With the federal Liberals ready to introduce another ‘gag law' limiting third-party activity during elections, Interim columnist Winifride Prestwich reminds us of the history of such measures
By Winifride Prestwich
At 3:00 p.m. on June 7, 1999, the federal government launched its third attempt in sixteen years to muzzle Canadian citizens during elections. Although the bill was dropped from the order paper when Parliament was prorogued earlier this fall, there is no reason to believe it will not be introduced in another form in the new session of Parliament.
The two previous gag laws, Bills C-169 and C-116, were passed almost as rapidly as the speed of sound, and with much secrecy and political connivance. Once again, as in 1983 and 1993 the freedom of Canadians at election time is threatened by a law which belongs to a totalitarian regime rather than a democracy.
Pro-life students sometimes ask for more information about the gag laws, and, today, with a new threat to our political freedom clearly in the works, it seems timely to explain the events of 1983-4 and 1993: how the bills were passed; what they said; how, and by whose efforts, they were overturned.
Thus far, there have been two gag laws: Bill C-169 in 1983, and Bill C-116 in 1993. Both bills were passed very quietly, with considerable speed, and with the collaboration of all three parties: Liberal, NDP and P.C. Both Bills were later overturned by the Alberta Court of the Queen's Bench. These are the bare facts, but the real story, behind the facts, is much more interesting, and for those who value their freedom, more frightening. But the story also shows that a handful of dedicated people could start a movement that would overturn a bad law.
1983 - Bill C-169
The first federal gag law, Bill C-169, was, in fact, an "Act to amend the Canada Elections Act." On the surface it was a matter of routine, and a harmless updating of the almost decade-old Canada Elections Act. Bill C-169 was thirty pages long, of dry legal text that dealt with everything connected with federal elections: how elections are called; election of candidates and officials; money; broadcasting; who may, or may not, vote; etc. For all but those immediately involved in elections the thirty pages of legal text are dull and dry. Therefore, it is not surprising that all but a handful of MPs, and presumably all members of the press, decided to be absent for the debate.
According to Hansard (Oct. 25, 1983) the debate on Bill C-169 began at 11 a.m. and was completed before 11:41 a.m. There were just three speakers: Yvon Pinard, President of the Privy Council, Liberal; Chuck Cook, PC: and Rod Murphy, NDP. By unanimous consent of all present, the Bill was (a) "read" a second time, (b) referred to the Committee of the Whole House, (c) "read" a third time, and (d) passed. It is important to note that there was no recorded vote at any stage.
There followed total silence about the Bill. As far as Canadians knew Bill C-169 had never existed, much less been passed. And yet, it was the same Bill C-169 of which, only a few months later, two law professors from the University of Saskatchewan, - Donna Greschner and Howard McConnell, were to write: "...members of Parliament...on Oct. 25, 1983, quietly, quickly, and unanimously, enacted one of the most illiberal pieces of legislation ever put out by a supposedly democratic legislature.". Later in the article, the law professors added: "There are times in a democracy when citizens may justifiably engage in civil disobedience." (Canadians in danger of losing their rights? Globe and Mail March 12, 1984.) But in mid-November 1983, Canadians did not know about the "most illiberal piece of legislation" that justified "civil disobedience."
Pro-lifers v. Bill C-169
For over two weeks pro-life people were blissfully unaware of Bill C-169, but, unknowingly, they were - in that same period - taking the first steps to scuttle it. Members of the board of Campaign Life were preparing to go to Edmonton for an annual meeting, - and a member of Coalition for Life, in the Ottawa area, was catching up on his cover-to-cover reading of Hansard. Eventually he reached Oct. 25, 1983, and the mini-debate of Bill C-169. That is when the alarm bells rang.
Two of the speakers in the debate actually pointed out that the bill infringed on the rights of the people. Chuck Cook, PC, had said: "There is, I suppose, only one controversial amendment. I say it is controversial because I think it will undoubtedly end up in being tested in court... This amendment moreover is more severe than is realized, and is more severe than the proposals distributed at the ad hoc meetings with the Chief Electoral Officer, but we agreed to it on the basis that it will be easier to police. However, I suspect that any number of groups in the country may wish to challenge that provision as it strikes me as somewhat of an interference with the rights of an individual to lobby on behalf of a political party or candidate."
Rod Murphy, speaking for the NDP, chose to use the debate by attacking "third parties." He charged these with "the most partisan, vicious, and one-sided advertising in elections, [they were] not bound by the truth, fairness, and honesty." (Are we to assume that the NDP, the PC and the Liberals were "bound by the truth, fairness and honesty?")
Luckily for Canada, Coalition for Life's reader of Hansard had a different code of ethics and morality. After consulting another pro-lifer, they decided they needed a bright pro-life lawyer, and they phoned Gwen Landolt. (They knew that Gwen had fought to get the preborn child protected as a "person" in the Charter. She also had forewarned that judges would begin to act as "law makers" and change laws to suit their own ideology.) The two pro-lifers (whose names - by their own wish - are known to only a handful of people) struck the first blow against Bill C-169. We owe them a great debt of gratitude.
The phone call to Gwen Landolt marked the start of the legal process that led to the overturn of this first gag law. Gwen, who was leaving for the Campaign Life meeting in Edmonton in two days, needed the full text of Bill C-169, and needed it fast. It arrived, by courier, just before she left for the airport, and she spent the flight in study. Those of us on the plane gathered that the news was bad. Next day, we found out just how bad.
Next morning Gwen explained that the thrust of the Bill's attack lay in Section 72 of the amended Canada Elections Act, and more specifically in Subsections (1) and (2). Section 72, Subsection (1) stated:
"Every printed advertisement, handbill, placard, poster, or dodger that prints, publishes, distributes, or posts up, or causes to be printed, published, distributed, or posted up any document referred to in Subsections (1) is, unless it bears the name and organization required under that Subsection, guilty of an offence against the Act."
In their March article in the Globe and Mail the two Saskatchewan lawyers were to express what had been our reactions in November, when we discovered the truth about Section 72.
"The most repugnant feature of Bill C-169, amending the Canada Elections Act, is Section 72, which renders it a criminal act, subject to a fine of $5000 or five years imprisonment, to advertise in the print medium during an election campaign without authorization ... "
"What should be the inalienable right of all citizens in a free society has been converted by Parliament into a crime."
Section 72 meant that a Canadian citizen who placed a placard on his own front lawn with a message, e.g. "Protect Canada's Preborn Children: Vote for John Doe" faced a hefty fine and/or imprisonment, or both, along with a criminal record.
Campaign Life's options
At the Edmonton meeting in l983, the problems and danger were clear; their solution was a different matter. But first it was taken as read that we would not abandon the innocent victims, the preborn babies. If that meant fines and prison - then so be it. Next, it was clear that we must warn other third parties of their danger in an election campaign. Kathy Toth, President of Campaign Life, felt that Edmonton was too far from Ottawa, and she proposed that Jim Hughes should become President and the Toronto office become the centre for political action.
One major step was possible; we could found a registered political pro-life party and thus be able to advertise, lobby, post bills (even use dodgers when we discovered what a dodger is). With the aid of pro-life people across Canada we collected the thousands of names required by law, nominated the fifty candidates and elected a party leader. Within a few short weeks, and long before the gag law was dead. However, there was a bonus; as a registered party, the pro-life party was allocated a little TV time. Thanks to our own professional film producer and the unsuspected dramatic talents of our local volunteers, our highly-praised commercials were shown nation-wide on television.
NCC v. Bill C-169
Without wasting any time, Jim Hughes made an appointment with the leaders of the National Citizens Coalition (NCC). (One major issue of the NCC is the sheer waste and misuse, by the federal government and its agencies, of money extracted from the taxpayer.) By the time that Gwen Landolt had shown this other "third party" the relevant parts of Bill C-169, together with the Canada Elections Act, and then the so-called debate in Hansard, Oct 25, Campaign Life had its first strong ally. The NCC's reaction to Parliament's betrayal of the rights of Canadians was one of angry contempt, and a determination to fight the new law in court. They asked Campaign Life, as a favour, to allow NCC to organize the court challenge, and raise the money etc., and - as Campaign Life was poor - this was an answer to prayer. It must be added that the NCC has always given full credit to the pro-life movement for its essential role in defeating Parliament's attempt to deprive Canadians of their rights in elections.
If Parliament could use silence and secrecy, so, too, could the NCC. During the last weeks of 1983 they chose the court for their appeal, they briefed their legal counsel, and they held their fire. They waited quietly until early January when the House of Commons was in session after the Christmas holiday, and then they dropped their political bomb. The attack came in full-page paid advertisements in a number of newspapers with wide circulation across the nation. These pages explained: how citizens had been deprived of their rights by Parliament; how the NCC was fighting to regain their rights; how they could help to pay the legal costs. There was a coupon which said: "I refuse to be muzzled: I'm fighting back." and an address, to which donations could be sent, for those who wished to contribute.
The resultant fallout was all, and more, that the NCC had hoped for: the public reacted with outrage; the MPs struggled to find cover; the NCC President, Colin Brown, and Vice-President David Somerville, were booked solidly with interviews on radio and television, and with meetings with the press. David Somerville is quoted as saying that he would be "up there on Parliament Hill on election day passing out handbills - and let them try to arrest me." It seemed likely, however, that half the population of Canada would be with him on the Hill with their placards, posters, and dodgers too (if they could find out what a dodger is).
Almost without exception newspaper publishers, editors and journalists led in the attack on the new law. They were angry that they had missed the big story in October, but when they discovered that political editorials, and even letters to the editor could lead to prison and a criminal record they were livid with fury. "Where" they asked, "was the freedom of speech and freedom of the press guaranteed in the Charter?" Editorials, articles, and columns continued for months. A Toronto Sun editorial, Jan. 20, 1984, stated: "It may be the lowest point in the history of free speech and democracy in this country." Earlier, on Jan. 17, 1984, an editorial in the Edmonton Journal said: "There is now an official monopoly on who may participate in federal elections." A Globe and Mail editorial, Jan. 28, 1984, said of the MPs: " ... As politicians, they have now ensured that total control of printed and published material during election campaigns will rest with politicians." The title of a short article by Claire Hoy summed up the effects of Bill C-169: "Our Freedom: R.I.P."
Erik Nielson attempted to get Parliament to review the amendments, at least those parts which affected the press. He quoted from the 1983 Statutory Report of the Chief Electoral Officer of Canada which had just been tabled: "Parliament may find it desirable, in the light of the Charter, to be more explicit and specifically exempt editorials in the proposed amendment." Trudeau's answer was an emphatic refusal: "It is an amendment to ensure that Citizens Coalition [sic] and other groups with a lot of money do not controvert the spirit of the law."
It is of interest to note that the relevant part of Section 72, Subsection (2), does not mention "groups (with or without money), it speaks of every one. It is directed at the individual. "Every one who prints ... Distributes, posts up ... is guilty of an offence against this Act."
One can believe that many MPs were misled about the Bill, and certainly one very pro-life Member (who shall be nameless here) spoke in defence of the Bill, as recorded in Hansard). Chuck Cook is quoted in The Globe and Mail April 6, 1984, as saying that he did not like the amendments (and his speech makes that clear) but "like so many things that happen here we took the package or we got nothing." Shades of the 1969 Omnibus Bill.
The political-party fund-raisers were affected too: many former donors to their own party wrote to say that this year their donation was being sent to the NCC. (Globe and Mail, Apr. 6, 1984.
The NCC had planned well for their court challenge: the venue was the Alberta Court of the Queen's Bench, and their legal counsel was in the hands of Alan D. Hunter, Q.C. of Calgary and his partner Eric Goody. On June 26, 1984, (to the relief, but not to the surprise, of all but a few politicians), Mr. Justice Don Medhurst struck down the first federal gag law. This was a "Victory for Freedom" said the press, but the NCC was not deceived. Long years before this, Thomas Paine had written: "Those who expect to reap the blessings of freedom must undergo the fatigue of supporting it." The NCC was prepared for this fatigue.
1993 - Bill C-114
Parliament's second attempt to muzzle Canadian voters, Bill C-114 - passed in the House of Commons on April 2, 1993. How the bill was passed, and the details of this legislation indicate Parliament's contempt for Canadian voters.
1. Bill C-114 - after its Third Reading - was passed at 5:55 p.m., April 2, 1993, the last day before the House of Commons adjourned for a two week recess.
2. By common consent of the three parties (P.C., NDP and Liberal) it was agreed to limit debate on this third reading to 21 minutes and then invoke closure. (In fact the debate only lasted for 15 minutes).
3. A bare quorum was present in the House. (In fact, most MPs were on their way home for the holiday.)
4. The three parties collaborated in ramming the bill through.
The play of passing a bill - sometimes in all its stages - in the last hour before a recess has become quite common since it worked for abortion at Christmas 1968.
Two sections of Bill C-114 are clearly attempts by the three main parties to monopolize and control the debate on issues during election campaigns, Section 259 makes it an offence (punishable by five years in prison and a $5000 fine) to spend independently more than $1000, individually or as a group, to support or oppose political parties or candidates during an election campaign, As anyone interested in elections knows, $1000 in a campaign is virtually useless.
Section 213 makes it a similar offence to spend any money at all to support or oppose parties or candidates, directly or indirectly, during the first 18 days of an election campaign. The word ‘indirectly' means "addressing issues or policies identified with parties or candidates." (Consensus: June 1993)
The media reaction to Bill C-114 was one of outrage. "It is difficult to believe that such highhanded, dictatorial proposals could be seriously advanced in a democracy," wrote Jeremy Akerman in Halifax Metro Weekly.
"If this bill is not overturned, individuals in third rate banana republics will have more rights than we do. The professional politicians are trying to strip away Canadians have had for one hundred years," said the Calgary Sun.
"They [the political parties] pass a bill that can only reinforce the impression of a political class that considers itself both apart from and above the electorate it serves, attempting to rope off election campaigns inside their own little VIP lounge," said the Globe and Mail in its editorial of June 29, 1993.
NCC v. Bill C-114
Quite understandably, the first gag law had limited the National Citizens' Coalition's trust in politicians, and they remained on alert to counter any attacks on the freedoms of Canadians. Bill C-114 was passed at 5:55 p.m. on Friday April 2nd; by 10 am or Monday April 5th, David Somerville - President of the NCC was in the Alberta Court of the Queen's Bench, Calgary, to challenge the new law before Mr. Justice MacLeod. As with the first Gag Law the NCC was represented by Alan D. Hunter, Q.C. And his partner Eric Groody. David Somerville's reasons for the court challenge contained these words:
"That by passing Bill C-114 Parliament has impermissibly infringed my rights (and those of every other Canadian to freedom of expression, freedom of association, and freedom to cast an informed vote in a federal election."
The court set aside two weeks, beginning May 31, 1993, for the hearings.
(Meanwhile on May 6th the new law got Royal assent. And on May 11th came news of an even more aggressive gag law "now before the cabinet."
It is clearly impossible to cover all the arguments and evidence given in court, but we can mention the highlights. In his opening remarks for the NCC court challenge, Mr. Hunter said that it was not just what the parties drawing up the bill did, it was also the way they did it. The very next day after the Special Committee of Elections was warned, in a legal analysis, that Charter rights might be infringed by a proposed law limiting election expenses, the committee set up a series of in camera [secret] meetings. In speaking of these meetings, Mr. Hunter said: "There was no record, deliberately no record . . . There was no debate [of their deliberations in Parliament] in any recognized sense of the word. So we don't have a public record there . . . The deal [the bill] was made in the special parliamentary committee . . . It's a brokered deal in a back room." "The committee decided there would be no transcripts, [and] there are none." Sixty five per cent of the meetings were held in absolute secrecy: There were no public discussions."
It was by these secret connivings that Canadians were robbed of their rights at election time.
The main argument of the federal government in support of Bill C-114 was that "money can buy elections." They held to this despite the fact that in the Charlottetown Accord, only a few months earlier, the Yes side had spent 10 dollars for every one dollar of the ‘No' side (the ordinary Canadian people) and still went down to a humiliating defeat.
It is interesting to note that, in his judgment, Mr. Justice MacLeod quoted from the testimony of Government House Leader, Harvie Andre, to the Special Committee on Electoral Reform, Feb. 23 1993. "There is no evidence that I can see anywhere to suggest that the person who spends the most is likely to win. There isn't any such correlation that I am aware of . . . Those who were disappointed in the last election are building a myth that third party ads affected the outcome." In spite of this statement, Andre, and the rest of the political establishment, supported the gag law to muzzle "third parties" - that is, ordinary Canadians.
Three of the government's chief witnesses were university professors, who, according to those present, were a sorry lot under questioning. Two ended up by agreeing with the NCC lawyers that there was no evidence to support the government charge that money buys elections. The third professor, the government's star witness, was Dr. Janet Hiebert.
Dr. Hiebert had submitted a study to the Lortie Commission on Electoral Reform which claimed to prove t through a quantitative analysis that money spent on ads by special interest groups in the 1988 election helped the PCs to win. Under cross examination Dr. Hiebert was forced to admit: that her conclusions were based on research by another academic; that this researcher had concluded that his tentative conclusions were now clearly invalid; that Dr. Hiebert had had ample time to correct her study before it was published; that she had made no attempt to correct it. The drafters of Bill C-114 had relied on this study. Only rigourous cross-examination showed it was based on error covered up by unscientific hokey-pokey.
Mr. Justice MacLeod, in his judgment, said of her evidence: "And in the case of Dr. Hiebert the use by her without qualification of a tentative conclusion by the authors of the study of the 1988 election when she knew apparently before the publication of her paper, certainly before she gave evidence, that the authors had concluded that their tentative conclusion was invalid". The term "a sorry lot" seems to be justified as a description of the government's "expert" witnesses.
By contrast, witnesses from four provinces, which have no limits to spending in provincial elections, showed no evidence of money being used to "buy" elections.
Mr. Justice MacLeod disagreed with the federal government's lawyers who held that Bill C-114 did not infringe on Section 3 of the Charter - the right to an informed vote. He stated: "I think it apparent that voters are effectively precluded from receiving third party views from other parts of the country, and there is a breach of Section 3, and so I find."
Mr. Justice MacLeod concluded his judgment with : "In the result I find that Section 259.1 (1) and 213 (1) are in breach of Sections 2(b) and 3 of the Charter and Section 259..2 (2) in breach of Sections 2(b) and 2(d) and 3, none are justified under Section 1, and therefore all are of no force and effect.
Thanks to the NCC, third parties such as Campaign Life Coalition were able to advise pro-life, pro-family groups on the party and candidates views on essential issues.
The victory gave a breathing space to those who believe in freedom, but not for long. The NCC continued to watch for gag law number three.
On May 11, 1993, David Somerville issued a press release warning of a further attempt at a new gag law, following Bill C-114. It read: "A new draft electoral gag law now before federal cabinet is an ‘oppressive, unconstitutional violation of Canadians freedoms. The establishment politicians on this Committee want to use red tape to gag citizens and the media who want to speak out on policy issues during elections."
According to David Somerville's warning this red tape affects any group "wishing to spend more than $1000 addressing a federal election related public policy issue" must do the following: (1) receive permission from Elections Canada; (2) appoint an auditor and chief agent; (3) detail where the campaign will run; (4) spend a maximum of one penny "on an equitable basis"; (5) spend only those funds on an election campaign which are raised during the election period itself; (6) submit and make available for public scrutiny all expenses and contribution reports and the names of those who give $250 or more to the campaign.
This planned section of a new bill died along with Sections 259 (1) and 259 (2) of Bill C-114. However, some parts are incorporated in the third gag law.
Gag law no. 3, Bill C-83
At 3 p.m. June 7, 1999, Don Boudria, the Government House Leader, introduced Bill C-83 (the Third Gag Law) for its first reading in the House of Commons. On that same June 7, 1999, Stephen Harper, the President of the National Citizen's Coalition, announced in Vancouver, that if and when the bill passed it would be challenged by the NCC, saying: "Any attempt to control or restrict communications between citizens during election campaigns - or frankly at any time - is unconstitutional . . . You can be assured we will be taking this to court." It is assumed that the Bill will be passed this fall.
This latest bill would allow a third party, such as Campaign Life Coalition, to spend up to a total of $150,000 dollars nationally, or about $500 per riding. There are, however some conditions: there is a limit of $3000 for any one riding: there are many bureaucratic regulations - permission from Elections Canada, which money can be used, need for agents and auditors etc
To avoid the media outrage evident in the two previous gag laws the bill excludes from its restrictions on advertising "editorials, debates, speeches, news, interviews, columns, letters or commentaries" published in newspapers or magazines, or broadcast on radio, TV or Internet. At first glance this might appear a more liberal approach, but a closer look shows the truth. The government is condescendingly "granting" to the media rights which are already theirs, and have been theirs for generations. The ordinary Canadian, with issues important to his community is robbed of his constitutional freedoms at election time.
If the government expected thanks from the media, so far they must be disappointed. The National Post said, "Gag laws restrict freedom of speech and the exchange of ideas in the midst of election campaigns when these concepts are most important." The Globe and Mail wrote, "The government is really saying that citizens can't be trusted to make up their own minds on voting day . . . This is insulting, undemocratic and an unjustifiable infringement on freedom of expression." And the Calgary Sun said, "Politicians are saying they and they alone should be heard during an election and the people be damned."
As mentioned in the introduction to this article, Bill C-83 was dropped from the order paper when Parliament was prorogued earlier this fall. It is expected, however, that a similar law will be introduced in the current session, with it becoming law before the next election. Meanwhile the NCC is preparing to alert the public to the danger to our freedom in this bill, and to fight the law in court if the bill is passed. But this is a pro-life fight too, and if we cannot raise the issues of abortion, euthanasia, assisted suicide, human cloning, etc. we lose any chance of getting legal protection for the lives of vulnerable human beings. Each of us must try in our own way: seeing our MP in his office (and keeping him to the topic); small or large meetings with a speaker who can explain the law; petitions; letters inundating the MPs office; picket outside his local office; any other suggestions?
If we want to maintain our freedom (or even the part we still have) we need to remember one of Churchill's favourite quotations: "The price of freedom is eternal vigilance." And a recent newsletter from the NCC is worth quoting:
"Make no mistake, gag laws are about scrapping free elections in favour of managed ones. Without truly free elections, politicians and political parties can ensure their permanent control of the political agenda and of the private resources of taxpayers."
And we might add, an end to the hope of ending abortion.