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RM Issue #040214

Let the people speak

There is no defence for a policy that silences third parties in an election campaign, says citizens' advocate GERRY NICHOLLS

By GERRY NICHOLLS
Monday, February 9, 2004

Tomorrow, the Supreme Court of Canada will be the site of a historic legal brawl pitting my group, the National Citizens Coalition, against the full might of the federal political establishment.

Of course what makes this case historic isn't who is fighting whom, but rather what's at stake -- the democratic rights and freedoms of all Canadians.

The NCC is challenging an obnoxious piece of federal legislation -- part of the Canada Elections Act -- known as the election gag law.

The gag law makes it illegal for private citizens or non-partisan, independent organizations to freely and effectively communicate ideas or opinions during federal elections.

It essentially prohibits private citizens or groups from spending their own money on election ads that support or oppose political parties and candidates. It also imposes severe restrictions on the ability of citizens or groups to run ads on any issues that might be associated with any political party or candidate. That means non-partisan ads raising public awareness about the Kyoto Treaty, or the same-sex marriage issue, or gun control could be effectively banned during elections.

Under this law you need permission from Elections Canada if you plan to spend more than $500 on election advertising. And getting permission means enduring a regulatory procedure that could be costly, burdensome and invasive.

Failure to comply with the gag law can result in imprisonment.

If all this sounds scary to you, you're not alone. That's why we challenged this law in the courts immediately after it was enacted four years ago. Our argument was simple. The gag law denies all Canadians basic democratic freedoms guaranteed in the Charter of Rights and Freedoms. These include freedom of thought, freedom of opinion, freedom of expression and freedom of association.

For its part, the federal government concedes the gag law infringes on our freedoms but argues it's a "necessary infringement" to ensure what they call a "level playing field." Their argument goes roughly like this: Since political parties face limits on how much they can spend during elections it's only fair that third parties (meaning anybody who is not a politician) should also be limited.

An alluring argument, but also a misleading one. Indeed, under the gag law, Canada's political playing field is anything but level.

For instance, under this law, third parties can only spend $150,000 nationally on election ads. Political parties and their candidates, meanwhile, can spend nearly 200 times that amount -- up to $30- million.

And under the gag law, third parties can only spend $3,000 in any particular riding on election advertising. Political candidates meanwhile can spend 20 times that amount -- up to $60,000.

Hardly a level playing field.

And let's not forget all the other advantages political parties -- and only political parties -- enjoy.

The Canada Elections Act, for example, requires Canadian television and radio broadcasters to provide free time to registered political parties. That provision does not extend to third parties who must pay for all their broadcast time.

And, unlike third parties, candidates are eligible for taxpayer-funded reimbursements of 60 per cent of their election expenses. Also, thanks to a recently passed law, political parties now enjoy annual taxpayer- funded subsidies amounting to millions of dollars.

The government isn't taking out its gag law bulldozer to level the political playing field. It's using it to crush our individual freedoms to give political parties and professional politicians a monopoly on debate during elections.

The net effect of the gag law will be to muzzle independent, non- partisan voices.

That's not only undemocratic, it's anti-democratic.

Why should political parties, which are nothing more or less than voluntary associations of citizens, have more freedom to speak out than other voluntary associations of citizens?

In a true democracy all citizens should have the freedom to participate in the election process, to speak out effectively during elections and just as importantly to be exposed to all points of view.

Fortunately, so far the courts have rejected the government's phony gag law arguments.

Indeed, in 2002, the NCC convinced the Alberta Court of Appeal to rule the gag law unconstitutional. But the government, unwilling to concede defeat, appealed its loss to the highest court in the land.

So now the fate of Canada's democratic freedoms rests in the hands of the Supreme Court judges, who must weigh the government's argument that this law is based on "necessity."

We can only hope the court heeds the words of the 18th-century British prime minister William Pitt the Elder, who noted: "Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."

In short, gag laws suit tyrannies. Not democracies.

Gerry Nicholls is vice-president of the National Citizens Coalition, a pro-free-enterprise advocacy group.


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