Duff Conacher is co-founder of Democracy Watch, and an Adjunct Professor of Law and Politics at the University of Ottawa
Boris Johnson is facing private prosecution by a voter for repeatedly lying to the public during the Brexit referendum, with the possibility of a prison term as the penalty.
The case has caused various British politicians and other commentators to raise all the usual arguments for not requiring honesty in politics. The truth is, everyone should question what they are saying.
Some argue that the prosecution criminalizes free speech and politicizes the courts. Sure, maybe we don’t want to criminalize lies by politicians and government officials – but there are many good arguments for prohibiting lying to voters.
First, to be an informed voter is currently impossible. No matter how much you learn about each party’s election platform, if some of the promises are lies, you are in no better position than someone playing poker trying to guess who is bluffing.
Second, politicians have passed laws requiring people in most professions to be honest, as well as corporate executives when they issue financial statements to shareholders, companies when they advertise, taxpayers when they pay taxes, immigrants and refugees when they apply to be citizens, people who apply for social welfare, and anyone who testifies in court, with significant penalties in each area.
No, none of these laws works perfectly or stops every false claim, but they discourage dishonesty.
The courts already deal with many cases of voters suing governments, and factual issues in these cases, so allowing court cases about lies wouldn’t politicize courts more than they already are.
Having a specialized ethics commission rule on dishonesty complaints would be even better as voters wouldn’t need a lawyer to pursue a complaint. To ensure voters have faith in its rulings, commission members must be selected through a fully independent, non-partisan process.
And instead of prison terms, having significant fines as the penalty would likely effectively discourage many political frauds.
In fact, Canada already has some honesty-in-politics rules. Politicians are already prohibited from lying in response to a request for information from Parliament or its committees. Prohibiting them from lying anytime would do a lot to stop the spin, and counterspin, that dominates debates and confuses and turns off voters.
Canadian politicians actually had such an honesty rule in their ethics codes up until 2006. The government and MPs removed the rule when complaints were filed that year.
Canada’s election law also prohibits false claims to try to entice a voter to vote, or not vote, for a candidate, which one would think would apply to false election promises. However, the commissioner who enforces this rule refuses to apply it to broken promises – although he has penalized publicizing false results of a survey on voter support for candidates.
Voters who have gone to court to challenge false promises and statements during elections in B.C. and Ontario have, because of vague rules in those provinces, faced resistance from judges who have interpreted the rules to allow for “puffery” from candidates, or labelled voters as naive to believe promises.
Canada also has a rule in its election law that prohibits making false claims about candidates. However, the federal government recently weakened the rule, and the requirement to prove the statement was intended to affect the election makes the rule largely unenforceable.
Strengthening these rules and making them easy to enforce, with high fines as penalties, would help protect voters from being misled. Under such a law, politicians could be allowed to cite truly unforeseeable changes as a justifiable reason for breaking an election promise.
Extending these honesty rules to everyone else in politics during and in between elections – lobbyists, interest groups, social-media trolls – would also help clear away a lot of false claims and noise that drown out constructive debates about real problems. The system could allow anyone to escape penalty for saying something misleading if they admitted they lied the next day.
So, tell your municipal, provincial and federal politicians that you want them to pass a strengthened, comprehensive honesty-in-politics law.
You may not like the answer you receive. But you will find out which of them want to make politics an honest living, and which are leaders as opposed to misleaders.