Twelve Banned Books Weeks

Once upon a time, I mused about whether Parliament could ban books as part of its regulation of election campaign spending. The specific question that interested me then was whether the exemption of “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election” from the definition of “election advertising” in section 319 of the Canada Elections Act (CEA) could be abolished. But now, just in time for Banned Books Week, life ― or, rather, the Public Service Alliance of Canada ― has come up with a somewhat different censorship scenario.

La Presse reports that the Alliance has complained to Elections Canada about political commentator, consultant, and activist Éric Duhaime’s giveaway of 5000 copies of his book Libérez-nous des syndicats! (Free Us from the Unions!). Mr. Duhaime is apparently giving the books away for free in order to counteract an anti-Conservative (and pro-NDP) campaign by Québec’s largest union, the FTQ, to which the Alliance is associated. In the Alliance’s view, the anti-union book falls with the definition of “election advertising” in section 319, and since it is being away for free during the election campaign, the exemption for books sold “for no less than [their] commercial value” does not apply. Since Mr. Duhaime has not registered with Elections Canada to advertise as a “third party” as section 353 of the CEA requires, he is, the Alliance says, acting illegally.

Mr. Duhaime says that he is not campaigning for or against a political party ― only against unions ― and thus is not infringing the CEA. But that’s not quite obvious. The CEA deems to be election advertising

the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated. (Emphasis mine)

The key issue, it seems to me, is whether Mr. Duhaime’s book (which, to be clear, I have not read) can be considered as “tak[ing] a position on an issue with which a registered party … is associated.” Is the anti-union position Mr. Duhaime expresses “associated with” the Conservatives ― as the Alliance seems to believe? Or is the pro-union position Mr. Duhaime combats “associated with” the NDP? I’m not sure, but I don’t think that the argument is an impossible one to make. As best I can tell, there is no case law interpreting s. 319 generally or the notion of “an issue with which a registered party or candidate is associated” in particular. And these terms aren’t exactly self-explanatory.

Which, in my view, is a big problem. Here we have a statutory provision that can be applied to punish speech, to impose fines on someone whose “crime” is to give away a book ― and we don’t actually know what it means. Mr. Duhaime probably enjoys the free publicity that comes with the complaint, but not everyone will feel that way. The problem of chilling effect from speech-restricting legislation that is imprecisely worded and thus difficult to interpret in advance of application is a real one.

Here’s another issue with the drafting of s. 319, while we’re at it. One of the exemptions from the general definition of “election advertising” concerns “the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views.” So suppose that Mr. Duhaime had put the text of his book on a freely-accessible website. That would pretty clearly fall within the exemption ― even if the website were only set up for the duration of the election campaign, since the statute says nothing about internet communications having to be “regardless of whether there was to be an election,” as it does for books. But now consider a somewhat different example. Suppose that, instead of just putting the text of his book on a website, Mr. Duhaime makes his book available as an ebook, say through the Kindle store ― again, for free. Does that count as an illegal “distribution of a book … for … less than its commercial value,” or as a legal “transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views”? I have no idea. On the one hand, it’s not clear that an ebook ought to be treated any differently from a dead-tree book. On the other, it’s equally unclear why a text in .azw, or .mobi, or .epub format should be different, for the purposes of election law, from the same text in .html format. I guess it would be a fun question to put on a statutory interpretation exam, if you are a slightly sadistic professor.

But again, laws that restrict expression, especially expression on political issues, should not be written for the benefit of slightly sadistic professors of statutory interpretation. If expression must be restricted, as the Supreme Court believes the expression of “third parties” ― that is citizens and organizations who are not candidates or political parties ― must be restricted, at least the restrictions should be clear and narrowly defined. Citizens should not have to guess; nor should they be at the mercy of complaints by other citizens or groups who simply happen to detest their politics.

The was once on the other foot. After the 2003 election campaign in Québec, another union associated with the FTQ was prosecuted by Québec’s election authorities for distributing a pamphlet criticizing a party that took an anti-union position ― a party whose leader Mr. Duhaime was then advising, as it happens. The union then challenged the constitutionality of the Québec legislation on third-party participation in election campaigns ― unsuccessfully. Now, it would seem, labour has learned to use this sort of law as a weapon against its enemies. (In fairness, however, Québec’s law was even more restrictive than the CEA. A union’s distribution of a pamphlet to its own members would not be a violation of the federal statute.) But we should, I think, be concerned that our election campaigns are in danger of becoming twelve-week-long periods for banning books.

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