TRUTH IN POLITICS: BACKGROUNDER
The Issue
Trust in political institutions plays a large part in shaping the stability and quality of our Canadian democracy. Once a society stops believing in a common set of facts, democracy is at risk. Misleading political statements are part of the problem.
Politicians such as Donald Trump and Boris Johnson have steered us towards a regrettable post-truth era, where public discussion is increasingly separated from reality.
When politicians make statements that are deliberately inaccurate, they:
a) interfere with the public’s ability to make informed decisions when exercising their Charter right to vote;
b) cause damaging political polarization and the deterioration of trust in our political system; and,
c) contribute to the erosion of democracy and a rise in uninformed, extreme views and associated radicalized movements.
This needs to change.
Politicians and their parties must be reminded of their ethical and moral responsibilities. We can shift the scale towards a political system that strives to uphold honesty and restore trust if we increase the risk of consequences for deliberate misrepresentation and deception.
The truth in politics problem requires multi-faceted solutions. Our present government has already taken some necessary steps, including sweeping measures to deal with foreign meddling and cybersecurity threats intended to destabilize and manipulate the public (i) . While these are sensible and appropriate steps, they do not solve the problem of politicians who deliberately deceive and spread misrepresentations in search of votes.
We propose a two-pronged approach to counter these problems:
a) the development of a truth in political advertising law to deal with deception during the period leading up to an election; and,
b) a code of conduct for all political parties, which would apply at all times (not just during elections).
- A Truth in Political Advertising Law
In our view, it is possible to draft a truth in political advertising law that is constitutionally valid, and which upholds freedom of expression, while introducing fairness and accountability into the political process.
Existing Canadian Law
At the present time, we do not regulate what politicians say except in some very narrow situations. Section 91 of the Canada Elections Act (“CEA”) prevents publication of “any false statement of fact in relation to the personal character or conduct of a candidate (ii).”
Canada’s Chief Electoral Officer has proposed some changes to the CEA, recommending that false information be prohibited when it relates to the electoral process. Such laws would prohibit deceiving people about the mechanics of voting but would not prevent misrepresentation and false statements in relation to the policies and candidates they vote for (iii).
The making of misleading or false political statements to the public is, for the most part, completely unregulated in Canada. Advertising standards legislation specifically exempts political advertising (iv).
It should not be this way.
Parliamentarians are not ordinary Canadian citizens. They are in a special position of trust and power. Their statements can have an extraordinary impact on voters and election results and should be subject to the highest standards.
In most other fields of endeavour, deliberate misrepresentations and falsehoods are not permitted. A lawyer that misleads a client, or the court, for example, can be subject to career-ending disciplinary measures and possible prosecution for contempt of court.
The Charter and Freedom of Expression
In Canada, the Charter guarantee of freedom of expression protects “freedom of thought, belief, opinion, and expression.”
Unlike the US Constitution, the Charter qualifies this freedom. Where this freedom has been restricted, section 1 of the Charter permits a court to decide if the restriction is justifiable as a reasonable limit in a free and democratic societyv . This requires a balancing of the benefits of an action against its harmful effects.
In Canada, various federal laws impose restrictions on the freedom of expression guaranteed in the Charter. Anti-hate laws are an example of restrictions that the Supreme Court has found to be justifiable under the Charter as reasonable limitations in our free and democratic society.
Other jurisdictions with Westminster-based parliamentary systems have adopted truth in political advertising laws, and many others are considering them at the present time.
Australia
South Australia has had truth in political advertising laws since the 1980s, although the wording of the current provisions is quite different from earlier legislation.
Section 113(1) provides that where an electoral advertisement contains a statement purporting to be fact that is inaccurate or misleading to a material extent, the person who authorized, caused, or permitted the publication shall be guilty of an offence (vi). This provision has withstood challenges to its constitutional validity; a subsequent assessment found some issues with the legislation but concluded that it was reliable and fair. The assessment also revealed that the law was not applied to statements that were mere exaggeration or puffery, but was limited to statements of fact, and not opinion or argument.
In 2021, truth in political advertising laws based upon South Australia’s became law in ACT (Australian Capital Territory) (vii). Similar laws are being considered in Tasmania and Queensland, as well as federally for all of Australia (viii).
These laws are very popular: 87% of Australians indicated support for truth in political advertising, with that support crossing all party lines.
2. A Code of Conduct
Elections Canada published a detailed study in 2014 advocating for the development of a national code of ethics/conduct for Canadian political parties (ix).
Codes of conduct may focus on values, principles and norms that guide the behaviour of organizations, seek to prevent certain kinds of behaviour, or establish a complaints procedure. Such codes are often referred to as soft law, and the goal is to invoke a sense of responsibility and commitment to doing the right thing.
Manitoba has had a code of conduct in place since 1999. It sets out guiding principles and establishes a framework for ethical conduct for participants in the political process. Step 6 specifically provides that “members shall strive at all times to make public statements that are accurate (x).”
At the present time, federal cabinet ministers are governed by a code of conduct, but it is primarily in relation to conflict-of-interest rules.
We favour the development of a model code by Elections Canada, which could then be adopted by parliament via statute. This was one of Elections Canada’s recommendations in 2014. The code would contain principles that enhance public confidence in the integrity of the political process itself, and so would not just apply during elections. It would also include a provision like Manitoba’s with respect to accurate public statements.
Summary
Is deliberate deception just part of the games that politicians play? Can we just leave it to the media and voters to determine who to trust? Should we regulate advertising claims for toothpaste but not for policy matters that affect the lives of Canadians?
We do not think so. With the proliferation of inaccurate news, the pervasive power of the internet and social media, the growing difficulty of fact-checking, and increased manipulation of voters through the use of personal data and algorithms, we must take steps to protect voters and rebuild faith and trust in Canada’s political system.
We acknowledge that a law regarding political advertising would need to be narrow and specific, and that it could only catch indisputable facts. But Canada already regulates misleading statements regarding product labelling, commercial advertising, and misrepresentation to shareholders.
Therefore, we recommend that the Liberal Party of Canada urge the Government of Canada to do the following:
a) develop truth in political advertising legislation to be administered by an independent body (including consideration of scope, duration, and sanctions for breach); and,
b) direct the Chief Electoral Officer to develop a model code of conduct for federal political parties, candidates, and third parties.
Respectfully submitted by: Eleanor A. Olszewski QC, Wayne Schafer QC, Don Padget and Samantha Kupczak
(i) Government of Canada, SITE Task Force; https://www.canada.ca/en/democratic-institutions/services/protectingdemocracy/security-task-force.html Government of Canada, Critical Election Incident Public Protocol, https://www.canada.ca/en/democraticinstitutions/services/protecting-democracy/critical-election-incident-public-protocol.html
(ii) Canada Elections Act 2000 (Can); https://laws/justice.gc.ca/eng/acts/e-2.01/FullText.hmtl
(iii) Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43 and 44 General Elections, https://www.elections.ca/content.aspx?section=res&dir=cons/oth/polcom&document=rep&lang=e
(iv) The Canadian Code of Advertising Standards; https://adstandards.ca/code/ v Canadian Charter of Rights and Freedoms; https://www.canada.ca/content/dam/pch/documents/services/downloadorder-charter-bill/canadian-charter-rights-freedoms-eng.pdf
(vi) Electoral Act, South Australia, 1985 https://www.legislation.sa.gov.au/__legislation/lz/c/a/electoral%20act%201985/current/1985.77.auth.pdf
(vii) J Evans, ACT passes new political advertising laws to ensure voters are not ‘deceived on the way to the ballot box’, ABC News, Aug 2020 https://www.abc.net.au/news/2020-08-28/act-bans-false-political-advertising-new-laws/12604096?nw=0
(viii) The Australia Institute; Possible, Practical, and Popular — Opportunities for Truth in Political Advertising Laws in Australia, 2021; https://australiainstitute.org.au/wp-content/uploads/2021/10/211025-Truth-in-Political-Advertising-WEB.pdf Tasmanian Greens, Truth in Political Advertising; https://tasmps.greens.org.au/green-new-deal/truth-politicaladvertising
(ix) A Code of Ethics or Code of Conduct for Political Parties as a Potential Tool to Strengthen Electoral Democracy in Canada, Elections Canada; https://www.elections.ca/content.aspx?section=res&dir=rec/tech/cod&document=table&lang=e x Code of Ethical Conduct, Elections Manitoba; https://www.electionsmanitoba.ca/en/political_participation/ethical_conduct
