PEN Canada Successfully Intervenes in Sec. 91 Challenge to Canada Elections Act

By | February 24, 2021 at 12:01 pm | No comments | News | Tags: ,

Proposed law would have “chilling effect” on political expression

TORONTO — February 24 — PEN Canada has successfully intervened before the Ontario Superior Court of Justice in the Canadian Constitution Foundation’s (CCF) challenge to the constitutionality of section 91(1) of the Canada Elections Act. PEN Canada and CCF successfully argued that the Act’s prohibitions and penalties violate the right to freedom of expression under the Canadian Charter of Rights and Freedoms.

“PEN Canada’s mandate is to defend and protect freedom of expression as a cornerstone of any democratic society,” said Brendan de Caires, Executive Director, PEN Canada. “Our intervention in this case helped to clarify how Canadian law recognizes freedom of expression in the context of a growing threat of misinformation, and its potential future impacts on the democratic process.”

In the law in question, Parliament made it an offense to attempt to influence an election by making or publishing certain kinds of false statements about political candidates or other public figures. Parliament amended the law in 2019 to remove the important requirement that, in order to be an offense, the person making the statement have knowledge that the statement being made was false. PEN Canada argued that the removal of that protection freed Parliament to punish a person – by fine or imprisonment — for political speech that was not knowingly false. This would have a chilling effect on political expression and the free exchange of ideas.

Justice Davies agreed and concluded that Parliament’s attempt to punish political expression in these circumstances was unconstitutional.

“The court acknowledged that the deliberate dissemination of misinformation is a threat to our democracy and should not enjoy full protection of the right to freedom of expression under the Charter. However, the Court found that Parliament’s attempt to neutralize this threat by threatening to punish political expression that a person does not know to be false is not a solution that survives constitutional scrutiny” said Michael Bookman, a member of PEN Canada’s Board of Directors and Chair of PEN Canada’s Legal Affairs committee.

PEN Canada was represented by Justin Nasseri of Ross Nasseri Barristers and Janani of Goddard & Shanmuganathan.

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