Rebel News Network Ltd. v. Canada

Rebel News Network Ltd. v. Canada (Elections)
Court (s) Database
Federal Court Decisions
Date
2023-12-07
Neutral citation
2023 FC 1650
File numbers
T-1249-21
Decision Content
Date: 20231207
Docket: T-1249-21
Citation: 2023 FC 1650
Ottawa, Ontario, December 7, 2023
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
REBEL NEWS NETWORK LTD.
Applicant
and
CANADA (COMMISSIONER OF CANADA ELECTIONS) and
THE ATTORNEY GENERAL OF CANADA
Respondents
JUDGMENT AND REASONS
Nature of the Matter [1] This is an application for judicial review of the decision [Decision] by the Commissioner of Canada Elections [Commissioner], dated July 12, 2021. The Commissioner confirmed the decision of the Deputy Commissioner of Canada Elections, dated January 11, 2021, finding that the Applicant, Rebel News Network Ltd. [Rebel News], contravened ss 352 and 353(1) of the Canada Elections Act, SC 2000, c 9 [Act] and, on January 12, 2021, issuing two Notices of Violations (NOV #A-190752-1 and NOV #A-190752-2) [NOVs] imposing an administrative monetary penalty [AMP] in respect of each of the violations.
[2] Rebel News has also filed a Notice of Constitutional Question challenging “the constitutional validity, applicability and/or effect of ss. (b) of the definition of ‘election advertising’ at ss. 2(1) of the Canada Elections Act.”
The Parties [3] Rebel News is a federally incorporated company. Its sole director is Mr. Ezra Levant, who describes himself as its principal and founder. Mr. Levant describes Rebel News as often taking strong editorial positions on important public issues affecting Canadians, which positions are conveyed through various media, including websites, podcasts, paperback books and e-books. Further, he describes himself and Rebel News as long-time critics of Prime Minister Justin Trudeau, “his associates,” and the Liberal Party of Canada. Mr. Levant filed an affidavit affirmed on September 10, 2021 [Levant Affidavit], in support of Rebel News’ application for judicial review.
[4] The Commissioner is the Commissioner of Canada Elections [CCE] and is appointed by the Chief Electoral Officer. However, the Commissioner makes decisions and takes actions independently thereof. The Commissioner is responsible for ensuring compliance with and enforcement of the Act, which includes conducting investigations, instituting prosecutions for offences under the Act and issuing notices of violation that set out administrative monetary penalties (Act, ss 509(1), 509.21, 509.2). Pursuant to the Act, when an application is made for judicial review of a decision of the Commissioner, the Commissioner is the respondent in respect of the application (Act, s 555(2)). In these reasons, I will refer to the named respondent as the CCE and the decision-maker with respect to the decision under review as the Commissioner.
[5] In this matter, the CCE is responding to Rebel News’ challenge to the reasonableness of the Commissioner’s decision and, in that regard, has filed the affidavit of Ms. Avril Ford Aubrey, legal counsel in the office of the CCE and one of the investigators in the subject matter involving Rebel News, affirmed on February 11, 2022 [Ford Aubrey Affidavit]. The Ford Aubrey Affidavit provides general background information as to the role of the Commissioner, the complaints process, confidentiality, AMPs, the Commissioner’s review process, as well as the procedural steps taken in this matter in response to complaints received.
[6] The Attorney General of Canada [AGC], in their stated role as guardian of the public interest and protector of the rule of law, has provided submissions in response to Rebel News’ constitutional challenge. In that regard, the AGC has filed the affidavit of Ms. Andrea Lawlor, an Associate Professor at King’s University College at Western University in the Department of Political Science who holds a PhD in Political Science, affirmed on February 9, 2022 [Lawlor Affidavit]. The Lawlor Affidavit provides expert opinion evidence addressing four questions posed by the AGC. Specifically: identifying the principles underlying the egalitarian model of elections and the source of same; identifying the goals of regulating third party election-period advertising and if or how they relate to the achievement of the principles underlying the egalitarian model; identifying the role of anti-circumvention provisions within a regulatory scheme based on the egalitarian model of elections; and, explaining how the Canadian approach to the regulation of third party election-period advertising compares with approaches taken in other countries, such as the United Kingdom.
Factual Background [7] The factual background to this matter is straightforward and not in dispute.
[8] Canada’s 43rd federal general election was called on September 11, 2019, and held on October 21, 2019. It was a fixed-date election. The “election period,” as defined in the Act, means the period beginning with the issue of the writ and ending on polling day (Act, s 2.1). For the subject election, the election period ran from September 11, 2019, to October 21, 2019.
[9] On September 4, 2019, Rebel News, as publisher, released a book authored by Mr. Levant entitled The Libranos: What the media won’t tell you about Justin Trudeau’s corruption. The cover of the book is an artistic rendering of the Prime Minister and some of his ministers and staff, which depiction Rebel News submits is evocative of the television drama, The Sopranos.
[10] During the election period, Rebel News distributed lawn signs promoting the book. These included the words “Librano$.com,” “buy the book!” and “rebel news telling the other side of the story” and displayed the same graphic as the book cover.
[11] The Commissioner received six complaints about the lawn signs and had another complaint referred to it from the Alberta Election Commissioner.
[12] On December 5, 2019, the Commissioner endorsed a “Recommendation to Initiate an Investigation.” This recommended that an administrative investigation be initiated on the basis that, during the election period, Rebel News engaged in election advertising under s 2.1 of the Act in its production and distribution of the "Librano$" lawn signs, which lawn signs did not contain the information required by s 352 of the Act. Further, that the election advertising expenses incurred in regard to the lawn signs and their election advertising messages were at least, if not over, the $500.00 threshold triggering the obligation, under s 353 of the Act, for a third party to register as such with Elections Canada. The recommendation stated that a preliminary review of the documents and information gathered through open source and public documents gave the investigators reasonable grounds to suspect that offences under the Act had been committed.
[13] By letter dated December 9, 2019, the CCE Director of Investigations gave Rebel News (via Mr. Levant) notice, pursuant to s 510(2) of the Act, [Notice] that the Commissioner had initiated an administrative investigation into allegations that Rebel News had contravened ss 352 and 353 of the Act by failing to include the required information on third party election advertising as per s 352 – third party attribution requirements – and incurring over $500.00 in election advertising expenses without registering as a third party in the 2019 federal election as per s 353 ‒ third party registration requirements. The Notice set out ss 352 and 353 and also noted that the definition of “election advertising” includes examples of communications that could promote or oppose a registered party or candidate but that do not constitute “election advertising,” including “the promotion of the sale of a book […], if the book was planned to be made available to the public regardless of whether there was to be an election.”
[14] The Notice stated that the fact that the Commissioner had decided to proceed by way of an administrative investigation indicated that they were of the view that the matter would best be dealt with administratively, rather than by way of a criminal prosecution. And while there was no obligation to cooperate with investigators, s 508.6(1) of the Act states that the provision of all reasonable assistance to the Commissioner is one of the factors taken into consideration in determining the amount of an AMP that could be imposed at the conclusion of the investigation. The Notice offered the opportunity to representatives of Rebel News, if they desired to do so, to schedule an interview with the investigators or, alternatively, to submit all relevant facts and information, as well as any written representations regarding the alleged election advertising and Rebel News’ status as a third party.
[15] On January 23, 2020, Mr. Levant participated in an interview with two CCE investigators.
[16] A “Compliance or Enforcement Recommendation Report,” dated March 30, 2020, was then prepared by a CCE investigator. This set out in detail the facts and information gathered in the administrative investigation and recommended that the file be referred to the CCE Compliance Unit for an assessment of the appropriate compliance measure.
[17] The Compliance Unit prepared a “Compliance Unit Recommendation Report of Compliance and Enforcement Measure” dated January 11, 2021 [Compliance Unit Recommendation Report]. Its analysis included, among other things, that the book itself is not “election advertising.” However, the lawn signs were “election advertising” because they contained an advertising message, opposing a registered party, that was transmitted during the election period. Further, the illustration of communications that are not election advertising that deals with the promotion and distribution of books (paragraph (b) in the s 2(1) definition of “election advertising”) did not apply because the “entire project” was planned and executed to coincide with the election. The analysis set out the factors relevant to determining that the book was planned to be made available at that time because there was to be a general election and concluded that the evidence provided reasonable grounds to believe that Rebel News contravened ss 352 and 353(1) of the Act, warranting AMPs of $1500 for each offence.
[18] On January 25, 2021, the Manager of the Compliance Unit served Rebel News with the two NOVs, issued by the Deputy Commissioner of CCE, stemming from Rebel News’ failure to comply with ss 352 and 353 of the Act and imposing the AMPs recommended in the Compliance Unit Recommendation Report.
[19] By letter dated February 4, 2021, and pursuant to s 521.14 of the Act, counsel for Rebel News submitted a request for review [Request for Review] by the Commissioner of the alleged violations and imposition of the AMPs. On April 1, 2021, counsel for Rebel News submitted Rebel News’ written submissions and evidence in support of its Request for Review. Rebel News took the position that the CCE process and consequent issuance of the NOVs was unconstitutional, that Rebel News had been selectively and unfairly targeted and that the book and its promotion were not election advertising because they fell within the paragraph (b) category of the s 2(1) definition of “election advertising.” Rebel News asserted that publically available information supported this position.
[20] By letter dated July 12, 2021, the Commissioner provided his response to the Request for Review and affirmed the contraventions of the Act and imposition of the related AMPs. That decision is the subject of this judicial review.
Commissioner’s Decision [21] In his decision letter, the Commissioner first provided an overview of the background facts and process leading up to his de novo review of the decision of the Deputy Commissioner to issue the NOVs. The Commissioner stated that in reaching his decision, he reviewed Rebel News’ submissions and all of the documents contained in the disclosure package provided to Rebel News upon its request for the review. Specifically, he reviewed the Recommendation to Initiate an Investigation (December 5, 2019), the Notice (December 9, 2019), the Compliance or Enforcement Recommendation Report and its Exhibits 1 to 29 (March 30, 2020) and the Compliance Unit Recommendation Report (January 11, 2021).
[22] The Commissioner then set out a summary of his findings, based on the submissions and the evidence, being that on a balance of probabilities:
the lawn signs distributed and displayed by Rebel News during the election period of the 43rd federal general election were election advertising;
the lawn signs did not contain the information required by s 352 of the Act;
Rebel News incurred expenses of at least $500.00 for the transmission of its election advertising message during the election period but omitted to register as a third party as required by s 353(1) of the Act; and
the Deputy Commissioner’s decision to issue AMPs to Rebel News for its non-compliance with ss 352 and 353(1) of the Act was reasonable and not inconsistent with the Charter.
[23] Before explaining how he came to these conclusions, the Commissioner disposed of Rebel News’ submission that it had been treated unfairly and in a selective manner as a preliminary question. The Commissioner noted that Rebel News took this positon because two other books it had identified as allegedly promoting the Prime Minister that were published during the election period were not investigated by the Commissioner’s office. The Commissioner found that, under s 510 of the Act, he could not be prevented from investigating a case on the basis that there are other cases that could or should be investigated and that jurisprudence supported this view (citing Ochapowace First Nation v Canada (Attorney General), 2007 FC 920 [Ochapowace]; R v Bears, [1988] 2 SCR 387 at 410-411). Nor had Rebel News submitted any evidence showing that the Deputy Commissioner’s decision was based on any improper consideration or bias. Rather, the investigation was initiated following the receipt of seven complaints, which complaints had been disclosed to Rebel News.
[24] The Commissioner then went on to explain his reasoning for finding that Rebel News’ lawn signs were election advertising as defined in s 2(1) of the Act. He noted that for a communication to constitute election advertising, it must: 1) be an advertising message; 2) be transmitted to the public; 3) be transmitted during an election period; and 4) promote or oppose a registered party or candidate in the election. Rebel News’ position was that the lawn signs were not election advertising because they were not intended to oppose the Liberal Party of Canada, its leader or its candidates, but were designed to promote the sale of the book. However, based on the evidence before it and for the reasons summarized in the Compliance Unit Recommendation Report, the Commissioner disagreed.
[25] The Commissioner noted that Rebel News relied upon the definition of “election advertising” in s 2(1) of the Act, more specifically paragraph (b) of that definition, which I will set out here for ease of reference:
Definitions
2 (1) The definitions in this subsection apply in this Act.
……
election advertising means 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 by taking a position on an issue with which a registered party or candidate is associated. For greater certainty, it does not include
….
(b) 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;
……
[26] The Commissioner noted that, in its submissions in its Request for Review, Rebel News coined paragraph (b) of the s 2(1). definition of “election advertising” as a “book exemption.” The Commissioner stated that this provision served to clarify, for greater certainty, that election advertising does not include “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.” He stated it was clear from the underlined passage that paragraph (b) of the s 2(1) definition of “election advertising” (which for ease of reference I will refer to as “Paragraph 2(1)(b)”) clearly only applied in relation to a book that would have been published whether or not the election was called.
[27] The Commissioner found that the Paragraph 2(1)(b) clarification did not apply in the matter before him because Rebel News had planned the launch of the book to coincide with the election.
[28] In that regard, the Commissioner stated that the evidence gathered by the investigators from readily accessible Internet sources established that Rebel News planned to launch the book and to distribute the lawn signs precisely around the time of the issuance of the writ for the election and during the ensuing election period. The Commissioner listed some of the communications published by Rebel News on its website and its Twitter account, including a video posted on Rebel News’ website, and referred to an admission by Mr. Levant during his interview in which he admitted that he planned the launch of the book to coincide with the election.
[29] The Commissioner found that, instead of promoting the book, the lawn signs and lawn sign campaign were most likely designed and intended to oppose the Liberal Party and the election of its leader and some of its candidates. The Commissioner also considered Rebel News’ Twitter posts and hashtags about the lawn signs, which it found were related to the election rather than the promotion of the book. Further, that Rebel News had ordered thousands of the lawn signs and requested that people contribute to the funding of its lawn signs ‒ activities generally conducted by regulated political entities (such as candidates and political parties) and third parties. The Commissioner also agreed with the factual grounds upon which the Deputy Commissioner had relied in concluding that the lawn signs were election advertising, which the Commissioner summarized and listed.
[30] In light of all of this, the Commissioner concluded that the lawn signs distributed and displayed by Rebel News during the election period were third party election advertising.
[31] As to s 352, the Commissioner noted that this provision requires a third party that transmits election advertising during the election period to include in or on the advertising message, in a clearly visible or otherwise accessible manner, its name, telephone number, civic or Internet address and an indication that the advertising message was authorized by the third party. The Commissioner stated that this requirement has the important objective of ensuring transparency about those behind, and spending money for, election advertising. For the purposes of the 43rd federal general election, the Commissioner found that Rebel News was a third party under the Act. Accordingly, its election advertising messages were required to comply with s 352. As its lawn signs did not include the required information, they contravened s 352 of the Act.
[32] With respect to s 353(1), the Commissioner stated that this requires a person, a corporation or a group to register with Elections Canada, as a third party, immediately after having incurred expenses totalling $500.00 or more for partisan activities, election advertising and election surveys that are respectively carried out, transmitted or conducted during an election period. Rebel News had refused to provide CCE investigators with any information relating to costs it incurred for the production and distribution of its lawn signs, beyond a cartoon provided by Mr. Levant. However, information gathered from Rebel News’ website, which the Commissioner described, suggested that Rebel News had most likely incurred expenses significantly exceeding the minimum threshold of $500.00 required for third party registration. The Commissioner was satisfied that, despite incurring more than $500.00 in expenses related to its election advertising messages transmitted during the election period, Rebel News failed to register as a third party and, therefore, contravened s 353(1) of the Act.
[33] The Commissioner also found that the AMPs imposed were in line with its Policy for the Administrative Monetary Penalty Regime.
[34] As to Rebel News’ Charter arguments, the Commissioner dismissed Rebel News’ argument that the Deputy Commissioner had breached its Charter rights because Mr. Levant had not been cautioned before being interviewed. The Commissioner pointed out that this was an administrative, not criminal, investigation and that Mr. Levant had attended the interview voluntarily. In the context of an administrative investigation, an individual can be interviewed without being cautioned (citing Canada (Border Services Agency) v Tao, 2014 FCA 52 at paras 26-28). Further, that it was Rebel News’ conduct that was at issue and that Rebel News was the target of the investigation, not Mr. Levant. The NOVs were issued against Rebel News, a corporate entity, which is not protected by the s 11(c) Charter guarantee against self incrimination, which protects only individuals (referencing R v Amway, [1989] 1 SCR 21).
[35] The Commissioner next noted that Rebel News was not challenging the constitutionality of ss 352 and 353(1) of the Act. Rather, it submitted that the Deputy Commissioner’s decisions were unconstitutional because they violated Rebel News’ right to freedom of expression and freedom of the press, contrary to s 2(b) of the Charter. However, Rebel News had not submitted any argument or evidence to support that allegation.
[36] Citing Doré v Barreau du Québec, 2012 SCC 12 [Doré], the Commissioner defined the test to be engaged when assessing whether a decision-maker’s interpretation of an enabling statute violates a Charter right as a reasonableness test instilled with the “justificatory muscles” of the test under s 1 of the Charter analysis ‒ that is, a balance of proportionality. The Commissioner stated that Doré requires administrative decision-makers making discretionary decisions to balance the Charter values involved and the legislative objectives of its enabling statute.
[37] Further, the Commissioner noted that in Harper v Canada (Attorney General), 2004 SCC 33 [Harper], the Supreme Court of Canada determined that s 352 and s 353 of the Act advance two compelling and substantial objectives: 1) to promote the implementation and enforcement of the third-party financing regime, and 2) to ensure transparency by allowing voters access to relevant information concerning third parties engaged in regulated activities, such as election advertising. And, while the ss 352 and 353 requirements restrict third parties’ freedom of expression, the Supreme Court in Harper concluded that the restrictions are minimal, reasonable and demonstrably justified under s 1 of the Charter.
[38] The Commissioner found, in light of the compelling and substantial objectives pursued by the third-party regime under the Act, the restrictions imposed by the requirements at ss 352 and 353(1) of the Act were minimally impairing of Rebel News’ freedom of expression Charter rights. Thus, the Deputy Commissioner’s decision to issue the NOVs was reasonable and did not breach the Charter.
Relevant Legislative and Constitutional Provisions
Canada Elections Act, SC 2000, c 9
Definitions
2(1) The definitions in this subsection apply in this Act.
[…]
election advertising means 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 by taking a position on an issue with which a registered party or candidate is associated. For greater certainty, it does not include
(a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news;
(b) 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;
(c) the transmission of a document directly by a person or a group to their members, employees or shareholders, as the case may be;
(d) the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views; or
(e) the making of telephone calls to electors only to encourage them to vote.
DIVISION 2
Partisan Activities, Election Advertising and Election Surveys During Election Period
……
Prohibition — circumventing maximum amount
351 A third party shall not circumvent, or attempt to circumvent, a maximum amount set out in section 350 in any manner, including by splitting itself into two or more third parties for the purpose of circumventing the maximum amount or acting in collusion with another third party so that their combined partisan activity expenses, election advertising expenses and election survey expenses exceed the maximum amount.
……
Advertising to name third party
352 A third party shall include - in a manner that is clearly visible or otherwise accessible - in any election advertising message placed by it its name, its telephone number, either its civic or its Internet address and an indication in or on the message that it has authorized its transmission.
Registration Requirements for third parties
353 (1) A third party shall register immediately after having incurred the following expenses in an aggregate amount of $500:
(a) partisan activity expenses in relation to partisan activities that are carried out during an election period;
(b) election advertising expenses in relation to election advertising messages that are transmitted during that period; and
(c) election survey expenses in relation to election surveys that are conducted during that period. However, the third party may not register before the issue of the writ.
Judicial Review
555(1)
When respondent is Commissioner
(2) If an application is made for judicial review of a decision of the Commissioner, the Commissioner is the respondent in respect of the application.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
Rights and freedoms in Canada
1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Fundamental freedoms
2 Everyone has the following fundamental freedoms:
[…]
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
[…]
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
Primacy of Constitution of Canada
52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect
Issues and Standard of Review [39] The issues identified by the parties in this matter can be framed as follows:
Is the Commissioner’s decision reasonable?
Did the Commissioner apply the wrong legal test or fail to conduct the proper analysis?
Did the Commissioner ignore evidence or submissions?
Did the Commissioner appropriately consider Charter values?
Does the impugned clause, Paragraph 2(1)(b), limit Rebel News’ rights under s 2(b) of the Charter?
If so, is the limitation justified under s 1 of the Charter?
[40] When a court reviews the merits of an administrative decision there is a presumption that the standard of review is reasonableness (Canada (Minister of Citizenship and Immigrations) v Vavilov, 2019 SCC 65 at paras 23, 25 [Vavilov]). Rebel News and the Commissioner submit, and I agree, that reasonableness is the standard of review applicable to the merits of the Commissioner’s decision.
[41] “A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision…” (Vavilov at para 99). The burden is on the party challenging the decision of demonstrate that it is unreasonable and the court must be satisfied that any shortcomings or flaws raised by that party are sufficiently central or significant to render the decision unreasonable (Vavilov at para 100).
Is the Commissioner’s Decision Reasonable? Rebel News’ Position [42] Rebel News first submits that the Commissioner’s decision was not reasonable because there were gaps in the Commissioner’s reasoning and because there was evidence that was ignored or not meaningfully addressed.
[43] Rebel News submits that although the Commissioner identified the correct inquiry under Paragraph 2(1)(b), being whether the book would have been published whether or not the election was called, the Commissioner assessed a different question, being whether Rebel News planned the launch of the book to coincide with the election. The Commissioner therefore confused two distinct matters and became unreasonably preoccupied with the question of whether, at the time Rebel News released and promoted the book, it was Rebel News’s intention to do so during the 2019 election period. This gives rise to a concern as to whether the Commissioner applied the correct legal test and/or failed to carry out the proper analysis.
[44] With respect to its evidence, Rebel News submits that it made submissions to support the fact that it would have published the book regardless of the election, and there was no evidence that it would not have released the book after the election. The Commissioner did not mention Rebel News’ submitted evidence and does not appear to have considered or grappled with it. Specifically, the submitted evidence was that the original book concept was derived from a cover published in 2005, based on a television show from the 2000s; that the URL (thelibranos.com) was registered in February 2016, over three years before the election; and that Rebel News and Mr. Levant have released other books critical of the Prime Minister and the Liberal Party of Canada during non-election periods.
[45] Rebel News also submits that the Commissioner failed to consider the legislative intent of Paragraph 2(1)(b) and to “consider the wisdom of the legislature in enacting” that provision.
[46] Further, that the Commissioner unfairly targeted Rebel News on the basis that Rebel News is highly critical of the Prime Minister and the Liberal Party of Canada and ignored evidence that there were at least 20 other election-related books published in late summer or early fall 2019.
[47] Second, Rebel News submits that the Commissioner’s decision violated the Charter. While the Commissioner considered the objectives of ss 352 and 353(1) of the Act, balancing them against Rebel News’ freedom of expression and finding that Rebel News’ rights were minimally impaired, the analysis does not consider the fundamental values reflected in the statutory definition of “election advertising,” which forms an essential element of ss 352 and 353. Rebel News submits that the intention of Paragraph 2(1)(b) is to “remove from the Commissioner’s scrutiny the sorts of protected expressions within democratic discourse that ought not to be hindered during an election period, including, books and the promotion thereof, and to discourage governmental intrusion into political discourse.” Rebel News submits that the fundamental values of the Paragraph 2(1)(b) definition ought to have informed the Commissioner’s analysis.
[48] And, while the Commissioner referred to the Supreme Court of Canada’s decision in Harper, Rebel News submits that the decision is distinguishable and has no application to this matter. Harper upheld the third party election advertising limits in the Act, but the present case is about an express exception built into the legislation that was not scrutinized in Harper.
CCE’s Position [49] The CCE submits that Rebel News is asking the Court to engage in a de novo review of the evidence and submissions but that this is not the purpose of judicial review.
[50] Further, that the Commissioner reasonably concluded, based on the evidence and submissions before him, that the lawn signs constituted “election advertising” defined under s 2(1) of the Act and that the clarification found in Paragraph 2(1)(b) did not apply. The Commissioner fully considered and rejected Rebel News’ submission that the lawn signs were not “election advertising” because they promoted a book that was planned to be made available to the public regardless of the election. The Commissioner reasonably interpreted Paragraph 2(1)(b) to preclude reliance on that provision where the third party deliberately planned the launch of a partisan book to coincide with the election. This interpretation has clear internal logic since a specific plan to publish and market a book during an election period cannot be said to be a plan to make the book available “regardless of whether there was to be an election.” Further, there was ample evidence that Rebel News timed the launch of the book to coincide with the election, and the Commissioner engaged with this evidence.
[51] The CCE also submits that the Commissioner did not apply the wrong legal test or fail to carry out the proper analysis when determining if Paragraph 2(1)(b) applied, as suggested by Rebel News. Rather, the Commissioner reasonably interpreted the provision in light of the text, context, and purpose of the provision, and it is not the role of the Court to engage in a de novo review or to determine the “correct” interpretation of a disputed provision. While Rebel News may not agree with the Commissioner’s interpretation, it was reasonable.
[52] Nor did the Commissioner fail to consider Rebel News’ evidence. Rebel News adduced no evidence that the Commissioner targeted it or was partial in its decision-making. Further, the Commissioner explicitly stated in his reasons that he had considered Rebel News’ submissions. The reasons also demonstrate that the Commissioner engaged with Rebel News’ evidence and arguments. The Commissioner was not required to respond to every piece of evidence or argument. Significantly, given the Commissioner’s interpretation of Paragraph 2(1)(b), Rebel News’ evidence about previous work related to the book had little probative value. That is, the evidence was rendered irrelevant by the Commissioner’s interpretation of Paragraph 2(1)(b), given his focus on Rebel News’ explicit intention to launch the book during the election period and the particular means of advertising used (lawn signs).
[53] In any event, the Commissioner relied on more than the timing of the book launch to support his finding that the lawn signs were election advertising, including the evidence demonstrating the ways in which Rebel News and Mr. Levant associated the book and lawn signs with the election.
[54] The CCE also submits that the decision reflects a proportionate balancing of the Charter protections at play and is a reasonable outcome. In the first step of the Doré analysis, the Commissioner considered the statutory objectives at stake. The Commissioner referenced Harper, where the Supreme Court found that ss 352 and 353 of the Act promote the implementation and enforcement of the third party financing scheme and ensure transparency by allowing voters to access relevant information concerning third parties engaged in regulated activities such as election advertising. In the second step, the Commissioner was alive to the Charter value of expressive freedom at stake and concluded that any restrictions were minimal – even though Rebel News did not provide any evidence that its 2(b) rights were engaged.
[55] In response to Rebel News’ argument that the Commissioner did not consider the “principles and fundamental values” reflected in the definition of “election advertising” and Paragraph 2(1)(b), the CCE submits that these principles and values are directly tied to ss 352 and 353 of the Act. The Commissioner therefore implicitly considered the definition in balancing the Charter values at stake with the statutory objectives of ss 352 and 353 of the Act. Further, the Commissioner reasonably concluded that Rebel News was invoking its freedom of expression values and values relating to freedom of the press. Rebel News fails to articulate what additional “principles and fundamental values” are at play.
[56] In response to Rebel News’ argument that the Commissioner’s interpretation of Paragraph 2(1)(b) is too broad and subjects all politically expressive books and the promotion thereof released during a federal election to scrutiny, the CCE points out that that is not something the Commissioner was required to consider under the Doré/Loyola analysis and does not render the decision unreasonable. The issue of Paragraph 2(1)(b)’s broader implications relates only to Rebel News’ constitutional challenge. Further, the test is not whether there is serious interference with a Charter guarantee, as Rebel News seems to imply, but only whether the interference is reasonably justified within the statutory scheme.
[57] Finally, the CCE submits that the Commissioner could only choose to either enforce or not enforce ss 352 and 353(1) of the Act. Only enforcing the provisions would have advanced the relevant statutory objectives. Therefore, there was no reasonable alternative that would have given effect more fully to the Charter protections in light of the statutory objectives. The Commissioner’s Doré analysis merits deference, as the Commissioner was best placed to weigh the Charter protections with his statutory mandate in light of the specific facts of the case.
Analysis [58] Based on the parties’ submissions, the question of the reasonableness of the decision can be as divided into three distinct inquiries. I will address each of these in turn.
a. Did the Commissioner apply the wrong legal test or fail to carry out a proper analysis? [59] Rebel News and the CCE approach this issue from somewhat different directions. Rebel News asserts that there was a shifting standard and the possibility of the application of an incorrect legal test or analysis, while the CCE asserts that the Commissioner correctly interpreted and applied Paragraph 2(1)(b) and, given the evidence, found that it was not applicable.
[60] More specifically, Rebel News submits that the Commissioner in this case failed to apply the correct legal test and/or failed to carry out a proper analysis because he confused two concepts: whether the book would have been published regardless of the election, and whether Rebel News timed the book’s release and promotion to coincide with the election.
[61] When appearing before me, Rebel News emphasized that, in its view, the Commissioner’s reasoning displayed shifting logical goal posts or a shifting standard. Although in paragraph 23 of his reasons the Commissioner identified the correct test or question, being whether “the book was planned to be made available to the public regardless of whether or not there was an election,” in the next paragraph he went on to find that Paragraph 2(1)(b) did not apply because “Rebel News planned the launch of the book to coincide with the election.” Thus, the Commissioner answered a different qu