Canadian Constitution Foundation challenges free speech infringement in court—and wins

In 2018, the Canadian Parliament revived the outdated Canada Elections Act. Within the refreshed law was Section 91, which sought to halt the spread of misinformation during federal elections. The section gave unelected officials the power to fine or even imprison Canadians for posting or sharing information on social media which the government deemed false. Under this law, it was irrelevant whether the poster believed the information to be true or not. This statute was in clear violation of both the fundamental right to free expression and the Canadian Constitution.

Atlas Network partner Canadian Constitution Foundation (CCF) recognized the law as a threat to liberty and challenged Section 91 in court. Alongside their litigation, CCF initiated a media campaign to draw public attention to the issue. Despite the difficulty in generating publicity over the all-consuming COVID-19 media cycle—and the fact that at that time federal elections were expected to be two years away—they earned more than 30 media pieces on radio, TV, and in print. They also saw success in a social media campaign, reaching more than 40,000 people. CCF’s email list doubled in size during 2020, due both to the organization’s challenge to Section 91 and their opposition to bad COVID-19 policies.

Ontario’s Superior Court of Justice took up the case in September 2020, and in February 2021 the court declared that Section 91 was in violation of the Canadian Constitution and was “of no force and effect.” Before the statue could even be put into effect during an election, the Canadian Constitution Foundation succeeded in having it struck down. In May, CCF’s Executive Director Joanna Baron gave testimony to the Senate’s Legal and Constitutional Affairs Committee on how the Canada Elections Act could be amended to be constitutional.

Canadian Constitution Foundation’s campaign was an encouraging protection of the rule of law and a victory for all Canadians and their right to freedom of speech. With this victory under their belts, CCF is poised to be an important player in the growing debate on the role of government in regulating online speech.

Atlas Network supported this project with a grant.