Juno News - What you need to know about the Liberal election speech law

00:00:00.000 We hear a lot about misinformation and disinformation. Media outlets in Canada

00:00:14.800 have been devoting their entire resource teams to trying to unearth misinformation,

00:00:20.160 but is there a legal penalty for people that might say something untrue in an election?

00:00:26.000 Well, yes, a newly revised law, part of the Canada Elections Act, Section 91,

00:00:32.080 makes it a crime potentially punishable with jail time if you publish false information.

00:00:38.160 Now this is being challenged by the Canadian Constitution Foundation,

00:00:42.720 the Executive Director of which Joanna Barron joins me now. Joanna, thanks for your time today.

00:00:47.840 My pleasure, Andrew.

00:00:50.000 So why is this piece of the legislation being challenged and what is it that the CCF takes issue

00:00:55.840 with? So in our view, the legislation is almost comically overbroad and almost comically violates

00:01:03.600 the Charter's guarantee of freedom of expression, which is contained in Section 2B. And also in our

00:01:08.960 view, we also have a section in our Charter that asks whether violations of rights are justified in

00:01:14.080 a free and democratic society. In our view, given how overbroad the provisions are, given the lack of

00:01:19.840 connection with the ostensible purpose of combating fake news, with how the provisions actually work,

00:01:25.760 they're absolutely not justified. And that's why we're bringing an application for the legislation

00:01:31.120 to be heard and determined on its constitutionality urgently, i.e. during the critical election period,

00:01:38.000 which is when the right to free speech and political speech is sort of the most important.

00:01:43.120 And indeed, speech during an election globally is considered at the center of the notion of free

00:01:49.840 expression. Now, I know this section is not new, but it has been changed. And I'm curious why its

00:01:56.640 current form is problematic or in your view, unconstitutional, but not its prior form.

00:02:01.840 Yeah. So the legislation changed, made modifications from previous form. The legislation was brought in

00:02:10.320 December 2018 in two major ways. The first is that it broadened the category of people that you could

00:02:18.560 be punished or fined for making false statements about. It used to be just a political candidate or

00:02:23.840 prospective candidate, but now it's a very wide group, including any figure associated with a

00:02:28.960 political party. So a CEO who has hosted a fundraiser for a Liberal MP or for an NDP or Tory MP could be

00:02:36.400 construed as a figure associated with a political party. The second is that there's a broad category

00:02:41.680 of the types of statements that are punishable, including professional qualifications, association

00:02:47.440 with a membership or group. And that could be something as narrow as your professional qualifications

00:02:54.080 for being a doctor or lawyer, or it could be as broad as an allegation that, for example, Andrew Scheer

00:02:59.680 is associated with the yellow vests. So it's quite nebulous in the categories. And finally,

00:03:04.640 and this is, in our reading, the most severe of the modifications of the legislation, it doesn't

00:03:10.800 matter whether or not you know the statement is true at the time that you make it. Even if you are

00:03:16.320 innocently retweeting something that turns out to be false on this legislation, you could be

00:03:22.480 investigated and fined at any time, at any time during the election, after the election, by the

00:03:28.400 commissioner of Canada elections. If you are prosecuted under this, is the burden of proof

00:03:35.120 that the state has to make lower than it is in a criminal proceeding? We would think not because

00:03:42.320 there's jail time on the line. So it would be treated as beyond a reasonable doubt. However,

00:03:48.000 there's absolutely there's there's no provision in the legislation that really would be very difficult to

00:03:53.920 prove. So for example, the statement needs to be made with the intent or purpose of affecting the

00:03:59.840 political election. But pretty much anybody who's on Twitter making political statements about about a

00:04:05.360 candidate could be construed as making the statement for one other purpose than to ultimately affect the

00:04:10.320 election in some way. Yeah, and that's what I find the most troubling about this is that there are

00:04:15.200 obviously facts and certain things that are indisputable. But a lot of political discourse,

00:04:20.480 and a lot of what a politician might say is untrue is something that really is subjective in nature.

00:04:26.560 And you could all look at the same basic facts and take dramatically different interpretations away

00:04:32.800 from that. And it sounds from what you've said and what I've read into this that that could be

00:04:38.000 construed under this as false and therefore worthy of prosecution. Absolutely, it empowers the 0.83

00:04:45.680 commissioner of the Canada of Elections Canada who's an unelected bureaucrat to be the arbiter of truth

00:04:52.000 and to initiate prosecutions at the cost of who you and I the taxpayer on the basis of determining

00:05:00.640 what's true and what's false. And our view is that political speech is best regulated by an open

00:05:06.960 marketplace of ideas and that bad ideas and false allegations are best best countered by more facts,

00:05:14.000 more allegations and media literacy rather than threatening to put Canadian citizens in jail for

00:05:20.000 being active on Twitter during an election campaign. Obviously the, or I shouldn't say

00:05:25.120 obviously, I would presume that the basis for this was reaction to this idea of foreign collusion that

00:05:31.520 really is more of an American problem that I think has spilled into the Canadian discussion. But

00:05:36.720 I'm wondering, do you think in cases where there is blatant misinformation, disinformation with a

00:05:42.720 very specific aim at manipulating election, do you think that a law is required if it had a narrow

00:05:49.040 focus? Or is your view that the marketplace of ideas can deal with this? So I think that the experts

00:05:56.240 we've consulted with are very clear that these types of laws targeting primarily domestic citizens are

00:06:01.440 very unlikely to deter foreign actors who are spreading disinformation. And I'm glad we should

00:06:07.600 distinguish misinformation and sort of innocently distributed false information. For example,

00:06:12.960 during the Boston Marathon bombings, a rumor spread on social media that the suspects had been

00:06:19.920 apprehended. In fact, that was false, but people believed it to be true. Disinformation is, of course,

00:06:24.880 the more nefarious example of Russian or Chinese bots deliberately spreading lies, creating fake Facebook

00:06:34.560 groups and things like that. But in fact, it was quite controversial in the legal community when certain

00:06:39.760 actors that were identified to be behind some of the antics that we saw during the US 2016 election,

00:06:45.760 when they were indicted in the United States, because the view of the legal community is that they

00:06:50.640 couldn't really be prosecuted. So these types of domestic solutions are not really proportionate

00:06:55.360 to that end. The Canadian government does have other initiatives that are specifically designed

00:07:01.040 at preventing those types of attacks, including consulting with social media networks, Facebook

00:07:06.960 and Twitter. The practice is called jawboning, essentially pressuring them to adopt enhanced security

00:07:13.040 measures. And of course, that's outside of my area of expertise. I'm a constitutional lawyer.

00:07:16.960 You know, I wouldn't support something like this. But just as a devil's advocate position

00:07:23.760 on this, it seems like if the focus of the law was to protect and preserve the integrity of the

00:07:29.840 election, it would be a lot more focused on an instant remedy to get rid of content that was

00:07:35.600 apparently misinformation rather than prosecuting people, as you note, I mean, weeks, months after

00:07:41.520 the election. And that makes it, you know, very suspect in my view. And I again, I don't support

00:07:46.880 necessarily letting publishers be put under the thumb of the state instantly. But if there is an

00:07:52.720 election integrity issue, that would seem to be a lot more of a realistic way of dealing with problems

00:07:58.800 than this one.

00:07:59.520 Yeah, I don't think that there's a silver bullet. To be honest, this is a new problem and a problem that

00:08:04.960 we're going to have to deal with fake news and the information age. But our essential, the nub of

00:08:10.320 our position is that we should not run roughshod all over our time tested constitutional guarantees

00:08:16.640 of free expression in order to propose solutions to this. And furthermore, I would add, there's a lot

00:08:22.720 of questions about how this would be enforced, when it would be enforced. The problem with laws like

00:08:28.720 this that are draconian and vague and confusing, what does membership mean? What does affiliated mean?

00:08:33.840 Is that it creates an instant chilling effect. And in our applications, we adduced affidavits from

00:08:40.560 various groups, Canadian taxpayers, Federation political commentators saying, yeah, we've scaled

00:08:46.080 down our speech, we've tampered down in our speech, because we don't want to threaten the health of our

00:08:51.120 organizations, we don't want to be expose ourselves to possible criminal liability. And so when you have

00:08:57.280 confusing vague laws like this, the damage is immediate. And that's why, for us, this application

00:09:02.080 is urgent, because the damage is being done right now as we speak. Yeah, and I'm glad you mentioned

00:09:06.400 the Canadian Taxpayers Federation, because I thought that Aaron Woodrick, who's the federal director there,

00:09:11.440 made a really great contribution when he said, look, we've had to take down a part of our website,

00:09:16.960 we've had to scale back any advertising, we've had to do all of this. And it's not because he thinks

00:09:21.760 that they're peddling misinformation, but because the law has forced people into this self-imposed

00:09:27.200 censorship, which is very dangerous, because that is where even the threat of the state

00:09:32.240 cracking down the hammer on you is enough to say, you know, I don't know how this is going to push

00:09:37.680 forward. Precisely. And that's why the CCF is seeking public interest standing, meaning we have,

00:09:44.160 we believe that we have a stake in this issue, then it raises a broader issue of national importance.

00:09:48.560 Even if an individual hasn't actually been charged under it, it's pressing and substantial,

00:09:53.200 and the damage is being done now. Now, why put it forward now and not earlier

00:09:58.080 on when it came out? Because obviously you are running out of runway, it seems.

00:10:03.520 Yeah, certainly. And to be completely candid, we weren't really aware of this issue until we inched

00:10:09.120 closer to the election season. We started hearing from people about, as people were preparing their

00:10:14.000 communications plans, and we just, we weren't aware of the issue previously. Luckily, it's a pretty

00:10:19.280 simple issue. The only question is whether or not this law is constitutional in accordance with

00:10:24.800 Section 2B and Section 1 of the Charter. We have one expert report. The Attorney General and the

00:10:30.880 government lawyers are free to induce their own expert report. It's not a very complex matter. And

00:10:36.480 the Attorney General, Minister David Lemedi, does have the power to expedite the hearing of this matter.

00:10:42.800 So it should be able to be heard in a reasonably short course. Now, would a judge have to hear this

00:10:49.360 and decide it? Or could a judge on the application alone say, we're going to suspend the legislation

00:10:54.640 pending a hearing to determine its constitutionality later on? So what you're speaking about is in

00:11:00.880 essence called an injunction where a law is prevented from being applied pending a determination on the

00:11:06.160 merits. Our reading of the law is that following a 2000 decision, Stephen Harper v Canada, which was about

00:11:12.320 third party elections rules, the law is pretty clear that an act of parliament is presumed valid,

00:11:19.120 and you can't get it struck down without a full hearing on the merits. So again, in the interest

00:11:23.840 of expediting the proceedings, we're not seeking an injunction because the law to us is quite clear.

00:11:28.880 We would like to just have a discreet and expedited hearing on the merits. Wonderful. Well, we'll certainly

00:11:35.040 be following that. Joanna Barron from the Canadian Constitution Foundation launching a legal challenge

00:11:41.040 and joins me now. Joanna, thank you so much for your time today. Thanks so much, Andrew. Best of luck.

Juno News - September 28, 2019

What you need to know about the Liberal election speech law

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