Are some political ideas simply too dangerous to express? An analysis of the constitutionality of the Canada Election Act’s restrictions on political speech

Freedom of expression is an essential feature of a democratic society.¹ As per s. 2(b) of the Canadian Charter of Rights and Freedoms,² everyone has “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”³ Such fundamental freedoms are, however, subject to “reasonable limits.”⁴ Freedom of expression in Canada is limited by several laws and legal actions, including Criminal Code⁵ provisions on hate propaganda,⁶ human rights legislation prohibiting hate speech,⁷ municipal bylaws prohibiting panhandling⁸ and swearing in certain public spaces,⁹ defamation actions,¹⁰ and restrictions placed on freedom of the press.¹¹ Additionally, governmental entities often attempt to stifle criticism and whistleblowing.¹²

Recently added to the list of restrictions on freedom of expression is the prohibition of fake news under the Elections Modernization Act,¹³ which amends the Canada Elections Act in an attempt to curb the rise in false information deployed to sway elections and public opinion. Provocative news items with little to no factual basis spread in a viral manner,¹⁴ while politicians seeking to discredit their critics have weaponized the rise of fake news by accusing legitimate news outlets of lying.¹⁵ Unsurprisingly, 83 per cent of Canadians agree or somewhat agree that the rise of fake news makes it challenging for them to know which news stories are legitimate.¹⁶ Adding to concerns about fake news, the Communications Security Establishment and the Canadian Security Intelligence Service found that foreign actors attempted to influence Canada’s recent federal election.¹⁷ Prior to the 2019 federal election, the Communications Security Establishment found that it was “very likely that Canadian voters [would] encounter some form of foreign cyber interference related to the 2019 federal election,”¹⁸ although such activity was not expected to be at the same level as the Russian interference in the 2016 American election.¹⁹

In an attempt to deal with the rise of fake news and foreign interference, the CEA prohibits (1) persons and entities from making or publishing false statements about a candidate, prospective candidate, party leader, or public figure associated with a party; (2) during the election period; and (3) with the intention of affecting the election results.²⁰ If a statement meets these three criteria, it will be prohibited if it falsely states that the person has broken the law, has been charged with an offence or is under investigation for an offence, or makes a false statement about the person’s citizenship, birthplace, education, professional qualifications or membership in a group or association.²¹ Additionally, the CEA makes it an offence to falsely state that a candidate has withdrawn from an election.²²

Whether courts will find these restrictions on freedom of speech reasonable remains to be seen. The regulation of political speech raises challenging constitutional questions, especially in an age where political actors increasingly attempt to avoid accountability by undermining the credibility of their critics.

The scope of freedom of expression under the Charter has been broadly defined. Speech that conveys or attempts to convey meaning short of violence or threats of violence is protected.²³ A majority of the Supreme Court of Canada in Edmonton Journal v. Alberta (Attorney General) held the following:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The 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 which distinguishes it, for example, from s. 8 of the Charter, which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.²⁴

Political speech is unlike other types of speech that have been restricted in Canada. The Supreme Court of Canada has held that, while protected by s. 2(b), hate speech, pornography, and the advertising of harmful products are far from the “core” of the right,²⁵ and therefore entitled to a very low degree of protection under s. 1.²⁶ Political speech, on the other hand, is at the core of s. 2(b).²⁷ The government thus faces a heavier burden to show that restrictions on political speech are reasonable.²⁸ To do so, it must show that the limits are “supported by a clear and convincing demonstration that they are necessary, do not go too far, and enhance more than harm the democratic process.”²⁹

The constitutionality of the CEA’s restrictions on fake news thus depends on whether (1) the speech being restricted is political, and (2) the restrictions are reasonable. The speech targeted by the CEA appears prima facie to be political: the CEA’s provisions dealing with fake news specifically target political speech that is intended to influence elections. Political speech, however, is not always beyond limitations. The Supreme Court of Canada has upheld limits on political advertising,³⁰ the broadcasting of election results,³¹ and third-party spending during an election.³² Despite previous constitutional restrictions on political speech, the government will likely face an uphill battle to show that the CEA’s restrictions go no further than necessary to protect electoral integrity, that less restrictive measures would not have accomplished the legislative objectives, and that the benefits of the restrictions outweigh their detrimental impact on s. 2(b) freedoms.³³ After all, what freedom of political expression is left if Canadians are prohibited from freely expressing their views, including factually incorrect ones, in the run-up to an election? The freedom to only express ideas that the government sanctions as truthful is no freedom at all.

Regardless of any eventual court outcomes, Canadians ought to hold their elected officials accountable for stifling freedom of expression. Despite its strong democratic institutions, Canada is not impervious to politicians, including prime ministers, who attempt to silence their critics and hide inconvenient facts.³⁴ How can criticism of and open debate about a government flourish when that same government holds a monopoly on which facts are considered to be “truthful” and which ideas are considered to be too politically dangerous to be expressed?

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* J.D. Candidate (Saskatchewan), M.A. Economics (Regina).

¹ Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326, 1989 CanLII 20 [Edmonton Journal cited to SCR].

² Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

³ Ibid.

⁴ Ibid, s 1.

⁵ RSC 1985, c C-46.

⁶ Ibid, ss 318–319. For an example of a recent criminal conviction, see R v Sears, 2019 ONCJ 104, where two men were convicted of wilful promotion of hatred against an identifiable group for editing and publishing a newspaper that consistently dehumanised Jews and women.

⁷ See The Saskatchewan Human Rights Code, 2018, SS 2018, c S-24.2, s 14.

⁸ City of Saskatoon, by-law No 7850, The Panhandling Bylaw, 1999 (10 May 1999).

⁹ CBC News, “Taber bylaw bans public swearing, spitting and yelling in Alberta town”, CBC News (10 March 2015), online: <www.cbc.ca/news/canada/calgary/taber-bylaw-bans-public-swearing-spitting-and-yelling-in-alberta-town-1.2988992>, archived: <perma.cc/PZU5-DRLW>.

¹⁰ For an interesting read on the interplay between defamation actions and political accountability, see Greg Flynn, “Strategic Defamation Lawsuits and Parliamentary Accountability” (2010) 4:2 JPPL 283.

¹¹ See R v Vice Media Canada Inc., 2018 SCC 53, [2018] 3 SCR 374, where the Supreme Court of Canada upheld an order for a media outlet to release information on its communications with an individual charged with terrorism. For an overview of freedom of the press in Canada, see “Freedom of the Press 2017” (2017), online: Freedom House <freedomhouse.org/report/freedom-press/2017/canada>, archived: <perma.cc/F6XA-4ZSN>.

¹² For some recent examples of governmental attempts to shut down criticism and whistleblowing, see Paul Wells, “Jane Philpott: ‘There’s much more to the story that needs to be told’”, Maclean’s (21 March 2019), online: <www.macleans.ca/politics/ottawa/jane-philpott-theres-much-more-to-the-story-that-needs-to-be-told>, archived: <perma.cc/6GVV-ABAZ>; Kathleen Harris, “Wilson-Raybould says PMO restricting her ability to 'speak freely' at justice committee”, CBC News (26 February 2019), online: <www.cbc.ca/news/politics/trudeau-wilson-raybould-snc-lavalin-1.5033639>, archived: <perma.cc/3TU5-5R3M>; The Canadian Press, “Quebec agriculture minister fired whistleblower who sounded pesticide alarm”, CityNews (30 January 2019), online: <toronto.citynews.ca/2019/01/30/quebec-agriculture-minister-fired-whistleblower-who-sounded-pesticide-alarm>, archived: <perma.cc/897P-F2Q8>; Rob Shaw, “Speaker offers to rescind gag orders on fired B.C. legislature staff”, Vancouver Sun (28 January 2019), online: <vancouversun.com/news/politics/speaker-offers-to-rescind-gag-orders-on-fired-legislature-staff>, archived: <perma.cc/3BD4-YTME>; Murray Brewster, “Two probes launched into claims that military blocked information requests in Norman case”, CBC News (29 January 2019), online: <www.cbc.ca/news/politics/norman-breach-trust-access-1.4996445>, archived: <perma.cc/9TCF-3WJ9>.

¹³ SC 2018, c 31, amending Canada Elections Act, SC 2000, c 9 [CEA].

¹⁴ Steve Lohr, “It’s True: False News Spreads Faster and Wider. And Humans Are to Blame.”, The New York Times (8 March 2018), online: <www.nytimes.com/2018/03/08/technology/twitter-fake-news-research.html>, archived: <perma.cc/XWQ9-T86K>.

¹⁵ U.S. president Donald Trump, for example, has accused The New York Times, NBC, ABC, CBS, and CNN, among others, of disseminating “fake news”: Jane E Kirtley, “Getting to the Truth: Fake News, Libel Laws, and ‘Enemies of the American People’”, Human Rights Magazine 43:4 (20 October 2018), online: <www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/getting-to-the-truth>, archived: <perma.cc/FZ5T-UBYF>. Brazilian president Jair Bolsonaro has taken it a step further, casting doubt on satellite images published by a Brazilian government agency that showed an increase in forest destruction in the Amazon: Mac Margolis, “Bolsonaro Can’t Cry Fake News on the Amazon”, Bloomberg (26 July 2019), online: <www.bloomberg.com/opinion/articles/2019-07-26/bolsonaro-can-t-blind-brazil-s-eyes-on-the-amazon>, archived: <perma.cc/2MW6-FBVT>.

¹⁶ “CJFE Poll: Canadians Confused by Fake News” (3 May 2017), online: Canadian Journalists for Free Expression <www.cjfe.org/2017poll>, archived: <perma.cc/B9MR-33DA>.

¹⁷ Alex Boutilier, Craig Silverman & Jane Lytvynenko, “Canadians are being targeted by foreign influence campaigns, CSIS says”, The Star (2 July 2019), online: <www.thestar.com/politics/federal/2019/07/02/canadas-voters-being-targeted-by-foreign-influence-campaigns-spy-agency-says.html>, archived: <perma.cc/CZU2-BWH9>.

¹⁸ Canada, Communications Security Establishment, 2019 Update: Cyber Threats to Canada's Democratic Process (Ottawa: CSE, 2019) at 5, online (pdf): <cyber.gc.ca/sites/default/files/publications/tdp-2019-report_e.pdf>, archived: <perma.cc/MJ6W-TBKX>.

¹⁹ Ibid.

²⁰ CEA, supra note 13, s 91(1).

²¹ Ibid.

²² Ibid, s 92.

²³ Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87; R v Khawaja, 2012 SCC 69, [2012] 3 SCR 555.

²⁴ Supra note 1 at 1336.

²⁵ RJR-MacDonald Inc. v Canada, [1995] 3 SCR 199 at paras 74–75, 1995 CanLII 64.

²⁶ Ibid at para 75.

²⁷ Harper v Canada (Attorney General), 2004 SCC 33 at paras 1, 11, 21, 66, 84, [2004] 1 SCR 827 [Harper].

²⁸ Ibid at para 21.

²⁹ Ibid.

³⁰ Harper, supra note 27.

³¹ R v Bryan, 2007 SCC 12, [2007] 1 SCR 527.

³² Harper, supra note 27.

³³ Ibid.

³⁴ Canadians have recently learned about Prime Minister Justin Trudeau’s attempts to influence former Minister of Justice and Attorney General Jody Wilson-Raybould on her handling of a prosecution involving SNC-Lavalin. Wilson-Raybould testified that she was not permitted by the Prime Minister’s Office to fully comment on all that had transpired. For a video of Jody Wilson-Raybould’s remarks before the House of Commons Standing Committee on Justice and Human Rights, see “Jody Wilson-Raybould’s testimony—read the full transcript of her opening remarks”, (27 February 2019), online (video): Global News <globalnews.ca/news/5006450/jody-wilson-raybould-testimony-transcript>, archived: <perma.cc/A23N-FNLE>; for the Conflict of Interest and Ethics Commissioner’s report, see Mario Dion, “Trudeau II Report 2019” (August 2019), online: Office of the Conflict of Interest and Ethics Commissioner <ciec-ccie.parl.gc.ca/en/investigations-enquetes/Pages/TrudeauIIReport-RapportTrudeauII.aspx>, archived: <perma.cc/4ZHK-NT5G>.

Conservatives also silenced inconvenient facts during former Prime Minister Stephen Harper’s years in power: see Joshua Rapp Learn, “Canadian Scientists Explain Exactly How Their Government Silenced Science” (30 January 2017), online: Smithsonian <www.smithsonianmag.com/science-nature/canadian-scientists-open-about-how-their-government-silenced-science-180961942>, archived: <perma.cc/8UDF-GBP9>.