Montreal, September 13, 2003  /  No 128  
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Harry Valentine is a free-marketeer living in Eastern Ontario. He can be reached at
by Harry Valentine
          According to a recent news article (Globe and Mail, Sept. 3/2003), a "federal agency was defending what it sees as its legitimate right to violate the Charter of Rights and Freedoms [with respect to sections of the Canada Elections Act]." Section 353 of the act requires third parties who spend more than $500 on advertising, to register with the commissioner and also report all contributors who donate over $200. The elections commission charged the National Citizens' Coalition with violating this law during the 2000 federal election campaign, a charge which carries a $25,000 fine.
          In regard to that case, the Alberta Court of Appeal rejected both the government's restriction on third party political advertising as well as the registration requirement, as being unconstitutional, a decision that federal officials have since appealed to the Supreme Court of Canada. More recently in an ongoing case before an Ontario court, a judge ruled that the registration requirement infringed on the right to freedom of expression.  
          However, the elections commission continues to persist in the Ontario court to justify its infringement on the right to freedom of speech as being legitimate, even seeking support in this quest from an expert witness, a political science professor. The commission claims that Canadians have a right to know who is paying for political advertising, more specifically, if someone is trying to influence election outcomes, or if political candidates were to be open to influence peddling if elected. However, the law that enables the commission to make this type of assertion is not only ambiguous (open to a very wide range of interpretations), it also falls into the category of "preventative law," that is, the presumption of guilt prior to any proper investigation or any trial before a court. 

Behaviour expected from repressive and totalitarian regimes 

          Requiring people to register with a government agency after having donated to a political candidate is the kind of governmental behaviour that may be expected from repressive and totalitarian regimes. Such regimes practice ambiguous and preventative law, which is at the very foundation of totalitarian and repressive governance. Maintaining registration lists of political opponents and their supporters are among the tools of enforcing and maintaining preventative law. Under a regime of preventative law, peaceful private citizens may be identified and stigmatized in the eyes of government officials as potential criminals and then treated as such. This is despite their never having been officially charged with having committed any crime, or ever having appeared before any court. 
          Preventative and ambiguous laws are government bureaucrats' dream as they increase the scope of their discretionary power and authority. In Canada, they could use this new power along with the registration "black list" against stigmatized citizens, denying them access to government contracts, government jobs, government business, or even influencing a market tribunal to deny them entry into a regulated sector of the economy.  

          In the more traditional form of criminal justice, a citizen is presumed innocent until proven guilty in a court of law. During the court trial, the citizen has a right to an attorney who may present a defense. The prosecution has to present credible evidence before the court, trying to prove guilt, while the defense attorney has the right not only to challenge the credibility of such evidence, they may also present evidence to illustrate their client's innocence. If an elected member has committed an act of influence peddling, it is a matter to be dealt with by an elected body or by a court and only after such an act has been actually committed, not before. 

     « The actions of the elections commission has the potential to set a precedent that could literally invite officials from other government department to use the courts to infringe upon other rights and freedoms guaranteed in the Charter. »
          However, under section 353 of the Elections Act, a government bureaucrat may presume a private citizen's potential guilt in the virtual absence of any credible evidence, requiring the citizen to register with the elections commission because of a donation given to a political candidate. Bureaucrats from the elections commission are presently before the courts trying not only to defend this practice as something legitimate, but also to erode citizens' rights and freedoms as a necessity to uphold this law. What is happening here is the corruption of Canadian justice. 

          Political and bureaucratic attempts at curtailing possible future political influence peddling on the basis of a regime of preventative law risks achieving in the long term the exact opposite of what the government had intended in the short term. This has been the long-term trend with practically all government programs and policies. In the long-term future, overzealous bureaucrats may score points with their superiors by going on a virtual "witch hunt," using section 353 of the Elections Act to victimize and harass large numbers of peaceful private citizens who have little or no political influence, just because they were stigmatized by having had their name appear on the "black list." Simultaneously, covert political influence peddling practiced by well-connected, non-elected and out-of-reach insiders could run rampant. The behaviour of marketing boards is a prime example of the very kind of corruption and special favours that the government may want to curtail, except that non-elected insiders can actually engage in such behaviour, not only with impunity, but with political sanction. 
A precedent to infringe upon other rights 

          The actions of the elections commission has the potential to set a precedent that could literally invite officials from other government department to use the courts to infringe upon other rights and freedoms guaranteed in the Charter. For example, the Charter states that all citizens are equal before and under the law, but marketing boards routinely violate it by granting some citizens a right to conduct business in a selected area of the economy, while denying that same right to all other citizens. The economic theories upon which such practices are based, have been thoroughly debunked and refuted by several internationally recognised economists, including a few Nobel laureates. However, such information has no relevance whatsoever to top elected officials. Instead, political supporters of marketing boards may try to legitimize the politically-sanctioned corrupt practices by following the precedent of the elections commission, that is, to eventually use the courts to infringe upon the right to equality before and under the law, that is presently guaranteed in the Charter. 

          The rights and freedoms that were originally accorded to Canadian citizens could eventually be eroded to the point where the Charter will become irrelevant. This would be the result of top elected officials in Ottawa setting the precedent by allowing their bureaucrats to launch court challenges to statutes guaranteed to private citizens and spelled out in the Charter of rights and freedoms. Bureaucrats are supposed to follow the directives of elected officials, not act of their own accord to undermine the constitutional rights of Canadian citizens. 

          If any opposition member of parliament were to rise in the House of Commons to question top elected officials as to why the government's bureaucrats have been allowed to try to undermine the supreme law of Canada through court action, the nation may be shocked and appalled by the kind of answer that would likely be forthcoming. The present prime minister is soon to leave office and seems determined to leave behind a legacy before doing so, a legacy that will include section 353 of the Elections Act. History may instead remember him as the prime minister who allowed his bureaucrats to challenge statutes in the nation's constitution, an act which eventually led the nation down the road toward totalitarian political repression. 
Previous articles by Harry Valentine

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