By Litigation Director Christine Van Geyn. This column is available to media outlets free of charge for republication.
“Andrew Scheer was an insurance broker.”
“Justin Trudeau is a crook.”
These two phrases were both published widely during the last federal election. Are they a normal part of political discourse? Or are they “false statements” that could land their publisher in prison for five years and with a fine of $50,000?
This question will be considered by the Ontario Superior Court on September 14 and 15 when they hear the Canadian Constitution Foundation’s constitutional challenge of s. 91(1) of the Canada Elections Act.
This legislation, which was amended in 2019, now casts an unacceptably broad net that can be used to shut down all kinds of legitimate political speech that is protected by the Canadian Charter of Rights and Freedoms. The law makes 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 legislation does not require the publisher know that the statement is false.
Although the Act includes no definition of “false statement”, it is concerned with criminal records and biographical information. Statements about criminal charges, convictions, or investigations, about citizenship and place of birth, education, professional qualifications, or “membership in a group or association” are all now subject to government scrutiny. There are no reasonable exemptions or defences, for example carve outs for comedy or sarcasm.
The Act does not just apply to statements about political candidates or even just potential candidates. It includes any “public figure” who is “associated with” a political party. The Act never defines what it means to be “associated with” a political party. Could union leaders count? Talking heads and pundits on television? It isn’t clear.
This vague language creates a problem for our democratic process. Freedom of expression is a pillar of a free and democratic society, and political speech – even false political speech – is entitled to protection. Our Charter right to free expression is content neutral. It protects statements that are popular as much as it protects statements that are unpopular, and it protects statements that are true as well as statements that are false.
While false information is a problem, it has long been a familiar and unfortunate feature of election campaigns. But even if Canada’s democracy would be better off without false statements, it would be worse off with the government serving as editor-in-chief.
With vague language and a lack of definitions, the legislation gives the Elections Commissioner broad and unpredictable discretion over how the law will be interpreted and enforced. As the arbiter of truth, will the government act in a fair and impartial way? The conduct of some provincial election regulators suggests that the answer is no.
For example, the recent decision of Elections Ontario to refer some print advertising by a right of centre organization to the Attorney General, because during a by-election the organization had run ads in newspapers hundreds of kilometres away. Meanwhile, unions that ran ads on the same topic and during the same period were not subject to any scrutiny. Further empowering election regulators to now rule on what is true and what is false will add far more mischief to the democratic process. And it will have the unfortunate result of chilling political speech during the time it matters most: during an election.
False statements about candidates can be distasteful and offensive. But the uninhibited exchange of information, beliefs, and opinions about candidates – true, false or otherwise – is essential to a healthy and functioning election process, subject to civil and criminal law restrictions on defamation and hate speech. Voters are entitled to decide for themselves which sources of information about candidates are “credible” and which are not.
The response to false information should not be for the government to sanction speech, but to promote media and information literacy among the population and to foster open discourse so Canadians can make up their own minds about who to vote for.
