Section 1 of the constitution is flawed

Here's a great article in the Interim by Gerry Nicholls regarding the Charter and free speech:

If you think the Charter of Rights and Freedoms truly safeguards our democratic rights, think again. In fact, in one notorious case, the Charter did nothing to prevent bureaucrats, politicians and judges from squashing the most basic of all democratic freedoms: the right to free election speech.

I know all about this case, because it involved my group, the National Citizens Coalition. We were fighting against what the media termed the “election gag law.”

Enacted in 2000, this gag law imposed severe legal restrictions on how much money private citizens or independent organizations could spend on “election advertising.” Under this law, a citizen could actually be thrown into prison for the “crime” of running a full-page newspaper ad urging voters to support (or oppose) a political party. Under this law, it’s also illegal for citizens or groups to run effective media campaigns during elections to raise public awareness on important issues such as the environment, abortion or same-sex “marriage.”

Clearly, this gag law infringed on the democratic right to free expression – a right specifically guaranteed in the Charter of Rights and Freedoms. So the NCC challenged this law in the courts.

After a four-year battle, the case ultimately ended up in the Supreme Court of Canada. We were confident of victory. After all, we had won every round in the court fight up until then. Both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal had ruled all or parts of the gag law to be unconstitutional.

But on May 18, 2004, the unthinkable happened.

The Supreme Court of Canada ruled 6-3 to uphold the gag law and essentially killed a core democratic freedom.

What happened? Why did freedom lose?

Well, while the court agreed the gag law did indeed infringe on free expression, it ruled it to be a justifiable infringement. And indeed, under Section 1 of our Constitution, a freedom can be suspended if the government can provide the court with solid evidence that the exercise of that freedom causes harm.

In this case, however, the government was unable to provide any evidence that free political speech did cause harm. The best argument it could come up with was the gag law was needed because without it the rich might unfairly buy elections.

It was a flimsy argument, but amazingly, the Supreme Court bought it, ruling the lack of evidence didn’t matter. For the court, a “reasoned apprehension” that free speech might lead to some sort of unfairness was enough. In other words, as an editorial in the Ottawa Citizen put it, the Supreme Court took away our freedom on nothing more than a “hunch.” And in so doing, the Supreme Court justices have made it immeasurably easier for future governments to take away more of our freedoms.

The bar of proof under Section 1 has been drastically lowered.

That’s why anybody relying on the Charter to protect our rights could be in for a major disappointment.