Environmental groups can still talk climate change during election, says Canada's chief electoral officer

Media reports about Elections Canada rules on 'issue advertising' during election prompts public statement

Cbc.ca
August 21, 2019
Peter Zimonjic

Canada's chief electoral officer issued a public statement today assuring environmental organizations that they're free to promote action to fight climate change during the fall federal election without falling afoul of the Canada Elections Act.

"The act does not prevent individuals or groups from talking about issues or publishing information," Stephane Perrault said.

Perrault issued the statement after a number of media outlets reported on an Elections Canada training session offered to various groups earlier this summer on how to stay on the right side of the law during the election.

According to reports, charities said that trainers from Elections Canada suggested that because Maxime Bernier, the leader of the People's Party of Canada, has expressed doubts about the role of human activity in climate change, any group that promotes action to fight climate change in paid advertising would be seen by Elections Canada as engaging in partisan advertising.

In fact, they would be engaging in issue advertising -- which is not considered partisan but still requires the group or person paying for the advertising to register as a third party with Elections Canada.

The reports led some to think there had been a change in the law restricting freedom of speech for advocacy groups -- such as environmental organizations, human rights groups and pro-pipeline associations -- during the writ period. As Perrault said Tuesday, that's not the case; these rules have existed for 20 years.

What can environmental organizations say about climate change during the election?

Whatever they want. Environmental groups can advocate for Canadians to take action to fight climate change, or promote the science behind climate change, without restrictions -- providing they do it through email or text messages, online, by canvassing door to door or by giving media interviews.

The only area where Elections Canada requires oversight is paid advertising.

Perrault said in his statement that if environmental or other organizations spend $500 or more advertising on an issue identified with a party during the election, they would be required to register with Elections Canada as third parties and would be subject to a spending limit of $511,700 during the election period.

What they say in their advertising is not regulated by Elections Canada.

"The act doesn't speak to the substance of potential third-party issue advertising, nor does it make a distinction between facts and opinion," Perrault said in the statement. "It is not Elections Canada's role to make that distinction, no matter how obvious it may appear."

What's the difference between partisan advertising and issue advertising?

According to the Canada Elections Act, partisan advertising is anything that promotes or opposes a political party, nomination contestant, candidate or party leader, either in the pre-election period -- which started June 30 this year -- or during the election or 'writ' period, which begins the day the election is called and ends when the polls close on election day.

"The only instance in which the act covers the promotion of an issue, without mentioning a candidate or party, is when someone spends money on issue advertising during the election period," the statement from Perrault 's office said Tuesday.

An organization could spend as much as it wants during the pre-election period promoting a policy position or advocating a certain action -- providing the organization does not mention a political party or candidate by name.

During the election period, however, the restrictions become more stringent. Spending more than $500 during the election period to take a position on an issue associated with a particular party or candidate, without citing that party or candidate by name, is called 'issue advertising'.

To place such ads, organizations must register as third parties and adhere to the $511,700 election period spending limit. Issue advertising is not regulated during the pre-writ period.

Could an organization lose its charitable status for advocating on an issue?

Short answer: no.

In 2012, Stephen Harper's Conservative government launched a program through the Canada Revenue Agency that sought to crack down on the political activities of charities in Canada.

Under the program, charities could face losing their charitable status if they spent more than 10 per cent of their resources on political activities. More than $13 million was earmarked for audits of 60 charities over four years.

In its first year, the controversial program targeted environmental charities, most of which were critics of the government's energy and pipeline policies. It was later expanded to include religious and human rights charities, among others.

The targeted charities said the audits drained precious resources and in some cases led to an "advocacy chill" as groups self-censored so as not to aggravate the government.

The Liberal government has since amended the Income Tax Act, through Bill C-86, to remove all references to political activities by charities and published a guidance document to inform charities how the regime works.

Partisan activities by charities -- supporting particular candidates or political parties -- remain prohibited under the Income Tax Act.