May 11, 2001
He’s mad for social justice:
Theatrics aside, Rhino party leader Brian Salmi has raised an important issue of electoral access
Should poor people be denied the right to run for office? That’s the crux of the question raised in B.C. Supreme Court by Brian Godzilla Salmi, leader of the B.C. Rhino party, earlier this week. A decision is expected to be released this morning.
Leave aside the fact that Salmi filed the petition dressed in a green cape, white longjohns, green glitter boots with a five- centimetre heel and a toilet paper roll strapped to his head. Forget that Salmi argued his case before a B.C. Supreme Court justice dressed in a T-shirt painted with a Superman-styled S painted over his white longjohns. And try not to think about the fact that Sa Tan is the self-described anarchist’s legal name.
The questions Salmi has asked the court to decide are serious ones. Is the $100 deposit fee required under the B.C. Election Act a barrier to a citizen’s right to run for office? And, if it is a barrier, isn’t it an infringement of that person’s Constitutional rights?
Salmi argues that the deposit is unconstitutional because it runs contrary to Section 3 of the Canadian Charter of Rights and Freedoms that says every citizen has the right to vote in an election and to be qualified to run for election. And it is worth pointing out that the rights set out in that section of the charter are deemed to be so important to Canadian democracy that this section is the only one that can not be overridden by the notwithstanding clause.
Salmi decided to launch the court challenge because his planned campaign against B.C. Liberal leader Gordon Campbell in Vancouver- Point Grey never got under way because he couldn’t afford the $100 deposit. Salmi argues that the deposit, which is forfeited if the candidate fails to get 15 per cent or more of the popular vote, is “a de facto economic means test that discriminates against the poor.”
What he wants the Supreme Court to do is to quash the section of the Election Act that requires the deposit as well as another section that requires a candidate to have an auditor before he or she can become a candidate. Salmi is also asking the court to hold the election in Vancouver-Point Grey in abeyance (which could deny Gordon Campbell a seat on election day), allow Salmi’s name on the ballot on May 16 and order the chief electoral officer to pay all the costs associated with the legal action.
Even though Salmi’s campaign against Campbell might have been intended as a stick-in-the-eye to the Liberal leader, that doesn’t mean that he or his court challenge should be lightly dismissed because the issues he is raising have already been seriously considered at least once by the courts.
Justice Anne Molloy of the Ontario Court of Justice looked at the constitutionality of deposits and refunds in her 1998 ruling on a case involving the Communist Party of Canada.
The Communist party was challenging sections of the Canada Elections Act that said a party must have 50 or more candidates to qualify for party status and without that status, a party can not issue tax receipts to donors.
The Communist party argued that one of the reasons this provision is so onerous results from the section requiring a $1,000 deposit. It didn’t challenge the constitutionality of having a deposit, but it did argue the unfairness of having $500 refunded only if candidates get 15 per cent of the vote or more.
Despite that, in her 70-page judgment Justice Molloy called the payment of a fee as a precondition for running is “a significant limitation” on the fundamental democratic rights described in Section 3 of the Charter.
“I consider any financial obstacle to the right to stand for election to be a significant limitation on the right. This is the case whether the fee is $5 or $500 or $5,000,” she wrote.
“Suppose, for example, that an admission fee of $1 was charged at polling booths as a condition of casting a vote. This would constitute an unacceptable limitation on the right to vote regardless of whether individual voters could afford to pay the $1. I see no reason for treating the right to stand for election any differently.”
As for Elections Canada’s suggestion that a fee was needed to discourage people who are not “serious,” it is “reminiscent of archaic requirements of candidacy such as land ownership which have long since been abandoned.”
She also said that argument is irrational because it assumes among other things that candidates who aren’t “serious” have caused problems in elections and that only serious candidates can afford to lose their deposit (“The ability or willingness to risk losing $500 is more a measure of affluence than seriousness.”)
Brian Godzilla Salmi’s campaign against Campbell would almost certainly have been frivolous and irritating to Big P political players. But what he wants the court to decide is whether he has a constitutional right to do it.
Perhaps more importantly, what he’s asking the court and the rest of us is whether we believe our democracy is strong enough to embrace all kinds of candidates and all kinds of campaigns.
In asking this, Salmi is dead serious. And in answering his questions, both we and the court should be as well.