by arthur Weinreb, associate Editor,
May 24, 2004
In a 6 to 3 decision last week the Supreme Court of Canada found that Canada’s so called "gag law" was constitutional. In reversing the decision of the alberta Court of appeal, the majority upheld the law that imposes spending caps on election spending by third parties. Under the Canada Elections act, third parties are restricted to election spending of $150,000 with a maximum limit of $3,000 per riding.
The Supreme Court bought the government’s argument that even though the law infringes upon freedom of expression, the restriction was justified in order to "level the playing field" and end at least the appearance that the rich and powerful can influence the results of elections by engaging in unlimited advertising and spending.
What never seemed to enter into the equation of this attempt to deprive third parties of their freedom is the role that the media plays. Writing for the majority, Mr. Justice Bastarache did refer to the media when he pointed out that "election advertising in s. 319 [of the Canada Elections act] does not apply to many forms of communication such as editorials, debates, speeches, interviews, columns, letters, commentary, the news and the Internet which constitute highly effective means of conveying information." and herein lies the problem.
The media have their biases and in this country those biases are predominately Liberal and left-wing and there are many options open to the media in which to convey their favoured point of view. as an example, the CBC spared no expense in providing full coverage of the sham Liberal leadership race that handed the Liberal leadership to Paul Martin. The only excitement in the race was the speculation as to whether or not Sheila Copps would become Prime Minister if Martin got hit by a bus prior to the leadership vote being taken. Yet the network refused to cover any debates in the race that would determine who would be the first leader of the new Conservative Party, preferring instead to air such important Canadian shows as the British antiques Roadshow.
The reality is that freedom of the press ensures that a media outlet cannot be compelled to air what they do not wish to air. It’s fine for the Supreme Court to say that third parties can express their views through debates, speeches, interviews and columns, but the media has full control over how widely these debates and speeches will be disseminated and whether or not columns and commentaries will be provided for certain points of view. a media outlet that airs a political talk show has the right to invite Liberals on and ignore the other parties. as well, nothing prevents the media from lobbing softball questions to their friends while becoming aggressive and confrontational with those with who have views that they disagree with.
The concept of a level playing field conjures up warm and fuzzy feelings of equality and fairness. But it leaves the media, that is not subject to spending or editorial restrictions, with more power to influence election outcomes than it had before--power that cannot be fought without violating the law.