The new section of the elections Act includes prohibitions and penalties that violate the Charter right to free expression.
This statement was originally published on pencanada.ca on 25 August 2020.
PEN Canada has been granted permission by the Ontario Superior Court of Justice to intervene in the Canadian Constitution Foundation’s (CCF) challenge to the constitutionality of section 91 of the Canada Elections Act. The CCF’s lawsuit alleges that the Act’s prohibitions and penalties for certain kinds of statements during elections are a violation of the right to freedom of expression under the Canadian Charter of Rights and Freedoms. The Act makes it an offence to attempt to influence an election by making or publishing certain types of “false” statements about certain persons including candidates, party leaders, and “public figures associated with a political party” during an election.
“Free speech is the cornerstone of any democratic society, and fake news is a real and serious problem,” said Brendan de Caires, Executive Director, PEN Canada. “Our intervention in this case will assist the Court in understanding how Canadian law recognizes freedom of expression in the context of the growing threat of fake news and the potential future impacts on the democratic process.”
PEN Canada is being represented pro bono by Justin Nasseri and Janani Shanmuganathan of Goddard Nasseri LLP. The CCF’s Charter application will be heard on September 14 and 15, 2020. In addition to providing written submissions, PEN Canada has been granted time to make an oral argument.
“The growing threat of fake news to the integrity of information during elections is real. At the same time, Parliament’s attempt to neutralize this threat is to censor political expression broadly. This is neither the right solution nor one that should survive constitutional scrutiny,” said Michael Bookman, a member of PEN Canada’s Board of Directors and Chair of PEN Canada’s Legal Affairs committee. “The Act fails to define, among other things, what constitutes a ‘false’ statement and who qualifies as a ‘public figure associated with a political party’. Its overly broad reach and vague drafting will chill the very kind of political expression we are supposed to zealously protect in a democracy. We need to confront the threat of fake news through investment in the integrity of information and digital platforms, not through sweeping prohibitions which have the effect of chilling political expression.”
