Elections Canada 'wrong' to say climate change ads could be partisan, expert says

An Elections Canada warning to environmental groups that running climate change ads could possibly be seen as partisan activity during the federal election campaign is "wrong, harmful and dangerous," says a legal expert.

Dianne Saxe, former environmental commissioner of Ontario, said in an interview with CBC Radio's Metro Morning that Elections Canada should clarify its position immediately. The warning is already creating confusion and silencing environmental groups, she said.

An Elections Canada official told groups in a training session earlier this summer that since Maxime Bernier, the leader of the People's Party of Canada, has expressed doubts about the legitimacy of climate change, any group that promotes it as an issue in its paid advertising could be considered partisan and might need to register as a third party with Elections Canada.

Elections Canada said the warning applies only to "activities or ads that specifically identify a candidate or party" and cost $500 or more.

"The only place the [Elections] Act covers the promotion of an issue without mentioning a candidate or party is where someone spends money on [an] 'issue ad' during the election period, but the issue must be associated with a candidate or party," Elections Canada said in a statement.

Issue ads could be considered partisan even without referencing a party or candidate if they advocate or counter a position that is clearly associated with a specific party or candidate. Such ads have been regulated during the election period for the last 20 years, Elections Canada said.

Elections Canada misinterpreting law, Saxe says

Saxe, who runs a consulting firm called Saxe Facts, said the Canada Elections Act is clear about what it is partisan and what is not.

"Partisan is supporting particular parties or candidates or opposing them. It is, by definition, not dealing with issues. Elections Canada is clearly wrong in telling groups that talking about climate (change) is partisan," she said. 

At least one religious organization is extremely reluctant to have an all-candidates debate out of fear it may be partisan, she added. It is illegal for charities to engage in partisan activity, she said.

"It's already chilling what we hear in this election," she said.

"Being partisan is kryptonite for a charity. They are absolutely not allowed to do it. It's silencing charities from bringing facts forward during this election. It's Elections Canada's job to make sure we have a fair and trustworthy election so people can consider the government legitimate and what they are doing now is absolutely opposed to that," she added.

"It's really dangerous, even beyond this election, because it erodes the difference between fact and opinion at a time when truth and facts and science are under pervasive attack. Everyone is entitled to their own opinions. No one is entitled to their own facts."

Warning will mean absence of science-based information

The warning means voters will not receive "pro-climate action" information from people that have spent years researching the problem, she said. It will mean an absence of information about the "crisis we're in."

Environmental groups are important "non-partisan voices" during an election, she added.

"It erodes this absolutely critical difference between what is true and what is opinion. We can't afford to do that. And the Canada Elections Act draws a very clear line, and Elections Canada has just obliterated that line, which is why it is wrong, harmful and dangerous."

Saxe said Elections Canada should be "backpedalling and clarifying" right away. It should make clear it has read the act, she said.

Elections Canada says aim is to increase transparency

Chief Electoral Officer Stéphane Perrault said in a statement on Tuesday that "third party obligations" under the Canada Elections Act are intended to increase transparency.

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

But he said if the groups spend $500 or more on certain activities, they will need to register with Elections Canada as third parties and be subject to a spending limit of $511,700 during the election period.

Perrault said the only time that 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.

"Also, in such cases, the issue must be clearly associated with a candidate or party. When someone spends money on issue advertising, they have to register with Elections Canada and provide reports," he said.

According to Perrault, the regime is not new. 

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

The rules in the act on issue advertising associated with a party do not cover other advocacy activities and communications, including emails, text messages, websites, door-to-door canvassing or media interviews.

"The third party regime can be complex, and we encourage anyone with questions to contact us," Perrault said.