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Wednesday, May 19, 2004
No disrespect intended, but...
Yesterday I couldn't post because I was in an inarticulate rage over the Supreme Court decision upholding the law limiting third party spending during an election. I still haven't calmed down, but at least today I can type a sentence without cursing. If you want to read this blathering, tortured, disgusting decision, go here. As Paul Tuns noted on this blog yesterday, it's not our country anymore.
In fact, I am still so angry I think I can now declare myself officially a "self-loathing Canadian" since I now hate my country and myself for being Canadian because of what those SOBs on the Supreme Court have done. Who can, who should, love a banana republic like this, where the judges of the highest court in the land make a poorly-reasoned highly political decision right before a federal election putting severe limits on free speech, and base that decision on no evidence whatsoever, based on conspiracy theories? To call this law constitutional is the height of hypocrisy--basically it's a bald-faced lie--unless our constitution is a worthless document that means absolutely nothing.
From the decision:
Furthermore, on balance, the contextual factors favour a deferential approach to Parliament in determining whether such limits are demonstrably justified in a free and democratic society. While the right to political expression lies at the core of the guarantee of free expression and warrants a high degree of constitutional protection, there is nevertheless a danger that political advertising may manipulate or oppress the voter. Parliament had to balance the rights and privileges of all the participants in the electoral process.
No, that's your job, dear judges, to uphold the constitution and protect us from unjust laws. Now you defer to Parliament? What a bunch of BS.
About the only thing that could have restored my patriotism yesterday is if, immediately following the decision, the judges of the court who upheld this foolish law would have been arrested and publicly humiliated, thrown in stocks outside on the Parliament grounds and officially pelted with rotten tomatoes by the dissenting judges.
Who knows? Maybe I can find a pill to calm me down and learn to love Canada again.
From the dissent:
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.
I nearly smashed my television when I saw some fool from a group called Death Watch--sorry, I mean Democracy Watch--tell everybody that this was good for the country because rich interests will no longer able to influence elections. Oh yeah, and how often have they done that through advertising in the past? This law is not aimed at rich interests. It is aimed squarely at populist organizations like the National Citizens Coalition, the Canadian Taxpayers Federation, gun registry opponents, etc.
In interview yesterday with Don Newman on CBC Newsworld's Politics, National Citizens Coalition's Gerry Nicholls said it best (I summarize); the intention here--by putting the advertising spending limit so low ($3,000 per riding)--is to curtail effective speech, and when the Internet becomes as effective at criticizing politicians as other forms of advertising they will limit that too.
Anyway, I'm sputtering, so I am going to stop. I will pass this over to a reader--obviously with a cooler head than mine--one Tony Olekshy, who yesterday wrote a letter to the Western Standard referring to this blog, which was passed onto me by publisher Ezra Levant. It asks a series of questions meant to illustrate how vague the law is. Because of this vagueness, I have no doubt the spending limit will be arbitrarily applied by our corrupt Liberal government to silence only those who disagree with them, giving their friends a free pass.
---
I have read the 2004 SCC 33 decision [1] on the appeal to the Canada Elections Act and I have a few questions. Perhaps some Shotgun readers can answer some of them in the comments, or forward them to their blog audience's experts.(1) When the Canada Elections Act talks about "election advertising expenses", what exactly does election advertising mean? What kinds of expenses are "election advertising", what kinds aren't? For example, is the advertisement for the book shown on the inside back cover of the May 17 Western Standard considered to be election advertising?
(2) Are the expenditure limits annual, or only during the time between when an election is called and when it is held?
(3) Do these restrictions to freedom of speech only apply if you mention parties or candidates, or do they cover the cost of speech relating to political philosophy even when no party or candidate is mentioned?
(4) I presume an editorial in the Globe, say, that commented on the election, wouldn't be considered election advertising. If so, can an individual buy space to, for example, write an op-ed, as long as it doesn't endorse a candidate or party, or something like that? Or will this ruling also remove freedom of the press (it's in the same charter clause as freedom of speech)?
(5) If you pamphleteer for a political perspective on your blog, do your blog expenses count as election advertising?
(6) Say you're a professional, oh, graphic artist (I'm not). If you volunteer both your time and your professional expertise to a political perspective, is it considered an election expense accrued at your normal professional rates?
(7) Since s.251, prohibiting individuals or groups from colluding or splitting, has been declared valid (thus tossing out freedom of association as well), does this mean there will be a proliferation of election-expense sized advertisements in the media? Perhaps a new section in the classified ads?
(8) Further to s.251, now that freedom of association has been tossed out, is this a huge win for libertarians, since we're now all forced by law to be individuals and only individuals?
(9) The justices in dissent wrote that "There is no evidence to support a connection between the limits on citizen spending and electoral fairness." Does the majority decision mean that scientific evidence is now officially out the window too? Or did that already happen with Kyoto?
Yours,
Tony Olekshy
Edmonton
Posted by Kevin Steel on May 19, 2004 | Permalink
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For those who think campaign finance reform in the US was encroachment on freedom of speech... Get a load of this; "Furthermore, on balance, the contextual factors favour a deferential approach to Parliament in determining whether such limits are demon... [Read More]
Tracked on 2004-05-19 12:19:03 PM
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In Canada, you have freedom of speech except when you don't. I could have written more on the recent decision of the Supreme Court to uphold limitations on spending by "third parties" during electoral campaigns (as if those who do... [Read More]
Tracked on 2004-05-19 6:16:38 PM
Comments
I wonder how much it costs the Toronto Star to go to print every day. I bet it's more than $150,000. Will their brand of oppressive propaganda be caught?
Posted by: alan | 2004-05-19 9:00:17 AM
If "there is nevertheless a danger that political advertising may manipulate or oppress the voter" then why are political parties allowed to advertise?
Why then, is anyone at all allowed to advertise during a political campaign?
Posted by: RMcRae | 2004-05-19 9:17:34 AM
Don't be stupid Alan.
It's like "Hate speech", by definition, only certain sorts of hateful speech are legally hateful speech that will cause the wrath of goverment lawyers to flatten you.
So if you claim the holocaust never happened, and jews are some variety of bad that's hate speech. (To be clear: as opposed to the rantings of an idiot.)
If you say that certain specific capitalists are awful and ought to be hung, or a near-by nation is full of murderous swine who ought to be horse whipped, and advocate the confication of certain classes of private property, that's quite allright.
Duh.
Posted by: Fred | 2004-05-19 9:22:50 AM
Mr. Olekshy asks some good questions. Here are some very basic pointers on conducting online legal research (offered in the spirit of "teaching a man to fish").
The official government websites for Parliament and the legislatures, consolidated statutes and regulations, and judgments are relatively easy to use (particularly for tasks such as locating definitions) and usually reasonably up-to-date. However, I recommend a couple of unofficial "one stop shopping" sites for laymen:
Canadian Legal Information Institute: http://www.canlii.org/
Access to Justice Network:
http://www.acjnet.org/nahome/default.aspx
Access to these sites is free and does not require registration. Although these sites are convenient and easy to use, they may not be as up-to-date as the official court websites, for instance. It is always wise to verify information on them from official sources.
Now to statutes. Terms which appear widely in a statute are often defined near the beginning of the Act (often in s. 2). In other circumstances, they may be defined solely for the purposes of the statutory Part or section in which they appear. Or a definition may appear in the Interpretation Act for the relevant jurisdiction.
Many terms are never formally defined in legislation. For instance, a few months ago I needed to know whether "tallow" received a special or technical definition in the BSE import restrictions. It didn't; therefore, the general rule is that the dictionary definition applies.
In short, let the search software on the websites I mentioned find definitions (if any) or other legislative provisions for you. Once you've found and understood them, the next step is to check the judgments and see if the courts agree. You know what they can do to (relatively) plain English....
Posted by: Charles MacDonald | 2004-05-19 11:27:45 AM
Mr Olekshy says, "(7) Since s.251, prohibiting individuals or groups from colluding or splitting, has been declared valid (thus tossing out freedom of association as well)...."
Actually, the Unholy Nine killed off freedom of association more than a decade ago, in the Lavigne case, when they decided (unanimously, I might note) that the freedom to NOT associate was nonexistent, and thus citizens could be conscripted into unions and their monies confiscated for the unions' political ends with no input from the victim.
Of course, neither the Tories (in power at the time) nor the Libs have seen fit to reverse this travesty (no surprise).
And we're constantly told that the Charter is such a wonderful guarantee of our "rights". Only a moron would believe that, but sadly there are too many morons out there who do ......
Posted by: Doug | 2004-05-19 4:28:36 PM
Hi, it's me, Tony, sometimes known as "Mr. Olekshy" ;-) Based on my amateur reading of the Canada Elections Act ( http://www.canlii.org/ca/sta/e-2.01/ ), the restrictions on "election advertising expenses" that were addressed by 2004 SCC 33 are designed to cover what we could perhaps more accurately refer to as "commercial advertising space or time", such as television or radio commercials, newspaper advertisements, and things like for-rent billboards.
So I would think it's still ok for you to spend $100,000 on a diamond-studded lawn sign for the candidate of your choice, or go nuts on a new ham-radio transmitter, if you really feel the urge to speak out effectively, but since I'm an amateur I can't tell what kind of other gotchas are in the Act.
Anyway, based on what I've read in today's dailies, on the web, and in the Act, here is my current understanding of the answers to my questions.
1. The book ad is ok per s.319 "election advertising" (b), unless they can prove the book was written for the purpose of getting around the Act.
2. The limits apply from the dropping of the writ to the closing of the polls, per s.350. It doesn't limit your freedom of speech except on matters relevant to an election, during said election.
3. The limits apply if your message "takes a position on an issue with which a registered party or candidate is associated", per s.319 "election advertising". So only messages about things like philosophies, religion, science, politics, and law are limited.
4. Per s.319 "election advertising" (a), you can't buy (much) space for your own op-ed, only the media has the power to decide what gets past the gag law.
5. Personal web logs are not constrained by the Act, per s.319 "election advertising" (d), as long as they're non-commercial. I don't know what happens if you have a tip jar or a group web log. Presumably the Western Standard and National Post web logs will have to ensure they don't spend over $150k during the five weeks of the election, because they're commercial.
6. Volunteer time spent on election advertising messages doesn't count, per s.349(c) "expenses".
Questions (7) through (9), which were more rhetorical, remain open.
Note that per s.353 (1), you have to *register* if you spend more than $500 (sic), you have to appoint a financial agent, and your name will be published in the official government list of lobbyists.
One last thing. How dare my government refer to me as a "third party" to an election? In a democratic civilization, the citizens are the first party to an election. Or are we?
Posted by: Tony | 2004-05-19 5:40:26 PM
Watch closely what's happening here. From selectively defined hate speech, to union conscription, to advertising by non-party political associations, to zero-tolerance smoking prohibitions in private clubs, the authoritarians *will* use every trick in the book to declare regulatory jurisdiction over everything, because, well, because they're authoritarians.
Boris Yeltsin said in 1991, if I may paraphrase, "Everything which was not permitted was forbidden. Whatever was permitted was mandatory. Citizens were shackled in their actions by the universal passion for banning things."
Czech President Vaclav Klaus said, on or about last November 25th, "they are still in the dream world of welfare, long vacations, guaranteed high pensions, and cradle-to-grave social security, and which obviates the imperative need to face reality." The biggest challenge for the Czech republic, Klaus said, is how to avoid falling into the trap of "a new form of collectivism." Asked whether he meant a new form of neo-Marxism, he said, "absolutely not, but I see other sectors endangering free societies. The enemies of free societies today are those who want to burden us down again with layer upon layer of regulations," president Klaus explained. "We had that in Communist times."
Or as Roger Q. Mills wrote, in 1887, "Prohibition was introduced as a fraud; it has been nursed as a fraud. It is wrapped in the livery of Heaven, but it comes to serve the devil. It comes to regulate by law our appetites and our daily lives. It comes to tear down liberty and build up fanaticism, hypocrisy, and intolerance. It comes to confiscate by legislative decree the property of many of our fellow citizens. It comes to send spies, detectives, and informers into our homes; to have us arrested and carried before courts and condemned to fines and imprisonments. It comes to dissipate the sunlight of happiness, peace, and prosperity in which we are now living and to fill our land with alienations, estrangements, and bitterness. It comes to bring us evil -- only evil -- and that continually. Let us rise in our might as one and overwhelm it with such indignation that we shall never hear of it again as long as grass grows and water runs."
Posted by: Tony | 2004-05-19 7:11:29 PM
Apparently five of the six judges who imposed this restriction of our freedom of speech were trained in French civil law. The three who wrote in dissent were trained in English common law.
Explain to me exactly why the vast majority of Canadians who follow the common law of the Magna Carta, the US Constitution, the U.N. Declaration of Human Rights, and the Canadian Charter of Rights and Freedoms, should be forced to put up with these vestiges of the now thoroughly discredited Napoleonic code.
Ask yourself, who is running this racket?
Posted by: Tony | 2004-05-19 10:34:37 PM
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