Declare Alberta a Free Speech Zone
for Federal Election

Notwithstanding the Charter of Rights, the Liberals and their appointees on the Supreme Court of Canada have teamed up to ensure that the election called by Mr. Martin on Sunday will have less freedom of speech than any in Canadian history. This despite the fact that the election will determine one of the most important issues of our generation: the future of marriage and the family in Canadian society.

Sadly, none of this is by coincidence. The Liberals have engineered the election call to ensure that the court-ordered same-sex marriage issue will be as invisible as possible for the next 36 days. First the Liberals dished off the court-ordered same sex marriage issue to the Supreme Court on a government reference, thus safely postponing any decision until well after the election.

Next, they unceremoniously rammed Sven Robinson’s private member’s bill, C-250, through the Senate. C-250 adds sexual orientation to the anti-hate section of the Criminal Code, thus making anyone who criticizes gay marriage as bad public policy risk criminal prosecution if his comments are deemed hateful. And as we all know, criticism of anything the gay rights movement wants these days is routinely denounced as hateful.

Finally, the Liberals delayed the election call long enough to allow the Supreme Court to hand down its ruling upholding the Liberals’ gag law banning third party spending during federal elections. This section of the Canada Elections Act had earlier been struck down by two Alberta courts as a blatant violation of the freedom of speech provisions of the Charter of Rights. The Supremes, a majority of whom have been appointed by the Liberals, admitted that the gag law violates the free speech section of the Charter (how could they do otherwise!), but went on to say that it was a “reasonable limitation.” Some freedom!

The practical consequence of this ruling is that private citizens, you and I, individually or collectively, cannot spend our own money to buy meaningful tv, radio or newspaper advertisements to speak out on the same-sex marriage issue (pro or con) during the current election period. The gag law gives organized political parties a virtual monopoly on paid media advertising during the election writ period. (a monopoly paid for by our tax dollars!)

The chilling effect on policy debate is already evident. Focus on the Family, a national family values advocacy group, has cancelled its planned pro-traditional marriage media campaign for fear of prosecution. The same deterrent effect will be nation-wide.

Who is going to risk criminal prosecution by standing up and declaring that abolishing the timeless mother-father-child family triad and replacing it with untested experiment like same-sex marriage is a sociological time-bomb?

If this is a preview of Canadian democracy in the 21st century, God help us! Of course He can’t. The judges say that is against the Charter too.

Fortunately, we can help ourselves. There is something that provincial governments can do to protect Canadian democracy against the Liberals’ cynical manipulation of this issue. As usual, it will up to Alberta to take the lead. While the Election Gag Law has now been upheld by the Supremes, Bill C-250 has not. Since C-250 punishes speech and speech alone, it also violates section 2(b) of the Charter—the right to freedom of speech. Would the judges rule that this too is a “reasonable limitation”? Maybe. But it’s worth going to court to find out. Remember, it was the Alberta courts that originally struck down the Liberal gag law.

Alberta Justice Minister Dave Hancock should go to the Alberta Court of Queens bench this week and request an temporary injunction against the enforcement of C-250 for the duration of the election.

This is a relatively modest request, and thereby has a good chance of succeeding. The injunction motion should emphasize the uniqueness of our dilemma—and thus the limited nature of the requested ruling. It is coincidence of the Liberals’ election call and the recent passage of C-250 that makes protecting unrestricted policy debate on the same sex marriage issue of such paramount importance.

There are good precedents for this. In 1937, the Federal government used its reference power to intervene in Alberta politics and to send the government’s “Accurate News and Information Act” to the Supreme Court. The Feds argued that the Aberhart government’s attempt to muzzle media criticism of its social credit polices was a blatant attack on freedom of speech. It was. The Supreme Court said so and declared it invalid.

Given current circumstances, it is worth recalling Chief Justice Lyman Duff’s justly celebrated defense of freedom of speech and press:

“The statute [BNA Act] contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals.”

Both the Supreme Court justices and the Liberals who appointed them have conveniently forgotten Chief Justice Duff’s ringing defense of freedom to criticize government policy. Given the 1937 precedent, it is only appropriate that Alberta remind them. The kind of freedom of speech envisioned by Duff will not be possible with respect to gay marriage in the upcoming federal election if Bill C-250 is being enforced.

Challenging and suspending the enforcement of Bill C-250 would be a win-win opportunity. Its implicit defense of marriage would rally social conservatives and traditionalists. Its defense of freedom of speech and press would garner support from libertarian conservatives and virtually every newspaper in the country.

Here is a unique opportunity for Alberta to lead by example and promote the national good. If the current attempt to suppress debate on an important issue succeeds, it will set a dangerous precedent. If the Supreme Court won’t defend Charter freedoms against Liberal manipulation, then the provinces should.

Ted Morton is a professor of political science at the University of Calgary and one of Alberta’s two Senators-Elect.