Elections Canada (EC), Maxime Bernier and the human-induced climate change debate: What should EC advise about contested science and policy?

August 20, 2019, 7 pm

Charities reportedly were warned in mid August that discussing climate change could "run afoul of new election ad laws." An Elections Canada official warned groups in a training session that promoting climate change as an emergency could be considered partisan activity because People's Party of Canada Leader Maxime Bernier has expressed doubts about the legitimacy of [human-induced climate change]. Elections Canada says the warning was just an example of an ad that could be deemed partisan, and that any decision about specific activities would be decided on a case-by-case basis and only if there is a complaint."

Clients and colleagues are emailing me about the legislation and policies that apply to political activities and the revelations in the media this weekend.

The new law is Bill C-86, enacted in late 2018. Election Canada staff were trying to provide guidance related to the 2019 federal election campaign.

Carters is the leading law firm in Canada advising charities. The papers at the links below provide a helpful overview of the current law. Their work discusses Legislative Amendments in Bill C-86 Applying to Registered Charities and the Conduct of Political Activities and What’s on the Horizon.

see www.carters.ca, e.g., Charity & NFP Law Bulletin No. 438 at

See especially the Powerpoint presentation, Charities and Politics in Canada: Where Have We Been and Where We Are Going

I already have posted two items on LinkedIn about this.

https://lnkd.in/eykz8vE

https://lnkd.in/edhCTGZ

Further to my other posts on this topic, I wanted to pose some additional thoughts.

1. Should Elections Canada hire climate scientists?

Science is about hypothesis testing. I have worked on climate change and energy since the late 1970s. Human-induced climate change is not a fact. It is a very strongly supported hypothesis which I support. Maxime Bernier says he doesn't believe in human-induced climate change. Ill informed? Probably. Invoking his right to make bad policy. Absolutely.

2. To my knowledge, Officers of the Parliament such as Elections Canada and vital agencies such as the Canada Revenue Agency (CRA) have no mandate or capacity to determine what are "facts". Just to apply the law and their policies to facts. (Sometimes the CRA is assisted by the Tax Court and the federal courts.) That women can get pregnant is a fact. Human Resources Canada and Services Canada (HRC) can determine eligibility for maternity benefits based on this.

But human-induced climate change is a strongly supported hypothesis. Most of Einstein's theories have been supported by additional science. Some have not.

Re: Men getting pregnant. There may come a day when science allows men to get pregnant. We aren't there yet. And CRA, HRC, Elections Canada etc. will have to adjust their policies.

3. Political activities by charities always have been questioned by the CRA and to a degree by Elections Canada. Pollution Probe was audited twice in the 1980s and several times in the 1990s when I worked there. We never advertised in elections. We released reports prior to and during elections and tried to get politicians to support our policy positions on waste reduction and climate change.

In the 1990 provincial election, the NDP was elected in Ontario and they set about to implement positive changes including policies supporting green communities, energy and water conservation, waste reduction, passage of the Environmental Bill of Rights, 1993 and the establishment of the Environmental Commissioner of Ontario where I worked for 16 years. The ECO operates in a manner similar to Elections Canada.

Was the ECO's work reviewing government decisions on environmental laws, policies and instruments seen as political? You bet. Premier Mike Harris savaged our 1996 report in the legislature when Commissioner Ligeti offered our hypothesis that cuts to drinking water testing probably would lead to health problems and might even cause deaths. But it was Mike Harris who took the stand during the Walkerton Inquiry in 2001 trying to defend his governments actions.

The role of the ECO was expanded in 2009 when the McGuinty Liberal government handed the office the role of annual reporting on provincial progress on climate change and the success of provincial, federal and municipal energy conservation programs. This was done in 2009 when the Green Energy Act was enacted. Did this make the ECO more political? Many long-time Ontario civil servants believe this to be the case.

 4. Some colleagues have described the current Elections Commissioner, Yves Cote, as a "tinpot dictator". For those who can't recall, partisan govts. used to try and run free and fair elections in Canada and the provinces. It didn't work very well.

If there is a problem with the new legislation in Bill C-86, you should address your wrath to the Trudeau govt., the House of Commons and the Senate. They are our federal legislators. Rest assured there are lawyers at Election Canada and the federal Department of Justice who have worked on this issue and EC staff are offering a carefully considered opinion. I used to be one of those lawyers at the ECO. Interpreting new legislation is a challenge and I am not saying that the interpretation is right. 

I would say, based on my experience as a developer of new laws and policies for the Ontario government that developing new legislation truly can be like the oft-quoted adage - sausage making. You don't want to see what goes into making new laws. Perhaps Justin Trudeau was worried that a Catholic Charity would post thousands of dollars of ads, which could go viral, showing him holding up dead babies and proclaiming him to be pro abortion baby murderer.

5. All of this brings me to another core idea. Environmental issues always have been intensely political and will remain so. In 1979, York U. Prof. William Leiss edited a book called Ecology v. Politics in Canada published by UTP. As an undergrad biology student, this was my introduction to the politics of environmental issues in Canada. I find it implausible that environmental issues are not political. They also are intensely personal.

6. Historically the common law defined charitable activities as churches and nuns tending to the needs of the poor. Not releasing reports and lobbying govts. all day. Auditors and conservative folks have trouble with groups getting money from taxpayers, induced by donations that are tax receiptable and affect the Consolidated Revenue Fund. Less money for the military and all their pet projects. This is another reason why the environment is so darn political.

We are advocating the reallocation of funds and changing the status quo. That is why many of us support carbon taxes and other interventions in the "market".

7. Having worked at civil society organizations and with CSOs, I think the main instigator of this drama is the Canada Revenue Agency. The trend of trying to control CSO political speech began under the Mulroney government (circa 1991) with requiring civil society organization reps to register as lobbyists if they wanted to speak to senior officials in a government.

In 2012 the Conservatives under Steven Harper launched a $13 CRA million program to audit charities who were seen to be engaged in partisan activities. Elections Canada staff are trying to navigate a complex array of laws, regulations, CRA Directives, etc. Bill C-86 amending the Elections Act and ITA was proclaimed in late 2018 and the various regulations and policies have been rolled out since then. I have set out the background in my recent LI post.

See also: https://imaginecanada.ca/who-we-are/whats-new/news/new-public-policy-advocacy-rules-charities

In November 2018, two experts from Carters spoke to the Special Senate Committee on the Charitable Sector. The committee met "to examine the impact of federal and provincial laws and policies governing charities, non-profit organizations, foundations, and other similar groups; and to examine the impact of the voluntary sector in Canada."

There also is an excellent discussion of the role of CSOs in advocacy and fostering educated public policy discussion on important social, environmental, cultural, indigenous, and economic issues (e.g housing).

https://sencanada.ca/en/Content/Sen/Committee/421/CSSB/54438-e(edited)

A Modest Proposal

I think there is an option. Concerned Canadians, advocates, researchers, etc. can form a coalition and begin advertising as a pro-climate crisis third party during the upcoming 2019 federal election campaign. Maxime Bernier and Conservative Leader Andrew Scheer could be swept out of seats in Ontario, Quebec and BC.

In the 1993 federal election, Conservative Prime Minister Kim Campbell said that an election campaign was not an appropriate time to discuss restructuring Canada's Employment Insurance system and related worker training and support programs. That position backfired.

During the 2015 federal election, more than 100 groups were registered as third parties and advertised against the re-election of a Conservative government led by then PM Stephen Harper. As far as I know, very few if any of these groups were charities although some senior leaders in civil society organizations were involved in masterminding and executing this partisan attack.

Appendix A: Imagine Canada sets out the current rules as follows:

How much public policy advocacy would our charity be allowed to do?

"The proposed rules say you would be able to engage without limitation in public policy dialogue and development activities* as long as those activities further your charitable purposes**.

Charities would still be completely prohibited from engaging in any partisan activities***."

Notes:

* Public policy dialogue and development activities can involve research, convening discussions and conferences, and attempts to inform the public and shape public opinion. They can also involve trying to influence the laws, policies or decisions of a government.

** The definition of charitable purposes would not change. It still would not include political purposes. To learn more about charitable purposes, click here.

*** Partisan activities include supporting or opposing, directly or indirectly, any political party or candidate for public office.

see https://imaginecanada.ca/who-we-are/whats-new/news/new-public-policy-advocacy-rules-charities

Appendix B - Requirements for Third Parties

Here is a link to the summary of guidance provided by Elections Canada on requirements for third parties. The $500 limit on "partisan ads" begins to apply when the regulated period, the election campaign, starts.

https://www.elections.ca/content.aspx?section=pol&dir=thi&document=backgrounder&lang=e

New Requirements for Third Parties: Corporations, Unions, Groups and Individuals

Individuals or organizations that participate in the democratic process, but do not seek election themselves, may want to continue their activism during elections to support certain parties or candidates. Because parties and candidates are limited in how much they can spend for elections, the Canada Elections Act (the Act) regulates others’ participation to ensure a level playing field in terms of spending. In the law, those who are regulated under these rules, whether they are corporations, groups, individuals or others, are called "third parties."

New rules will be in force for the next general election. They capture a broader array of activities over a greater period of time than the previous rules. These changes may require third parties to register with Elections Canada, even though they did not have to in past elections.

If you want to participate in the next general election by promoting or opposing a party, candidate or nomination contestant, here is what you need to know.

The new rules may apply to activities you are planning during the pre-election period (starting on June 30, 2019) and during the election period (from the call of the election to election day). The law applies to "partisan activities," "election surveys," "partisan advertising" and "election advertising" (collectively referred to as "regulated activities").

Partisan activities promote or oppose a political actor, including a political party or candidate. The Act does not set out an exhaustive list of activities, but they can include social media campaigns, get-out-the-vote activities, reaching electors by telephone or participating in door-to-door canvassing to promote a party. An activity promotes or opposes a political entity by naming it, using the party’s logo or showing a photograph of the candidate, for example. However, even without directly referring to a party or a candidate, an activity could be perceived as partisan. For example, a third party that uses social media posts to encourage voters to engage in strategic voting in electoral districts with close races would be covered by the new rules.

Election surveys are conducted during the pre-election period or the election period and are used to inform your regulated activities. For example, during the pre-election period, you may conduct a telephone survey in a riding to collect information about voting intent, and use the results for targeted door-to-door canvassing. This would be an election survey under the Act.

Partisan or election advertising promotes or opposes a political actor, including a party or a candidate. During the election period, this could include advertising that takes a position on an issue that is associated with a candidate or party, without referring to the party, candidate or other actor. This is sometimes called "issue advertising" and is not regulated during the pre-election period.

It is important to note that even if an activity does not meet the specific definitions for an election survey or partisan or election advertising, it may nonetheless be considered a partisan activity.

If you carry out any of these regulated activities during the pre-election period or the election period, you must register as a third party with Elections Canada immediately upon incurring costs of $500 or more.

Once registered, third parties must submit a report on finances related to their regulated activities to Elections Canada within four months after election day. If certain thresholds of spending or contributions are met, there are a number of interim reports that may need to be filed with Elections Canada in addition to a final return.

The following Qs & As address some of the most common queries Elections Canada has received to date regarding the third parties rules that are now part of the Act. For more information, we invite you to consult the Political Financing Handbook for Third Parties, Financial Agents and Auditors.

Questions and Answers

• When do the new provisions come into effect?
• Who can register as a third party?
• When do you need to register as a third party?
• What is the pre-election period?
• What is issue advertising?
• What activities are not regulated?
• Can a foreign third party participate in federal elections?
• What are the spending limits for third parties?
• Are fundraising expenses of a third party subject to the pre-election and election period spending limits?
• Where can I find more information on the third party regime?

see also:

Dianne Saxe https://theconversation.com/why-is-elections-canada-stopping-charities-from-talking-about-the-climate-crisis-122114

CBC interview with a Revenue Canada official: https://www.cbc.ca/listen/live-radio/1-100-ottawa-morning/clip/15732268-elections-canada-on-climate-change