The court has been roundly mocked for ruling that a limit of $600 on the amount that those wishing to participate in a referendum campaign could spend outside the control of the official Yes and No committees was an unpardonable assault on freedom of speech, but suggesting that a $1000 cap would be okay. But it's worth delving into the reasoning that led the court to this absurd conclusion.

At bottom, the court agreed with the purpose of the law: to ensure that a roughly equal amount was spent to promote each side of the debate. If you believe that this is a sound principle, then it is pretty obvious that each side must be confined to some sort of overall budget, which just as surely means that independent participants must be held to an even more restrictive sum.

For the number of these free agents is potentially limitless: to leave them unregulated would make a mockery of any attempt to enforce an overall balance of spending power.

But why accept that first principle as the ideal -- of a regulated parity of total spending? According to the court, it is a matter of fairness and equality.

Regulations are needed, it wrote, "to prevent the most affluent members of society from exerting a disproportionate influence by dominating the referendum debate through access to greater resources." "Spending limits," it went on, "are essential to ensure the primacy of the principle of fairness in democratic elections.

The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens...

Laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person's exercise of the freedom to spend does not hinder the communication opportunities of others." What the court has just described is the case for limits on individual contributions -- not for global ceilings on the amount that individals of like mind may spend by pooling their resources. Indeed, spending caps inhibit the very equality of citizens the court seeks to promote. Suppose each side of a referendum campaign is allowed to spend $1-million. Now suppose one side has 1000 contributors, each of whom give it $1000. But the other side has 10,000 supporters, each of whom is also willing to donate $1000 to the cause. The effect of the $1-million limit is to give supporters of the more popular cause less voice in the debate: they are permitted to spend only $100 apiece, versus the $1000 that their less numerous opponents can individually spend.

This seems an elementary point. Why couldn't the Supreme Court get it? In part, this is owing to the court's anxiety to defer, or at least to be seen to defer, to the will of the elected legislatures. The court is conspicuously loathe to pass judgment on the merits of a piece of legislation in policy terms, restricting itself to the issue of whether it violates the Charter of Rights, and if it does, whether the infringement is proportional to the social good achieved: the test of whether it is a "reasonable limit" under the Charter's Section 1.

But if the purpose of the legislation is not a fit subject for judicial scrutiny, why go out of your way to say how wonderful it is? Why did the court feel it necessary to state, not once but twice, that the objectives of Quebec's referendum law were "highly laudable"? Answer: because the court is in the business of passing judgment on policy. It just won't admit it is. Reading through its rulings, it is clear the court applies the proportionality test on a sliding scale. If it likes the legislation, as in the referendum law or the federal ban on tobacco advertising, the Section 1 bar is set quite low. If it doesn't like it, the definition of what is reasonable suddenly gets a lot stricter.

This is just a little too precious. The court cannot continue to hide its ideological biases behind the seemingly disinterested application of the proportionality test. If the purpose of legislation is fair game, then let's cut the Section 1 charade. Indeed, the court would embarass itself less often if some sort of de minimis test were applied.

A ban on shouting fire in a crowded theatre, for example, is a "reasonable limit" on free speech: people in such a situation cannot be presumed able to make up their minds about the likelihood of a fire in a rational way. It violates free speech, and yet the terms of the exception are in the same spirit.

But a ban on advertising tobacco to rational adults, a ban whose stated purposed is to "prevent Canadians from being persuaded," is so manifestly contrary to the Charter's spirit that it ought not to even get to the point of Section 1 analysis. It should be thrown out the minute it walks in the door.

But once the law has passed this test, then indeed the court should abstain from any comment on its merits as policy, and apply the proportionality test with strict consistency.