This post is co-written with Mark Mancini
One of us (Sirota) has written any number of times about Québec’s Election Act, which is remarkable by the staggering restrictions it imposes on election campaigns and by its drafting that has, on many points, not been updated this century. This combination of severity and obsolescence leads to all manner of controversy and problems in the Act’s application. A recent decision of the Québec Court of Appeal, Therrien c Directeur général des élections du Québec, 2022 QCCA 1070, illustrates this.
At issue in Therrien was s 429 of the Act, which provides that, in the week after the writ for an election
is issued, no person, except the Chief Electoral Officer [CEO], may broadcast or cause to be broadcast by a radio or television station or by a cable distribution enterprise, publish or cause to be published in a newspaper or other periodical, or post or cause to be posted in a space leased for that purpose, publicity relating to the election.
As the Court (Justice Cournoyer writing with the agreement of Justice Dutil; Justice Fournier, who had also been on the panel, passed away before the decision was issued) recognizes, “when s 429 … was amended in 1995, social media did not exist. … The ordinary meaning of the words ‘post’ and ‘space leased’ could not envision virtual reality, be it virtual posters or virtual spaces”. [62]-[63] (We translate here and throughout.) The question was whether s 429 nonetheless applied to prohibit advertising on Facebook, such as an ad that the CAQ, for which the appellant was the social media manager, took out in the first week of the 2014 election campaign.
2014, you might think, is a long time ago. We’ll return to this below. You might also think that s 429 is unconstitutional. We are inclined to think so too. In Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877, the Supreme Court struck down a publication ban on polls for part of an election campaign, and a part both more sensitive and shorter than the one at issue here, namely the last three days. It is hard to argue that a ban on some advertising in the campaign’s first week is more justified, although perhaps a court would accept that it is necessary to maintain fair electoral competition. But the issue does not seem to have been raised in Therrien, which is a pure case of statutory interpretation. The Court observes that the issue of the applicability of a provision to circumstances that were not and could not have been anticipated at the time of its enactment is “a classic in statutory interpretation, but its solution, as this case shows, is not always obvious”. [9] With this much we agree. The Court’s solution in this case is that s 429 does apply to social media advertising. This we believe is wrong, in light of the―to repeat, obsolete―drafting of the Act.
The Court begins by interpreting s 429 on its own terms. Its effect is to ban some―though not all―political advertising in the first week of an election campaign. Its purpose, inferred from what it prohibits, is “to foster fairness and equality among all political parties at the outset of an election campaign”, [54] by preventing the incumbent from getting a jump-start on its competitors. As the Court notes, fixed election dates weren’t in place when s 429 was enacted.
Inferring this purpose from the mischief sought to be remedied is an unremarkable tool of interpretation, but in this case, we fear the Court’s analysis is backwards. It may be true that the purpose of the provision is to foster fairness and equality at the outset of the campaign. But this purposive analysis must build on convincing evidence in the text and the choices reflected in that text. In this sense, the Court’s analysis is flipped. At a number of points, it puts no weight on the ordinary, accepted meaning of the text, seemingly allowing the Court’s own view of the statutory purpose to drive the analysis.
This leads the Court down the incorrect path. Drawing on Perka v R, [1984] 2 SCR 232 and R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 SCR 575, it states that while a statute’s terms are to be given the meaning they had at the time of their enactment, they “must not necessarily be confined to their original meaning” [65] at that time. What this means is that statutory language, provided it is sufficiently general, can be applied to facts and phenomena that weren’t or couldn’t be contemplated when it was enacted. But the focus of the analysis must be on the language used in the statute, and whether it could conceivably cover the phenomenon at issue. The issue, then, is “whether the text of s 429 prevents its extent to virtual posting in a virtual space”. [67]
The Court is right to cite these authorities at the outset, for they confirm the basic rule: the original meaning of statutory terms governs. This point was expressed most recently in R v Kirkpatrick, 2022 SCC 33, in the concurring opinion of Coté, Brown, and Rowe JJ. The concurrence articulated the accepted rule, unchallenged by the majority: “[i]t is a fundamental error to apply the ‘living tree’ methodology to the interpretation of statutes” [55]. But the Court of Appeal disregards the basic principle it cites. Rather than asking whether the words can bear the “adaptation by the courts of general concepts to these new realities” [68], it expressly concludes that the meaning of the words “post” and “space leased” “could not contemplate virtual reality” [63]. It then moves to conclude that the terms “post” and “space” “do not prevent their application to the virtual dimension specific to social networks” [67].
Here both the method and the conclusion are faulty. As we note, the accepted method asks whether the provision, in its purposive context, can accommodate the new technological developments. The Court, instead, reasons backwards: instead of asking “does this provision apply?”, it asks “why wouldn’t this provision apply?”. This is inappropriate on several grounds. Most basically, it is always for the party alleging that a provision applies―here, the CEO―to prove that this is so, and for good reason. Legislators who vote for legislative proposals do not and cannot time travel. The reach of statutes is fundamentally limited by their wording. By failing to positively affirm that a provision applies in a given circumstance, the Court distorts the reach of the law to cover phenomena that the text simply may not support. This, as we shall see, is an unacceptable form of spurious interpretation.
There are other normative reasons to reject the Court’s interpretation. Since the provision at issue is a penal one and restricts political speech, both the rule of lenity and the principle of legality counsel against applying it to doubtful or borderline cases. And substantively, the idea of a “virtual space” isn’t just a novel application of the existing concept of a space in the way that, say, same-sex marriage is a new application of the old concept of marriage. It is a metaphor and cannot do the work the Court wants it to.
The Court’s so-called purposive approach is also left wanting on its own terms, as it fails to have proper regard to the legislative context and to show why the purpose of the provision compelled its chosen interpretation. Consider the Court’s analysis of the history of s 429. In Frank v Canada, 2019 SCC 1, [2019] SCR 3, the dissenting opinion (unchallenged on this point), noted that “[t]he state of the law as it existed prior to an impugned provision coming into force can…give insight into why the provision was enacted” [131]. This, of course, is one way to discern the meaning of text; changes in wording can indicate changes in legislative purposes (as opposed to inferences based on what a legislature did not do). In this case, the appellant sought to draw the Court’s attention to the fact that s 429’s predecessor provisions were phrased in general terms and did not specify particular forms of advertising prohibited in the early campaign, arguing that the legislature’s choice to now ban some forms of ads and not others had to be respected. The Court simply isn’t interested: “the history of the amendments to s 429 does not matter as much as the parties think in interpreting its text”. [55] In our view, this is a mistake. As noted in the Frank dissent, the history of a provision can often illuminate the textual means by which a legislature was attempting to solve a particular mischief. If the appellant is right (and the Court does not even bother setting out the previous version of s 429, so we cannot tell), his argument deserved to be taken seriously.
The Court goes on to add that its interpretation of s 429 is in agreement with that of the CEO, which can be taken into account without being binding. It is a bit difficult to say how much this argument influenced the Court―it is probably not a major factor in the decision. But any reliance on it is, nonetheless, disturbing. A court would not take special notice of the police’s interpretation of the Criminal Code. There is no reason to treat an administrative enforcement agency with any more indulgence. (It is telling, too, that the case on which the Court relies here, Cayouette c Boulianne, 2014 QCCA 863, is at root a dispute among neighbours, which turns on the meaning of a municipal by-law. Giving some weight to the municipality’s views in that context is not nearly as problematic as doing that when the administrator is the prosecutor.)
All in all, the Court’s analysis on this point is backwards as a matter of method, but the result is also problematic. Some may ask why the original meaning rule should be followed in a case like this, where new technological problems are so evident. The answer relates to the point of statutory interpretation. The job of courts is to interpret the text through which legislatures seek particular objectives (MediaQMI v Kamel, 2021 SCC 23, [39]). The text discloses how a legislature wanted to achieve its ends. By updating the statute for the legislature, the Court assumes that the legislature (a) wants its law extended; and (b) wants the law extended in this particular manner. It deprives the legislature—the exclusive law-maker—of the opportunity of creating a new regime that balances on- and offline expression. Citizens can rightly begin to question where the law is made.
The Court also accepts an alternative argument based on the effect of Québec’s Act to establish a legal framework for information technology (IT Framework Act) on s 429. In a nutshell, this law is meant to ensure that digital documents are treated the same as their analogue counterparts for various purposes. Documents are defined as follows, in s 3 of the IT Framework Act:
Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.
Moreover, pursuant to s 71
The concept of document, as used in this Act, is applicable to all documents referred to in legislative texts whether by the term “document” or by terms such as act, deed, record, annals, schedule, directory, order, order in council, ticket, directory, licence, bulletin, notebook, map, catalogue, certificate, charter, cheque, statement of offence, decree, leaflet, drawing, diagram, writing, electrocardiogram, audio, video or electronic recording, bill, sheet, film, form, graph, guide, illustration, printed matter, newspaper, book, booklet, computer program, manuscript, model, microfiche, microfilm, note, notice, pamphlet, parchment, papers, photograph, minute, program, prospectus, report, offence report, manual and debt security or title of indebtedness.
The Court holds that
the concept of document necessarily includes virtual posts, because the posts consist of information inscribed on a medium which has the same legal significance if it includes the same information, regardless of the medium … In this respect, “to post” or “cause to be post” includes the use of a medium on which information is inscribed, i.e. a document within the meaning of s 3. Meanwhile … the absence of words “poster”, “post”, or “cause to post” from the list in s 71 is of no consequence. The use of the phrase “such as” to introduce the list of many types of document is clearly aimed at excluding any restrictive interpretation of the term document, as defined in s 3. [86]-[87] (Paragraph break removed)
Here too we are not persuaded. For one thing, open-ended though it may be, we do not think that the IT Framework Act’s definition of a document extends to virtual posts, or any other media of a broadcast nature. The IT Framework Act’s purpose provision, s 1, refers to “documentary communications between persons, associations, partnerships and the State”. Elsewhere, the IT Framework Act speaks of documents producing “legal effect” or having “legal value” (e.g. ss 5 and 9). A poster―or a radio or TV ad―aren’t “documents” within the IT Framework Act’s meaning any more than in ordinary language.
Section 71 supports this view, although of course the Court is right that its enumeration is not strictly speaking closed. It is, however, remarkably exhaustive (which is why we thought it worthwhile to reproduce it above). And, tellingly, while it does include audio and video “recordings”, it does not include broadcasts. Considering the exhaustiveness, the fastidiousness even, of the enumeration, we do not think the omission is accidental or that it can be gotten around by relying on the “such as” language. This might not be the proverbial elephant, but we do not think the National Assembly hid a beaver in s 71’s mousehole. At minimum, the Court had to explain in what sense a virtual post is “such as” the objects enumerated in s 71, and it does not do this.
So much for Therrien itself. But we think it is important to point out that it is not an isolated case, but rather part of a pattern of very questionable decision-making by both the Québec Court of Appeal and successive CEOs with respect to the Act, which is in dire need of reform. In effect, those in charge of administering the Act are trying to maintain or even extend its reach while avoiding, on a case-by-case basis, consequences they find intolerable.
So far as the Court of Appeal is concerned, we have in mind the decision in Métallurgistes unis d’Amérique (FTQ), section locale 7649 c Québec (Directeur général des élections), 2011 QCCA 1043, which upheld the Act’s draconian restrictions on “third party” political spending. In that case, a union was fined for criticizing a political party in communications addressed to its own members. More generally, individuals who are not candidates and unincorporated groups are limited to spending 300$ on election advertising. Corporations, including not-for-profit ones, are prohibited from spending a penny. This is difficult to reconcile with the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), [2004] 1 SCR 827, which recognized the right of “third parties” to engage in electoral advertising even as they also accepted the principle that such advertising can be strictly limited.
As for the CEOs, they attempted to censor “third party” interventions in each of the last two election campaigns ― that of a group opposed to the then-proposed “Charter of Values” in 2014 and that of environmentalist NGO Équiterre in 2018 ― provoking a public outcry. In 2014, the then-CEO flip-flopped and ended up withdrawing his objections. The 2018 story has only concluded recently (egregious delay is also, it seems, a pattern with the CEO), as Laura Lévesque and Thomas Laberge report in Le Soleil. The CEO has “blamed” and warned Équiterre but apparently not fined it. Yet as Sirota wrote at the time, the CEO was right to find fault with the campaigners on both occasions.
As further discussed in this post on the 2014 climb-down, the then-CEO reinterpreted the relevant provisions in a way that may have been sensible in light of the social and technological change since their enactment, as well as protective of the freedom of expression, but was not tenable in light of their text. The choice of merely “blaming” Équiterre is also, at first glance, understandable on the merits but not something provided for by the Act, except presumably as an exercise of an implicit prosecutorial discretion. In effect, the CEO is deciding what the Act means and when―and his decision to go easy on fairly clear violations by NGOs while prosecuting a debatable one by a political party is worth highlighting.
All this suggests, unequivocally to our mind, that the Act needs to be reformed so as to accommodate the social and technological realities of the 21st century. As it happens, the Canadian Press’s Jocelyne Richer reports that the CEO wants the Act to be “updated”―but mainly so as to introduce even more restrictions, specifically on advertising during the “pre-campaign” period. (In fairness, he was already asking for such an “update” in 2016. So far, the National Assembly has not obliged.) Parliament has added such restrictions to the Canada Elections Act some years ago, and Ontario has used the Charter’s “notwithstanding clause” to extend its censorship regime, which now covers more than one year in every four.
These rules are bad and possibly unconstitutional, as Sirota argued here and here. But, quite apart from their other problems, they would hit especially hard in Québec unless the Electoral Act’s existing strictures are relaxed to some degree, and also unless it is re-drafted so as to be technologically neutral to the extent possible. In the meantime, however, it is not the role of either the CEO himself or the courts to fiddle with the Act to make it work better. The law is broke, but they are not the ones who have the tools to fix it.
Double Aspect 