007.  The Thirteenth Amendment Bill was subsequently passed in December 2007.  In 2008, Matatiele 3 (the present case) was brought, to contest the validity of the Thirteenth Amendment Act. 

Decision

Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the South African Constitution require the National Assembly, the NCOP and each Provincial Legislature, respectively, to ‘facilitate public involvement in the legislative and other processes of the legislature and its committees’.

The applicants’ principal contention was that, whilst the Parliament and the KwaZulu-Natal Legislature had ostensibly facilitated public involvement in relation to the Thirteenth Amendment Bill, they did not properly consider the submissions made by residents of the Matatiele Municipality and their representatives ‘but merely went through the motions in inviting submissions and arranging public meetings so as to secure constitutional compliance of the outcome of the process’.

Nakbinde J, with whom the other Justices concurred, noted that in determining whether the facilitation of public involvement was adequate for the purposes of the South African Constitution:

[T]his court’s role is to embark on a reasonableness enquiry so as to determine whether ‘there has been the degree of public participation required by the Constitution.’  Striking a balance between the need to respect parliamentary autonomy on one hand, and the right of the public to participate in the legislative process on the other, is crucial.

Nakbinde J then quoted Doctors for Life International v Speaker of the National Assembly & Ors [2006] ZACC 11 where it was held that ‘in determining whether what Parliament has done is reasonable, this Court will pay respect to what Parliament has assessed as being … appropriate…’

Nkabinde J, held, as a matter of fact, that representations made in relation to the proposed constitutional amendments by residents of the Matatiele Municipality were duly considered by the relevant legislatures and did not comment further as to the lack of good faith that the applicants had alleged.  Having made this finding, she continued:

[T]he applicants’ argument suggests that compliance with the Constitution depends on the outcome of the participation, which must have an impact on the final decision.  Although due cognisance should be taken of the views of the populace, it does not mean that Parliament should necessarily be swayed by public opinion in its ultimate decision.  Differently put, public involvement and what it advocates do not necessarily have to determine the ultimate legislation itself. 

The fact that the process of engagement is not reflected in a change to the legislation, or in the accommodation of the representations submitted to Parliament, does not necessarily mean that reasonable public participation did not take place or that the views of the public were not considered.

For these reasons, Nkabinde J held that the Thirteenth Amendment Act had been passed in accordance with the Constitution. 

Relevance to the Victorian Charter

This decision provides useful guidance for the interpretation of s 18 of the Victorian Charter – the right to take part in public life. 

Section 18 of the Charter is itself modelled on art 25 of the ICCPR, which enshrines the right of persons to participate in public affairs, including in decision making processes that affect them.  In a General Comment on art 25, the Human Rights Committee has highlighted that special strategies and measures may need to be developed to facilitate the meaningful participation of people who are disadvantaged or have special needs (such as people who are homeless or people with disability): General Comment No 25, [9]-[21]. 

The present decision highlights the difficulty for courts in enforcing the right to public participation in terms of substantive legislative outcomes rather than in terms of due process and procedure.  It must be noted that the South African Constitution enshrines this concept as a positive obligation upon the legislature to facilitate public involvement in the legislative process rather than a general right of the individual to take part in public life. 

The decision is available at www.constitutionalcourt.org.za/site/PovertAlleviation.htm. 

John Leung is a lawyer with Allens Arthur Robinson

Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 (10 July 2009)

The Canadian Supreme considered advertisements on public buses and held that a policy prohibiting political advertisements amounted to a breach of the right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms.

Facts

The Canadian Federation of Students and the British Columbia Teacher’s Federation had each tried to place political advertisements on the side of buses. 

The Greater Vancouver Transportation Authority and British Columbia Transport had advertising space available, but each had a policy of refusing to place political advertisements. 

The unions brought an action on the basis that the policies violated their right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms.  The trial judge dismissed the action but, on appeal from the unions, the Court of Appeal reversed the trial judgment.  The Transit Authorities appealed to the Supreme Court of Canada.

Decision

Justice Deschamps delivered the reasons for judgment on behalf of the majority.  Her Honour noted that the first issue for consideration was whether the Transit Authorities were subject to the Charter, and said:

…there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. … If an entity is not itself a government entity, but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.

Given that both Transit Authorities ran public buses, the court had no difficulty in finding them to be ‘governmental’ for the purposes the Charter.

With respect to the s 2(b) right to freedom of expression, her Honour considered previous cases and noted the Court’s broad and purposive approach to the interpretation of rights.  She said:

An activity by which one conveys or attempts to convey meaning will prima facie be protected by s 2(b)… Furthermore, the Court has recognised that s 2(b) protects an individual’s right to express him or herself in certain public places … Therefore, not only is expressive activity prima facie protected, but so is the right to such activity in certain public locations.

In determining if the Transit Authorities’ policies infringed s 2(b), Deschamps J considered the application of the City of Montreal case (2005 SCC 62), which said that the questions to be asked were: First, do the Unions’ advertisements have expressive content that brings them within the prima facie protection of s 2(b)?  Second, if so, does the method or location of this expression remove that protection?  Third, if the expression is protected by s 2(b), do the Transit Authorities’ policies deny that protection?

Her Honour suggested that the first and third questions were uncontroversial, but noted that the second question raised issues as to whether buses could be said to be a location that removed the protection of freedom of speech in relation to political advertising.  Her Honour said:

Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings.  Thus, rather than undermining the purpose of s 2(b), expression on the sides of buses could enhance them by furthering democratic discourse…

Accordingly, the majority held that the policies infringed the Unions’ right to freedom of expression.  They then examined whether the limitation was reasonable under s 1 of the Charter.  Specifically, whether the policies were ‘prescribed by law’ and ‘demonstrably justified in a free and democratic society’.

Justice Deschamps noted that the ‘prescribed by law’ requirement safeguards the public from arbitrary limits on Charter rights being imposed by the state.  Her Honour noted that the Court takes a broad approach to what constitutes ‘law’, and said policies could be considered ‘law’ where they establish a general norm that has been enacted by a government entity pursuant to a rule making authority.  She described a rule-making policy as existing where the power to make rules of general application has been designated by Parliament to a government entity.  On the facts, the majority found that the Transit Authorities’ policies were ‘law’. 

Accordingly, they considered whether the limitation imposed under the policies was ‘justified in a free and democratic society’.  Justice Deschamps considered that the ban on political advertising was not rationally connected to the aim of providing a ‘safe, welcoming public transport system’.  She said:

It is not the political nature of an advertisement that creates a dangerous or hostile environment.  Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or advocates violence or terrorism – regardless of whether it is commercial or political in nature – that the object of providing a safe and welcoming transit system will be undermined.

The majority held that a blanket exclusion of political advertising was not a minimal impairment of freedom of expression in these circumstances.  They dismissed the appeal and granted a declaration that the policies were of no force or effect to the extent of their inconsistency.

Justice Fish reached the same decision as the majority, although he got there via a different means of analysis.  His Honour differed on the nature of the s 2(b) right, and said:

Freedom of expression enjoys broad but not unbounded constitutional protection in Canada … the Charter cannot have been intended to protect all expression, so broadly defined, at all time in every ‘space’ or ‘place’ under government control. 

His Honour argued that the inquiry into whether the expressive activity is protected depends on the circumstances of the case.  His Honour argued that this approach limits the need to go through the Montreal City test, and said:

where the alleged incompatibility is manifest, the matter should be disposed of at the s 2(b) stage of the analysis [without needing to consider the reasonableness of the limitation].  Governments should not bear the burden of strictly prescribing by law and justifying limits on those kinds of expression that are so obviously incompatible with the purpose or function of the space provided…

Relevance to the Victorian Charter

The right to freedom of expression in the Canadian Charter is expressed without limitation but is, of course, subject to the s 1 ‘reasonable limits prescribed by law’ test.  The Victorian Charter of Human Rights and Responsibilities operates differently.  Section 15(3) of the Victorian Charter provides an internal limit to the right to freedom of expression and, specifically, says that the right may be subject to lawful restrictions reasonably necessary to protect reputation, public order and public morality.  However, in essence and in application, these provisions achieve a similar objective and, accordingly, the Canadian Supreme Court analysis may prove relevant.

The decision is available at http://www.canlii.org/en/ca/scc/doc/2009/2009scc31/2009scc31.html. 

Victoria Edwards is on secondment to the Human Rights Law Resource Centre from Freehills

Dixon v Powell River (City), 2009 BCSC 406 (CanLII) (26 March 2009)

This case held that the Canadian common law should, wherever possible, be interpreted and developed to accord with the rights in the Canadian Charter of Rights and Freedoms.  Garson J declined to follow earlier defamation case law on the basis that it was inconsistent with the right to freedom of expression.  Her Honour held that a government body cannot sue individuals for defamation when those individuals speak out about the conduct of its governmental functions.

Facts

Three members of the public posted comments online criticizing actions of the Powell River City Council.  The City sent letters to these three objectors, claiming that the criticisms implied that the City was engaging in corrupt processes.  The City threatened to sue the objectors for defamation of its reputation as a municipal government.

John Dixon, secretary of the British Columbia Civil Liberties Association and a resident of the City, sought declaratory relief to the effect that the City, as a government body, does not have the right to sue for defamation of its governing reputation.

The Charter of Rights contains the ‘fundamental freedom’ of ‘thought, belief, opinion and expression’.  Dixon argued that the actions of the City, in making the threat to sue for defamation, infringed the right to freedom of expression.  Previous authorities on point indicated that the City could sue for defamation relating to its governmental functions.

A subsidiary issue was whether Dixon had standing to sue.  The Charter of Rights does not give people standing to sue where the rights of a third party are violated.  Therefore, Dixon argued that his own rights were violated.  He argued that the right to freedom of expression includes not only the right to make statements, but also the right to receive information regarding the conduct of government affairs.  He argued that his right to receive information was curtailed by the defamation threat letters that the City sent to the objectors.

Decision

Garson J held that Dixon, as a ratepayer and voter in the City, had personal standing to sue.  Her Honour found that Dixon’s right to receive communications regarding his local government was infringed by the defamation threat letters, and granted declaratory relief accordingly.

Her Honour held that the common law principles of defamation should be interpreted consistently with the Charter of Rights, especially the right to freedom of expression.  Her Honour endorsed the follow statement from R v Salituro [1991] 3 SCR 654:

“Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country … Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely.  If it is possible to change the common law rule so as to make it consistent with the Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed.”

Pre-Charter authorities indicated that a government body could sue for defamation.  However, Her Honour declined to follow earlier case law on the basis that the common law should be interpreted and applied, wherever possible, within the framework of the Charter of Rights and its right to freedom of speech.  Garson J stated that

“It is evident that the law of defamation and the constitutional law of freedom of speech ought not to develop in two separate streams incorporating different values.  Rather, the two should accommodate each other.”

Accordingly, Her Honour held that

“The Charter enshrined value of freedom of expression is paramount and local governments have to resort to other means to protect their reputations from citizens who publish critical commentary about the government itself…  It is antithetical to the notion of freedom of speech and a citizen’s rights to criticize his or her government concerning its government functions, that such criticism should be chilled by the threat of a suit of defamation.”

Relevance to the Victorian Charter

Using Charter rights to shape the common law

The Canadian Charter of Rights does not expressly provide that case law should be interpreted in accord with its rights.  Notwithstanding this, Canadian courts have generally developed case law in line with the Charter of Rights (which is entrenched in the Canadian Constitution).  Given the relatively young age of the Victorian Charter, it remains to be seen whether Victorian courts will be as willing to use Victorian Charter concepts to shape common law rights, particularly given the principles of comity and a unitary common law.  However, the fact that the Victorian Charter is limited in application to public authorities (which do not include courts acting in a judicial capacity) and is legislative rather than constitutional may limit the extent to which the Victorian Charter will shape more general common law rights.

Freedom of expression and defamation

Defamation laws are an express exception to the right to freedom of expression in Victoria.  The right to freedom of expression in the Victorian Charter is subject to an exception for laws necessary to ‘respect the rights and reputations of other persons’, where ‘persons’ means human beings.  Therefore, the exception to freedom of expression would not cover laws to protect the reputation of government bodies.  Moreover, according to Victoria’s statutory defamation laws, government bodies cannot sue for defamation in relation to governmental or administrative actions.

Right to receive information

In order to establish standing, Dixon argued that the Canadian right to freedom of expression implicitly includes a right to receive information (see above).  The Victorian Charter differs from the Canadian Charter of Rights in that the right to freedom of expression in the Victorian Charter expressly includes the right to receive information.

The decision is available at http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc406/2009bcsc406.html.

Helen Conrad is on secondment to the Human Rights Law Resource Centre from Mallesons Stephen Jaques