As weird and silly as this election campaign has been at times, there’s at least some silver lining in the apparent fact that there’s been no concerted or obvious disinformation campaign.
It’s obviously something that we ought to be on guard for, both in terms of the chaos that foreign actors might wish to sow or the ends-justifies-the-means sort of lies and smears that domestic actors might wish to spread in order to bring about a specific election outcome.
However, a need to be vigilant about disinformation does not automatically create a need for government laws to prohibit it. We should be careful, as well, to recognize the rather significant difference between disinformation and misinformation and to not lose sight of the freedom of expression guaranteed to us under the Canadian Charter of Rights and Freedoms.
To that end, the “false statements” provisions under section 91 of the Canada Elections Act are problematic and Canadians should welcome the challenge of those provisions launched by the Canadian Constitution Foundation (CCF).
This section of the Act was part of the changes ushered in through Bill C-76, passed late last year. Specifically, section 91 states that “No person or entity shall, with the intention of affecting the results of an election, make or publish, during the election period:
- a false statement that a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party has committed an offence under an Act of Parliament … or has been charged with or is under investigation for such an offence
- a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group or association of a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party.”
The penalties for running afoul of this law are rather severe: a maximum penalty of a $50,000 fine and five years in prison. Unfortunately, the wording of the section is vague enough that it’s easy to envision scenarios where well-intentioned citizens are inadvertently in violation of it. That fear may be enough to put a chill on the expression of political opinions.
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The SNC-Lavalin scandal is an obvious example. There are those who believe obstruction of justice may have occurred. The RCMP may or may not be investigating that at the moment. It’s premature and probably unfair right now to declare definitively that Justin Trudeau committed obstruction, but the idea of punishing someone for making such a statement is more harmful than the claim itself.
Furthermore, though, even if it can be argued that an obstruction claim is objectively false, that doesn’t mean that the person making the claim was deliberately spreading false information. Being wrong is not the same as being a liar, but this section of the Act makes no such distinction.
In the lead-up to the 2015 election, I had a caller on my radio show argue that then-NDP leader Thomas Mulcair shouldn’t be prime minister because he was from France. Mulcair was actually born in Ottawa, but does have dual Canadian and French citizenship (his wife is from France). Clearly, this caller was confused, but technically that was a false statement about a leader’s place of birth. Does that warrant official state sanction? I would suggest not (and humbly suggest my somewhat futile efforts to convince her otherwise more than sufficed).
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By all means, let’s rebut false or unfair claims, and call out those making them. But as the CCF notes, “the law casts an exceedingly broad net and could be used to shut down all manner of political speech.”
They also point to a Supreme Court ruling from 30 years ago that stated “free and uninhibited speech permeates all truly democratic societies and institutions… the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.”
These are not clear circumstances at all, and this restriction does not seem justified. It’s more likely the case that these “false statements” provisions will do more harm than good.