Appeal court upheld lower court order finding the 2019 signs were unauthorized election advertising
Rebel News’ 2019 distribution of lawn signs that made digs at the Liberal Party qualifies as election advertising, the Federal Court of Appeal affirmed, rejecting the media outlet’s argument that the signs were simply promoting a book by founder Ezra Levant.
The unanimous ruling on Monday upholds previous decisions by a lower court, the Commissioner of Canada Elections, and the Deputy Commissioner of Canada Elections.
The dispute revolves around lawn signs that Rebel News distributed during the 2019 federal election to promote Levant’s book, The Libranos: What the Media Won't Tell You about Justin Trudeau's Corruption. The signs depicted Trudeau and various Liberal ministers in a manner that appeared to draw parallels with characters from the crime television series The Sopranos.
In 2021, the Deputy Commissioner of Canada Elections issued two $1,500 fines against Rebel News for multiple violations of the Canada Elections Act: not providing certain information – including contact names and phone numbers – in election advertising, and spending more than $500 on election advertising without registering as a third party for the relevant federal election.
Rebel News asked the Commissioner of Canada Elections to review the fines. The commissioner upheld them. The media outlet then sought judicial review of the commissioner’s decision, alleging the decision was unreasonable and did not appropriately consider values under the Canadian Charter of Rights and Freedoms. The court upheld the fines.
The media outlet then appealed to the FCA with a single question: was it reasonable for the commissioner to find that Rebel News’ distribution of the lawn signs qualified as election advertising for the purposes of the Canada Elections Act?
Rebel News argued it wasn’t. Key to the media outlet’s argument was a Canada Elections Act provision that excluded book promotion from the definition of election advertising, provided the book “was planned to be made available to the public regardless of whether there was to be an election.” According to the media outlet, timing the launch of Levant’s book to coincide with the election is not enough to make the book’s promotion qualify as election advertising.
However, the FCA said the fact that Rebel News planned to launch the book during the election was “part of the factual framework” that the commissioner considered when it found that “the book, that was promoted by distributing the lawn signs, was not planned to be made available to the public regardless of whether there was to be an election.”
The FCA concluded that the commissioner made a reasonable finding when it determined that the book promotion exemption in the law’s definition of election advertising did not apply to Rebel News’ lawn signs.
Sarah Miller, an associate at Jensen Shawa Solomon Duguid Hawkes LLP who represents Rebel News, told Canadian Lawyer on Tuesday that the decision will require book publishers and authors to “proceed with extreme caution.
“The decision narrows the meaning and application of [s. 352 and subs. 353(1) of the Canada Elections Act] and provides less protection for book publishers and authors than what it may look like at first blush in the statute beyond book or book promotion,” Miller says.
While the decision explicitly addresses issues around book promotion, Miller notes that the Canada Elections Act itself is drafted broadly enough that “things that do not feel or look like election advertising could be captured here.”
Miller adds, “I would hope that this decision would trigger Parliament to consider some revisions to the legislation in order to ensure that parties that are clearly not engaging in election advertising in the way that might be colloquially understood are not going to be captured or impacted by the restrictions.”
The Commissioner of Canada Elections declined to comment.
Justice Wyman Webb authored Monday’s decision for the FCA. Justices Donald Rennie and John Laskin concurred.
