The issue of online speech and the mischief that can be associated with it is a perennial problem of our time. Currently, a report has been tabled in Parliament, proposing to regulate online speech on social media platforms. In this context, a recent decision from the Ontario Superior Court, striking down the part of the Canada Elections Act that attached harsh penalties and jail time for making false statements during a federal election campaign, is a reassuring check on the government’s power to penalize innocent Canadians engaging in their right to free expression.

The “fake news” law limited political expression when it matters most: during an election campaign. It covered false statements about political party leaders as well as anybody “associated with a political party,” relating to their professional qualifications, membership in a group and whether they had been charged with or had committed an offence.

That means someone who tweeted out a statement, however hyperbolic, that “Justin Trudeau is a crook” during the last federal election, might have exposed oneself to criminal liability – including up to $50,000 in fines and possible jail time.

The law failed 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 chilled the very kind of political expression we are supposed to protect zealously in a democracy.

It further empowered the Commissioner of Canada Elections, an unelected bureaucrat, as the arbiter of what is “true” and acceptable in political discourse.

Most egregiously, the act was amended in 2019 to remove the requirement that the false statement be made “knowingly.” In other words, innocently retweeting a false statement about a political party leader – or “someone associated with” one – would expose oneself to possible prosecution and fines under the act. When was the last time you retweeted something about a political party or its leader from a seemingly credible source only to find out later it was false?

The immediate effect of such vague and broad laws with stiff penalties is to prompt Canadians to soft-peddle their views and generally tamp down on the public square’s quality of discourse. Canadians should not have to fear prosecution for communicating information that the state deems to be “false” or for sharing ideas that politicians have held to be unworthy of dissemination.

The courts have ruled that Section 2(b) of the Canadian Charter of Rights and Freedoms requires that the state generally refrain from intervening in the search for truth. That endeavour must be left to society itself, without state interference. Democracy can be messy. But the state cannot lawfully seek to protect democracy against itself.

When Parliament requires courts to determine what is “true” and “false” in politics, it oversteps its constitutional role. It cuts back on the unimpeded diffusion of information essential to a healthy, functioning democracy and fundamental to any democratic election.

Thankfully, in February, the trial judge struck down the law. Canadians are now free to enjoy open debate and discussion whenever the next federal election period commences.

However, the government’s propensity for regulating speech remains a live issue. For example, a recently tabled report proposed the establishment of a robust regulator tasked with monitoring online speech, particularly for hate and harassment. Notably, one of the report’s experts, Jameel Jaffer, openly dissented from the panel’s recommendation of a government regulator, stating that he was not convinced a tribunal is preferable to the alternative of requiring large digital platforms, at their own expense, to have an efficient and transparent review and appeals process for specific posts.

Although online disinformation has become an increasingly common scourge, liberal democracies must not lose sight of the foundational importance of freedom of expression in enabling a healthy discourse. The Canadian public is best served by core legal and constitutional approaches to regulating speech that recognize the primacy of open discourse.

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Joanna Baron
Joanna Baron is executive director of the Canadian Constitution Foundation, a legal charity that defends Canadian constitutional rights.

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