2023 FC, 2023 FC 1650

Date: 20231207 Docket: T-1249-21 Citation: 2023 FC 1650 Ottawa, Ontario, December 7, 2023 PRESENT: The Honourable Madam Justice Strickland BETWEEN: REBEL NEWS NETWORK LTD. Applicant and CANADA (COMMISSIONER OF CANADA ELECTIONS) and THE ATTORNEY GENERAL OF CANADA Respondents JUDGMENT AND REASONS Nature of the Matter [ 1 ] This is an application for judicial review of the decision [Decision] by the Commissioner of Canada Elections [Commissioner], dated July 12, 2021.

The Commissioner confirmed the decision of the Deputy Commissioner of Canada Elections, dated January 11, 2021, finding that the Applicant, Rebel News Network Ltd. [Rebel News], contravened ss 352 and 353(1) of the Canada Elections Act , SC 2000, c 9 [ Act ] and, on January 12, 2021, issuing two Notices of Violations (NOV #A-190752-1 and NOV #A-190752-2) [NOVs] imposing an administrative monetary penalty [AMP] in respect of each of the violations. [ 2 ] Rebel News has also filed a Notice of Constitutional Question challenging " “the constitutional validity, applicability and/or effect of ss. (

b) of the definition of ‘election advertising’ at ss. 2(1) of the Canada Elections Act .” " The Parties [ 3 ] Rebel News is a federally incorporated company. Its sole director is Mr. Ezra Levant, who describes himself as its principal and founder. Mr. Levant describes Rebel News as often taking strong editorial positions on important public issues affecting Canadians, which positions are conveyed through various media, including websites, podcasts, paperback books and e-books.

Further, he describes himself and Rebel News as long-time critics of Prime Minister Justin Trudeau, " “his associates,” " and the Liberal Party of Canada. Mr. Levant filed an affidavit affirmed on September 10, 2021 [Levant Affidavit], in support of Rebel News’ application for judicial review. [ 4 ] The Commissioner is the Commissioner of Canada Elections [CCE] and is appointed by the Chief Electoral Officer. However, the Commissioner makes decisions and takes actions independently thereof.

The Commissioner is responsible for ensuring compliance with and enforcement of the Act , which includes conducting investigations, instituting prosecutions for offences under the Act and issuing notices of violation that set out administrative monetary penalties ( Act , ss 509(1), 509.21, 509.2). Pursuant to the Act , when an application is made for judicial review of a decision of the Commissioner, the Commissioner is the respondent in respect of the application ( Act , s 555(2)).

In these reasons, I will refer to the named respondent as the CCE and the decision-maker with respect to the decision under review as the Commissioner. [ 5 ] In this matter, the CCE is responding to Rebel News’ challenge to the reasonableness of the Commissioner’s decision and, in that regard, has filed the affidavit of Ms. Avril Ford Aubrey, legal counsel in the office of the CCE and one of the investigators in the subject matter involving Rebel News, affirmed on February 11, 2022 [Ford Aubrey Affidavit].

The Ford Aubrey Affidavit provides general background information as to the role of the Commissioner, the complaints process, confidentiality, AMPs, the Commissioner’s review process, as well as the procedural steps taken in this matter in response to complaints received. [ 6 ] The Attorney General of Canada [AGC], in their stated role as guardian of the public interest and protector of the rule of law, has provided submissions in response to Rebel News’ constitutional challenge. In that regard, the AGC has filed the affidavit of Ms.

Andrea Lawlor, an Associate Professor at King’s University College at Western University in the Department of Political Science who holds a PhD in Political Science, affirmed on February 9, 2022 [Lawlor Affidavit]. The Lawlor Affidavit provides expert opinion evidence addressing four questions posed by the AGC.

Specifically: identifying the principles underlying the egalitarian model of elections and the source of same; identifying the goals of regulating third party election-period advertising and if or how they relate to the achievement of the principles underlying the egalitarian model; identifying the role of anti-circumvention provisions within a regulatory scheme based on the egalitarian model of elections; and, explaining how the Canadian approach to the regulation of third party election-period advertising compares with approaches taken in other countries, such as the United Kingdom.

Factual Background [ 7 ] The factual background to this matter is straightforward and not in dispute.

[ 8 ] Canada’s 43 rd federal general election was called on September 11, 2019, and held on October 21, 2019. It was a fixed-date election. The " “election period,” " as defined in the Act , means the period beginning with the issue of the writ and ending on polling day ( Act , s 2.1). For the subject election, the election period ran from September 11, 2019, to October 21, 2019. [ 9 ] On September 4, 2019, Rebel News, as publisher, released a book authored by Mr. Levant entitled The Libranos: What the media won’t tell you about Justin Trudeau’s corruption .

The cover of the book is an artistic rendering of the Prime Minister and some of his ministers and staff, which depiction Rebel News submits is evocative of the television drama, The Sopranos . [ 10 ] During the election period, Rebel News distributed lawn signs promoting the book.

These included the words " “Librano$.com,” " " “buy the book!” " and " “rebel news telling the other side of the story” " and displayed the same graphic as the book cover . [ 11 ] The Commissioner received six complaints about the lawn signs and had another complaint referred to it from the Alberta Election Commissioner. [ 12 ] On December 5, 2019, the Commissioner endorsed a " “Recommendation to Initiate an Investigation.” " This recommended that an administrative investigation be initiated on the basis that, during the election period, Rebel News engaged in election advertising under s 2.1 of the Act in its production and distribution of the " "Librano$" " lawn signs, which lawn signs did not contain the information required by s 352 of the Act .

Further, that the election advertising expenses incurred in regard to the lawn signs and their election advertising messages were at least, if not over, the $500.00 threshold triggering the obligation, under s 353 of the Act , for a third party to register as such with Elections Canada.

The recommendation stated that a preliminary review of the documents and information gathered through open source and public documents gave the investigators reasonable grounds to suspect that offences under the Act had been committed. [ 13 ] By letter dated December 9, 2019, the CCE Director of Investigations gave Rebel News (via Mr.

Levant) notice, pursuant to s 510(2) of the Act , [Notice] that the Commissioner had initiated an administrative investigation into allegations that Rebel News had contravened ss 352 and 353 of the Act by failing to include the required information on third party election advertising as per s 352 – third party attribution requirements – and incurring over $500.00 in election advertising expenses without registering as a third party in the 2019 federal election as per s 353 ‒ third party registration requirements.

The Notice set out ss 352 and 353 and also noted that the definition of " “election advertising” " includes examples of communications that could promote or oppose a registered party or candidate but that do not constitute " “election advertising,” " including " “the promotion of the sale of a book […], if the book was planned to be made available to the public regardless of whether there was to be an election.” " [ 14 ] The Notice stated that the fact that the Commissioner had decided to proceed by way of an administrative investigation indicated that they were of the view that the matter would best be dealt with administratively, rather than by way of a criminal prosecution.

And while there was no obligation to cooperate with investigators, s 508.6(1) of the Act states that the provision of all reasonable assistance to the Commissioner is one of the factors taken into consideration in determining the amount of an AMP that could be imposed at the conclusion of the investigation. The Notice offered the opportunity to representatives of Rebel News, if they desired to do so, to

schedule an interview with the investigators or, alternatively, to submit all relevant facts and information, as well as any written representations regarding the alleged election advertising and Rebel News’ status as a third party. [ 15 ] On January 23, 2020, Mr. Levant participated in an interview with two CCE investigators. [ 16 ] A " “Compliance or Enforcement Recommendation Report,” " dated March 30, 2020, was then prepared by a CCE investigator.

This set out in detail the facts and information gathered in the administrative investigation and recommended that the file be referred to the CCE Compliance Unit for an assessment of the appropriate compliance measure. [ 17 ] The Compliance Unit prepared a " “Compliance Unit Recommendation Report of Compliance and Enforcement Measure” " dated January 11, 2021 [Compliance Unit Recommendation Report].

Its analysis included, among other things, that the book itself is not " “election advertising.” " However, the lawn signs were " “election advertising” " because they contained an advertising message, opposing a registered party, that was transmitted during the election period. Further, the illustration of communications that are not election advertising that deals with the promotion and distribution of books (paragraph (

b) in the s 2(1) definition of " “election advertising” " ) did not apply because the " “entire project” " was planned and executed to coincide with the election.

The analysis set out the factors relevant to determining that the book was planned to be made available at that time because there was to be a general election and concluded that the evidence provided reasonable grounds to believe that Rebel News contravened ss 352 and 353(1) of the Act , warranting AMPs of $1500 for each offence. [ 18 ] On January 25, 2021, the Manager of the Compliance Unit served Rebel News with the two NOVs, issued by the Deputy Commissioner of CCE, stemming from Rebel News’ failure to comply with ss 352 and 353 of the Act and imposing the AMPs recommended in the Compliance Unit Recommendation Report. [ 19 ] By letter dated February 4, 2021, and pursuant to s 521.14 of the Act , counsel for Rebel News submitted a request for review [Request for Review] by the Commissioner of the alleged violations and imposition of the AMPs.

On April 1, 2021, counsel for Rebel

News submitted Rebel News’ written submissions and evidence in support of its Request for Review. Rebel News took the position thatthe CCE process and consequent issuance of the NOVs was unconstitutional, that Rebel News had been selectively and unfairly targetedand that the book and its promotion were not election advertising because they fell within the paragraph (

b) category of the s 2(1)definition of "“election advertising.”" Rebel News asserted that publically available information supported this position. [20] By letter dated July 12, 2021, the Commissioner provided his response to the Request for Review and affirmed the contraventionsof the Act and imposition of the related AMPs. That decision is the subject of this judicial review. Commissioner’s Decision [21] In his decision letter, the Commissioner first provided an overview of the background facts and process leading up to his de novoreview of the decision of the Deputy Commissioner to issue the NOVs.

The Commissioner stated that in reaching his decision, hereviewed Rebel News’ submissions and all of the documents contained in the disclosure package provided to Rebel News upon itsrequest for the review. Specifically, he reviewed the Recommendation to Initiate an Investigation (December 5, 2019), the Notice(December 9, 2019), the Compliance or Enforcement Recommendation Report and its Exhibits 1 to 29 (March 30, 2020) and theCompliance Unit Recommendation Report (January 11, 2021). [22] The Commissioner then set out a

summary of his findings, based on the submissions and the evidence, being that on a balance ofprobabilities: 1. the lawn signs distributed and displayed by Rebel News during the election period of the 43rd federal general election wereelection advertising; 2. the lawn signs did not contain the information required by s 352 of the Act; 3.

Rebel News incurred expenses of at least $500.00 for the transmission of its election advertising message during the electionperiod but omitted to register as a third party as required by s 353(1) of the Act; and 4. the Deputy Commissioner’s decision to issue AMPs to Rebel News for its non-compliance with ss 352 and 353(1) of the Act wasreasonable and not inconsistent with the Charter. [23] Before explaining how he came to these conclusions, the Commissioner disposed of Rebel News’ submission that it had beentreated unfairly and in a selective manner as a preliminary question.

The Commissioner noted that Rebel News took this positon becausetwo other books it had identified as allegedly promoting the Prime Minister that were published during the election period were notinvestigated by the Commissioner’s office. The Commissioner found that, under s 510 of the Act, he could not be prevented frominvestigating a case on the basis that there are other cases that could or should be investigated and that jurisprudence supported this view(citing Ochapowace First Nation v Canada (Attorney General), 2007 FC 920 [Ochapowace]; R v Bears, (SCC), [1988]2 SCR 387 at 410-411).

Nor had Rebel News submitted any evidence showing that the Deputy Commissioner’s decision was based onany improper consideration or bias. Rather, the investigation was initiated following the receipt of seven complaints, which complaintshad been disclosed to Rebel News. [24] The Commissioner then went on to explain his reasoning for finding that Rebel News’ lawn signs were election advertising asdefined in s 2(1) of the Act.

He noted that for a communication to constitute election advertising, it must: 1) be an advertising message;2) be transmitted to the public; 3) be transmitted during an election period; and 4) promote or oppose a registered party or candidate inthe election. Rebel News’ position was that the lawn signs were not election advertising because they were not intended to oppose theLiberal Party of Canada, its leader or its candidates, but were designed to promote the sale of the book.

However, based on the evidencebefore it and for the reasons summarized in the Compliance Unit Recommendation Report, the Commissioner disagreed. [25] The Commissioner noted that Rebel News relied upon the definition of "“election advertising”" in s 2(1) of the Act, morespecifically paragraph (

b) of that definition, which I will set out here for ease of reference:

Definitions 2

(1) The

definitions in this subsection apply in this Act. …… election advertising means the transmission to the public by any means during an election period of an advertising messagethat promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue withwhich a registered party or candidate is associated. For greater certainty, it does not include …. (

b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book wasplanned to be made available to the public regardless of whether there was to be an election; …… [26] The Commissioner noted that, in its submissions in its Request for Review, Rebel News coined paragraph (

b) of the s 2(1).definition of "“election advertising”" as a "“book exemption.”" The Commissioner stated that this provision served to clarify, for greatercertainty, that election advertising does not include "“the distribution of a book, or the promotion of the sale of a book, for no less thanits commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election.”" Hestated it was clear from the underlined passage that paragraph (

b) of the s 2(1) definition of "“election advertising”" (which for ease of

reference I will refer to as "“Paragraph 2(1)(b)”") clearly only applied in relation to a book that would have been published whether ornot the election was called. [27] The Commissioner found that the Paragraph 2(1)(

b) clarification did not apply in the matter before him because Rebel News hadplanned the launch of the book to coincide with the election. [28] In that regard, the Commissioner stated that the evidence gathered by the investigators from readily accessible Internet sourcesestablished that Rebel News planned to launch the book and to distribute the lawn signs precisely around the time of the issuance of thewrit for the election and during the ensuing election period.

The Commissioner listed some of the communications published by RebelNews on its website and its Twitter account, including a video posted on Rebel News’ website, and referred to an admission by Mr.Levant during his interview in which he admitted that he planned the launch of the book to coincide with the election. [29] The Commissioner found that, instead of promoting the book, the lawn signs and lawn sign campaign were most likely designed andintended to oppose the Liberal Party and the election of its leader and some of its candidates.

The Commissioner also considered RebelNews’ Twitter posts and hashtags about the lawn signs, which it found were related to the election rather than the promotion of the book.Further, that Rebel News had ordered thousands of the lawn signs and requested that people contribute to the funding of its lawn signs ‒activities generally conducted by regulated political entities (such as candidates and political parties) and third parties.

The Commissioneralso agreed with the factual grounds upon which the Deputy Commissioner had relied in concluding that the lawn signs were electionadvertising, which the Commissioner summarized and listed. [30] In light of all of this, the Commissioner concluded that the lawn signs distributed and displayed by Rebel News during the electionperiod were third party election advertising. [31] As to s 352, the Commissioner noted that this provision requires a third party that transmits election advertising during the electionperiod to include in or on the advertising message, in a clearly visible or otherwise accessible manner, its name, telephone number, civicor Internet address and an indication that the advertising message was authorized by the third party.

The Commissioner stated that thisrequirement has the important objective of ensuring transparency about those behind, and spending money for, election advertising. For the purposes of the 43rd federal general election, the Commissioner found that Rebel News was a third party under the Act. Accordingly,its election advertising messages were required to comply with s 352.

As its lawn signs did not include the required information, theycontravened s 352 of the Act. [32] With respect to s 353(1), the Commissioner stated that this requires a person, a corporation or a group to register with ElectionsCanada, as a third party, immediately after having incurred expenses totalling $500.00 or more for partisan activities, election advertisingand election surveys that are respectively carried out, transmitted or conducted during an election period.

Rebel News had refused toprovide CCE investigators with any information relating to costs it incurred for the production and distribution of its lawn signs, beyonda cartoon provided by Mr. Levant. However, information gathered from Rebel News’ website, which the Commissioner described,suggested that Rebel News had most likely incurred expenses significantly exceeding the minimum threshold of $500.00 required forthird party registration.

The Commissioner was satisfied that, despite incurring more than $500.00 in expenses related to its electionadvertising messages transmitted during the election period, Rebel News failed to register as a third party and, therefore, contravened s353(1) of the Act. [33] The Commissioner also found that the AMPs imposed were in line with its Policy for the Administrative Monetary Penalty Regime. [34] As to Rebel News’ Charter arguments, the Commissioner dismissed Rebel News’ argument that the Deputy Commissioner hadbreached its Charter rights because Mr. Levant had not been cautioned before being interviewed.

The Commissioner pointed out that thiswas an administrative, not criminal, investigation and that Mr. Levant had attended the interview voluntarily. In the context of anadministrative investigation, an individual can be interviewed without being cautioned (citing Canada (Border Services Agency) v Tao,2014 FCA 52 at paras 26-28). Further, that it was Rebel News’ conduct that was at issue and that Rebel News was the target of theinvestigation, not Mr. Levant.

The NOVs were issued against Rebel News, a corporate entity, which is not protected by the s 11(c)Charter guarantee against self incrimination, which protects only individuals (referencing R v Amway, (SCC), [1989] 1SCR 21). [35] The Commissioner next noted that Rebel News was not challenging the constitutionality of ss 352 and 353(1) of the Act. Rather, itsubmitted that the Deputy Commissioner’s decisions were unconstitutional because they violated Rebel News’ right to freedom ofexpression and freedom of the press, contrary to s 2(

b) of the Charter. However, Rebel News had not submitted any argument orevidence to support that allegation. [36] Citing Doré v Barreau du Québec, 2012 SCC 12 [Doré], the Commissioner defined the test to be engaged when assessing whether adecision-maker’s

interpretation of an enabling statute violates a Charter right as a reasonableness test instilled with the "“justificatorymuscles”" of the test under s 1 of the Charter analysis ‒ that is, a balance of proportionality.

The Commissioner stated that Doré requiresadministrative decision-makers making discretionary decisions to balance the Charter values involved and the legislative objectives ofits enabling statute. [37] Further, the Commissioner noted that in Harper v Canada (Attorney General), 2004 SCC 33 [Harper], the Supreme Court ofCanada determined that s 352 and s 353 of the Act advance two compelling and substantial objectives: 1) to promote the implementationand enforcement of the third-party financing regime, and 2) to ensure transparency by allowing voters access to relevant informationconcerning third parties engaged in regulated activities, such as election advertising.

And, while the ss 352 and 353 requirements restrictthird parties’ freedom of expression, the Supreme Court in Harper concluded that the restrictions are minimal, reasonable anddemonstrably justified under s 1 of the Charter. [38] The Commissioner found, in light of the compelling and substantial objectives pursued by the third-party regime under the Act, therestrictions imposed by the requirements at ss 352 and 353(1) of the Act were minimally impairing of Rebel News’ freedom ofexpression Charter rights. Thus, the Deputy Commissioner’s decision to issue the NOVs was reasonable and did not breach the Charter.

Relevant Legislative and Constitutional Provisions Canada Elections Act, SC 2000, c 9

Definitions 2(1) The

definitions in this subsection apply in this Act . […] election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue with which a registered party or candidate is associated. For greater certainty, it does not include (

a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news; (

b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election; (

c) the transmission of a document directly by a person or a group to their members, employees or shareholders, as the case may be; (

d) the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views; or (

e) the making of telephone calls to electors only to encourage them to vote. DIVISION 2 Partisan Activities, Election Advertising and Election Surveys During Election Period …… Prohibition — circumventing maximum amount 351 A third party shall not circumvent, or attempt to circumvent, a maximum amount set out in

section 350 in any manner, including by splitting itself into two or more third parties for the purpose of circumventing the maximum amount or acting in collusion with another third party so that their combined partisan activity expenses, election advertising expenses and election survey expenses exceed the maximum amount. …… Advertising to name third party 352 A third party shall include - in a manner that is clearly visible or otherwise accessible - in any election advertising message placed by it its name, its telephone number, either its civic or its Internet address and an indication in or on the message that it has authorized its transmission.

Registration Requirements for third parties 353

(1) A third party shall register immediately after having incurred the following expenses in an aggregate amount of $500: (

a) partisan activity expenses in relation to partisan activities that are carried out during an election period; (

b) election advertising expenses in relation to election advertising messages that are transmitted during that period; and (

c) election survey expenses in relation to election surveys that are conducted during that period. However, the third party may not register before the issue of the writ. Judicial Review 555(1) When respondent is Commissioner

(2) If an application is made for judicial review of a decision of the Commissioner, the Commissioner is the respondent in respect of the application. Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 Rights and freedoms in Canada 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such

reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Fundamental freedoms 2 Everyone has the following fundamental freedoms: […] (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; […] Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 Primacy of Constitution of Canada 52

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect Issues and Standard of Review [ 39 ] The issues identified by the parties in this matter can be framed as follows: i . Is the Commissioner’s decision reasonable? a . Did the Commissioner apply the wrong legal test or fail to conduct the proper analysis? b . Did the Commissioner ignore evidence or submissions? c . Did the Commissioner appropriately consider Charter values? ii . Does the impugned clause, Paragraph 2(1)(b), limit Rebel News’ rights under s 2(

b) of the Charter ? iii . If so, is the limitation justified under s 1 of the Charter ? [ 40 ] When a court reviews the merits of an administrative decision there is a presumption that the standard of review is reasonableness ( Canada (Minister of Citizenship and Immigrations) v Vavilov , 2019 SCC 65 at paras 23 , 25 [ Vavilov ]).

Rebel News and the Commissioner submit, and I agree, that reasonableness is the standard of review applicable to the merits of the Commissioner’s decision. [ 41 ] " “A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision…” " ( Vavilov at para 99 ). The burden is on the party challenging the decision of demonstrate that it is unreasonable and the court must be satisfied that any shortcomings or flaws raised by that party are sufficiently central or significant to render the decision unreasonable ( Vavilov at para 100 ).

Is the Commissioner’s Decision Reasonable? Rebel News’ Position [ 42 ] Rebel News first submits that the Commissioner’s decision was not reasonable because there were gaps in the Commissioner’s reasoning and because there was evidence that was ignored or not meaningfully addressed. [ 43 ] Rebel News submits that although the Commissioner identified the correct inquiry under Paragraph 2(1)(b), being whether the book would have been published whether or not the election was called, the Commissioner assessed a different question, being whether Rebel News planned the launch of the book to coincide with the election.

The Commissioner therefore confused two distinct matters and became unreasonably preoccupied with the question of whether, at the time Rebel News released and promoted the book, it was Rebel News’s intention to do so during the 2019 election period.

This gives rise to a concern as to whether the Commissioner applied the correct legal test and/or failed to carry out the proper analysis. [ 44 ] With respect to its evidence, Rebel News submits that it made submissions to support the fact that it would have published the book regardless of the election, and there was no evidence that it would not have released the book after the election. The Commissioner did not mention Rebel News’ submitted evidence and does not appear to have considered or grappled with it.

Specifically, the submitted evidence was that the original book concept was derived from a cover published in 2005, based on a television show from the 2000s; that the URL (thelibranos.com) was registered in February 2016, over three years before the election; and that Rebel News and Mr. Levant have released other books critical of the Prime Minister and the Liberal Party of Canada during non-election periods. [ 45 ] Rebel News also submits that the Commissioner failed to consider the legislative intent of Paragraph 2(1)(

b) and to " “consider the wisdom of the legislature in enacting” " that provision. [ 46 ] Further, that the Commissioner unfairly targeted Rebel News on the basis that Rebel News is highly critical of the Prime Minister

and the Liberal Party of Canada and ignored evidence that there were at least 20 other election-related books published in late summer or early fall 2019. [ 47 ] Second, Rebel News submits that the Commissioner’s decision violated the Charter . While the Commissioner considered the objectives of ss 352 and 353(1) of the Act , balancing them against Rebel News’ freedom of expression and finding that Rebel News’ rights were minimally impaired, the analysis does not consider the fundamental values reflected in the statutory definition of " “election advertising,” " which forms an essential element of ss 352 and 353. Rebel News submits that the intention of Paragraph 2(1)(

b) is to " “remove from the Commissioner’s scrutiny the sorts of protected expressions within democratic discourse that ought not to be hindered during an election period, including, books and the promotion thereof, and to discourage governmental intrusion into political discourse.” " Rebel News submits that the fundamental values of the Paragraph 2(1)(

b) definition ought to have informed the Commissioner’s analysis. [ 48 ] And, while the Commissioner referred to the Supreme Court of Canada’s decision in Harper , Rebel News submits that the decision is distinguishable and has no application to this matter. Harper upheld the third party election advertising limits in the Act , but the present case is about an express exception built into the legislation that was not scrutinized in Harper .

CCE’s Position [ 49 ] The CCE submits that Rebel News is asking the Court to engage in a de novo review of the evidence and submissions but that this is not the purpose of judicial review. [ 50 ] Further, that the Commissioner reasonably concluded, based on the evidence and submissions before him, that the lawn signs constituted " “election advertising” " defined under s 2(1) of the Act and that the clarification found in Paragraph 2(1)(

b) did not apply. The Commissioner fully considered and rejected Rebel News’ submission that the lawn signs were not " “election advertising” " because they promoted a book that was planned to be made available to the public regardless of the election. The Commissioner reasonably interpreted Paragraph 2(1)(

b) to preclude reliance on that provision where the third party deliberately planned the launch of a partisan book to coincide with the election. This

interpretation has clear internal logic since a specific plan to publish and market a book during an election period cannot be said to be a plan to make the book available " “regardless of whether there was to be an election.” " Further, there was ample evidence that Rebel News timed the launch of the book to coincide with the election, and the Commissioner engaged with this evidence. [ 51 ] The CCE also submits that the Commissioner did not apply the wrong legal test or fail to carry out the proper analysis when determining if Paragraph 2(1)(

b) applied, as suggested by Rebel News. Rather, the Commissioner reasonably interpreted the provision in light of the text, context, and purpose of the provision, and it is not the role of the Court to engage in a de novo review or to determine the " “correct” "

interpretation of a disputed provision. While Rebel News may not agree with the Commissioner’s

interpretation, it was reasonable. [ 52 ] Nor did the Commissioner fail to consider Rebel News’ evidence. Rebel News adduced no evidence that the Commissioner targeted it or was partial in its decision-making. Further, the Commissioner explicitly stated in his reasons that he had considered Rebel News’ submissions. The reasons also demonstrate that the Commissioner engaged with Rebel News’ evidence and arguments. The Commissioner was not required to respond to every piece of evidence or argument. Significantly, given the Commissioner’s

interpretation of Paragraph 2(1)(b), Rebel News’ evidence about previous work related to the book had little probative value. That is, the evidence was rendered irrelevant by the Commissioner’s

interpretation of Paragraph 2(1)(b), given his focus on Rebel News’ explicit intention to launch the book during the election period and the particular means of advertising used (lawn signs). [ 53 ] In any event, the Commissioner relied on more than the timing of the book launch to support his finding that the lawn signs were election advertising, including the evidence demonstrating the ways in which Rebel News and Mr.

Levant associated the book and lawn signs with the election. [ 54 ] The CCE also submits that the decision reflects a proportionate balancing of the Charter protections at play and is a reasonable outcome. In the first step of the Doré analysis, the Commissioner considered the statutory objectives at stake.

The Commissioner referenced Harper , where the Supreme Court found that ss 352 and 353 of the Act promote the implementation and enforcement of the third party financing scheme and ensure transparency by allowing voters to access relevant information concerning third parties engaged in regulated activities such as election advertising. In the second step, the Commissioner was alive to the Charter value of expressive freedom at stake and concluded that any restrictions were minimal – even though Rebel News did not provide any evidence that its 2(

b) rights were engaged. [ 55 ] In response to Rebel News’ argument that the Commissioner did not consider the " “principles and fundamental values” " reflected in the definition of " “election advertising” " and Paragraph 2(1)(b), the CCE submits that these principles and values are directly tied to ss 352 and 353 of the Act . The Commissioner therefore implicitly considered the definition in balancing the Charter values at stake with the statutory objectives of ss 352 and 353 of the Act .

Further, the Commissioner reasonably concluded that Rebel News was invoking its freedom of expression values and values relating to freedom of the press. Rebel News fails to articulate what additional " “principles and fundamental values” " are at play. [ 56 ] In response to Rebel News’ argument that the Commissioner’s

interpretation of Paragraph 2(1)(

b) is too broad and subjects all politically expressive books and the promotion thereof released during a federal election to scrutiny, the CCE points out that that is not something the Commissioner was required to consider under the Doré /Loyola analysis and does not render the decision unreasonable. The issue of Paragraph 2(1)(b)’s broader implications relates only to Rebel News’ constitutional challenge.

Further, the test is not whether there is serious interference with a Charter guarantee, as Rebel News seems to imply, but only whether the interference is reasonably justified within the statutory scheme. [ 57 ] Finally, the CCE submits that the Commissioner could only choose to either enforce or not enforce ss 352 and 353(1) of the Act . Only enforcing the provisions would have advanced the relevant statutory objectives. Therefore, there was no reasonable alternative that

would have given effect more fully to the Charter protections in light of the statutory objectives. The Commissioner’s Doré analysismerits deference, as the Commissioner was best placed to weigh the Charter protections with his statutory mandate in light of thespecific facts of the case. Analysis [58] Based on the parties’ submissions, the question of the reasonableness of the decision can be as divided into three distinct inquiries. Iwill address each of these in turn. a.

Did the Commissioner apply the wrong legal test or fail to carry out a proper analysis? [59] Rebel News and the CCE approach this issue from somewhat different directions. Rebel News asserts that there was a shiftingstandard and the possibility of the application of an incorrect legal test or analysis, while the CCE asserts that the Commissionercorrectly interpreted and applied Paragraph 2(1)(

b) and, given the evidence, found that it was not applicable. [60] More specifically, Rebel News submits that the Commissioner in this case failed to apply the correct legal test and/or failed to carryout a proper analysis because he confused two concepts: whether the book would have been published regardless of the election, andwhether Rebel News timed the book’s release and promotion to coincide with the election. [61] When appearing before me, Rebel News emphasized that, in its view, the Commissioner’s reasoning displayed shifting logical goalposts or a shifting standard.

Although in paragraph 23 of his reasons the Commissioner identified the correct test or question, beingwhether "“the book was planned to be made available to the public regardless of whether or not there was an election,”" in the nextparagraph he went on to find that Paragraph 2(1)(

b) did not apply because "“Rebel News planned the launch of the book to coincide withthe election.”" Thus, the Commissioner answered a different question. When asked by the Court if this was a question of theCommissioner’s

interpretation of Paragraph 2(1)(b), Rebel News stated that it did not take issue with the

interpretation, but that theproblem was with the "“shifting test”" and the Commissioner’s failure to consider if the book would have been released regardless of theelection. On reply, Rebel News submitted that it had set out its

interpretation of Paragraph 2(1)(

b) in its Request for Review, and, whilethe Commissioner was not required to accept that

interpretation, he had to clearly identify the applicable "“test”" and make his decisionbased on that test. [62] The CCE submits that the Commissioner reasonably interpreted the Act to preclude reliance on Paragraph 2(1)(

b) where a thirdparty deliberately plans the launch and promotion of a partisan book to coincide with an election. While the Commissioner did notconduct an explicit statutory analysis of Paragraph 2(1)(b), he clearly put his mind to the definition, what was encompassed by it andwhether the lawn signs fell within the definition. In paragraph 21 of his reasons, he set out the chapeau definition of "“electionadvertising.”" In paragraph 22, he identified each of the four elements required by the definition.

Based on the evidence, he did notaccept Rebel News’ position that the lawn signs were not election advertising because they were intended to promote the book, notoppose the Liberal Party of Canada, its leader or its candidates. Importantly, the Commissioner did not agree with Rebel News’submission that Paragraph 2(1)(

b) was a book exemption and, referencing Elections Canada’s

Interpretation Note: 2020-05 (November2020) – Partisan and Election Advertising on the Internet [Interpretation Note], found that it was simply a clarification provision. TheCCE submits that the Commissioner identified the correct question, that being whether "“the book was planned to be made available tothe public regardless of whether there was to be an election.”" Further, that in paragraph 24, in finding that Paragraph 2(1)(

b) did notapply in this case, the Commissioner was not asking a new or different question. [63] When appearing before me, the CCE submitted that, in paragraph 24, the Commissioner was making a finding of fact based on theevidence. Specifically, he found that Rebel News had planned the launch of the book to coincide with the election. The CCE submits thatParagraph 2(1)(

b) requires that the Commissioner consider the promotion of the book in terms of timing (the planning and timing ofwhen the book was to be released) and intention (whether it would be released regardless of whether there was to be an election). Thus,the Commissioner’s finding that Rebel News had planned the launch of the book to coincide with the election was not answering adifferent question. i. Applicable general principles [64] The Supreme Court in Vavilov held that a reasonable decision is justified in light of the legal and factual constraints that bear on thedecision.

This surrounding context includes the governing statutory scheme, relevant common law, the principles of statutoryinterpretation, the evidence before the decision-maker and the submissions of the parties (Vavilov at paras 105-107). Becauseadministrative decision-makers receive their powers by statute, the governing statutory scheme will usually be the most salient aspect ofthe legal context relevant to a particular decision.

The exercise of discretion must be in accordance with the purpose for which it wasgiven, and administrative decisions must also comport with any specific restraints imposed by the governing legislative scheme, such asstatutory

definitions (Vavilov at para 108). [65] With respect to the principles of statutory

interpretation, these are to be assessed on the reasonableness standard, and the reviewingcourt is to examine the administrative decision as a whole, including the reasons provided by the decision-maker and the outcome(Vavilov at paras 115-116). The reviewing court is to apply the "“modern principle”" of statutory

interpretation, meaning the words of astatute must be read "“in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, theobject of the Act, and the intention of Parliament”" (Vavilov, para 117, citing Rizzo & Rizzo Shoes Ltd (Re), (SCC),[1998] 1 SCR 27 at para 21, and Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 26, both quoting E Driedger,Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87).

This approach is required because legislative intent can beunderstood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context.An approach to the reasonableness review must assume that those who interpret the law will do so in a manner that is consistent with thisprinciple (Vavilov at para 118). Administrative decision-makers do not always have to engage in a formalistic statutory

interpretationexercise, and their specialized expertise may lead them to rely on considerations that a court would not have thought to employ but thatactually enrich and elevate the interpretive exercise (Vavilov at para 119). Nevertheless, the

interpretation must be consistent with the

text, context and purpose of the provision. Where the meaning is disputed, the decision-maker must demonstrate in its reasons that it wasalive to these essential elements (Vavilov at para 120). There may also be cases in which the administrative decision-maker has notexplicitly considered the meaning of a relevant provision in its reasons, but the reviewing court is able to discern the

interpretationadopted by the decision-maker from the record and determine whether the

interpretation is reasonable (Vavilov at para 123). ii. Purpose of the third party electoral advertising regime [66] For context, it is perhaps helpful to briefly address the Supreme Court of Canada’s decision in Harper at this juncture to the extentthat it speaks to the purpose of limits on election spending, including third party spending. In Harper, the Court referred to its priordecision in Libman v Quebec (Attorney General), (SCC), [1997] 3 SCR 569 [Libman], where it was asked to determinethe constitutionality of the independent spending limits set out in the Referendum Act, RSQ c C-64.1.

In Libman, the Supreme Courtagreed that the limits on independent spending set out in the Referendum Act were not justified. However, it endorsed spending limits asan essential means of promoting fairness in referenda and elections (Harper at para 61).

The Court in Harper noted that in Libman, andrelying on the Lortie Report (Reforming Electoral Democracy: Report of the Royal Commission on Electoral Reform and PartyFinancing (Ottawa: Government of Canada, 1991) (Pierre Lortie)), it had endorsed several principles applicable to the regulation ofelection spending generally, and of independent or third party spending specifically, which the Court set out.

It then held: 62 The Court’s conception of electoral fairness as reflected in the foregoing principles is consistent with the egalitarianmodel of elections adopted by Parliament as an essential component of our democratic society. This model is premised onthe notion that individuals should have an equal opportunity to participate in the electoral process. Under this model, wealthis the main obstacle to equal participation; see C. Feasby, “Libman v. Quebec (A.G.) and the Administration of the Processof Democracy under the Charter: The Emerging Egalitarian Model” (1999), 44 McGill L.J. 5.

Thus, the egalitarian modelpromotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to thedetriment of others with less economic power. The state can equalize participation in the electoral process in two ways; seeO. M. Fiss, The Irony of Free Speech (1996), at p. 4. First, the State can provide a voice to those who might otherwise not beheard.

The Act does so by reimbursing candidates and political parties and by providing broadcast time to political parties.Second, the State can restrict the voices which dominate the political discourse so that others may be heard as well.In Canada, electoral regulation has focussed on the latter by regulating electoral spending through comprehensiveelection finance provisions. These provisions seek to create a level playing field for those who wish to engage in theelectoral discourse. This, in turn, enables voters to be better informed; no one voice is overwhelmed by another.

Incontrast, the libertarian model of elections favours an electoral process subject to as few restrictions as possible. 63 The current third party election advertising regime is Parliament’s response to this Court’s decision in Libman. Theregime is clearly structured on the egalitarian model of elections. The overarching objective of the regime is to promoteelectoral fairness by creating equality in the political discourse.

The regime promotes the equal dissemination ofpoints of view by limiting the election advertising of third parties who, as this Court has recognized, are importantand influential participants in the electoral process. The advancement of equality and fairness in elections ultimatelyencourages public confidence in the electoral system.

Thus, broadly speaking, the third party election advertisingregime is consistent with an egalitarian conception of elections and the principles endorsed by this Court in Libman. (emphasis added) [67] The Supreme Court in Harper ultimately found that, while the challenged provisions of the Act, including ss 352 and 353, infringeds 2(

b) of the Charter, this was a reasonable limit under s 1 of the Charter. iii. Analysis [68] As indicated above, in its submissions to this Court, Rebel News does not assert that the Commissioner erred in his

interpretation ofParagraph 2(1)(b). Rather, it asserts that, although the Commissioner identified the correct inquiry under Paragraph 2(1)(b), that inquirybeing whether the book would have been published whether or not the election was called, the Commissioner assessed a differentquestion, that question being whether Rebel News planned the launch of the book to coincide with the election. According to RebelNews, this gives rise to the question of whether the Commissioner applied the wrong legal test or analysis. [69] The CCE, in its written submissions, asserts that the Commissioner reasonably interpreted Paragraph 2(1)(

b) in light of the text,context and purpose of that provision and made a finding based on the facts and evidence before him. Further, that the Commissioner’sinterpretation and reasoning was transparent, justified and intelligible. The Commissioner interpreted Paragraph 2(1)(

b) to precludereliance on that provision where a third party deliberately planned the launch of a book to coincide with the election. According to theCCE, this

interpretation "“has clear, internal logic, since a specific plan to publish and market a book during an election period cannot besaid to be a plan to make the book available ‘regardless of whether there was to be an election.’”" [70] In his decision, the Commissioner does not provide an explicit statutory

interpretation analysis of Paragraph 2(1)(b). However, theCommissioner concluded that Paragraph 2(1)(

b) did not apply where the evidence established that a third party deliberately planned thelaunch of the book to coincide with the election. [71] In reaching that conclusion, the Commissioner identified four required elements of the definition of "“election advertising”" andrejected Rebel News’ position that the lawn signs were not election advertising because they were not intended to oppose the LiberalParty of Canada, its leader or its candidates, but were instead designed to promote the sale of the book.

Based on the evidence before theCommissioner and the reasons summarized in the Compliance Unit Recommendation Report, the Commissioner disagreed with RebelNews’ position. [72] With respect to Paragraph 2(1)(

b) itself, the Commissioner states:

23. Rebel News relies on what it calls the “Book/Promotion Exemption” 14 found in the definition of election advertising at subsection 2(1) of the Act . The relevant portion of the provision at paragraph 2 (

b) under “election advertising” clarifies that for greater certainty, election advertising does not include “the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election .” [Emphasis added.] It is clear from the underlined passage that the so-called “book exemption” applies only in relation to a book that would have been published whether or not the election was called. 24. I am of the view that the clarification at paragraph 2(1) (

b) of the Act does not apply in this case because Rebel News had planned the launch of the book to coincide with the election. [ 73 ] Footnote 14 refers to Elections Canada’s

Interpretation Note, and a hyperlink to that document on Elections Canada’s website is provided at Footnote 12. In Footnote 14, the Commissioner indicates that, in the

Interpretation Note , Elections Canada notes that the communications described at paragraphs (

a) to (

e) of s 2(1) of the Act , in relation to the definition of " “election advertising,” " are not exceptions. Rather, they are clarifications of the types of communications or activities that do not constitute election advertising under the Act . [ 74 ] The

Interpretation Note addresses the meaning of " “election advertising” " : Analysis and Proposed

Interpretation Meaning of "Partisan Advertising" and "Election Advertising" The CEA recognizes that some electoral communications are expressions of views, opinions or information that do not qualify as advertising.

Section 2 essentially defines partisan and election advertising as advertising messages that promote or oppose, directly or indirectly, an applicable political entity. It goes on to provide a list of examples of what is not advertising. Two elements are noteworthy. First, the list of communications that are specifically not advertising are presented as illustrations of what each definition already "does not include", rather than as exceptions to what would otherwise be caught by the definition. They are therefore useful to shed light on what is meant (or not meant) by the definition.

This also means that the list is non-exhaustive; something that does not fit squarely in one of the paragraphs may still escape the definition. For example, while one paragraph refers to a book, a documentary film may equally escape the definition. Similarly, while another paragraph refers to the transmission of personal views by an individual on the Internet, opinions published by a group on the Internet may also escape the definition. Second, while the definition of what is advertising uses the message's content as a key qualifier, the illustrations of what is not advertising are mostly content-neutral.

The only exception is a paragraph about making telephone calls only to encourage electors to vote, which was added by Bill C-23 ( S.C. 2014, c. 12 ). This point is critical as it reinforces the fact that content alone cannot determine advertising. Partisan or election advertising must, first, be advertising and must, second, promote or oppose an applicable political entity. The fact that a message promotes or opposes the political entity is insufficient, as this could be true of an editorial, a debate or a book, etc., which are definitively not advertising. Looking more closely at the

definitions, partisan and election advertising include four essential elements: 1. They must be advertising. 2. They must promote or oppose an applicable political entity. During an election period, this includes promoting or opposing by taking a position on an issue with which the political entity is associated. 3. They must be transmitted to the public. 4. They must be transmitted during the pre-election period (partisan advertising) or election period (election advertising). Two of the elements cannot help to explain the larger meaning of advertising.

Determining whether a particular message promotes or opposes an applicable political entity, including by taking a position in an election period on an issue with which they are associated, is largely a fact-based exercise that must be done case by case. Meanwhile, "pre-election period" and "election period" are clearly defined in

section 2 of the CEA, and their meaning is not subject to debate. Therefore, the following analysis focuses on the first and third elements to ascertain two things: what does it mean to transmit a message to "the public", and what exactly is advertising? [ 75 ] While

interpretation guides, like informal guidelines, are not binding on administrative decision-makers, they are useful in indicating what constitutes a reasonable

interpretation of a given legislative provision. Administrative decision-makers can consider such documents in the exercise of their discretion but must also turn their minds to the specific circumstances of the matter before them and not fetter their discretion by treating such guidelines as if they were mandatory requirements (see: Kanthasamy v Canada (Citizenship and Immigration) , 2015 SCC 61 at para 32 ). [ 76 ] Here the s 2(1) definition sets out the four elements that make up what is election advertising – which the Commissioner considered in his decision.

It then sets out, " “for greater certainty,” " what is not included in the election advertising definition. [ 77 ] I agree with the CCE that paragraphs (

a) to (

e) of s 2(1) are not exceptions to the definition of election advertising, but are examples to clarify what that definition does not capture. In that regard, I note that where the Act intends to create an exception, the Act identifies the provision as an exception by stating that the provision does not apply, or by identifying the specified exception (e.g. ss 43.1(2), 45(3), 48(3), 57(4)). The Act also includes provisions identified as clarifications. For example, s 71.1(4), under the heading " “clarification,” " states, " “For greater certainty,” " as does s 164(2). Similarly, s 91(2) states, " “Subsection (1) applies regardless of….” " I recognize these

examples are operative provisions rather than

definitions. Nevertheless, the wording of the s 2(1) definition of election advertising, which states, " “For greater certainty, it does not include” " paragraphs (

a) to (e), more closely resembles other clarifications found in the Act than it does exceptions. [ 78 ] Read together, and in the context of the chapeau definition, paragraphs (

a) to (

e) provide examples of the types of things that do not fall within the definition.

Most of these include qualifications of one sort or another: paragraph (b) ‒ distribution or promotion of a book if the book was planned to be made available to the public regardless of whether there was to be an election; paragraph (c) ‒ transmission of a document directly by a person or group to their members …; paragraph (d) ‒ transmission by an individual on a non- commercial basis on the Internet; and paragraph (e) ‒ making telephone calls to electors only to encourage them to vote. [ 79 ] Thus, a partisan book is not election advertising.

Further, the distribution of such a book, or its promotion for sale, will not fall within the definition of election advertising if the book " “was planned to be made available to the public regardless of whether there was to be an election.” " Whether this " “planning” " qualification applies is a fact-based determination. [ 80 ] Accordingly, I agree with the CCE that, in order to determine if the lawn signs were " “election advertising,” " the Commissioner necessarily engaged in a factual inquiry as to what was planned for the promotion of the book and whether this plan was regardless of whether there was an election or not ‒ in other words, whether the intended timing of the planned promotion was directly tied to the election.

Given this, I do not agree with Rebel News that the Commissioner applied the wrong test or improper analysis. The Compliance Unit Recommendation Report found that Paragraph 2(1) (

b) did not apply because , for it to do so, the book must have been " “planned to be made available to the public regardless of whether there was to be an election,” " but " “[h]ere it seems clear that the entire project was planned and executed in order to coincide with the 43 rd general election, as indicated by Mr.

Levant during his interview.” " The Commissioner agreed with the reasoning of that report and, based on the evidence, did not agree with Rebel News that the lawn signs were not intended to oppose the Liberal Party of Canada, its leader or its candidates, but were instead designed to promote the sale of the book.

The Commissioner found that Rebel News had planned (intent) the launch of the book to coincide with the election (timing) and set out the evidence that supported that finding. [ 81 ] The Commissioner’s reasons demonstrate that his focus was on what Rebel News planned as to the timing of the book release and promotion and what it intended to accomplish in that regard: 25 The evidence gathered by investigators from information readily accessible over the Internet clearly establishes, on the balance of probabilities, that Rebel News planned to launch the book and to distribute the lawn signs precisely around the time of the issuance of the writ for the election and during the ensuing election period. - Rebel News launched the book on or around September 9, 2019, and started the book around the same time, continuing it during the election period.

In particular, on September 9, 2019, Rebel News published on its website an

article entitled: “how Rebel News will cover the Canadian election PLUS New book: The Libranos! ” [Emphasis added.].

Ezra Levant states the following in the article: “… And so I am pleased to announce to you my friends, my new book, called: The Libranos…” - In a tweet published on Rebel News Twitter account on September 9, 2020, under the heading “NEW BOOK ANNOUNCEMENT”; the following is stated @EzraLevant explains how Rebel News will cover the Canadian election and introduces The Libranos,…” [Emphasis added.]; - In “Our Plan for the Canadian election!” posted on Rebel News’ website the following was found under “My new book, “The Libranos””: “I want to vet our prime minister and his all team.

So I am pleased to announce another part of our campaign plan: my new book called The Libranos: What the media won’t tell you about Justin Trudeau’s corruption. ”, and under “Lawn signs”: “…And I want to spread the word about the book through gorgeous lawn signs, just like we did for Sheila Gunn Reid’s book on the Alberta election, called Stop Notley.”; - Various tweets found on Rebel News’ Twitter account bear the hashtag “#elxn43 ”. For example, a tweet published on Rebel News’ Twitter account on September 18, 2019, stated “Sam and Sarah are now in #Windsor, giving out FREE thelibranos.com lawn signs!

Perfect for #elxn43 ”; - Some of the tweets stated that the lawn signs were given just in time for the election [Emphasis added.]; - A tweet published on Rebels News’ Twitter account on October 3, 2019 stated “Why not get your Thelibranos.com lawn sign, just in time for #elxn43 . ” [Emphasis added.]; - On October 20, 2019, Ezra Levant retweeted on Rebel News Twitter account expressing satisfaction for having seen the Rebel News lawn signs at a protest against Mr.Trudeau in Calgary: “Great to see some of our TheLibranos.com lawn signs at the Trudeau proetest (sic) last night on Calgary!” In the picture accompanying the tweet, one can see people holding the Rebel News’ lawn signs while others were holding a candidate signs; - A video found on Rebel News’ website features an individual (identifying himself as David TheMenzoid Menzies) driving a vehicle which he says was carrying the lawn signs to Rebel News’ audience in Eastview (Red Deer, Alberta) and that Rebel supporters could come out and pick up their lawn “The Libranos” signs and put a word out their that October, 2021 (which was polling day) was a date for a regime change; - A tweet found on Rebel News’ Twitter account states that “.@TheMenzoid and other members of the Rebel News team are crossing Canada, giving out FREE TheLibranos.com lawn signs, just in time for the #elxn43 ; - A script preceding a video found on Rebel News’ website states that the lawn signs were inspired by Ezra Levant’s book.

It is worth noting that it was not stated that the signs were intended to promote the book;

- During an interview with investigators, Ezra Levant admitted that he planned the launch of the book to coincide with the election: MR. EZRA LEVANT: Not word for word, but I know the sentiment, which is I’m writing a book about the prime minister and why he shouldn’t be elected. Of course, I want to publish that during the election. Same reason why Aaron Wherry, John Ivison and others wrote their love letters to Justin Trudeau. You’d have to be stupid to publish it a month after the election; I wanted it in the election.

And I hope I’m saying words right now that cause you to prosecute because we’re going to break this law, fellas. We’re going to break this law. If you think that that is against the law, one of us is deeply, deeply wrong and it ain’t me. … Let’s test this law or actually, let’s test your

interpretation of it because the law’s pretty damn clear to me. If you think that timing an election book for an election is against the law, let’s break the law, buddy. If you think that a court’s going to uphold your bizarre

interpretation of it, I want to be the test case. So we can conclude things right now, and you can tell mom, “we’ve got him; he’s confessed” cause I want you to prosecute me over the timing of my book not because I want to be prosecuted, but because you guys need a serious attitude adjustment and a refresher of the Charter of Rights . [ 82 ] In my view, in these circumstances, reviewing the evidence to determine when the launch of the book had been planned and whether it was intended to coincide with the election necessarily arises from a determination of the applicability of the Paragraph 2(1) (

b) qualification of " “if the book was planned to be made available to the public regardless of whether there was to be an election.” " Thus, the Commissioner did not err by applying the wrong test or conducting the wrong analysis. The Commissioner reasonably implicitly interpreted Paragraph 2(1) (

b) to be a clarification of what was not encompassed by the s 2(1) definition of " “election advertising” " and, based on the facts and evidence before him, reached a reasonable factual determination that Paragraph 2(1) (

b) did not apply to the subject lawn signs. [ 83 ] It is also significant to note that Rebel News does not challenge or take issue with any of the evidence relied upon by the Commissioner in reaching this determination. [ 84 ] Before leaving this point, I note that in its Request for Review, Rebel News took the position that the book and its promotion fell within Paragraph 2(1) (

b) and aligned with the " “clear intention” " of that provision, the " “clear intention” " being: to remove from scrutiny a critical sphere of democratic discourse – public debate/literature during an election period. In disregarding this legislative objective, the CCE has failed to consider the wisdom of the legislature in safeguards against this sort of troubling process. [ 85 ] Rebel News offered no legal analysis of how it arrived at its understanding of the intention of the legislature with respect to Paragraph 2(1) (

b) and made the same submission in its allegation that the process followed by the CCE was unconstitutional. [ 86 ] The Commissioner did not engage with this submission, which arguably indirectly raised the

interpretation of Paragraph 2(1)(

b) from the perspective of its purpose. However, on judicial review, Rebel News does not challenge the Commissioner’s

interpretation of Paragraph 2(1)(b), and, when appearing before me, counsel confirmed that Rebel News was not taking issue with the Commissioner’s

interpretation. As Rebel News does not assert that the Commissioner’s

interpretation was unreasonable or provide its own statutory

interpretation of Paragraph 2(1)(b), it is not necessary for this Court to further address this issue. [ 87 ] And, as I have found above, the Commissioner did not apply the wrong test or err in his

interpretation and application of that provision. The Commissioner engaged with and rejected Rebel News’ submission that Paragraph 2(1) (

b) was an " “exception” " to the definition of election advertising and that the book fell within that exception. The Commissioner agreed that Paragraph 2(1) (

b) applies only in relation to a book that would have been published whether or not an election was called, and, based on the evidence before him, the Commissioner found that this was not such a circumstance, as Rebel News planned the launch of the book to coincide with the election. [ 88 ] Given this, and in the absence of any submission beyond Rebel News’ bare and unsupported assertion that the legislative objective pertaining to Paragraph 2(1) (

b) was to " “protect public debate and literature during an election period,” " the Commissioner’s reasons and the record are sufficient to permit the Court to understand his

interpretation and application of Paragraph 2(1)(b), which was reasonable. b. Did the Commissioner ignore evidence or submissions?

Evidence [ 89 ] Rebel News submits that it made submissions to support the fact that it would have published the book regardless of the election but that the Commissioner did not mention the evidence and does not appear to have considered or grappled with it. [ 90 ] The record demonstrates that in its Request for Review, Rebel News asserted that the words " “if the book was planned to be made available to the public regardless of whether there was to be an election” " are the heart of the provision and that the question appears to be, " “was there an intention to release the subject book whether there would be an election or not?” " According to Rebel News, this necessarily required an examination of the original development of the subject book and the promotion/sales strategy, not just the publisher/author’s intention/strategy at the time of release.

Had the CCE directed itself to the appropriate question, then it might have conducted basic research and considered easily accessible, publicly available information demonstrating that the book was planned well before a fixed election date, and that it would be released whether there would be an election or not.

[ 91 ] According to Rebel News, this accessible and public information included three specified items: 1 . The original book concept was derived from a Western Standard cover published in 2005, based on a television show from the 2000s; 2 . Rebel News registered the URL (thelibranos.com) in February 2016 ‒ over three (3) years before the fixed 2019 election date; and 3 . Rebel News/Mr.

Levant are leading critics of the Prime Minister, his associates and the Liberal Party, and they have released other bestselling books critical of same during non-election periods ( Trumping Trudeau (2017), China Virus (2020)). [ 92 ] Rebel News submits that the Commissioner failed to address this evidence. [ 93 ] I note that the Commissioner listed, in detail, information that was obtained from various online sources that supported his assessment that the lawn signs were " “election advertising.” " However, as Rebel News submits, the decision does not make reference to the above three items. [ 94 ] It is true that the reasonableness of a decision may be jeopardized where the decision-maker has failed to account for the evidence before it ( Vavilov at paras 126, 305 ).

In his reasons, the Commissioner (at paragraphs 15 and 17) did state that he had reviewed Rebel News’ submissions. Thus, the question is whether the three items identified by Rebel News were of such significance that the Commissioner’s decision was rendered unreasonable because he failed to specifically address them. As stated in Khir v Canada (Citizenship and Immigration) , 2021 FC 160 [ Khir ], " “[n]ot every unmentioned fact, or any mistake or misunderstanding of the evidence will warrant intervention by a reviewing court.

Peripheral or inconsequential evidence will not normally constrain a decision maker, whereas central or critical evidence may constitute a constraint that urges an outcome or that may have to be addressed in the decision maker’s reasons” " (at para 42; see also paras 40-50).

Further, based on Cepeda-Gutierrez v Canada (Citizenship and Immigration) , [1998] 1 FC 53 , this Court has held that " “a failure to consider evidence may lead to the decision being set aside only where the non- mentioned evidence is critical, the evidence contradicts the tribunal’s decision and the reviewing court determines by inference that its omission means the tribunal did not have regard to the material before it” " ( Khir at para 48 ). [ 95 ] I note that Rebel News’ three evidentiary submissions were made in the Request for Review, but no documentation was provided to support them, nor was any elaboration of their significance provided. [ 96 ] In that regard, it is not apparent to me how evidence that the book concept was derived from a cover published in 2005, based on television show from the 2000s, could establish that the book was planned well ahead of the fixed date election.

The book is concerned with Mr. Levant’s views about Prime Minster Trudeau and others in the Liberal Party of Canada. Prime Minister Trudeau did not run for office and was not elected until 2015. It is unclear to me how the book could have been planned ten years in advance of the Prime Minster coming into power. Nor does this evidence establish that the book would be released whether or not there was an election.

How this evidence supported the Applicant’s position was not explained in the Request for Review. [ 97 ] As to the URL, a printout of what is presumably the link provided with the Request for Review is attached as an exhibit to the Levant Affidavit. This does indicate that thelibranos.com was created in February 2016 (and updated in 2021), the registrar being GoDaddy.com LLC.

However, Rebel News points to nothing on this printout or the website that addresses when the book was written or if it would be released whether or not there was an election. [ 98 ] Moreover, the fact that Rebel News released other books critical of the Prime Minister and others during non-election periods does not establish that the subject book was planned before the election or that it would be released whether or not there was an election. When appearing before me, counsel for Rebel News suggested that the book was part of a series of three books.

However, as counsel for the CCE pointed out, there is no evidence in the record to support this suggestion. Nor did Rebel News make this submission to the Commissioner in its Request for Review or support it with any information suggesting that there was a pre-existing timeline for the release and promotion of the book as part of a series of books. [ 99 ] Further, and in any event, the Commissioner’s

interpretation of Paragraph 2(1)(

b) led to his finding that it had no application because Rebel News intended to launch the book to coincide with the election (and therefore the book was not " “planned to be made available to the public regardless of whether there was to be an election” " ), with the result that the lawn signs fell within the definition of " “election advertising.” " In this context, evidence of what Rebel News may have previously intended became irrelevant and of little probative value. [ 100 ] In sum, while it would have been preferable had the Commissioner specifically referenced these three submissions, given the limited information that they provide and their lack of probative value, the failure to do so is not a fatal error.

The Commissioner’s decision does engage with Rebel News’ central issue – being that the lawn signs are not election advertising, as they fall within the Paragraph 2(1)(

b) definition. [ 101 ] It should also be noted that in the Notice sent to Rebel News, to the attention of Mr. Levant, the CCE advised that it was alleged that Rebel News engaged in election advertising in its production and distribution of the lawn signs during the election period. Mr. Levant was afforded the opportunity to attend an interview with investigators or to provide investigators with any documentation in response to that concern. At the interview, Mr. Levant was advised repeatedly that the book and its content were not the subject of the investigation.

Rather, the investigators advised that they were trying to determine whether the lawn signs were a promotion of the book or political advertising, and they sought Mr. Levant’s input on this issue. [ 102 ] When asked if there was a communication plan or a marketing plan for advertising the book, Mr. Levant replied that there was a huge marketing plan that included " “every imaginable thing.” " When asked for an example of this, his response was " “everything you don’t like. We don’t like Justin Trudeau. We don’t like overweening bureaucrats who censor us.

It’s all the stuff you hate.” " When asked again what his marketing plan was, Mr. Levant responded, " “I just told you: Irritate the Liberals. Irritate nosey bureaucrats, get under their skin.” " Later he stated that he was writing a book about the Prime Minister and why he should not be elected. He then said, " “of course, I want to publish that during the election…You’d have to be stupid to publish it a month after the election; I wanted it in the election.” "

[ 103 ] In short, Mr. Levant offered no indication during the interview as to the planning of the book or its promotional plan – other than planning to publish it during the election. It is also of note that the Compliance or Enforcement Recommendation Report indicates that the CCE wrote to Rebel News’ legal counsel on February 10, 2020, providing the opportunity to Rebel News to share copies of any documents that it believed were relevant to the investigation, including documents relating to the cost of the production and distribution of the lawn signs.

This letter and the subsequent communications described below are in the Certified Tribunal Record. Among other things, the letter explained that the purpose of the administrative investigation was to determine whether or not the use of lawn signs to promote the book during the 2019 election period fell within the definition of " “election advertising” " under the Act . As no response was received, the CCE followed up with an email. On March 2, 2020, Rebel News’ legal counsel responded indicating that they understood that Rebel News would shortly be submitting documents to the CCE. On March 3, 2020, Mr.

Levant responded indicating that he was attaching a copy of Rebel News’ planning document for the The Libranos

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