Free speech can’t take breaks for election campaigns
Levant case should serve as cautionary tale for activists
Afundamental precept of law and order in democratic societies holds that citizens should understand more or less intuitively what’s legal and what isn’t, what gets you collared by the constable and what doesn’t. Or else the whole idea of equality and rule of law might lose purchase and slide into the lake. More than 200 years after Sir Robert Peel is said to have invented modern western policing, lord knows, that precept is a work in progress.
But I think it’s safe to say that Ezra Levant, proprietor of Rebel News and one of this country’s most prolific and productive freespeech provocateurs, knew very well he was daring the Commissioner of Canada Elections to take action by putting up lawn signs during the 2019 federal campaign promoting his then new book, The Libranos: What the media won’t tell you about Justin Trudeau’s corruption. (The ‘s’ at the end of Libranos was fashioned as a dollar sign.)
The signs depicted Prime Minister Justin Trudeau, his former principal secretary Gerald Butts and various other Liberal noteworthies arrayed caricatured as if they were leading players in the epic HBO mafia series The Sopranos.
The commissioner took the bait, ruling the signs contravened regulations pertaining to thirdparty advertising during election campaigns. Not only had Rebel News failed to register as a thirdparty advertiser, but the lawn signs failed to identify explicitly who had paid for them. (For some, the block-capital letters “REBEL NEWS” printed prominently on the signs might have been a clue.) The fine for this unauthorized communication was $3,000. This week, a Federal Court justice upheld the decision.
By rights, this ruling should be a cautionary example to activists across the political spectrum: Limiting unpopular speech is very hot right now. I doubt many of Levant’s ideological opponents will see it as such, however, and I fear they (and everyone else) will only come to regret it years down the line. This decision doesn’t even make sense on the merits of the very-flawed law on which it is based.
Let’s take a quick boo at the Canada Elections Act.
The act defines “partisan advertising” and “election advertising,” either of which requires third parties to register with Elections Canada during prescribed pre-election periods, as “the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes a registered party or eligible party or the election of a particular candidate, nomination contestant or leader of a registered party of eligible party.”
On that rule, the Libranos signs clearly fall foul.
But the act also clarifies what isn’t covered under the definition: among other things, “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election.”
On that rule, the Libranos signs clearly do not fall foul. And yet both the Commissioner of Canada
Elections and a Federal Court judge have ruled they did, largely on the basis of the commissioner’s ruing that the book was explicitly designed to be released during the 2019 campaign, and thus wasn’t “planned to be made available to the public regardless of whether there was to be an election.”
So, Levant was just going to pitch the whole project into the shredder if Trudeau didn’t trigger an election in 2019, as opposed to 2020 or (as came to pass) 2021? Ridiculous. Rebel News is an online media outlet that Levant freely concedes is dedicated to attacking the Liberal Party of Canada. It proves that every single day. That’s not cheating. It’s allowed! And there is no reason it or any other news outlet, advocacy group or individual human being should have to alter their public statements just because there’s an election on.
The Canada Elections Act’s definition of third-party “election advertising” (an activity that requires registration with Elections Canada) includes “taking a position on an issue with which a registered party or candidate is associated.” That’s just bananas. The most famous manifestation of the rule was Elections Canada warning climate-change advocacy organizations in 2019 that as soon as the writ dropped, they would have to fill out a bunch of forms and submit to a bunch of spending limits to keep legally advocating for action against climate change ... because People’s Party leader Maxime Bernier intended to make climate change an election issue.
It was, and is, flamboyantly undemocratic. Third-party spending limits are designed to keep corporate and union megabucks out of Canadian politics, not the modest amounts Rebel News or other grassroots-funded groups are playing with. Especially now that corporate, union and plutocratic donations aren’t driving the agenda, shouldn’t an election campaign be an opportunity for more open discussion, rather than less?
More fundamentally, shouldn’t Canada’s election laws be comprehensible, and understandable, to a normal Canadian human being?
LIMITING UNPOPULAR SPEECH IS VERY HOT RIGHT NOW.