Trudeau government won't appeal ruling that struck down part of elections law

The federal government won't appeal an Ontario Superior Court ruling that struck down part of the Elections Act, leaving Canada without a law specifically prohibiting the spreading of misinformation about candidates or party leaders during a federal election.

Pierre-Alain Bujold, spokesman for the Privy Council Office, said the government is studying what to do next. In the meantime, he said, it will continue to work to fight online disinformation.

"While we will not be appealing the decision of the Ontario Superior Court of Justice, we are actively examining how best to address the decision to ensure deliberate false statements are captured under the elections law, and to protect our democratic system and institutions," he said.

While an election is not imminent, Prime Minister Justin Trudeau's minority government could fall before the October 2023 date set for the next election.

Ontario Superior Court Justice Breese Davies ruled that a section of the Canada Election Act which prohibited the act of circulating false information during an election was an unjustifiable restriction on Canadians' right to free speech.

The section was added to the election law in 2018 as part of Bill C-76. Section 91 (1) of that legislation makes it against the law to make a false statement during an election about whether 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.

The section also prohibits false statements about their citizenship, place of birth, education, professional qualifications or membership in a group or association.

Heritage Minister Steven Guilbeault has been drafting legislation to curb online hate on social media platforms.

Joanna Baron is executive director of the Canadian Constitution Foundation (CCF), which challenged the clause in the Canada Elections Act. She welcomed the government's decision not to appeal.

Baron said she would like the government to stick with the status quo.

"Having a heavy-handed regulatory approach to false news is the wrong approach," Baron said. "I think that criminal libel is the appropriate forum to deal with ... deliberate and advertent falsehoods."

Baron said the government should work with social media platforms to detect foreign interference or deliberate disinformation.

"I don't think Canadians should be threatened at all with jail or fines for expressing their views."

Duff Conacher, co-founder of Democracy Watch, said the government should replace the section of the law that was struck down and prohibit people from knowingly spreading misinformation.

"What should happen now to have fair and honest federal elections is that the government must introduce a bill to prohibit false claims about candidates, party leaders and party officials, and to prohibit false claims by candidates and anyone else trying to bait voters to vote for a candidate or party," he said.

Conacher said he also would like to see an independent, three-member commission set up to examine complaints about false claims during an election.

"The commission must be given the resources needed to investigate and rule quickly on complaints about false claims, before election day, and must be given the power to order media and social media companies to remove false claims from their sites, including all posts and re-posts," said Conacher. "Anyone should be allowed to file a complaint."

Commissioner of Canada Elections Yves Côté has warned in the past about weakening provisions in the law related to making false claims.

"The Commissioner's role is to apply the law as it is written," said spokesperson Michelle Laliberté. "Whether the provision is reintroduced or not is for Parliament to decide."

Elizabeth Thompson can be reached at [email protected]