Constitutional lawyers say investigation against Juno News could lead to a journalism “chill”
Civil liberties advocates say an Election Canada investigation into Juno News co-founder and journalist Keean Bexte’s election reporting could lead to a chill on journalism in Canada.
Civil liberties advocates say an Election Canada investigation into Juno News co-founder and journalist Keean Bexte’s election reporting could lead to a chill on journalism in Canada.
During an episode of the Canadian Constitution Foundation’s podcast “Not Reserving Judgement,” the CCF’s litigation director, Christine Van Geyn, warned that Elections Canada’s investigation into Bexte and Juno News over its election coverage of a former Liberal candidate could have a chilling effect on public discourse in Canada.
“There isn’t a charge or anything, but the fact that there is an investigation at all shows really big problems with the law and with selective enforcement by Elections Canada,” Van Geyne said. “It feels a lot like this is a weaponization of the law by some member of the public…we don’t know who it is who didn’t like the reporting, and they want to stop reporting like it.”
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Elections Canada launched a criminal investigation into Keann Bexte’s sourced report on allegations laid against former Liberal candidate for Calgary Confederation Thomas Keeper. The commissioner of Canada Elections cited section 91(1) of the Canada Elections Act, as the law that Juno News is being investigated for.
The law makes it a criminal offence to knowingly publish false biographical information about a candidate, particularly one alleging criminal misconduct, with the intent to sway the results of an election. Juno News and Keann Bexte have repeatedly denied being in breach of the law and stand by the original reporting which included multiple sources and attempts to reach the candidate.
If Bexte is found to be in breach of the Act, he could be liable to pay a fine of up to $50,000 and face five years in prison.
“I know that Juno has retained counsel for this, so they have costs associated with defending their reporting from this investigation…it’s one of those situations where the process becomes the punishment,” Van Geyn said. “I’m concerned that if that is the direction we’re heading in, it is going to lead to a chill in journalism in the future, and that’s something we should all be really concerned about.”
Van Geyn and the CCF challenged section 91 in 2020, and had elements of it changed as a result, which would have made it illegal to publish false information about a candidate even if a journalist didn’t know it to be untrue.
“It captured innocent mistakes, and this missing knowledge requirement was actually in a different section of the Act. It was in Section 486, and so we challenged it, but the two sections get read together. We challenged the law, and we won,” Van Geyn said on the show.
Canada’s chief electoral officer recommended in 2016 that the Liberal government amend or repeal section 91, noting that “serious cases of defamation or libel could be dealt with through alternative civil or criminal legal mechanisms.” In 2021, an Ontario Superior Court of Justice struck down section 91(1) as an unjustified infringement on free expression, but the Liberal government never repealed the section of the Act outright, instead making minor changes.
Van Geyn said investigators will need to first show that the report is false, and secondly, that the article was written with the intent to deceive voters and sway the results of the election.
“It’s essentially a series of interviews about things people saw or heard, and even if not every account is corroborated, the multiple stories suggest a pattern of behaviour if they’re accurate,” she added. “And in my view, that weighs in favour of publication being in the public interest.”
She said the report makes it very clear that the misconduct being alleged by the sources were allegations, making the reporting meet the responsible communication standard which journalists comply with.
“But even if you think it doesn’t, meeting the ethical communication standard is not like a criminal law requirement,” Van Geyn said. “Even if you think that there wasn’t enough corroboration, or if the story wasn’t in the public interest, this still isn’t a criminal offence.”
Josh Dehaas, legal counsel for the CCF and a former journalist, said during the episode that he might not have used some choice quotes that were used in the article, but “in general,” he doesn’t think there is anything wrong with reporting a pattern of allegations in such a manner.
“If you hadn’t reported those allegations and they came to you, that might be just as irresponsible as reporting them,” Dehaas said. “As long as you’re walking through those steps of responsible journalism and responsible communication, you’re allowed legally to even get stuff wrong. So I’m pretty concerned to see this, and maybe there are facts that we don’t know, but based on what we know at this point, I think it’s disturbing to see.”
Joanna Baron, the executive director for the CCF, said the criminal law is a “very bad tool” to use to go after reporting that one might suspect as being libellous.
“This is what civil defamation suits are for…bringing in the spectre of criminal prosecutions just really exacerbates the chilling effect,” she said. “It’s a really crazy story – if you don’t like the story, you complain to Elections Canada, and let the process itself become the punishment.”
She added that Section 91 is meant to prevent malicious disinformation, fabrications of facts, like inventing a criminal record and that she saw no evidence that Juno fabricated anything in the story, which was based on multiple sources.
Two days after the report was published, the Liberal Party dropped Keeper as a candidate, saying he failed to disclose a stayed domestic assault charge from 2005.
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No argument from this Albertan - the liberals and their leftist core of support is denying people free speech all over the place....limiting news coverage that isn't glowing from abroad, and paying off the news coverage within Kanada; all with their mindset to control everything for the rest of eternity....and disarming the citizenry in the process, while leaving their leftwing nut buddies with all the illegal handguns a thug's heart desires. FREE ALBERTA! Vote Independence!