On Monday Sept 16th, the Canadian Constitution Foundation (CCF) served documents on the Attorneys General of Canada and Ontario challenging the constitutionality of section 91 of the Canada Elections Act (CEA), which prohibits certain types of “false statements” during a federal election period. This provision allows the government to censor what it considers to be “fake news”.
The CCF is deeply concerned about the harm that this law has on freedom of expression in Canada, particularly the freedom to engage in political speech, as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms. Section 91 of the CEA violates the right of Canadians to express their political views freely, particularly during an election period, without fear of reprisal.
Section 91 of the CEA reads:
Publishing false statement to affect election results
91 (1) No person or entity shall, with the intention of affecting the results of an election, make or publish, during the election period,
(a) a false statement that a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party has committed an offence under an Act of Parliament or a regulation made under such an Act—or under an Act of the legislature of a province or a regulation made under such an Act—or has been charged with or is under investigation for such an offence; or
(b) a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group or association of a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party.
These provisions, which were recently amended, make it an offence to attempt to influence an election by making or publishing certain types of “false” statements about political candidates and other public figures during the election period. The prohibition leaves important words like “false”, “public figure”, and “associated with” undefined. Further, the state need not prove knowledge of falsity: a person or entity who made or published an allegedly “false” statement, such as by posting or re-posting a comment on social media, can be prosecuted even if they honestly believed the statement to be true, and even if there was a reasonable basis for this belief. The result is that the law casts an exceedingly broad net and could be used to shut down all manner of political speech that is protected by the Charter.
Violating this law carries a maximum penalty of a $50,000 fine and five years in prison. As a result, the law forces Canadians into an unacceptable choice: they can soft-peddle their expression or self-censor their views in an attempt to avoid saying anything that the state may deem to be “false”, or they can exercise their right to express themselves and risk prosecution and severe punishment. Too many Canadians will choose the former. This chilling effect will lead to a muted social and political discourse and, in turn, serve only to undermine the integrity and effectiveness of the democratic election process.
Inevitably, false information is, intentionally or not, disseminated during an election. The constitutionally permissible response to this inevitability is not to sanction speech, but to promote media and information literacy and foster open discourse so that Canadians can make up their own minds about what to believe and who to vote for. Censoring and punishing free speech is not a constitutionally acceptable solution in a free and democratic society.
In 1986, the Supreme Court of Canada stated in Dolphin Delivery that
[freedom of expression] is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.
Similarly, in 1989, the Supreme Court held in Edmonton Journal that
[t]he concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms…. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.
While the traditional media plays an important role in providing Canadians with important information, social media is emerging as an equally if not more important forum for political discourse. The broad language of section 91 of the CEA dampens this otherwise vibrant and productive forum in which Canadians of varying opinions are free to express their views and attempt to convince their fellow voters.
The CCF believes that the Charter’s guarantee of freedom of expression offers robust protection for political discourse. The Charter also ensures that the uninhibited exchange of information and ideas, which has always been a vital part of the Canadian electoral process, is maintained.
CCF Executive Director, Joanna Baron, stated:
Freedom of expression is of fundamental importance to the protection and maintenance of our democracy. In the digital age, social media serves an important “town hall” function, and laws such as this one, which is vague, overbroad, and backed by severe punishments, pose a serious threat of chilling the debate and discussion that are necessary to a vibrant democracy.
To take just one example, Canadians may disagree about whether Prime Minister Justin Trudeau obstructed justice in his handling of the SNC-Lavalin prosecution. But the Charter gives every Canadian the right to allege that he committed that crime without fear of punishment. That’s why the government’s attempt to criminalize “fake news” must be declared unconstitutional.
The CCF is represented by a team of lawyers from McCarthy Tétrault LLP led by Adam Goldenberg. The CCF has asked the court to give this matter urgent consideration, in the hope that this unconstitutional law can be struck down before the current election period is over.
Read our original press release here.
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