Fake news section of Elections Act faces Charter challenge

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‘Naive’ to assume Canada not a target for election interference: Gould
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A Calgary-based legal foundation is asking an Ontario court to strike down new sections of the Elections Act that forbid making certain false statements during a campaign.

“In our view, this legislation is almost comically in violation of … the Charter guarantee of freedom of expression,” said the Canadian Constitution Foundation‘s executive director, Joanna Baron.

“Our mandate is to protect constitutional liberties. We think this issue is particularly important because freedom of expression is most important during an election campaign. That’s when we want the most vibrant political speech.”

The CCF is a libertarian legal charity. It backed a New Brunswick man’s challenge to interprovincial trade barriers, which ended in a 2018 Supreme Court decision.

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The organization’s lawyers have asked for the case to be heard quickly, given that the campaign is already underway, Baron said.

The disputed section was part of Bill C-76, a package of election-related amendments passed late last year. It forbids:

  • Falsely saying that a political figure has broken a law, has been charged with breaking a law or is being investigated
  • Making false statements about a political figure’s citizenship, place of birth, education, professional qualifications or membership in a group

Breaking the law could lead to up to five years in prison and a $50,000 fine.

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To violate the law, the statement must be made during the election and with the intent of affecting the election. That might seem like a difficult thing for a prosecutor to prove, but Baron argues it isn’t.

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“Our interpretation of this is more or less that all political speech — on social media, particularly, or anywhere else during an election — could be made to be read with the intent to affect the results of an election,” she says.

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As for whether it’s likely to be used, she argues that that’s not the point.

“Our understanding of acts of Parliament that have been deliberated and assented to by Parliament [is that they] are intended to be used, and if they’re not, they should not be on the books,” Baron said.
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In its filings, the CCF argues that someone might express a good-faith opinion that a political figure had broken the law and end up in prison “even if the statement was made honestly, in good faith and on reasonable grounds. The same could occur if an individual simply states that a candidate or party leader is a crook.”

“Such claims may be overstated, crude, satirical or sarcastic,” the filing continues. “Yet, an individual may consider it necessary to use hyperbole, parody, satire or sarcasm — sometimes in a biting or offensive way — to make a point effectively or to fully express their thoughts, beliefs and opinions.”

Nothing stops a political figure from suing a critic for defamation, Baron argues.

“We already have protections in our law against speech that incites hateful acts or that is defamatory. This law goes much further than that and casts a broader net,” she said.

“A statement that Justin Trudeau or Andrew Scheer or Jagmeet Singh is a crook, or even, to take an actual example that’s happened, Conservatives alleged on their Twitter page that Justin Trudeau was being investigated by the RCMP — that could be caught by this law.”

The case was filed in the Ontario Superior Court in Toronto. A hearing has not been scheduled. The federal attorney general, who is named in the suit, has not filed a response but has said it will be appearing in court to defend the law.

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Before being amended, the Elections Act forbade knowingly publishing “any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate.”

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