LibertasPost

Here's the text of a speech I gave on December 7th, 2009 at the Liberty and Free Speech Symposium organized by the Canadian Centre for Policy Studies.

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I would like to thank the Canadian Centre for Policy Studies for inviting me to be part of the Liberty and Free Speech symposium.

Free expression is one of our most important democratic freedoms. And I hope we all leave this conference motivated and energized to defend it.

Mind you, I am also a little anxious about the fact that this event is taking place in Ottawa. Don’t get me wrong, it’s not that I don’t like Ottawa per se, it’s a beautiful city.

It’s just this city has a negative effect on conservatives. Conservatives come here sounding like Margaret Thatcher but leave here sounding more like Hugo Chavez.

And I don’t want that to happen to me, so I brought along my special Ronald Reagan pin to ward off any left wing spirits which might be floating in the air.

Anyway, I was quite interested to hear John Robson’s talk about Canada’s legal heritage. In fact, I have my own personal legal heritage, which is that I never get in trouble with the law or with he police.

I don’t know why that is.

Maybe it’s because I am a law-abiding citizen, maybe it’s because I lead a boring life, maybe it’s because I never get caught.

Whatever the reason, I have never had to defend myself in a court of law.

With one glaring exception.

And it’s that glaring exception I want to talk about this morning.

For you see, on November 28, 2001 an RCMP officer burst into my office. I thought he was there to sell me tickets to the policeman’s ball. But it turns out he was actually there to charge me with a crime.

Or more precisely he was there to charge the National Citizens Coalition, the group I worked for at the time with a crime.

And the crime, according to the police was that the NCC violated what we called the “election gag law.”

The reason I want to discuss this legal tiff this morning is that illustrates why gag laws are wrong, why gag laws are dangerous and why all Canadians who cherish free speech should work to have gag laws repealed.

Let me first begin my discussion by defining the gag law. The gag law is technically part of the Canada Elections Act. This section essentially imposes severe legal restrictions on how much money citizens or independent groups can spend on “political advertising” during federal elections.

In other words, this law makes if virtually impossible for citizens to effectively express political opinions during elections – the most crucial period of any democracy.

Or to put it another way, the gag law gives politicians and political parties a monopoly on election debate -- everybody else has to shut up.

The NCC had always opposed gag laws. We see them as an infringement on free expression. Indeed, they infringe on the most important type of expression: election speech.

If you don’t have free speech during elections, then you don’t have truly free elections and if you don’t have truly free elections you don’t have a true democracy.

That’s why we believe elections should be a free market place of competing ideas.

That’s why we always opposed gag laws whenever they appeared.

In 1983 when Prime Minister Pierre Trudeau enacted an election gag law, the NCC went to court and had it declared unconstitutional.

In 1993 when Prime Minister Brian Mulroney enacted an election gag law, the NCC went to court and had it declared unconstitutional.

In 1996 when the British Columbia NDP government enacted an election gag law, the NCC went to court and had it declared unconstitutional.

And so in the year 2000 when Prime Minister Jean Chretien enacted an election gag law, the NCC once again went to court to try and have it declared unconstitutional.

By the way, the president of the NCC in 2000 was none other than Stephen Harper. And Stephen was vehemently opposed to Chretien’s gag law.

So opposed, in fact, that he decided to launch a personal legal challenge to the gag law. That’s why if you look this case up in text books it’s officially called Harper vs. the Crown.

Stephen’s case was simple. He argued Chretien’s gag law infringed on every Canadian’s right to free expression as guaranteed in the Charter of Rights and Freedoms.

Besides fighting the gag law in the court of law, we also fought it in the court of public opinion. The NCC ran a multi-media ad campaign to raise public awareness about the gag law and to raise funds to pay for our legal challenge.

Part of that campaign included a 15 second TV ad. Now unfortunately I don’t have a copy of that ad here, it’s lost somewhere in the NCC museum, but I do have a copy of the script. It’s short and sweet.

The ad audio went like this:

“The Chrétien government has taken a page out of Quebec Premier Lucien Bouchard’s book. It’s passed an election gag law.

We are challenging the gag law in the courts. We need your help. Don’t let them take away our Canadian freedoms.”

That was it.

Now as it happens we were in a Calgary court room in October 2000 fighting the gag law, so we wanted to air this TV ad in October 2000.

But as it happens a federal election was underway in October 2000.

This posed a dilemma. Would our TV ad be considered “election advertising” and hence be illegal? Would we be charged with a crime if we ran the ad?

Part of the problem is the gag law’s definition as to what constitutes “election advertising” is vague.

The law says “election advertising” is any ad which takes a stand supporting or opposing any political party or candidate. That part is clear, but the next part is fuzzier, it says “election advertising” includes any ad which takes a stand on any issue associated with any party or candidate.

Did our ad take a stand on an issue associated with a political candidate or party? We didn’t think so. During the 2000 election nobody was talking about the gag law, except us. It was not an election issue.

But just to be on the safe side we ran the ad by one of Canada’s top constitutional lawyers, Mr. Alan Hunter from Calgary.

He told us that in his opinion, the ad was legal.

So we ran it.

Unbeknownst to us, however, a Liberal party official saw our ad on TV and didn’t like it. He thought it was election advertising, he thought it broke the law. So he complained to the people who enforce the gag law in Elections Canada.

After taking a look at our ad, the people at Election Canada decided that yes our ad was election advertising and yes that it did violate the gag law.

Yet, as I noted earlier it took them more than a year to press charges against us. The ad ran in October 2000, we were not charged until late November 28, 2001.

Why the delay?

At the time I suspected Elections Canada officials wanted to embarrass Stephen Harper who was scheduled to announce his candidacy for the leadership of the Canadian Alliance on December 3, 2001.

After all, there was no love lost between Harper and the head of Elections Canada, Jean Pierre Kingsley.

In fact, during our gag law battle Harper had made some very public comments about Kingsley. He called him an “out of control jackass”, he described him as that “bald-headed bureaucrat” and generally implied that Kingsley was a gag law fanatic who had no understanding of the importance of free expression.

Is it possible that Elections Canada pressed charges against the NCC as a form of pay back to hurt Stephen?

I realize that just to ask that question invites a charge that I am paranoid.

After all, people will say that Elections Canada is a disinterested government agency, that doesn’t use the law in a biased manner.

Maybe that’s so.

But let me tell you another story about Election Canada and the gag law.

In the federal election of 2004, the Canada Wheat Board was running newspaper ads extolling their monopoly.

Just to give you some background here, the law says farmers in Western Canada must sell their wheat to the Canadian Wheat Board. A lot of Western grain farmers don’t like this. They want the economic freedom to sell their own wheat to customers of their own choice. So this is a controversial issue in Western Canada.

During the 2004 federal election, the Conservative Party had pledged to scrap this monopoly. So it was clearly an election issue.

Yet here was the Wheat Board running ads on the monopoly. Again, I don’t have a copy of that ad, but here’s what the ad said:

The ads featured pictures of two bulls. One bull was labelled, “This is the CWB”; the second (this one was castrated) was labelled, “This is the CWB in an open market for wheat and barley.” At the bottom of the ad it said: “No one has the right to tell you which one is right for your herd.”

Clearly this appears to be an election ad. It clearly takes a stand on an issue (the wheat board monopoly) associated with a political party (the Conservatives.)

In fact, some Western grain farmers lodged a complaint about this ad with Elections Canada.

Well, guess what?

After checking out the ad, Elections Canada officials decided it was perfectly legal. They did not press charges, they did not dispatch the police to Wheat Board headquarters.

In their view the Wheat Board ads were not election advertising. Here’s how they explained it in a letter to the complaining farmers:

“The type of advertising message the definition is intended to catch is one, the primary purpose or intent of which is to affect the outcome of the election process, in terms of which candidate or party is promoted or opposed. It is not intended to control advertising that has an entirely different focus, but just happens to deal with an issue with which a registered party is or becomes associated.”

So it seems when it came to investigating the wheat board ads, Elections Canada used a strict narrow definition as to what constituted “election advertising”, whereas when it came to our ad they used a rather loose and broad definition.

After all, the purpose of our ad was not to “affect the outcome of the election process”, it was about our court challenge, and the gag law issue just happened “to deal with an issue with which a registered party is or becomes associated.”

So why was the NCC charged, but not the Wheat Board?

Is it possible Elections Canada bias was at work? Was the Wheat Board ad declared legal because it attacked Conservatives, whereas our ad was declared illegal because it was deemed anti-Liberal?

That’s the problem with vaguely worded laws. It gives bureaucrats, politicians and governments the power to go after people they don’t like.

And the government didn’t like the NCC.

What better way to punish us than to drag us through a lengthy and costly criminal proceeding?

And it was costly.

Elections Canada used every legal trick in the book to drag out the case. Our lawyer told us he had never seen anything like it.

The case against us was not a prosecution; it was a persecution.

And even though the charge against us was eventually withdrawn, our legal defence ended up costing us nearly $100,000.

Nor was it just a financial cost. There was also a psychological cost.

Let me explain what I mean.

During the 2004 federal election, the NCC ran ads attacking Ontario Liberal Premier Dalton McGuinty for flip-flopping on his promise not to raise taxes.

It’s hard to imagine these ads ever being considered “election advertising” because they dealt with provincial, not federal issues.

Yet because the ad mentioned the word “Liberal” in the headline, federal Liberal Party officials declared it was illegal and threatened to lodge a complaint with Elections Canada.

That was enough to spook our President, Peter Coleman, who pulled the ads. I thought Peter was wrong to buckle in like that, but I could understand why he did it. We had just gone through one costly court case, the last thing we needed was to be dragged into court again.

This illustrates the hidden danger of the gag law. It’s not just that it infringes on free expression, though it does that, but it also creates a chill effect, which causes people to self-censor.

If even the NCC with its political savvy and its connections to high-priced legal opinions can’t figure out if an ad is election advertising, what chance does a private citizen have of deciding whether or not to run an ad.

People afraid of breaking a vague law will just play it safe and keep quiet.

That’s wrong. We should be encouraging people to participate in the political process not scaring them into silence.

But unfortunately in 2004 the Supreme Court of Canada ruled Chrétien’s gag law to be constitutional.

That means like it or not, it’s the law of the land.

It’s pretty grim.

Now when Joseph asked me to speak here today, he told me he didn’t just want complaining, he wanted positive solutions.

So let me conclude my talk with three reasons for optimism.

First, you should know the gag law does not cover the Internet. That means any political messaging you do in Cyberspace – Facebook, blogs, websites, email, Youtube – is legal.

And since the Internet is such a powerful communication tool, you still have an opportunity to make your voice heard, gag law or no gag law. I would also hope that conservatives would use the Internet to denounce the gag law and call for its repeal.

Second, we may now have allies on the Left. When the gag law was first imposed left-wingers supported it, because it was a Liberal government in power and they saw the law as a way to silence conservative voices.

Well, now there’s a Conservative government in power and perhaps they will come to realize that the gag law will now silence them.

In fact, when the Liberal British Columbia government tried to enact a provincial election gag law, the main opposition came from union leaders who, rightly, saw this law as an attempt to shut them up.

So let’s reach out to the left and make common cause against a law which gags us all.

Third, we have one important ace up our sleeve – Prime Minister Stephen Harper.

As I noted earlier Stephen Harper understands the dangers of gag laws. He even went to court to kill Chretien’s gag law. Indeed, while he was running for the leadership of the Conservative Party, the NCC asked him to sign a pledge to scrap the gag law should he ever become Prime Minister.

He signed it.

And one of my big disappointments with Stephen is that he has yet to keep that promise.

Harper apologists tell me he can’t scrap the gag law because he leads a minority government.

Well the polls now show he may win a majority government in the next election. If he does, those of us who cherish free speech should push him kill the gag law.

I know he wants to do it, maybe he just needs a nudge from his friends.

So for those reasons I am optimistic that one day the right to free speech will be restored to all Canadians.

Thank you.