Juno News - September 28, 2019


What you need to know about the Liberal election speech law


Episode Stats

Length

11 minutes

Words per Minute

166.20174

Word Count

1,986

Sentence Count

87

Hate Speech Sentences

1


Summary

A newly revised law, part of the Canada Elections Act, Section 91, makes it a crime potentially punishable with jail time if you publish false information. Now, this is being challenged by the Canadian Constitution Foundation, the Executive Director of which is Joanna Barron.


Transcript

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
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.