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Court decision leaves Canadians vulnerable to political lies

Fair Vote Canada applauds the government’s ongoing efforts to amend the Canada Elections Act to empower the Commissioner of Elections Canada to help curb the spread of misinformation during elections. The recent decision by the Ontario Superior Court to strike down the flawed s. 91 of the Canada Elections Act makes a new bill an urgent priority

The 2018 amendments to the Canada Elections Act dealt with misinformation on certain points,, making it illegal to say falsely that a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party is under investigation or has committed an offence. It would also have prohibited false statements about their citizenship, place of birth, education, professional qualifications or membership in a group or association.

Of key importance, the court recognized in its judgment:

The distribution of false information during elections can threaten our democracy. It can undermine public confidence in our democratic institutions and the security of our elections.” 

But the court has found that the new law is defective, leaving Canadians with greatly reduced protection against misinformation.

In addition to the risks of trying to hold an election during a pandemic, already seen in the chaotic election in Newfoundland and Labrador, the Ontario court decision creates a further risk: an election without a law against the distribution of false information.

If an election were held today, there is nothing except a lawsuit for defamation, or the Criminal Code provisions that prohibit defamatory libel, to deter parties, candidates, third party groups and others from spreading false information that can significantly impact voter decisions.

Fair Vote Canada has long called for truth in political advertising legislation, whereby ads that are determined by an impartial and trusted body such as the Elections Commissioner to be seriously misleading could be pulled in a timely fashion. In some cases, the offending party could be ordered to print a retraction. 

Such legislation exists in South Australia and New Zealand with broad public support, the main complaint being that the law is too narrow and too weakly enforced.

Fair Vote Canada calls on Parliament to enact a replacement to s. 91 of the Canada Elections Act. The next election – which is not due until 2023 – should not be held until this issue has been remedied.

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