Fair Opportunity to Participate: The Charter and the Regulation of Electoral Speech

Abstract

In his 1999 article, Libman v. Quebec (A.G.) and the Administration of the Process of Democracy under the Charter: The Emerging Egalitarian Model, Colin Feasby suggests that the Supreme Court of Canada endorsed an egalitarian approach to democratic participation and the regulation of electoral speech. More specifically, Feasby argues that the Court has adopted a model that draws from the philosophy of John Rawls; in particular, his supposedly egalitarian idea of the fair value of the equal political liberties. In this article, I critically examine this egalitarian thesis in the context of the Court’s more recent 2004 decisions in Harper v. Canada (Attorney General). While I agree that the Court has adopted an approach similar to the philosophy of John Rawls, I nevertheless reject the conclusion that this is an egalitarian model of democratic participation. Instead, I argue that both Rawls and the Court may be more clearly understood as endorsing a liberal fair opportunity model of elections. This liberal model rejects the egalitarian ideal that all citizens are to enjoy equality of influence in political decision making. The focus, instead, is on the liberal ideal of procedural fairness, and ensuring that all citizens have an equal opportunity or chance to influence political outcomes.