The Trudeau government, as part of its 2022 Budget, set out its intention to amend the Canadian Criminal Code to “prohibit the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust.”[1] This raises several key constitutional questions. The first is whether this proposal infringes upon rights listed under Section 2(b) of the Charter, which guarantees individuals’ “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”[2] The second question is whether such an infringement, if it exists, can be justified under Section 1 of the Charter, which states that the rights and freedoms in the Charter can be limited if this “can be demonstrably justified in a free and democratic society.”[3]
In R v Keegstra (1990), a landmark case on the constitutionality of hate speech regulation, the Supreme Court stated that all activity that conveys or attempts to convey meaning is considered expressive and within the ambit of Section 2(b), regardless of how distasteful or unpopular it is.[4] To avoid any misunderstanding, the Court explicitly affirmed that hate speech is captured by section 2(b), and that the only form of expression that would not fall within section 2(b)’s ambit would be physical violence.[5] Similarly, in R v Zundel (1992), the Court held that the publication of false news — as an activity that evidently attempts to convey meaning — is also a form of expression guaranteed protection under section 2(b).[6]
Given this expansive reading of Section 2(b) of the Charter, it is clear that the promotion of antisemitism by condoning, denying, or downplaying the Holocaust would legally constitute a form of expression that is captured within Section 2(b). It is also clear that with this law the government intends to interfere with this expression, and thus there is an infringement of section 2(b) which must be tested under section 1 of the Charter.
The limitations clause in section 1 of the Charter was explicated in a 1986 case, R v Oakes, where the Court set out a 2-step test to determine whether a government infringement of a Charter right can be justified:
1. The government must show that the law in question has a goal that is both “pressing and substantial.”[7]
2. The court then conducts a proportionality analysis using three sub-tests:
a) The government must first establish that the impugned law is rationally connected to its purported purpose.
b) The law must only minimally impair the violated Charter
c) Even if the government can satisfy the above steps, the impact on Charter rights may be too high a price to pay for the benefit the provision would procure. In other words, there must be a balance between the law’s salutary and deleterious effects.[8]
To shed light on how this test might apply to the government’s proposed Holocaust denial law, it is useful to examine two seminal cases in which the criminalization of antisemitism was at issue. Those cases are the two that were mentioned above: R v Keegstra (1990) and R v Zundel (1992). At first glance, these cases appear to produce opposite conclusions, and we accordingly need to assess which is more relevant when considering the justifiability of the law under consideration here.
Mr Keegstra, a high school teacher, was promoting antisemitism to his students by describing Jews as “treacherous,” “subversive,” and “sadistic.”[9] As a result, he was charged with wilfully promoting hatred against an identifiable group under section 281(2) of the Criminal Code (now Section 319(2)). While the Supreme Court found that section 319(2) infringed upon the rights guaranteed under section 2(b), the majority also found that such an infringement was justified under the Oakes test.
In applying the Oakes test, the Court first noted the significant harm caused by hate propaganda, both to members of the targeted group and to society at large. The Court accordingly had no trouble concluding that the criminalization of hate speech via section 319(2) had a pressing and substantial objective: namely, addressing the significant harm caused by hate speech.
Moving on to the three-step proportionality stage of the Oakes test, the Court had little trouble concluding that the criminalization of hate speech was “rationally connected” to the state’s pressing and substantial objective. Even if criminalizing hate speech didn’t actually suppress hate speech, the Court said, it clearly addresses the harms of hate speech in at least one important sense: by reflecting “the severe reprobation with which society holds messages of hate directed towards racial and religious groups.”[10]
Next, the Court considered the question of minimal impairment — the second prong of the proportionality analysis — by noting that the scope of section 319(2) is limited in several key ways. Firstly, it does not capture private communications, or communications that were intended to be private but inadvertently became public.[11] Secondly, it requires the promotion of hatred to be wilful, i.e. intentional.[12] And thirdly, it requires that an individual intended to “promote hatred,” not merely ridicule or disparagement. In combination, these factors mean that section 319(2) only captures those few individuals who “intend or foresee as substantially certain a direct and active stimulation of hatred.”[13] This, for the Court, was a sufficiently narrow sphere of application to make the provision “minimally impairing” of Charter rights.
Finally, in assessing the overall proportionality of the provision, the Court noted that while the nature of regulated expression is not relevant in determining whether or not it falls within the ambit of section 2(b), it does become relevant in assessing whether or not the suppression of the expression can be justified under section 1.[14] Thus, because hate speech has no connection to (and in fact undermines) the values underlying section 2(b) — e.g. the promotion of democratic values — the Court concluded that the restrictions of section 319(2) were easier to justify.[15] The Supreme Court therefore upheld section 319(2) as a justifiable limit on free expression.
Mr Zundel published a pamphlet that downplayed the Holocaust, suggesting that it was a myth promoted as part of a global Jewish conspiracy. Consequently, he was charged with spreading false news under section 181 of the Criminal Code.[16]
In response to Mr Zundel’s claim that this unjustifiably infringed his expressive freedom, the Supreme Court found that the dissemination of false information was distinct from the dissemination of hate, even where it can be said that the false information might be injurious to the public wellbeing.[17] Affirming the parameters set out in Keegstra, the Court found that publication of false information is protected by section 2(b) of the Charter, regardless of how false or misleading it is.[18] Furthermore, the Court found that the consequence of section 181 was to restrict expression, and thus there was an infringement on the rights guaranteed under section 2(b).[19]
Having found a section 2(b) infringement, the Court then turned to assessing whether the infringement could be justified through the Oakes test. This is where we find the decisive part of the Court’s analysis. To quote the Court: “in determining the objective of a legislative measure for the purposes of s[ection] 1, the Court must look at the intention of Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility.”[20] In essence, this means that to pass the Oakes test, the benefit the law provides must have been the one intended by Parliament at the time of enactment. Furthermore, in searching for the objective of the impugned law, the Court will require something more specific than just a general protection from harm.[21] Given these self-imposed restrictions, the Court could not find a pressing and substantial objective behind section 181, and it was accordingly deemed unjustified and unconstitutional.[22]
Having found that section 181 lacked a pressing and substantial objective, the rest of the Oakes test was unnecessary to deem the law to be invalid. Nonetheless, the Court noted that even if such an objective had been found, a ban on publishing false information that is likely to cause public mischief is simply too broad to be justified under section 1.[23]
When looking at the government’s proposed Holocaust denial law, we must begin by acknowledging the problem of antisemitism in Canada. In 2021, Canada saw record levels of antisemitic incidents, including violence, and an overall increase of seven percent compared to the year prior.[24] The fact that the government has described the law in question as “[p]rohibiting the promotion of Antisemitism” suggests that it clearly considers Holocaust denial to be part of a larger problem of antisemitism as opposed to just being a case of revisionist history or false information untethered from hate speech. As such, there is evidently a pressing and substantial objective that the proposed law seeks to achieve: namely, suppressing antisemitism in Canada. The presence of this pressing and substantial objective — which is closely related to the objective that was identified and validated in Keegstra — seems to distinguish the proposed law from the provision that was invalidated in Zundel. In other words, the law seems to be narrower and more specific in scope than the Zundel law (indeed, it is even narrower than the law that was upheld in Keegstra).
Going on to the second part of the Oakes test, we see that the government was careful to tie together the promotion of antisemitism and the denial, downplaying, or condoning of the Holocaust. In this regard, the law does not simply criminalize denial, downplaying, or condoning of the Holocaust, but rather does so only when this expression is used to wilfully promote antisemitism. Once again, the specificity of this wording shows the government’s efforts to ensure that the law is narrow enough to survive a challenge under section 2(b) of the Charter. Moreover, the law takes direct cues from the Supreme Court’s analysis in Keegstra by replicating much of the wording deemed there to be indicative of minimal impairment. For example, like section 319(2) — the provision that was upheld in Keegstra — the proposed law won’t apply to private communications, and only applies where the promotion of antisemitism is “wilful,” as opposed to ignorant or inadvertent.
In sum, then, given the pressing and substantial problem of antisemitism, and the similarity in the wording of the proposed law to section 319(2), it seems likely that the new prohibition (if it passes) would survive a Charter challenge under section 2(b). While freedom of expression is an important Charter right, the Supreme Court’s rulings on laws regulating hate speech make it clear that socially harmful expression is far from unassailable, and will receive less protection than expression that aligns with the deeper values of the Charter and the Constitution.
[1] See here: <https://budget.gc.ca/2022/report-rapport/anx3-en.html#wb-cont>.
[2] Canadian Charter of Rights and Freedoms, s 2, part I of the Constitution Act, 1982 [Charter].
[3] Ibid, s 1.
[4] R v Keegstra, [1990] 3 SCR 697 at 729 [Keegstra].
[5] Ibid at 732.
[6] R v Zundel, [1992] 2 SCR 731 at 753-755 [Zundel].
[7] R v Oakes, [1986] 1 SCR 103 at para 69 [Oakes].
[8] Ibid at para 71.
[9] Keegstra, supra note 4 at 714.
[10] Ibid at 769.
[11] Ibid at 773.
[12] Ibid at 773.
[13] Ibid at 777.
[14] Ibid at 760.
[15] Ibid at 761-762, 766.
[16] Zundel, supra note 6 at 732.
[17] Ibid at 743.
[18] Ibid at 753-755.
[19] Ibid at 750.
[20] Ibid at 761.
[21] Ibid at 762.
[22] Ibid at 767.
[23] Ibid at 768.
[24] “Antisemitism in Canada at record levels in 2021 with surge in violence, audit finds”, CBC News (April 25 2022), online: <https://www.cbc.ca/news/canada/canada-antisemitism-violence-report-1.6430495>.
Can a province change the number of electoral wards in the middle of a municipal election? According to the recent Supreme Court decision in Toronto (City) v Ontario (Attorney General),[1] the answer is yes.
As the 2018 Toronto municipal elections were well underway, the Ontario government decided to reduce the size of Toronto City Council. The government announced its intention on July 27th, the same day that nominations for the elections closed. Several weeks later, the Better Local Government Act, 2018[2] came into effect, reducing the number of City Council seats from 47 to 25. The Act was challenged in court by the City of Toronto, and the Ontario Superior Court declared the Act invalid. However, the Ontario Court of Appeal disagreed, and thus the election proceeded with 25 wards, as required by the Act.
Despite the election’s end, Toronto appealed the decision of the Ontario Court of Appeal to the Supreme Court. The City of Toronto argued (among other things) that the Act was unconstitutional because it violated rights that are protected by section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter),[3] including candidates’ freedom of expression and voters’ right to effective representation. On October 1, 2021, the Supreme Court ruled in favour of the province, deeming the Better Local Government Act constitutional and legally valid.
The Charter issues in this case revolved around:
Section 2(b), which guarantees individuals’ “freedom of thought, belief, opinion and expression.” The City argued that by changing the ward boundaries so close to the election, the provincial government had unjustifiably infringed upon these rights of the candidates.
Section 3, which guarantees that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” While section 3 only applies to provincial and federal elections, the City argued that the principle of effective representation that underpins it can be “read into” section 2(b) and made applicable to municipal elections.
By a narrow majority of 5-4, the Supreme Court decided that the province had not violated the section 2(b) rights of the candidates, and that the section 3 right of effective representation does not extend to municipalities via section 2(b).
To understand the Court’s ruling, it is first important to understand the constitutional status of municipalities. Under section 92(8) of the Constitution Act, 1867,[4] municipalities are under provincial jurisdiction. This means that provinces have the “constitutional authority”[5] to change “municipal institutions”[6] — including the size of city councils — if they so choose.
At the same time, though, provincial laws and actions must still comply with other portions of the Constitution, including the Charter. Accordingly, in this case the question was not whether the Ontario government could restructure Toronto City Council — section 92(8) of the Constitution Act, 1867 empowers it to do so — but whether the unusual timing of the ward changes infringed on the section 2(b) rights of the candidates and voters.
The City’s argument is a positive rights claim.
The Court divided section 2(b) rights into positive and negative rights. A positive right is one which imposes an obligation upon the government to do something for an individual — in this case, to facilitate expression and provide a platform for it. In contrast, a negative right is one which requires the government not to interfere in an individual’s ability to do something — in this case, an individual’s ability to express themselves.
In Toronto v Ontario, the Court found that the City’s claim is a positive claim: the City wanted the provincial government to provide candidate’s with a specific platform for expression by either restoring the previous 47-ward structure, or by maintaining the ward distribution in place at the time of the election’s commencement.[7] While the former is obviously a positive claim, the Court found that the latter also amounts to a positive claim — albeit in a less obvious way. In the Court’s view, both versions of the City’s claim involve asking the provincial government to do something: namely, to provide electoral candidates with a specific platform (the council structure that was in place at the beginning of the election cycle) through which they can exercise their freedom of expression.
The section 2(b) positive rights test
Courts use different tests to assess positive and negative rights claims under section 2(b). Positive rights violations are harder to prove than negative ones, and for them to succeed three questions will all need to be answered in the affirmative:
1. Is the claim grounded in freedom of expression?
2. Does the lack of access to a particular platform for expression amount to a substantial interference with freedom of expression, or was it done with the purpose of interfering with freedom of expression; and
3. Is the government responsible for the inability of the claimant to exercise their freedom of expression?[8]
In Toronto v Ontario, the Court summed up this test in one question: “Was the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government had either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?”[9]
Having applied this test to the City’s claim, the Court determined there was no section 2(b) violation. In support of this conclusion, the Court relied on two key arguments. Firstly, it claimed that there was no interference in the freedom of candidates to campaign or to say what they wanted in their campaigns,[10] and noted that the City wasn’t claiming that the Province acted with the purpose of interfering with expressive freedom.[11] Secondly, it noted that the threshold of “substantial interference” is quite high, and will be met only in extreme and rare cases when meaningful expression has been “effectively precluded” by the state.[12] Given that candidates still had 69 days to campaign under the new ward boundaries and were able to raise significant amounts of funds, the Court decided that this high threshold was not met in this case.[13]
Section 3 of the Charter guarantees citizens the rights to vote and run for office in provincial and federal but not municipal elections. While the text of section 3 doesn’t mention a right to “effective representation,” the Supreme Court has recognized this additional right as an “incident”[14] of section 3 — although like the rights to vote and run for office, this right only applies to the federal and provincial levels.
However, in Toronto v Ontario, the City argued that the principle of “effective representation” applies to municipal affairs via section 2(b). Furthermore, the City argued that the new ward distribution violated the principle of effective representation — and hence section 2(b) — by creating wards of roughly equal size as opposed to wards based on population distribution (as would have been the case under the 47-ward distribution).[15]
The Court, though, found that the principles of section 3 — including the principle of effective representation — are quite distinct from those of section 2(b) and cannot be captured under it. According to the Court, the Charter’s framers intentionally did not include municipal representation in section 3, and the rights and principles that it covers should accordingly not be extended to municipal elections.[16]
This case was clearly a difficult one for the Court, and four of the Court’s nine Justices expressed their disagreement with the five-Justice majority by writing a separate “dissenting” opinion.
The dissent, written by Justice Rosalie Abella, argues that one of the key purposes of section 2(b) is the protection of political discourse.[17] While Justice Abella did not dispute the fact that a province has the legal authority to change municipal wards, she found that doing so in the middle of a municipal election was an interference with the ability of candidates and voters to express themselves politically.[18] This interference included: the absence of notice; the lack of additional time to fundraise; and the fact that more than half of the candidates certified before the ward changes dropped out of the elections after the changes came into effect.[19]
The majority used the wrong test for the right
Crucially, the dissent disagreed with the majority’s conclusion that the City’s claim concerned a positive right.[20] In this regard, the dissent frames the case as being “about government interference with the expressive rights that attach to an electoral process” and not about the provincial government “provid[ing] … a municipal election so that [the claimants] … can express themselves.”[21] The dissent accordingly suggested that the correct test for the case is the less arduous test for violations of negative section 2(b) rights, which requires the claimant to show that the activity under consideration conveys or attempts to convey meaning, and that the legislation or action under scrutiny interferes with that activity.[22]
Having established that municipal elections are crucial vehicles for political expression and that the government’s redrawing of the ward boundaries mid-election was an interference with that expression, the dissent found that the section 2(b) rights of candidates and voters had been violated. Furthermore, the dissent found that these violations could not be legally justified under section 1 of the Charter, which permits violations that are “reasonable,” “prescribed by law,” and “demonstrably justified in a free and democratic society.” The dissent accordingly argued that the impugned provisions of the Better Local Government Act were unconstitutional and invalid.[23]
While the decision of the majority essentially affirmed longstanding constitutional norms of provincial jurisdiction over municipalities, Justice Abella’s dissent demonstrates that the Court is sharply divided over the impact that the Charter has on these longstanding norms. Given the growing role of municipalities in Canadians’ everyday lives, it will be interesting to see if future Supreme Court cases on the relationship between provincial jurisdiction and municipal governance continue or break with the reasoning of the majority on this issue.
* Part Two of this article will evaluate the Court’s ruling on whether the Better Local Government Act’s alleged violation of an unwritten constitutional principle rendered it invalid.
[1] Toronto (City) v Ontario (Attorney General), 2021 SCC 34.
[2] Better Local Government Act, 2018, SO 2018, c 11.
[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[4] Constitution Act, 1867, RSC 1985, Appendix II, No. 5, s 92(8).
[5] Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at para 3.
[6] Ibid at para 2.
[7] Ibid at para 30-32.
[8] Ibid at para 23.
[9] Ibid at para 25.
[10] Ibid at para 37.
[11] Ibid at para 27.
[12] Ibid at para 27.
[13] Ibid at para 37.
[14] Ibid at para 44.
[15] Ibid at paras 44, 47.
[16] Ibid at para 45.
[17] Ibid at para 114.
[18] Ibid at para 89.
[19] Ibid at para 105.
[20] Ibid at para 152.
[21] Ibid at para 151.
[22] Ibid at para 156.
[23] Ibid at para 162.
How can the law balance the need to tackle hate speech with the need to protect free expression? Bill C-36 raises this question. Tabled by the federal government on June 23, 2021, Bill C-36 proposes amendments to the Criminal Code, the Youth Criminal Justice Act, and the Canadian Human Rights Act to protect Canadians from hate speech in an online environment.[1] With social media integrated into many aspects of our daily lives, this proposed legislation is important to create and protect safe online spaces.[2] While hate speech is likely not considered a valuable form of expression by most of us, it is protected by section 2(b) of the Charter of Rights and Freedoms, which guarantees individuals’ freedom of expression. This means that the proposed amendments in Bill C-36 will likely infringe section 2(b). But this does not, by itself, mean that the law cannot stand. On the contrary, under section 1 of the Charter, if the violation can be demonstrably justified as a reasonable limit on free expression, it will be constitutional.
While Bill C-36 is not law yet, it does raise important questions about hate speech as a protected form of expression, and about how this form of expression can justifiably be infringed upon. To address these questions, this article first examines the federal government’s proposed amendments in Bill C-36. Second, it discusses whether hate speech is a protected form of expression under section 2(b) of the Charter. And finally, it assesses whether Bill C-36’s proposed amendments may potentially be justified under section 1 of the Charter.
Second Time’s the Charm? Bill C-36 Proposes to Revive Previously Repealed Human Rights Legislation
Bill C-36 is not yet law, but is currently in the early stages of the legislative process. This means that Bill C-36 can still be amended during its second reading or can die on the order paper if Parliament is dissolved. Among other things, the Bill seeks to define “hatred” in section 319 of the Criminal Code, which sets out the offence for public incitement of hatred.[3] This definition relies on and echoes the Supreme Court of Canada’s decision in Saskatchewan (Human Rights Commission) v Whatcott.[4] The Bill also defines the dissemination of online hate speech as a discriminatory practice in the Canadian Human Rights Act and gives victims of hate speech access to new remedies.[5] This amendment also uses the language of the Supreme Court in Whatcott.
In addition to this Bill, the Government of Canada plans to create a regulatory framework that will work towards combating harmful online content.[6] This framework would establish rules for social media platforms to guide them in addressing harmful content such as hate speech.[7]
The Criminal Code Amendment Clears Up the Meaning of “Hatred”
As previously mentioned, Bill C-36 proposes to add a definition for “hatred” in section 319 of the Criminal Code. “Hatred” would be defined as “the emotion that involves detestation or vilification and that is stronger than dislike or disdain.”[8] This language echoes the Supreme Court’s interpretation of “hatred” in Whatcott, where the Court noted that “‘hatred’… is to be interpreted as being restricted to those extreme manifestations of emotion described by the words ‘detestation’ and ‘vilification’.”[9] This wording is important as it limits the application of section 319 of the Criminal Code to a very small category of expression. In other words, it prevents section 319 from applying to expression that is “repugnant and offensive” but does not rise to the “level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.”[10] By limiting the application of this law to only the most extreme and harmful speech, Bill C-36 attempts to ensure that section 319 of the Criminal Code infringes individuals’ freedom of expression as little as possible.[11]
The Canadian Human Rights Act Amendment Revives a Previously Repealed Law
Bill C-36 also revives section 13 of the Canadian Human Rights Act, which was repealed by Parliament in 2013 in response to claims that it was overly restrictive of free speech.[12] The “old” section 13 established that it was a “discriminatory practice … to communicate telephonically ... any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person … [is] identifiable on the basis of a prohibited ground of discrimination.”[13] There was fear at the time that this provision would place a “chill on speech that is controversial but not necessarily hateful.”[14] While these claims were not adjudicated by the courts before the law’s repeal, it is likely that section 13 infringed section 2(b) of the Charter. However, whether the “old” section 13 would have been saved by section 1 of the Charter — which allows governments to place reasonable limits on Charter rights — is uncertain.
Bill C-36 proposes to add a new and revised version of section 13 to the Canadian Human Rights Act. This new provision makes it a discriminatory practice to communicate “hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.”[15] Like the Criminal Code amendments, this provision echoes the wording of the Supreme Court in Whatcott. As such, section 13 would likely be limited to a very narrow segment of expression that goes beyond being merely offensive or repugnant, as it distinguishes expression that directs “dislike or disdain, or that discredits, humiliates, hurts or offends” from “the extreme nature of hate speech captured by the proposed amendments.”[16]
The amendments to the Canadian Human Rights Act would apply to public communications on the Internet by individuals in places such as social media platforms, personal websites, and in mass emails.[17] If an individual is targeted by a post that elicits hate speech, they would be able to file a hate speech complaint with the Canadian Human Rights Commission.[18] While the Department of Justice asserts that the provision is “carefully defined to target only an extreme and marginal type of expression,”[19] if it becomes law, it will likely be scrutinized by free-speech advocates as a potentially unjustified and hence unconstitutional violation of the freedom of expression.
Hate Speech: Is It Protected Under the Charter?
In its attempts to limit hate speech, does Bill C-36 engage the Charter’s guarantee of free expression? To answer this question, a useful starting point is the Supreme Court of Canada’s judgment in R v Keegstra. In that case, the Court was tasked with determining whether “the coverage of s. 2(b) extend[s] to the public and wilful promotion of hatred against an identifiable group.”[20] To determine if a form of expression is protected, the Court found it necessary to consider the values that underlie the freedom of expression as they “define the ambit of s. 2(b)” and provide context on how “competing interests might co-exist with the freedom under s. 1 of the Charter.”[21] In particular, the Court identified three values that fuel free expression: (1) truth seeking, (2) participating in “social and political decision-making,” and (3) “individual self-fulfillment.”[22] It is not enough to consider these values in isolation, the Court said. Rather, these values must be considered “within the textual framework of the Charter.”[23]
Although hate speech does not promote the values that underlie the freedom of expression, the Supreme Court of Canada in Keegstra decided that hate speech is “expression” within the framework of the Charter. In arriving at this decision, the Court noted that the word “expression” includes any activity that “conveys or attempts to convey a meaning,”[24] provided it is not “communicated in a physically violent form.”[25] Since “[c]ommunications which wilfully promote hatred against an identifiable group without doubt convey a meaning,”[26] the Court held that hate speech is protected expression under section 2(b) of the Charter. This means that it is highly likely that government action that seeks to restrict hate speech will result in a section 2(b) infringement.
How does the precedent set in Keegstra apply to the amendments proposed by Bill C-36? While it is not certain until a court rules on the matter, it is likely that section 2(b) will be infringed if the new section 13(1) is added into the Canadian Human Rights Act. This provision aims to prevent the dissemination of hate speech, which is protected expression under section 2(b) of the Charter. However, the analysis does not end here. This potential infringement may yet be justified under section 1 of the Charter.
Preventing Hate Is Likely a Justified Infringement on Free Expression
Some commentators were concerned that the “old” section 13 of the Canadian Human Rights Act would allow “too many frivolous cases to proceed against citizens, when the Criminal Code already covers hate speech that could generate harm against an individual or group.”[27] This ultimately led to its repeal through a private member’s bill tabled in the House of Commons in June 2013. As Bill C-36 is still in early stages of the legislative process, it is hard to know if it will eventually become law or, if it does, whether it will eventually be reviewed by the courts. If it does end up before the courts, several potential arguments for and against the justification of section 13 may be addressed.
Arguments Supporting Justification
Arguments in favour of section 13 would likely turn on its ability to pass the minimal impairment and final balancing stages of the Oakes test, which is the test that is used by the courts to determine if a violation of a Charter right is justified. At this stage of the analysis, courts will consider the links between the infringed expression and section 2(b) values. Justification is more likely if the impugned expression deviates from the values underlying free expression. In this regard, three arguments in support of justifying a potential infringement of section 2 (b) are especially relevant.
First, Bill C-36’s proposed “new” section 13 has some important differences compared to the “old” version. The new version uses the language of the Supreme Court in Whatcott (detestation and vilification), which has been interpreted to only capture a small segment of expression.[28] As such, section 13 may well be found to be minimally impairing as it does not capture more expression than necessary.
Second, since the repeal of the “old” section 13, internet usage and the dissemination of online hate has increased significantly.[29] For example, a 2020 study showed that over 6,600 online platforms were used to spread “white supremacist, misogynistic or other extremist views.”[30] In this sense, the problem of online hate has clearly increased dramatically, which may make it more likely for the new section 13 to pass the final balancing stage of the Oakes test, when the importance of the government’s objective is weighed against the extent of the rights violation.
Finally, establishing the promotion of hate speech as a form of discrimination in the Canadian Human Rights Act gives victims a way to hold others accountable for their online hate speech.[31] The importance of providing a remedy to victims may also be a factor that is considered in the final balancing stage of the Oakes test.
Arguments Against Justification
In response to the federal government’s introduction of Bill C-36, the Canadian Constitution Foundation (“CCF”) issued a statement that provides some arguments against section 13 being a justifiable infringement on free expression.[32] First, the CCF suggests that the proposed definition for hate speech is “a vague and subjective standard.”[33] A vague law can implicate the section 1 analysis at two stages.[34] In brief: a law may be so vague as to not “constitute a ‘limit prescribed by law’ under s. 1”[35] or may result in an argument of overbreadth at the minimal impairment stage of the Oakes test.[36] Second, the CCF is concerned that the proposed section 13 will deter and prevent Canadians’ from debating unsettled subjects.[37] This argument may also arise at the minimal impairment stage, as it suggests that too much expression may be captured by the law. Finally, the CCF takes issue with the idea that a tribunal, which is formed by members that are not democratically elected, would have control over free expression.[38]
Conclusion: Wait and See
Since the repeal of the “old” section 13 in June 2013, the use of the internet in many aspects of our daily lives has increased. At the same time, the spread of online hate has also increased. Bill C-36 seeks to address these issues by providing a new legal definition of “hatred” and establishing the spread of online hate as a form of discrimination. If Bill C-36 is passed into law, the constitutionality of its amendments is uncertain and will remain uncertain until the courts have an opportunity to weigh in on the matter. It is likely that an infringement on section 2(b) of the Charter will be found, because hate speech receives Charter protection as a form of expression that conveys meaning. However, while section 2(b) grants constitutional protection to a broad range of expression, restrictions on expression may nonetheless be justified under section 1 of the Charter. Given how closely Bill C-36’s proposed amendments follow section 2(b) jurisprudence, the “new” section 13 would likely be justified under section 1 of the Charter. This, however, will remain uncertain unless the courts weigh in on the matter.
For the time being, we will have to wait and see if Bill C-36 is passed into law.
[1] Criminal Code, RSC 1985, c C-46; Youth Criminal Justice Act, SC 2002, c1; Canadian Human Rights Act, RSC 1985, c H-6 .
[2] “Government of Canada takes action to protect Canadians against hate speech and hate crimes” (23 June 2021), online: Government of Canada <www.canada.ca/en/department-justice/news/2021/06/government-of-canada-takes-action-to-protect-canadians-against-hate-speech-and-hate-crimes.html> [Department of Justice Canada News Release].
[3] Ibid.
[4] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 .
[5] Department of Justice Canada News Release, supra note 2.
[6] Ibid.
[7] Ibid.
[8] Bill C-36, An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech, 2nd Sess, 43 Parl, 2021 (first reading 23 June 2021), online: <http://www.parl.ca/DocumentViewer/en/43-2/bill/C-36/first-reading> [Bill C-36].
[9] Whatcott, supra note 4 at para 57.
[10] Ibid.
[11] See eg Whatcott, supra note 4; See also R v Keegstra, [1990] 3 SCR 697, 1990 CanLII 24 .
[12] Joel Webe, “Hate speech no longer part of Canada’s Human Rights Act” (27 June 2013), online: National Post <https://nationalpost.com/news/politics/hate-speech-no-longer-part-of-canadas-human-rights-act>.
[13] CHRA, supra note 1 at s 13(1), as repealed by An Act to amend the Canadian Human Rights Act (protecting freedom), SC 2013, c 37.
[14] Webe, supra note 12.
[15] Bill C-36, supra note 8 [emphasis added].
[16] “Combatting hate speech and hate crimes: Proposed legislative changes to the Canadian Human Rights Act and the Criminal Code” (last modified 23 June 2021), online: Government of Canada <www.justice.gc.ca/eng/csj-sjc/pl/chshc-lcdch/index.html> [Proposed Legislative Changes].
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Keegstra, supra note 11 at 725.
[21] Ibid at 726.
[22] Ibid at 728.
[23] Ibid.
[24] Ibid at 729.
[25] Ibid.
[26] Ibid at 730.
[27] Yosie Saint-Cyr, “Section 13 of the Canadian Human Rights Act Repealed!?” (14 June 2012), online: Slaw <www.slaw.ca/2012/06/14/section-13-of-the-canadian-human-rights-act-repealed/>.
[28] Whatcott, supra note 4 at para 57.
[29] Department of Justice Canada News Release, supra note 2.
[30] Ibid.
[31] Ibid.
[32] The CCF, “Canadian Constitution Foundation statement on ‘Online Harms’ bill” (23 June 2021), online: Canadian Constitution Foundation <https://www.theccf.ca/canadian-constitution-foundation-statement-on-online-harms-bill>.
[33] Ibid.
[34] See R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, 1992 CanLII 72 .
[35] Ibid at 630.
[36] Ibid at 627.
[37] The CCF, supra note 32.
[38] Ibid.
Creating a balance between protecting both democracy and free expression is a difficult task. In 2017, the Ontario legislature amended the Election Finances Act[1] to insert a provision that places spending limits on third party political advertising six months prior to an election. In 2018, this spending limit was extended such that the limit applied over a 12-month period prior to an election instead of a 6-month period. Arguably, these spending limits were imposed to promote a fair and democratic election process by limiting the extent to which more affluent individuals and groups can influence the electoral process.[2] However, a constitutional challenge was launched against the Government of Ontario on the ground that the law infringed section 2(b) of the Charter of Rights and Freedoms, which guarantees the freedom of expression. The Ontario Superior Court of Justice found in Working Families Ontario v Ontario[3] (“Working Families”) that the impugned provisions of the Election Finances Act did in fact unjustifiably infringe section 2(b) of the Charter. As a result, the Court declared these provisions of no force or effect.
The Government of Ontario then had a choice: appeal the Court’s decision, amend the law to align with Charter values, or disregard the finding of unconstitutionality and invoke the notwithstanding clause to reenact the invalidated law. Of these options, the last was chosen. On July 14, 2021, the lifeless law was revived, despite its Charter infringements, using the notwithstanding clause.
This article first reviews the amendments to the Election Finances Act. It then explains the Court’s decision in Working Families. Finally, it explores the Government of Ontario’s decision to invoke the notwithstanding clause in response to the Court’s ruling.
Legislative History: Third Party Spending is Limited by the Election Finances Act
Bill 254 amended the laws governing Ontario’s provincial elections to “protect Ontarians’ essential voice in elections” and “promote fairness in the electoral process for everyone.”[4] One of these amendments, section 37.10.1(2) of the Election Finances Act, found itself at the centre of a constitutional challenge for infringing free expression. Section 37.10.1(2) provides that no third party can spend “more than $600,000 in total for the purposes of third-party political advertising during the 12-month period immediately before the issue of a writ of election.”[5] This limit was criticized as “severely and aggressively target[ing] third parties,”[6] such as trade unions. Political advertising is broadly defined in section 1.1(1) of the Election Finances Act as “advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate.”[7] As such, the law limits many forms of political expression.
Before Bill 254’s amendments, Ontario had a spending limit that was capped at 6 months prior to the writ of election. Like the 12-month limit, the 6-month limit was also scrutinized. Charter challenges were launched against the Government of Ontario, which responded that “pre-election spending limit[s] on third-party political advertising … [are] necessary and reasonable to ensure a fair and proper election process.”[8] Before the courts could adjudicate the claims regarding the 6-month limit, the Government of Ontario amended the Election Finances Act in 2021 with Bill 254.
Charter Challenge Launched: Bill 254 Unjustifiably Limits Free Expression
To determine whether the 12-month spending limit violates the freedom of expression, a Charter analysis must be conducted. First, the Court must determine whether political advertising is protected speech under section 2(b) of the Charter. If it is not protected speech, it will not receive Charter protection and the analysis ends. However, if it is protected speech and an infringement is found, the Court will proceed to the next step of the analysis, when it will ask whether the law constitutes a reasonable limit on the infringed right under section 1 of the Charter.
Is Third Party Political Advertising Protected Speech Under the Charter?
Not all expression receives the same degree of protection under section 2(b) of the Charter.[9] Instead, courts assess each form of expression in context to determine the extent to which it must be protected.[10] In R v Keegstra, Justice McLachlin (as she then was) explained the importance of the freedom of expression for political speech: “[Free expression] is instrumental in promoting the free flow of ideas essential to political democracy and the functioning of democratic institutions. This is sometimes referred to as the political process rationale.”[11] For these reasons, among others, political expression has been granted a high level of protection under section 2(b).[12] However, as the analysis is contextual, this is not always the case. Sometimes political expression merits a lower level of protection “depending on the nature of the controversy at hand.”[13]
In Working Families, free expression was not the only constitutional value at stake. Other constitutional values, like equal speaking opportunities, must also be protected during elections.[14] The concern with not limiting third-party advertising is that heavily-funded third party political advertisers can disproportionately dominate the airwaves and drown out voices that have less funding.[15] The Court concluded that the “financing of political expression” is “certainly an aspect of expression deserving protection under section 2(b) … but its level of protection is a matter of context, to be weighed with and against other values underlying democracy itself.”[16] The right of third-party political advertisers to engage in free expression is therefore “counterbalanced by a need to ensure that all citizens have an equal opportunity to participate in the electoral process.”[17]
The question, then, was whether Bill 254 violates freedom of expression by infringing on political speech. The Court quickly concluded that limiting third party political advertising does restrict freedom of expression.[18] In the Court’s words, free expression is a broad right that is infringed whenever a government “limits an activity that conveys or attempts to convey meaning,” and political advertising is one of those activities.[19] The Attorney General of Ontario also conceded this point.[20]
Charter Rights Are Not Absolute: Can the Section 2(b) Infringement Be Justified?
Charter rights are not absolute. Governments can justifiably limit a protected right under section 1 of the Charter if that limit “can be demonstrably justified in a free and democratic society.”[21] To determine whether the law is justified, courts apply the Oakes test, which assesses the importance of the law’s objective and whether there is proportionality “between the objective and the means used to achieve it.”[22] If the Oakes test is satisfied, the violation of the Charter right is regarded as legally justified and the law is constitutional.
The Working Families decision hinged on the question of proportionality. Among other things, an infringement is proportional only if it minimally impairs the violated Charter right. The Court found that at the Oakes test’s minimal impairment stage “the rubber of Bill 254 hits the slippery road of justification, causing the … vehicle to skid off course.”[23] The Court found that Bill 254 was not minimally impairing because the Government failed to consider other measures that would achieve its objective but have less of an impact on Charter rights. The Court cited two key facts in support of this conclusion. Firstly, the Chief Electoral Officer recommended against imposing restrictions on “issue-based advertising” prior to the election, concluding that such restrictions do “not augment the fairness and equality that such regulations are meant to address.”[24] Secondly, and more significantly, the Government of Ontario’s own expert witness testified that a 6-month spending limit was an “appropriate and effective” length of time for restricting political advertisements.[25] As such, it was difficult for the Government of Ontario to argue that a 12-month period minimally impairs free expression when a 6-month period would, according to its own expert witness, ensure a fair and democratic election period. On this point, the Attorney General failed to provide evidence that justified or explained why the restricted spending period was doubled.[26] The 12-month spending restrictions in section 37.10.1(2) were accordingly not found to be minimally impairing, and the law was not saved under section 1 of the Charter.
Having ruled the 12-month spending restrictions unconstitutional, the remedy declared by the Court was the invalidation of the impugned sections of the Election Finances Act, rendering them of no force or effect. Often, when this type of declaration is made, courts will suspend the declaration of invalidity for a period of time, so that governments may amend the law and bring it into compliance with the Charter. In this case, no suspension was granted as an Ontario provincial election was scheduled to occur within 12 months of the Court ruling. This meant that third party advertisers, under the impugned law, were already within the 12-month restricted spending period. As such, the law was invalidated immediately, so that these parties would not be subject to unconstitutional laws during this pre-election period.
The Notwithstanding Clause Stifles Judicial Dialogue
Section 37.10.1(2) was lifeless for just a few days before it was revived by the Government of Ontario on June 14, 2021. What made this revised legislation different than the original law was the inclusion of the notwithstanding clause. The notwithstanding clause is a constitutional provision set out in section 33 of the Charter that gives the provinces and Parliament power to declare that a law may operate “notwithstanding” the fact that it infringes upon certain Charter rights. It functions to “prevent a person from bringing an action in court claiming that a law violates fundamental freedoms, legal rights, or equality rights and is therefore invalid.”[27] Therefore, as Ontario enters the next election cycle, no party will be able bring a claim to court arguing that the spending restrictions in the Election Finances Act violate their freedom of expression.
Since its inception in 1982, the notwithstanding clause has had limited use. Of the 14 governments that can use the clause, only Saskatchewan, the Yukon, Ontario, Alberta, and Quebec have made declarations under section 33.[28] However, this is the first time that a court has declared a law unconstitutional and the government has immediately responded by invoking the notwithstanding clause and reenacting exactly the same law. Normally, where the courts find a law unconstitutional, the offending government will attempt to bring it into compliance with the Constitution through amendment — a process that is often referred to as a dialogue between courts and legislatures. Ontario’s use of the notwithstanding clause effectively ends this dialogue; the Government of Ontario has simply re-enacted the same law, ignoring the Court’s judgment that it is unconstitutional.
For some observers, though, the notwithstanding clause offers a way for elected officials to challenge unelected judges’ interpretations of constitutional rights and principles. Hansard from the debates on June 14, 2021, when the new notwithstanding legislation was passed, states that reviving the spending limit law “will restore … critical guardrails to protect the essential role of individuals at the heart of Ontario’s democracy.”[29] This suggests that the Government of Ontario is re-enacting this law to ensure a fair and democratic election process by limiting the role of private money in the electoral process. Conversely, critics of the Government of Ontario argue that this law “limits comment on essentially any public policy issue when these comments matter the most.”[30] Whatever position one takes, critics of the Election Finances Act are no longer able to challenge it under section 2 of the Charter (or under other sections of the Charter to which the notwithstanding clause applies).
Conclusion: Back Where We Started
Despite the unjustifiable infringement on free expression, the 12-month restriction on spending for third-party political advertisements is law in Ontario. Those who fall under the impugned restrictions set out by the Election Finances Act are left with few to no remedies. Because the notwithstanding clause was used to revive the law, Charter challenges cannot be brought on the basis that the law violates fundamental freedoms, legal rights, or equality rights. However, this issue is not free of constitutional challenges just yet. A new challenge was launched against the law under section 3 of the Charter.[31] Section 3 guarantees democratic rights and is exempt from the purview of the notwithstanding clause. Whether or not this claim will succeed is uncertain, but in the meantime third-party political advertising must abide by the spending limits under the revived Election Finances Act.
[1] Election Finances Act, RSO 1900, c E7.
[2] Working Families Ontario v Ontario, 2021 ONSC 4076 at para 6 .
[3] Ibid.
[4] Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly, 1st reading, Legislative Assembly of Ontario, 42-1, No 227 (25 February 2021) at 11578 (Hon Doug Downey).
[5] Election Finances Act, supra note 1, s 37.10.1(2).
[6] “Conservatives double-down with amendments to Bill 254, the ‘Squashing Ontario Democracy Act’” (13 April 2021), online: Cision <www.newswire.ca/news-releases/conservatives-double-down-with-amendments-to-bill-254-the-squashing-ontario-democracy-act--823313298.html>.
[7] Election Finances Act, supra note 1, s 1.1(1).
[8] Working Families, supra note 2 at para 6.
[9] Ibid at para 24.
[10] Ibid.
[11] Ibid at para 24, citing R v Keegstra, [1990] 3 SCR 697 at 802, 1990 CanLII 24.
[12] Working Families, supra note 2 at para 25.
[13] Ibid at para 26. See Ford v Quebec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19.
[14] Working Families, supra note 2 at para 27.
[15] Ibid at para 32.
[16] Ibid at para 28.
[17] Ibid at para 31.
[18] Ibid at para 34.
[19] Ibid.
[20] Ibid.
[21] Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[22] “Section 1 — Reasonable Limits” (last modified 2 July 2021), online: Government of Canada Department of Justice <https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html>.
[23] Working Families, supra note 2 at para 63.
[24] Ibid at para 64.
[25] Ibid at para 65.
[26] Ibid at para 73.
[27] “Notwithstanding Clause” (last visited 21 July 2021), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/notwithstanding-clause/> .
[28] “Section 33 – Notwithstanding clause” (last modified 2 July 2021), online: Government of Canada Department of Justice <www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html>.
[29] Bill 307, An Act to amend the Election Finances Act, 3rd reading, Legislative Assembly of Ontario, 42-1, No 275 (14 June 2021) at 14208 (Hon Doug Downey).
[30] Christine Van Geyn, “Doug Ford’s gag law will limit comment on essentially any public policy issue” (17 June 2021), online: Canadian Constitution Foundation <https://theccf.ca/doug-fords-gag-law-will-limit-comment-on-essentially-any-public-policy-issue/>.
[31] Robert Benzie, “Unions again challenging Premier Doug Ford’s campaign finance law as unconstitutional” (12 July 2021), online: Toronto Star <www.thestar.com/politics/provincial/2021/07/12/unions-again-challenging-premier-doug-fords-campaign-finance-law-as-unconstitutional.html>.
Recently – both within and outside Canada – candidates and their supporters have been making grievously false statements about their opponents during elections. In 2019, for example, Conservative communications director Brock Harrison claimed on Twitter that Justin Trudeau was under RCMP investigation, despite this being completely untrue.[1] There is little doubt, of course, that such falsehoods have the potential to unjustly influence electoral outcomes. But in a society that values free speech, should spreading false information during an election be illegal?
That was the central theme in Canadian Constitution Foundation v Canada (“CCF”), a case heard by the Ontario Superior Court in September 2020.[2] The case dealt with section 91(1) of the Canada Elections Act (CEA), which restricts the dissemination of certain types of false information during elections.[3] The Canadian Constitution Foundation — a registered charity and advocacy group — challenged the constitutionality of section 91(1), arguing it unjustifiably breached individuals’ freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.[4] This article will examine the Ontario Court’s response to this claim.
Section 91(1) of the Canada Elections Act
Section 91(1) of the CEA prohibits the dissemination of “certain false statements”[5] about particular public figures “associated with a political party during federal elections with the intention of affecting the outcome of an election.”[6] This includes, for example, falsehoods about a candidate or public figure’s commission of a criminal offence.[7] When combined with other CEA sections, section 91(1) creates a criminal offence.[8] The offence carries a maximum punishment of $50,000 in fines or a 5-year prison sentence.[9]
Section 91(1) has existed in some form since 1908, having been amended in 1970, 2000, and 2018.[10] However, 2018’s amendments significantly overhauled the law, crucially deleting the word “knowingly” from the provision. Before 2018, section 91(1) stated:
No person shall, with the intention of affecting the results of an election, knowingly make or publish any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate.[11]
To be convicted of the pre-2018 offence, then, the offender had to know that they were disseminating falsities.[12] The removal of the word “knowingly” in 2018 made it unclear whether the offence now required false election “information to be knowingly disseminated or just merely disseminated.”[13] This was the key issue in CCF.
Section 91(1) Infringes Section 2(b) of the Charter
When a court addresses a Charter challenge, the first step is to determine if there is a Charter infringement. In this case, all parties agreed that section 91(1) of the CEA “restricts expressive activity that is protected by s[ection] 2(b) of the Charter,”[14] so the Court did not need to determine if the provision was an infringement. However, the Court took the opportunity to comment on the importance of political speech under section 2(b). The Court reaffirmed that political speech is “the most valuable and protected type of expression”[15] since it enables “the free exchange of political ideas … [to ensure] a properly functioning democracy.”[16] At the same time though, the Court acknowledged that the spread of false information during elections can “threaten our democracy ... and undermine public confidence in our democratic institutions and the security of our elections.”[17] Thus, the Court asserted that deliberate propagation of false information during elections “does not enjoy the same level of protection under s[ection] 2(b) of the Charter as [other forms of] political speech.”[18]
Is This Infringement Justified Under Section 1 of the Charter?
Finding that a law infringes the Charter is not the end of the case, because Charter protections are not absolute; they are subject to reasonable limits under the Charter’s section 1. To determine if a limit on a Charter right is reasonable, courts apply a special test known as the “Oakes test.” Under this test, any law that violates the Charter may be “saved under [s]ection 1”[19] (and will remain in force) if it meets two criteria:
The parties in CCF agreed that the “objective of s[ection] 91(1) — to protect the integrity of the electoral process against the threat of false information — [was] pressing and substantial.”[21] However, the parties disagreed as to whether section 91(1) minimally impaired[22] freedom of expression (and passed the Oakes test) in light of the removal of the word “knowingly.” The CCF argued that section 91(1) could capture accidental misstatements and was therefore too broad to be minimally impairing.[23] By contrast, the Attorney General argued that the law, when interpreted properly, only captured deliberate false statements.[24] In this regard, the Attorney General suggested that the removal of “knowingly” was simply to eliminate legislative redundancy in drafting, and that the provision still implied that the offender would have to know that their statement was false.[25]
Why is the Word “Knowingly” So Important?
For conviction of most criminal acts, the Crown must prove two separate elements of the offence, the actus reus (AR) and the mens rea (MR).[26] The AR is the illegal act itself while the MR is the individual’s intent to commit said act.[27] The MR requirement means that an accused must possess a certain degree of knowledge in order to be found guilty of an offence.[28]
The Court confirmed that the AR of the section 91(1) offence was the actual spread of falsehoods during an election.[29] However, it was not clear how removing the word “knowingly” affected the MR.[30]
How Does the Rest of the Canada Elections Act Address the “Knowledge” Element?
The Court began by examining the text of section 91(1) in the context of the CEA. It noted that because the word “knowledge” was removed from section 91(1), “the offence as currently drafted does not contain any knowledge component.”[31] The Court noted that the portion of the law requiring an intention to affect election results is not relevant because it does not address knowledge of whether the statements made were false.[32]
After reviewing other CEA election offences, the Court noted that “Parliament ha[d] clearly articulated”[33] an MR requirement in all of the other offences, and that “[w]hen proof of knowledge is required, that is explicit in the prohibition or offence provision.”[34] For example, the Court referred to section 408(1) of the CEA, which states that “no leader of a political party shall provide the Chief Electoral Officer with information under section 385 that the leader knows is false or misleading”[35] when registering political parties.[36]
The Court further observed that the offence created by section 91(1) was starkly different from the rest of the offences under the CEA, and that it would therefore “be inconsistent with the structure of the CEA as a whole to interpret [section] 91(1) … as requiring knowledge when … [it was] not explicit in either the prohibition or offence.”[37]
The text of the CEA, then, suggested that removing “knowingly” from section 91(1) removed the requirement for an offender to know that their statement was false. But was this Parliament’s intent?
Did Parliament Intend to Change the MR Requirement?
To determine Parliament’s intention, the Court examined parliamentary debates and standing committee sessions on the law, acknowledging that such evidence is by itself “of limited weight.”[38] However, this evidence can provide context about the matters that Parliament considered when discussing the legislation. For this reason, such evidence is admissible to assist courts in determining Parliament’s intention, although it should not be determinative.[39]
First, the Court noted that there was little mention of deleting “knowingly” in the parliamentary debates.[40] Then, it examined the standing committee sessions, which briefly considered whether “knowledge” of a statement’s accuracy remained a component of the MR for the section 91(1) offence.[41] The Conservative Party proposed an amendment to keep the word “knowingly” in the law at a committee session, but the General Counsel to the Commissioner of Elections Canada stated that the inclusion of the phrase “with the intention of affecting the results of an election”[42] in the law implied that the “person making the publication would need to know that the information that is published was false.”[43] The amendment was ultimately rejected on this basis.[44]
For the most part, discussions during the standing committee hearings focused on how keeping the word “knowingly” in the provision could be misinterpreted and create confusion.[45] For example, Jean-Francois Morin, a senior policy advisor from the Privy Council Office, speculated that a judge could misinterpret the word “knowingly” to mean that the Crown must prove that the offender knew that they violated that specific portion of the Elections Act.[46] The Court, though, rejected Morin’s statements as “incorrect and potentially misleading.”[47]
The Court concluded that the legislative proceedings were “not helpful” and could not be interpreted “as [reflective] of Parliament's true intention.”[48] There was therefore insufficient evidence to show whether Parliament intended to retain the MR knowledge requirement.
The Court also considered an affidavit from Mylene Gigou, the Director of Investigations with the Office of the Elections Commissioner, which argued that section 91(1) contained an implied knowledge component[49] because Parliament intended it “to be an intentional offence, not a strict liability offence.”[50] A strict liability offence does not have an MR requirement — committing the illegal act alone is sufficient to be found guilty, whereas an intent offence always requires some form of MR.[51] However, the Court rejected this statement as legally wrong, since “[c]ategorizing an offence as an intent offence does not [automatically] imply or require any particular form of mens rea.”[52]
Additionally, the Court found that Gigou contradicted herself; she stated that section 91(1) “only targets knowingly false statements,” but later that the provision could also capture statements made by a “person or entity [who is] willfully blind or reckless about the [statement’s] truthfulness.”[53] The Court accordingly found Gigou’s evidence of little use in outlining Parliament’s intentions and suggested instead that it “demonstrate[d] the confusion that arises when Parliament does not clearly articula[te] the mens rea” for an offence.[54]
To sum up, the original version of section 91(1) included the word “knowledge,” which means that full knowledge of the statement’s falsity was required to secure a criminal conviction. By removing that word, Parliament potentially expanded the MR to include recklessness, which would be a significant change to the law.[55] An accused is reckless when they are aware of the relevant risks — in this case the risk that their statement may be false — but engage in the conduct regardless.[56] In contrast, full knowledge is a heightened standard, requiring awareness of falsity.[57] In the absence of indications to the contrary, the Court concluded that Parliament’s removal of the word “knowingly” was intended to expand the MR of the offence beyond full “knowledge.”
The New Law is Not Minimally Impairing
As noted above, for a law to justifiably infringe a Charter right it must minimally impair the right. This means that the law interferes with the Charter right “as little as possible.”[58] In this case, both parties agreed that the MR would need to be “knowledge” for the law to be minimally impairing. The Court found that removing the word “knowledge” from section 91(1) broadened the law unnecessarily to include people who unintentionally or recklessly distributed false information without knowing that it was false.[59] As a result, the law failed the minimal impairment test, was held unconstitutional, and was declared immediately to be of no force and effect.[60]
Law Struck Down: But This Doesn’t Mean You Can Spread All the Malarkey You Want
The Court acknowledged that false election information is a threat to democracy, but concluded that this particular law unjustifiably infringed free expression. While the law was struck down, this does not give Canadians a free license to spread false information during an election. It is just that this particular law, as it was written at the time of litigation, was found to limit Charter freedoms in an unjustifiable manner. Subsequently, the government placed the word “knowingly” back into the law in May 2021 to render it constitutional.[61] Section 91(1) is therefore valid law once again.[62]
[1] Susan Delacourt, “Are There More People Telling Lies in this Federal Election?” Toronto Star (18 September 2019), online: <https://www.thestar.com/politics/political-opinion/2019/09/18/are-there-more-people-telling-lies-in-this-federal-election.html>.
[2] Canadian Constitution Foundation v Canada (Attorney General), 2021 ONSC 1224 .
[3] Canada Elections Act, SC 2000, c 9, s 91(1) as it appeared on 20 January 2021 .
[4] Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.
[5] CCF Canada, supra note 2 at para 3.
[6] Ibid at para 3.
[7] Elections Act, supra note 3, s 91(1)(a).
[8] Ibid, ss 463(3)(c) and 500.
[9] Brian Platt, “Liberals Aim to Use Budget Bill to Fix Charter Violation in their Own Election Misinformation Law” National Post (12 May 2021), online: <https://nationalpost.com/news/politics/liberals-aim-to-use-budget-bill-to-fix-charter-violation-in-their-own-election-misinformation-law>.
[10] CCF Canada, supra note 2 at para 12.
[11] Elections Act, supra note 3 as it appeared on 12 December 2018 (emphasis added).
[12] CCF Canada, supra note 2 at para 67.
[13] Gregory Tardi, “Including Emerging Litigation Comprenant les Litiges en Voie de Développement” (2021) 15 J Parliamentary & Pol L 441 at 442 (WL) [Tardi].
[14] CCF Canada, supra note 2 at para 5.
[15] Ibid at para 1.
[16] Ibid at para 1
[17] Ibid at para 2.
[18] Ibid at para 2
[19] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed (North York: University of Toronto Press, 2012) at 90 [Malcolmson].
[20] Ibid.
[21] CCF Canada, supra note 2 at para 6.
[22] “Minimal impairment” means that the “law in question [infringes] the right as little as possible … and [that] there [are no] other ways of achieving the same objective without limiting Charter rights” (Malcolmson, supra note 19 at 91).
[23] CCF Canada, supra note 2 at para 6.
[24] Ibid at para 5.
[25] Ibid at para 8.
[26] Kent Roach, Criminal Law, 7th ed (Toronto: Irwin Law, 2018) at 10 [Roach].
[27] Manning, Mewett and Sankoff, Criminal Law, 4th ed (Markham: LexisNexis, 2009) at 103 [Manning et al].
[28] Roach, supra note 26 at 279-282.
[29] CCF Canada, supra note 2 at para 24.
[30] Ibid at paras 19-22.
[31] Ibid at para 33.
[32] Ibid at paras 24-26, 31.
[33] Ibid at para 42.
[34] Ibid.
[35] Elections Act, supra note 3 at s 408(1) [emphasis added].
[36] CCF Canada, supra note 2 at para 38.
[37] Ibid at para 43.
[38] Ibid at para 45.
[39] R v Morgentaler, [1993] 3 SCR 463 at 484 .
[40] CCF Canada, supra note 2 at para 46.
[41] Ibid at para 58.
[42] Elections Act, supra note 3 at 91(1).
[43] CCF Canada, supra note 2 at para 48.
[44] Ibid at para 49.
[45] Ibid at para 48.
[46] Ibid at para 48.
[47] Ibid at para 53.
[48] Ibid at para 58.
[49] Ibid at paras 59-60.
[50] Ibid at para 61.
[51] Manning et al, supra note 27 at 203.
[52] CCF Canada, supra note 2 at para 61 [emphasis added].
[53] Ibid at para 62.
[54] Ibid at paras 67-68.
[55] Ibid at para 67.
[56] Roach, supra note 26 at 216.
[57] CCF Canada, supra note 2 at paras 26, 66.
[58] R v Oakes, [1986] 1 SCR 103 at para 70, citing R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 352.
[59] CCF Canada, supra note 2 at para 71.
[60] Ibid at paras 74-75
[61] Platt, supra note 9.
[62] Elizabeth Thompson, “Trudeau Government Won’t Appeal Ruling that Struck Down Part of Elections Law” (23 March 2021), online: CBC News <https://www.cbc.ca/news/politics/elections-law-misinformation-disinformation-1.5959693>.
Creating a balance of workplace power between employers and employees is difficult. The Government of Alberta is currently addressing what it perceives to be a balance too favourable for employees with Bill 32: The Restoring Balance in Alberta’s Workplaces Act, 2020 [Bill 32 or the Bill].[1] According to the Government, the Bill aims to foster economic recovery in the province and “get Albertans back to work” by reducing regulatory burdens on employers.[2] Unions and other labour groups view the Bill differently. They claim the Bill is an attack on workers’ rights. Gil McGowan, president of the Alberta Federation of Labour, called the Bill a “fundamental attack on worker rights and democracy.”[3] McGowan claims the Bill introduces a double-standard by loosening regulatory burdens on businesses while increasing the burdens on unions.[4] While many of the Bill’s changes do not implicate the Constitution, some of its changes potentially violate workers’ rights that are protected by the Canadian Charter of Rights and Freedoms.[5] (more…)
The Canadian Charter of Rights and Freedoms protects several foundational rights, but only from violations by the Canadian government, not by private individuals or bodies.[1] As a result, it is important to know just who, and what, qualifies as “government.” Nearly three decades ago the Supreme Court of Canada ruled that universities are not “government.”[2] However, the Supreme Court left open the possibility that the Charter may apply to some university actions.[3] In a recent decision, the Alberta Court of Appeal decided that when universities restrict student’s expression on campus they are subject to the Charter. (more…)
On May 25th, 2020, the City of Calgary passed the Prohibited Businesses Bylaw that prohibits the practice of “conversion therapy”.[1] Conversion therapy is any form of treatment that seeks to change someone’s sexual orientation, gender identity, or gender expression.[2] The therapy can take the form of talk therapy, behavioural or aversion therapy, spiritual prayer, exorcism, and medical or drug-based treatments.[3] (more…)
In February 2020, amidst protests across the country interfering with railways and pipeline construction, the Government of Alberta introduced the Critical Infrastructure Defence Act. More commonly known as Bill 1, it outlaws interference with “essential infrastructure”. Several commentators oppose the Bill, arguing it violates the Charter of Rights and Freedoms.[1] A group of professors from the University of Calgary called on the Government to recognize “that Bill 1 violates the Charter”.[2] This article will summarise the Bill and analyze some of the key ways in which it may violate the Charter. (more…)