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On February 19, 2021, the Ontario Superior Court of Justice (Canada) declared section 91 of the Canada Elections Act, 2000 invalid. This provision prohibited the publication of false news such as association of a prospective candidate with an offence, during the election period. The provision carried significant penalties, including a fine up to $50,000 and up to five years in prison. The Canadian Constitution Foundation contended that this provision violated section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression since the provision prohibited dissemination of accidental and unknown falsehoods and applied to an overly broad category of people and topics. The judge accepted this contention and struck down the provision while observing that the provision did not lay down the requirement of knowledge of falsity i.e. a person could be charged under this provision regardless of him knowing that the statement s/he made was false.
This case has been filed by Canadian Constitution Foundation (CCF), a registered charity that defends the rights and freedoms of Canadians (“the petitioner”), challenging the validity of section 91(1) of the Canada Elections Act S.C. 2000, c.9 (“CEA”). PEN Canada, a literary association fighting for freedom of expression, also intervened in support of the CCF.
Section 91(1) states that: No person or entity shall, with the intention of affecting the results of an election, make or publish, during the election period, (a) a false statement that a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party has committed an offence under an Act of Parliament or a regulation made under such an Act — or under an Act of the legislature of a province or a regulation made under such an Act — or has been charged with or is under investigation for such an offence; or (b) a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group or association of a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party.
Prior to 2018, s. 91(1) prohibited anyone from knowingly making or publishing false statements about the personal character or conduct of a candidate before or during an election. This section was then amended in 2018 [Bill C-76] when five significant changes were made to s. 91(1) of the CEA. First, s. 91(1) included an enumerated list of false statements that were prohibited. Second, it prohibited an “entity” from making false statements. Third, it prohibited false statements about a broader category of people, including the leader of a political party or “a public figure associated with a political party.” Fourth, it only prohibited the making or publishing of false statements during the election period. Finally, it no longer included the word “knowingly”.
This case was presided over by Justice Davies of Ontario Superior Court of Justice (Canada). The central issue for consideration was whether the mens rea of section 91(1) of the Canada Elections Act (CEA) included a knowledge component irrespective of removal of the word ‘knowingly’ from the provision in 2018.
To decide the aforementioned issue, the judge firstly reviewed all the provisions of CEA to analyze the scheme of the Act. The judge observed that “parliament has clearly articulated the mens rea requirement for each offence” mentioned in the Act. He remarked that wherever proof of knowledge was required, it was explicitly mentioned in the prohibition or offence provision; when proof of an ulterior purpose was required, that was also specified; and when proof of both knowledge and an ulterior purpose were required, that was also explicitly stated [p. 42]. While evaluating the different provisions of CEA, the judge noted that the CEA contained several prohibitions on false or misleading statements, which had different actus reus and mens rea requirements, however the offence of contravening s. 91(1) did not require proof of knowledge as part of its mens rea as it was not explicitly mentioned in the Act [p. 37].
The judge proceeded by citing examples of different provisions from the CEA where such requirements were explicitly mentioned, for instance section 92 of the CEA prohibited any person or entity from publishing a false statement that a candidate has withdrawn from an election, and section 486(3)(d) made it an offence for a person to ‘knowingly’ contravene s. 92 [p. 38]; likewise section 482.1 made it an offence to hinder the Commissioner of Canada Elections by ‘knowingly’ making a false or misleading statement [p. 39]; section 56(a) of the CEA prohibited anyone from knowingly making a false or misleading statement about his or her qualification as an elector, and the mens rea for the offence of contravening s. 56(a) required proof that the person knew statement was false or misleading [p. 41]. By analyzing these provisions, the judge held that “it would, therefore, be inconsistent with the structure of the CEA as a whole to interpret ss. 91 and 486(3)(c) as requiring proof of knowledge when that was not explicit in either the prohibition or offence” [p. 43].
At this point, the Attorney General argued that although Parliament made a deliberate decision to remove the word knowingly from s. 91(1) of the CEA it did not intend to substantively change the mens rea of the offence by doing so. He further contended that the removal of the word knowingly was only a “housekeeping measure to remove redundancy and avoid confusion”. In support of its position, the Attorney General relied on statements made by politicians and government officials including Minister Gould, Commissioner Côté and Mr. Morin during the legislative process [p. 44].
The Court rejected these statements for the following reasons: 1. The comments by Minister Gould and Commissioner Côté did not address the removal of the word knowingly [p. 53]. 2. The advice given to the Standing Committee by Mr. Morin that the inclusion of the word knowingly in s. 91(1) was unnecessary and redundant was, “incorrect and potentially misleading” [p. 54] because the inclusion of the word knowingly in the pre-2018 prohibition was not redundant. Mr. Morin had stated that section 91 already had the requirement of intent i.e. to affect the results of the election and therefore, the word knowingly was not required as it would lead to two mens rea requirements. However, the judge remarked that proof of an ulterior purpose – an intention to affect the outcome of an election – was distinct from proof of knowledge and the fact that an offence required proof of an ulterior purpose did not mean that it also required proof of knowledge. According to the judge, there were two different types of intent: one regarding the consequences of the prohibited act and the other regarding the circumstances in which the prohibited act was committed [p. 55].
The judge remarked that although in some circumstances, an element of knowledge might be necessarily implied by the ulterior purpose specified, the ulterior purpose of s. 91(1) was different – the intent to affect the result of an election. According to the judge, the knowledge that the statement was false was not necessarily implied by the ulterior purpose in s. 91(1) because one could seek to affect the outcome of an election by publishing statements that were, in fact, false without necessarily knowing or believing them to be false [p. 56]. The judge further stated that two mens rea requirements was neither bad drafting nor confusing, it was rather, as held by the Supreme Court of Canada, that the failure on the part of Parliament to clearly articulate all elements of the mens rea of offences was the source of significant difficulty and confusion [p. 57]. Furthermore, the judge was of the opinion that the Minister and Commissioner made no mention of the removal of the word knowingly in their comments about Bill C-76 and therefore, their statements could not be taken to reflect Parliament’s true intention [p. 59].
The Attorney General also relied on evidence adduced from the Ms. Gigou, the Director of Investigations at the Office of the Commissioner of Canada Elections about the intent and meaning of the amendments to s. 91(1) in Bill C-76. Ms. Gigou testified that despite the removal of the word knowingly from s. 91(1) of the CEA, the Commissioner interpreted ss. 91(1) and 486(3)(c) as still requiring proof that the person knew the statement was false [p. 60]. The judge rejected this contention as well for the following reasons:
First, Ms. Gigou asserted that the Parliament meant for s. 91(1) to be an intentional offence, not a strict liability offence. However as per the judge, this statement was legally wrong as knowledge did not need to be read into the offence of contravening s. 91(1) to make it an intentional offence, as opposed to a strict liability offence. The judge stated that “requiring proof of mens rea in any form, be it general or specific intent, ensures an offence is not a strict liability offence. Categorizing an offence as an intent offence does not imply or require any particular form of mens rea. Contravening s. 91(1) is an intentional offence by virtue of the fact that it requires proof of an ulterior purpose regardless of whether knowledge is also a required element of the mens rea” [p. 62].
Second, Ms. Gigou’s evidence was internally inconsistent on how the knowledge component was understood by the Commissioner. In one paragraph of her affidavit, Ms. Gigou asserted that s. 91(1) only targeted knowingly false statements. She stated that the Commissioner was of the opinion “that a false statement must have been made knowingly to be caught by the prohibition at s. 91.” In another paragraph, however, she suggested s. 91(1) also captured false statements that were made recklessly. Ms. Gigou stated that to prove a contravention of s. 91(1), the prosecutor had to show that the person or entity “knew that the statement was false, or else that the person or entity was willfully blind or reckless about the truthfulness of the statement” [p. 63]. Herein, the judge noted a discrepancy between the Commissioner’s position and that of the Government which maintained that the provision captured only those statements that were known to be untrue [p. 63].
The judge noted that if an offence included knowledge as an element of the mens rea, then proof of recklessness did not suffice. To elaborate on this point, the judge drew a distinction between willful blindness and recklessness: willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where s/he sees the need for further inquiries, but deliberately chooses not to make those inquiries and therefore is equivalent to knowledge because the accused made a decision to remain deliberately ignorant [p. 64], however recklessness is distinct from knowledge in a way that recklessness involved an accused person being aware that there was some risk involved in his or her conduct and decided to act in the face of that risk. The judge emphasized that “if recklessness were the mens rea for contravening s. 91(1), the prosecutor would not have to prove subjective knowledge or willful blindness. The prosecutor would only have to prove that the person understood there was a risk that the statement was false but published it anyway. This is not the same as making a deliberate decision to publish a statement knowing that it is false” [p. 65].
To highlight this point, the judge discussed R. v. Zundel where Mr. Zundel was convicted of the Criminal Code offence of knowingly spreading false news and published a pamphlet denying the Holocaust occurred. The trial judge instructed the jury that the Crown must prove beyond a reasonable doubt that Mr. Zundel had no honest belief in the truth of the pamphlet. The Ontario Court of Appeal held that absence of an honest belief in the truth of a statement was not the same thing as knowledge that the statement was false: “the state of mind of one who publishes a false document with no honest belief in its truth, not caring whether it is true or false, is recklessness with respect to its falsity, not knowledge of its falsity.” In that case, the Court held that recklessness as to the truth or falsity of the statement was not enough because the mens rea expressly required proof of knowledge [p. 66].
In the instant case, the judge observed that “prior to 2018, when s. 91(1) included the word knowingly, proof of recklessness would not have been sufficient to establish the mens rea of the offence of contravening s. 91(1). While noting the inconsistency in the arguments of Commissioner and the Attorney General, the judge underlined that “if the Commissioner’s interpretation is correct that the mens rea s. 91(1) can now be satisfied with proof of recklessness, Bill C-76 substantively changed the mens rea requirement and actual knowledge is no longer required. Alternatively, if the Attorney General’s position that the offence of contravening s. 91(1) still requires proof of knowledge is to be accepted, the Commissioner’s interpretation is legally wrong”. Although the Commissioner’s interpretation of s. 91(1) was not determinative or binding on the Court, it demonstrated the confusion that arose due to failure of parliament to clearly mention the mens rea [p. 67].
Due to this omission, the judge held that Parliament chose to leave the word ‘knowingly’ in other provisions of the CEA and intended the removal of the word knowingly from s. 91(1) to reflect a substantive change to the prohibition and offence and that therefore, the offence of contravening s. 91(1) of the CEA did not require proof that the person or entity knew the statement made was false [p. 70]. Due to this reasoning, the judge held that the prohibition in s. 91(1) did not meet the minimal impairment requirement under s. 1 of the Canadian Charter of Rights and Freedoms and therefore, s. 91(1) of the CEA violated s. 2(b) of the Charter, which guarantees freedom of expression, and ensures that people can participate fully and freely in the political decision-making process in Canada.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Ontario Superior Court of Justice (Canada) expanded the freedom of expression by striking down a law which under the pretense of prohibiting false news could be misused to silence the dissenters and the critics. The provision granted wide powers to the government as the standard of proof did not require the knowledge of falsity i.e. a person could be charged under this provision irrespective of the fact whether they knew the statement made by them was false. Such overbroad content restrictions have a chilling effect on the freedom of expression, however by declaring this provision invalid the judge restored the freedom of political speech.
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