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Jay Currie

One Damn Thing After Another


Free Speech, Not in Canada Thank You

Colby Cosh is all over the horrible decision of the Supreme Court of Canada in Harper v. Canada Here is part of Chief Justice McLauglinès dissent.
The effect of third-party limits for spending on advertising is to prevent citizens from effectively communicating their views on issues during an election campaign. The denial of effective communication to citizens violates free expression where it warrants the greatest protection--the sphere of political discourse. Section 350 [of the amended Elections Act] puts effective radio and television communication beyond the reach of "third-party" citizens, preventing citizens from effectively communicating their views on election issues, and restricting them to minor local communication. Effective expression of ideas thus becomes the exclusive right of registered political parties and their candidates.

Because citizens cannot mount effective national television, radio and print campaigns, the only sustained messages voters see and hear during the course of an election campaign are from political parties. The right of a citizen to hold views not espoused by a registered party and to communicate those views is essential to the effective debate upon which our democracy rests, and lies at the core of the free expression guarantee. Any limits to this right must be justified under s. 1 of the Charter by a clear and convincing demonstration that they serve a valid objective, do not go too far, and enhance more than harm the democratic process. Promoting electoral fairness by ensuring the equality of each citizen in elections, preventing the voices of the wealthy from drowning out those of others, and preserving confidence in the electoral system, are pressing and substantial objectives in a liberal democracy.

However, the infringement of the right to free expression is not proportionate to these objectives. There is no evidence to support a connection between the limits on citizen spending and electoral fairness, and the legislation does not infringe the right to free expression in a way that is measured and carefully tailored to the goals sought to be achieved. The limits imposed on citizens amount to a virtual ban on their participation in political debate during the election period, except through political parties.
Unlike most of my blogging compatriots I tend to rather like judges and judge made law. Largely because I prefer reason to pandering. However, the Supreme Court missed a classic opportunity to put forward a reasoned defence of the critical importance of free political speech. If there was no other reason to vote for the Conservatives in the coming election, simply electing a party whose leader was the plaintiff in this matter is enough. The one saving grace of the decision is that this law can be repealled.

(Blogging will continue to be light for a few more days until our housing and my internet connection resolve. And, by the way, where is Andrew Coyne.)