Civil liberties group challenges 'draconian' Liberal election speech law

Justin Trudeau arrives for his first election campaign stop in Edmonton, Sept. 12, 2019. (David Bloom/Postmedia Network)

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A Canadian civil liberties group has launched an urgent application against the Trudeau government in the name of free speech, the Sun has learned.

The Canadian Constitution Foundation (CCF), a non-partisan charity, states in documents prepared for the Ontario Superior Court that the government’s new election laws violates the Charter rights of Canadians who wish to voice their opinions in the current election campaign.

At question is a revised section of the Canada Elections Act, first put forward in 2017 by the Trudeau government, concerning the publication of “false statements.” The CCF argues that Section 91 of the Act, which can see violators face hefty fines and even jail time, has been made too broad and will chill free speech and democratic participation.

The previous version of the section of the law focused on banning those who knowingly make false statements about the personal conduct or character of a candidate for office. Now, the section has been expanded to include a wider array of statements made in good faith about a broader category of individuals.

“Those who make statements honestly and in good faith are exposed to the risk of imprisonment,” reads the CCF’s application. “It is a blunt and unrefined instrument that treats sarcastic quips and deliberate lies as one and the same – both are subject to a blanket ban.”

The new law now bans both false statements claiming “a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party” have committed an offence or been charged with committing an offence and also bans “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.”

One of the supporting affidavits is from Aaron Wudrick, federal director of the Canadian Taxpayers Federation (and regular Sun guest columnist). “This year, partly out of a fear of the consequence of the amendments to s. 91, we have decided not to purchase Facebook advertisements on federal issues, and have ceased a campaign and disabled a website that focused on politicians that have broken promises to the public,” Wudrick writes, concerning how Sec. 91 has chilled his organization’s speech.

Cory Morgan, an outspoken political commentator and activist from Alberta, adds in an affidavit that he fears his social media arguments about how Justin Trudeau has broken the law and that the former Albert NDP government was colluding with trade unions – which he considers free speech statements – could see him prosecuted under Sec. 91.

“This is an urgent matter,” writes Joanna Baron, the executive director of the CCF, in another affidavit. “Canadians should not have to wait until someone who is charged with contravening s. 91 decides to challenge the provision to know whether the restriction it places on free expression is constitutionally sound. By that time, which could be months or years down the road, the damage to free expression during the election period will have already been done.”

The CCF is represented by Adam Goldenberg, a lawyer with McCarthy Tetrault, who previously served as chief speechwriter to former Liberal leader Michael Ignatieff.

It will be up to the government, specifically the federal Attorney General, to respond. An application does not carry the same weight as an emergency injunction and as such it’s not yet clear whether the case will be heard before the Oct. 21 election day.

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