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Election 2019 – Canada’s Free Speech Distraction

As published in the Victoria Standard: October 23, 2019

The Canadian Constitution Foundation (CCF) has accused the Trudeau government of limiting free speech. The CCF, self-described as a “non-partisan charity”, has legally challenged certain 2017 changes to Section 91 of the federal Election Act.

Although no one has yet been charged, Section 91 now applies criminal penalties for publishing or uttering falsehoods that might damage the reputation and fortunes of political figures and their associates. This development in no way alters or replaces the existing civil (financial damages) penalties associated with libel and slander under Canada’s existing Defamation laws.

Section 91 formerly forbade only the publication of false statements about the character and behaviour of candidates for federal office. The list of protected individuals now includes candidates’ associates, yet-to-be elected party leaders and their associates. Also new are penalties for false claims about citizenship, religious affiliation, education and birthplace.

These enhanced provisions seem likely to inhibit political attack ads by agents of all parties. Unfortunately for Justin Trudeau, the ugly but apparently factual revelations of his youthful antics lie outside Section 91’s purview.

Canada’s Defamation statutes provide numerous defenses like factual truth, the qualified privilege of employee evaluations, the fair comment of newspaper editorials and the “responsible communication on matters of public importance” by journalists reporting false allegations in the public interest. The absolute privilege of free comment still protects serving parliamentarians in the House of Commons from both civil and criminal prosecution.

The CCF and other critics claim that Section 91 blurs the distinction between intentional falsehoods and honest mistakes. These lawsuit lobbyists have filed legal applications with the Attorney General to postpone the law’s effective date until after October 21. Legal applications are less serious than injunction applications and a resolution is unlikely before election day 2019.

The CCF is linked to and has been funded by the Atlas Network of deeply-conservative groups like the Cato Institute, The American Enterprise Institute and the right-wing Christian Becket Fund, all of whom receive generous funding from wealthy American conservatives like the remaining Koch brother Charles.

Canadian links in the Atlas chain include the Fraser Institute, the Manning Centre, the Atlantic Institute for Market Studies, the Frontier Centre for Public Policy, the Justice Centre for Constitutional Freedoms and the Macdonald-Laurier Institute for Public Policy. Unlike many Canadian advocacy groups, these bodies have been largely immune to Canada Revenue Agency (CRA) audits.

The CFF may be correct in accusing the Trudeau government of stifling free speech for short-term political gain but an examination of their behaviour suggests further motives. Far from being silenced, these lobbyists enjoy privileged and private communication with legislators beyond the reach of working Canadians and social justice groups like the Sierra Club.

These free-market activists enjoys CRA charitable status while lobbying both federal and provincial governments to further privatize public services, weaken trade unions, reduce environmental regulations and modify tax laws to disproportionately benefit wealthy Canadians and foreign investors. They are ably assisted by the Canadian Chamber of Commerce, the Canadian Petroleum Producers Association and others with regular access to cabinet ministers and senior bureaucrats.

CCF claims about their declining right to free speech may be a veiled symptom of conservatism’s waning vigor. The assurances of Reagan, Thatcher and Mulroney regarding the certain rewards of hard work and sacrifice have proven false for millions of young Americans, Britons and Canadians. They suffer wage stagnation and heavy debt while watching their national wealth drawn upwards into fewer hands.

False claims about a free speech crisis distract people from the many failures of a system based on the fantasy of infinite growth. The presentation of free speech as an imperiled ideal requires a scapegoat, ideally a faceless and even imaginary section of society. It seems that yesterday’s welfare loafers have been replaced by “snowflakes”, those fictionalized youth whose hyper-sensitivity supposedly renders them unfit for duty in today’s rugged economy.

Acknowledging the plight of young people is the first step towards modifying our economic system to both protect the biosphere and rearrange our taxation and financial regulation to better protect the interests of working people. Complaining about one’s right to mistakenly publish nonsense accomplishes nothing worthwhile.

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