A government's communications strategy can get itself into trouble in two ways: over what it says, and over how it chooses to say it. Ill-timed robocall campaigns and tin-eared press releases come and go, but few governments are willing to go toe-to-toe with the Charter of Rights for the sake of $5,000 worth of campaign bumf.
Nevertheless, that seems to be what the provincial government of Ontario Premier Doug Ford is doing. Last month, the Ford government announced that it would be distributing 25,000 stickers to gas station owners across the province. The stickers display a graphic supposedly explaining how the federal government's carbon tax will drive up the cost of driving. They do not mention the federal rebates, which are expected to more than offset the rise in household fuel costs.
Gas stations are expected to display the stickers on the pumps; an item buried in last month's provincial budget says that service station owners who don't display the stickers could be hit with fines of up to $10,000 per day.
You don't have to be all that deep in constitutional law to see the problem here: the provincial government plans to compel private individuals to deliver a message on its behalf. That puts it at loggerheads with the Charter's s. 2 "fundamental freedoms" — specifically, "freedom of thought, belief, opinion and expression."
"It's nothing more or less than compelled political propaganda, with a massive fine attached," says Errol Mendes, a constitutional and human rights scholar with the University of Ottawa's law school.
"It's not legal. Not at all," says Paul Cavalluzzo of Cavalluzzo LLP, a constitutional and labour law practitioner with a long track record of arguing cases before the Supreme Court of Canada.
"It's the government forcing private individuals, private businesses, to repeat a political message that they may not agree with."
It will end up in court, of course — but not soon. Cara Zwibel is director of the 'Fundamental Freedoms Program' at the Canadian Civil Liberties Association; she has a background in Charter and constitutional law. She says the CCLA will challenge the sticker policy as soon as the provincial government enacts the regulations.
"After that, it will depend on how long it takes to get a court date," she says. "From an evidentiary perspective, this is not a complicated case at all. This is a partisan message, and the provincial government is going to have a hard time justifying it legally.
"But we just don't have a ton of case law in this country on compelled speech. We don't have the same absolute attachment to speech rights they do in the United States."
What little casework Canada's seen on compelled speech tends to hark back to the great cigarette packaging wars of the late 1990s and the Supreme Court decision that ended them: Canada v. JTI Macdonald. After the courts struck down provisions of the Tobacco Control Act that banned advertising and promotion of tobacco products, the federal government came back with a new law that strictly limited tobacco marketing and mandated larger health warnings on tobacco packaging.
Tobacco companies challenged the new restrictions as unreasonable limits on their freedom of expression. They lost. The Supreme Court concluded that, while the curbs on various types of marketing and the mandated health warnings on tobacco packages did violate the s. 2 free expression right, they were justified under the s. 1 "reasonable limits" power because the law's goal was "pressing and substantial."
"On the one hand, the objective is of great importance — nothing less than a matter of life or death for millions of people who could be affected," reads the majority decision. "On the other hand, the expression at stake is of low value — the right to invite consumers to draw an erroneous inference as to the healthfulness of a product that, on the evidence, will almost certainly harm them."
Could the Ford government cite Canada v. JTI Macdonald to justify the stickers in court? It could try. Its odds of success would depend on how the court defines a word that gets repeated a lot in that ruling: "proportional."
A government has to justify every limit it places on a Charter right. The federal government got its tobacco marketing law past the Supreme Court because it was aimed at a vice that kills people.
By omitting any mention of the rebates from the stickers, says Mendes, the Ford government made its message nakedly political. And since nobody's ever died of paying a carbon tax, he says, the stickers fail the proportionality test as well.
"What's the objective here?" he says. "It's not to inform people. It's to send a political message.
"Of course they have no case. They'll lose."
Losing in court isn't always the end of the world — not if you lose slowly enough. The stickers are widely seen as a way for the Ford government to insert its anti-carbon tax message into this fall's federal election campaign. The provincial New Democrats recently asked the office of Canada's chief electoral officer to look into whether the stickers fall afoul of the Canada Elections Act's limits on third-party advertising. The office replied that those limits don't apply to provincial governments.
Cavalluzzo says the chief electoral officer is being too lenient. "The obvious objective here is for the (sticker) policy to last long enough to have some impact on the election in October. My own view is that the provincial government is clearly caught up in the regulations on third-party advertising.
"If the law permits this, then the law has a very big hole in it."