It's a law that makes you gag

Sun May 29 14:25:27 2005
NCC Articles

By: Gerry Nicholls, Globe and Mail

When it comes to legal election topics, bull is in, free speech is out.

That's the message from Elections Canada in how it enforces the election gag law. What's the gag law? It's a law that essentially makes it a crime for private citizens or non-partisan groups to freely and effectively speak out during federal elections.

The gag law imposes severe restrictions on how much money non-politicians can spend on so-called election advertising.

My organization -- the National Citizens Coalition -- challenged the gag law in the courts, arguing it infringed on Charter-protected democratic rights.

As part of our anti-gag law efforts we ran a 15-second television ad during the 2000 federal election to help raise public awareness about our court battle.

Here is the text of the ad:

Video: The words: “Gag Law” appear on screen.
Audio: “The Chrétien government has taken a page out of Quebec Premier Lucien Bouchard’s book. It’s passed an election gag law.”
Video: The words “Court Challenge” appear on screen.
Audio: “We are challenging the gag law in the courts. We need your help.”
Video: The words “Canadian Freedoms” appear on the screen.
Audio:  “Don’t let them take away our Canadian freedoms.”

Seems pretty harmless and straightforward, right?

Wrong.

About a year after we ran this ad, Elections Canada dispatched the RCMP to our office to charge us -- ironically enough -- with violating the gag law. They said our ad was illegal “election advertising”.

We say our TV ad was not election advertising. And we are still fighting the charge in court.

The whole case, of course, centers on the definition of “election advertising”. The gag law itself says election advertising is any ad that supports or opposes a political party or candidate or which takes a stand on any issue that’s associated with a political party or candidate.

Elections Canada claims our TV spot qualified as election advertising because the gag law is an issue associated with the Liberal Party.

This is where the castrated bulls come into the picture.

During the 2004 federal election, the Canadian Wheat Board – a government agency – ran a series of newspaper ads extolling the virtues of the CWB’s monopoly. 

The CWB ad featured pictures of two bulls. One bull was labeled, “This is the CWB”, and the second bull (this one castrated) was labeled “This is the CWB in an open market for wheat and barley”. The bottom of the ad read: “No one has the right to tell you which one is right for your herd.”

Now the Conservative Party of Canada had a position on the wheat board monopoly --- the Tories opposed it. So wouldn't that make the CWB ad election advertising? Wasn’t the CWB taking a stand on an issue associated with a political party?

Some anti-monopoly farmers, believing the CWB broke the gag law, complained about the ad to Elections Canada.

But Elections Canada didn’t press charges. It ruled the CWB ad was not “election advertising.”

Here’s how the agency explained it in a letter sent to the farmers

“The type of advertising message the definition is intended to catch is one, the primary purpose or intent of which is to affect the outcome of the election process, in terms of which candidate or party is promoted or opposed. It is not intended to control advertising that has an entirely different focus, but just happens to deal with an issue with which a registered party is or becomes associated.”

But if that is the definition of election advertising then why was the NCC charged?

Take a look back at the transcript of our TV ad. Does that look like election advertising as defined by Elections Canada?

Clearly the primary purpose of the NCC ad was to raise public awareness of our gag law fight. It was not to affect the outcome of the election process. It also “just happens to deal with an issue with which a registered party is or becomes associated.”

So again, why was the NCC charged but the Wheat Board spared?

Does it have something to do with the fact that we didn’t use livestock in our ad?

Or is something more disturbing going on here?

Could the government be using the gag law as a weapon to punish those who have opposed Liberal policies?

Is the real definition of illegal election advertising this: any ad the Liberals don’t happen to like.

The only thing scarier than an election gag law is an election gag law that’s selectively enforced.

Gerry Nicholls is Vice President of the National Citizens Coalition

Article originally appeared: December 13, 2004