The October 21 election will be Canada’s first under a new version of the Canada Elections Act. The Act was amended in December, to “improve Canadians’ trust and confidence in Canada’s electoral system”, and to prohibit foreign entities from spending to influence elections. After the blatant foreign interference in the 2016 US federal election, there were good reasons for Canada to take precautions.
The problem is this. Elections Canada is muzzling public outreach by charities about the climate crisis, just when it is more urgent than ever for the public to understand it.
How are they doing that? Under Canadian law, charities are allowed a certain amount of “political activities” but cannot engage in “partisan activities”. The Canada Elections Act clearly defines the difference, a difference that Elections Canada is ignoring.
“Partisan activities” (which charities cannot do, whether an election is on or not) are about parties and candidates, not about public policy. This is clearly defined in the Canada Elections Act. For example:
section 349: partisan activity means an activity, including canvassing door-to-door, making telephone calls to electors and organizing rallies, that is carried out by a third party — a person or group other than a political party that is registered under an Act of a province — and that promotes or opposes a registered party or eligible party or the election of a potential candidate, nomination contestant, candidate or leader of a registered party or eligible party, otherwise than by taking a position on an issue with which any such party or person is associated. It does not include election advertising...
In contrast, “political activities” (which charities can do, whether an election is on or not) are about public policy. This includes policy advocacy or communications aimed at changing hearts and minds with respect to a cause (such as poverty or the climate crisis) and its causes and remedies. These activities make a valuable contribution to public policy development in Canada. In the landmark case, Canada Without Poverty v. AG Canada, 2018 ONSC 4147 (CanLII), the Superior Court of Ontario recognized the “imperative that charities fully engage, not minimally engage, in various forms of public advocacy.” Policy advocacy is protected by the Charter’s guarantee of freedom of expression, and is essential to achieving many charitable purposes. For example, poverty, like the climate crisis, cannot be solved by individual action alone. Giving someone a handout, or an LED bulb, will never be enough without broader government action.
During an election, election advertising (which is specifically excluded from “partisan activities”, see s. 349) is a type of political activity that charities and other third parties are permitted to do. This includes adsthat take a position on an issue with which a registered party or candidate is associated. If they spend more than $500,charities must register and report to Elections Canada about their paid “election advertising”. The cost and administrative burden of this registration and recordkeeping discourages some charities, but there is a legitimate public purpose for it.
What’s new and dangerous is this: because Max Bernier and his party are climate deniers, Elections Canada now insists that factual assertions about climate science and policy are “partisan”. If we get a Flat Earth party, will gravity and the shape of the world become “partisan”? Would an anti-vaxxer party make medical science “partisan”?
This is nonsense, and directly contrary to the explicit definitions in the Canada Elections Act. But Canada’s charities are hypersensitive to any accusation of being “partisan”, because so many of them were harassed and exhausted by the 60 “Political Activity Audits” that Stephen Harper launched in 2012. Harper had Revenue Canada spend millions of dollars of public funds to put (especially) environmental charities under the microscope, perhaps in the hope of blunting their opposition to oil pipelines. The years of exhaustive audits scared off donors but found nothing of importance. (One anti-poverty group lost its charitable registration but won in court, which ruled that the revocation of their charitable registration for “political activities” (trying to pressure governments to take action on poverty) was a breach of their Charter right to freedom of expression.[i]The “political activities” restriction on charitable activities was entirely revoked December 31, 2018.)
I wrote this article because two charities told me that Elections Canada specifically warned them that factual assertions about climate were “partisan.” They tell me that this warning was given both orally and in a webinar. The Canadian Press reported the same assertion. Elections Canada now denies it had ever suggested that factual assertions about climate are partisan, although there is no explicit disavowal in the Chief Electoral Officer’s public statement. The Chief Electoral Officer should clearly state, in writing, that paid advertising and other communications to the public are not “partisan activities” or “partisan advertising.”
The difference between “partisan” and “political” may not be obvious to the average person, but it is not new, and should not be hard for Elections Canada to tell apart. As the Environmental Commissioner of Ontario, I was also required to be non-partisan (i.e. not supporting or opposed to any political party or candidates), but not neutral on public policy or public outreach. It was not hard to see the difference.
Elections Canada’s unwarranted insistence that climate science and policy are “partisan” is already damaging this election. At least one place of worship has pulled out of hosting an all-candidates’ environmental debate. Leading environmental charities, like Environmental Defence, have decided they can’t take the chance and have bowed out of paid public outreach on climate until after the election. With provincial governments, like Ontario, nowhere to be found on the climate crisis, that leaves climate deniers free to peddle statements that are misleading or false, while muzzling those who devote their lives to what is accurate. How can the public make an informed choice when the most trustworthy sources of (non-partisan) information are silenced?
This is an outrage.
This article was first published on The Conversation, https://theconversation.com/why-is-elections-canada-stopping-charities-from-talking-about-the-climate-crisis-122114
[i]Until December 31, 2018, charities were required to monitor and provide a quantitative reporting of all their political activities to Revenue Canada, to prove that they were not spending more than 10% of their funds on political activities. This 10% limit was ruled unconstitutional in Canada Without Poverty v. AG Canada, 2018 ONSC 4147 (CanLII)