Is this protected by free speech?
The story is simple: members of the Conservative party called people in one of the few remaining Liberal held ridings and told them that their MP (the respected Irwin Cotler) was stepping down. Exactly why someone would do this is not at all clear. The Conservatives in question did not deny the fact that they made the calls but argued that they were testing the ground to see where voters might fall if Cotler were not running and that their actions are protected by free speech. Are they?
The short answer is "it depends." I hate to sound like a broken record but an honest mistake is an honest mistake. If the Conservatives in question believed a sitting MP were stepping down and they were trying to assess their level of support, then calling people -- in effect campaigning before the election -- does not strike me as a problem. I do have problems with the "permanent campaign" approach to politics but if the above were the situation ... well ... there is nothing wrong with what they did.
In addition, one could argue "no harm, no foul." This is not a hard and fast legal rule but it comes pretty close under Canadian law. If there is no injury that results from an action, then there is no particular reason to be overly concerned. We (rightly) use the police and courts in incidences where there is harm. If I rob someone's home, as an example, then there is harm and hence a foul. I've deprived someone of their property. Likewise, in my line of work, plagiarism constitutes a foul: it is an effort to pretend gain an unfair advantage (among other things) over other students. In this case, one could argue along the following lines: "yes, I called people in Cotler's riding and told them he was retiring and this was inaccurate but he will someday retire and in the interim, how have I harmed him? He does not lose his job. His reputation is not damaged because my inaccuracy is easily corrected [and, it is difficult to measure reputation anyway]." This might smack of being unethical -- I would contend it is and it would raise questions in my mind about the ethics of a political party that would use this kind of argument -- but it is likely not illegal, even if it is not free speech per se.
But, if someone knowingly lies, that is another story and free speech -- as I have said before -- does not protect intentional deceit. You can easily see why. Imagine a person who wants to sell his car. This car has serious problems that make it dangerous. I come by and ask about the car and the owner says "it is in perfect condition." Now, I, as the buyer, do have some responsibility to check things out but, imagine that the car explodes as I test drive it. Here we have clear foul and deceit. Free speech will not protect that. Likewise if I slander someone, that is not protected. In other words, free speech is not the right to lie publicly about someone. Never has been; never will be.
I concede that this line is fractured in the political realm. Some of the attack adverts we saw in the last federal election were pretty close to outright lies. That is: they were not matters of disagreement on policy whereby one thought that grave problems would follow from campaign promise X or Y, but very close to lies. It is one thing, for instance, for a Conservative to believe that an NDP person might make a bad leader, which they might say publicly. This is what we would expect and it is an interpretation. It is another thing to knowingly say something that is not true, say to run an advert that says "Stephen Harper is a Devil worshipper." The one - questioning the leadership abilities of one's opponent -- is OK; the other is a knowing lie designed to deceive.
Interestingly Defence Minister Peter MacKay is using precisely this argument in threatening to sue people over criticism of his helicopter flight. He is arguing that the criticism amounts to slander and that he will avail himself of any legal means in his authority to obtain redress. I might disagree with MacKay but he is within his legal rights. (There is a complication relating to free speech in Parliament but we can leave that off so as not to unduly complicated what I am saying.)
Moreover, this is a pretty clear line. Free speech is not -- and never has been -- endangered by making slander actionable. In other words, the slippery slope argument -- if we stop people from lying free speech on other matters is in danger -- does not hold because we have a way to adjudicate the distinction between the two: their veracity and the believe of the person speaking.
This does not seem to be a case of slander, but it does seem -- based on their excuse -- that the Conservatives in question intended to lie. That lie is not protected by a Charter right anymore than a dishonest advertisement or slander is protected. On the narrow issue, then, the conclusion seems to me pretty clear: this is not a case of the right to free speech. And, we coud go further: it should not be. If it were accepted as free speech it would create untold damage because, say, consumers could no longer trust advertisers. There are, in other words, spin off negative effects to business of which we should be aware.
Even if this is not protected by Charter rights, then, is there anything that should be done about it. Cotler wanted the Speaker to intervene andI don't think that can be done, and this is what he concluded. I also think that this is not a serious issue, yet. The simple fact that it was brought to light will likely discourage others from doing this and I cannot see how it harmed Cotler. Thus, even while lying is not a protected right ... it might not be an actionable in this case.
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