Front Burner - Climate change at centre of Elections Canada partisan ad controversy

Episode Date: August 20, 2019

This week, Elections Canada is at the centre of a firestorm over what it classifies a partisan issue during the federal election campaign period. Today on Front Burner, Elections Canada spokesperson Natasha Gauthier explains why the agency may deem climate change a partisan issue. Katie Gibbs, executive director of the non-partisan, non-profit Evidence for Democracy also shares her perspective on the controversy.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hello, I'm Jamie Poisson. This week, a controversy exploded over Elections Canada. The agency that oversees our elections does not normally find itself at the center of a firestorm like this. But basically, in a nutshell, the director of an environmental charity

came out saying that he was told by Elections Canada that any ads bought dealing with climate change during the election would require him to register as a third party, meaning they would be considered partisan ads. As in, Elections Canada was saying that climate change is a partisan issue. And apparently this is because one of the candidates, Maxime Bernier,

has said he doesn't believe climate change is urgent, thus making the validity of human-caused climate change an election issue. There are also scientists saying other factors, like the sun, have more impact on climate change. I'm not a scientist. I'm not going to decide who is right. So this move by Elections Canada has really riled up a lot of people, many of whom are saying this will have the effect of muzzling scientists and environmentalists. I have a ton of questions about this, and today we're going to try and get to the bottom of it.

First up, Natasha Gauthier, an Elections Canada spokesperson, then Katie Gibbs of Evidence for Democracy, is going to react. This is Frontburner. Natasha, thank you so much for making the time to talk with me today. My pleasure, Jamie. So the story is making a lot of waves. A lot of people are talking about it. Political parties, charities, concerned voters.

Everyone seems to be worried that Elections Canada is essentially muzzling conversation about climate change during the upcoming election. And what do you say to those concerns? So that's absolutely not true, first of all. So we understand, however, that political financing rules can be a little bit complicated. And a little bit boring. A little bit. Well, I mean, I don't know.

We don't find them boring. And a bit confusing. Absolutely. So I'm happy to be here to clear a few things up. So first of all, there's no muzzling at all. clear a few things up. So first of all, there's no muzzling at all. So groups, whether they're climate change groups or any other type of organization are completely free. They can carry on their activities

both during the pre-election period, which is on now, and during the election period, just as they would normally. They are allowed, of course, to talk about whatever issues they want. They can tweet about them on their social media accounts. They can have meetings. They can hold press conferences. They can post information to their website. They can reach out to their members of their membership-based organizations, all that stuff. The only thing that changes during the election period. Essentially when the writ drops, which we can expect in the coming weeks. That's right.

So when the writ drops, and I'll start by saying that this is not a new rule. This has been in place for 20 years. This applied to third parties in the last election is that what we call election advertising is regulated during the writ period. Okay. And define election advertising. That's right. So election advertising can be one of two things. It can be partisan advertising, which is an ad that promotes or opposes a party or a candidate. Okay. So I, you know, I'm an organization. I run an ad promoting the NDP and particularly their plan for universal pharma care. It is very straightforward. That's right. And you say, you know, the NDP is the party that has promised to deliver this type of plan.

We support them. Right. And so that's one kind of election ad. What's the other kind? That's right. That would be a partisan ad. The other type of advertising that's considered an election ad is what is commonly referred to as issue advertising. is commonly referred to as issue advertising. Okay. And that is an ad that takes a position, whether for or against, on an issue that is associated with a candidate or a party.

Okay. So if you're that same organization, you take that same ad out saying, you know, we support a national pharma care plan. Your ad doesn't mention the NDP, but the NDP, you know, has been out campaigning on national pharma care. That is an issue that's associated with the party. That is an issue ad. If you spend $500 on that type of ad during the election period, you need to register as a third party. And that is not new. Okay, define an ad for me like is it just on television? No so an ad is defined in the act as it's any message that has been paid for so

there's a sum of money that has to be put out for it and that can be on any type of platform really whether social media it could be a paid social media campaign, or it could be traditional ads on radio, TV, newspapers. But there has to be a sum of money involved. So if you're tweeting on your own organic account, or just posting information on your own Facebook page, and you didn't pay to have that message appear. That's not an ad. Okay, so this idea that a third party, and this is just another organization that's not a political party or a political candidate, that's who we're talking about here. That's right.

And just to clarify, a third party can be an individual. There's no size limit on a third party. It could be a single person who's spending 500 bucks or more on political activities during an election. Right. have an advertisement that costs over $500 and they advertise around an issue, they have to register. So that's clear to me. And so I think what is confusing to people right now is why climate change is one of these issues. So pharmacare is something that is widely debated, is something that is widely debated. Climate change, not so much.

Right. So the Canada Elections Act, which is the piece of legislation that sets out these rules and requirements and obligations, that is an act that is set out and drafted by Parliament. Elections Canada administers the act it does not weigh in on the worthiness or the validity of an issue right there's no sliding scale of issues of you know well well this is this is something that is a scientific uh a proven scientific fact. Therefore, it can't be an issue. If a candidate or a party makes it an issue, it's an issue. Okay. And when we say if a candidate or a party makes it an issue,

is this what's new this time around? Because Maxime Bernier has made this an issue in his campaign by essentially questioning the urgency of climate change? No, so that kind of definition of what is an issue, that's not a new definition. An issue has always been simply any type of, I mean, any issue that becomes associated during the election period with a party or a candidate, whatever that issue is. Again, the Act is agnostic on the substance of the issue. So it just has to be an issue. Am I correct to say that if politicians and parties are just talking about an issue, then Elections Canada defines it as an issue in the campaign? It

doesn't matter who's agreeing or disagreeing with it. We don't define it. The Act defines the issue. Okay. And it doesn't matter if there's controversy around the issue. It's just something that they're talking about? That's right. An issue is really any issue of any nature that is associated with a candidate or a party. Okay. What I wonder about this is whether or is associated with a candidate or a party. Okay. What I wonder about this is whether or not it gives a candidate a lot of power to politicize an issue here or to just choose what issues will come up in the campaign. So for example,

Green Party leader Elizabeth May tweeted today, suppose a politician decided smoking is good for you. Would doctors have to register as third parties in an election to stress the importance of kicking the habit? What would you say to that? Well, again, candidates and parties have always had the power to determine. They're the only ones who determine what becomes an issue during an election. Like elections, Canada certainly doesn't. We don't know in advance. Nobody knows in advance what is going to become an issue during an election issues, it's very onerous to have to register as a third party. There are charities that are even worried that their tax status could be at risk. Right. So there's nothing to prevent them from talking about it.

As I said, as long as they're not if they're not paying for ads, then they're fine. It's only the paid advertising that is covered under the regulation during the election period. Okay. I just want to get back to the idea here that this leaves a lot of room for candidates to politicize issues that some people might think lack common sense, right? You know, so climate change, for example, I think what these organizations are saying is we don't want to have to follow all of these rules to simply put out information or put out an ad talking about the reality of climate change. And if you take that down this slope, they don't want to have to go through all of these hoops

in order to put out an ad to talk about how smoking is bad for you. I suppose we could keep going with examples like this, vaccines. Is there room here for common sense? Well, so let me reiterate that this is not a new rule or requirement. So in 2015, if there had been a paid ad campaign to say smoking is bad for you, and if you had had, I don't know, the lung cancer party, you know, on the campaign trail saying, no, we think smoking is super good for you. We think it has all these health benefits. And we actually want to get rid of the Health Canada regulations around smoking and prohibition and the labeling on the cartons and so on.

around smoking and prohibition and the labeling on the cartons and so on. That would, well, individual doctors who are advising their patients not to smoke wouldn't be covered. But if you had the Canadian Medical Association at the time that had a paid advertising campaign saying smoking is bad for you, that would have been the case. They would have become a third party in 2015. So candidates and parties have always had the power to determine what does and doesn't become an issue during the election. That is not new. Issue advertising has been covered for a long time in the regulations. And if Parliament decides that this is something they want to revisit at some point and narrow down the definition of what is an issue or come up with a list of issues that would be considered election issues or exclude certain issues.

That would be up to Parliament to decide. In this particular case, when it comes to climate change, there is a vast consensus that this is just true, that it is real and urgent, and these groups are up in arms about this, and perhaps everybody else who's upset about this is up in arms about this because this just seems insane that these groups aren't allowed to advertise simply stating facts out loud. Well, they're allowed to advertise. If their advertising meets the definition of issue advertising, then they would have to register as a third party.

And I suppose I think that's what they're taking issue with, that it's a very onerous process and that they're feeling that their charitable status could be at risk. Well, I can't comment about the charitable status because I really don't know enough about tax law. That's an issue that's under the mandate of the Canada Revenue Agency. But in terms of how to register as a third party, there's a form that you fill out that's on our website, and you send it in to Elections Canada. And we review it, and you're

registered as a third party. And yes, there are reporting requirements after the election, you need to file a report, you know, and there are other obligations that come with being a registered third party. issues should be taken off the table and come up with a list of excluded issues or define what an issue is by substance or by validity or by support. That's up to Parliament, right? We administer the act as it's written now. And right now, the act is agnostic on what is an issue. Okay, Natasha, thank you. I really appreciate you taking the time to go over this with me today. Okay, you're welcome. Thank you.

Okay, so that was Elections Canada. Now on to Katie Gibbs of Evidence for Democracy, a nonpartisan nonprofit that focuses on science and democracy. And I bet she has a few things that she would like to say in response. Hi, Katie. Hi. Thanks for being here. So I know that you have listened to my conversation with Elections Canada spokesperson Natasha Gauthier. And can I ask right off the top, what was your reaction to what Natasha had to say? Personally, I'm still feeling a little bit puzzled about the whole thing.

What are you feeling puzzled about? I can hear you also trying to sort of like, figure out like, where is that sticking point? Right. I was really trying to work through that. And so I was also trying to like, figure out what is that sticking point right i was really trying yeah and i and so i was also trying to like figure out what is that sticking point and i think i think part of it comes down to the sort of broad definition of an issue versus a specific policy so you know my understanding of the third party rules up until the news yesterday was that talking about climate change was fine. Saying that climate change should be your top issue when you vote is fine. That it was only really if you sort of parroted a very specific policy that a party was pushing for.

The Greens policy on X. Exactly. If you were saying, you know, you should vote for the party that's going to reduce emissions by X, by your X. And that was also exactly what a party was pushing for, that that is what would make it, you know, a now regulated activity. And, you know, and I think that was fine. I understood that. But I guess what seems, what does seem to me is this this very broad interpretation of an issue that, you know, now almost any discussion of climate can be something that has to be regulated.

This is what I heard from Natasha. Like, first of all, that this isn't new, that this has been sort of an ongoing thing for the last 20 years. And once the political parties or the leaders decide something is an issue, then it's not that you can't talk about it. It's just that you need to register as a third party in order to have an ad. And you can talk about it on social media, your own social media accounts, but to have an ad campaign that you pay for, you just have to register as a third party. What's so bad about that? Yeah, I mean, it is a good point. And I think I'm not 100% sure, but I think the definition of advertising is a little bit broader this time in the new rules than it used to be. So, you know, it isn't just, you know, putting out a big

ad on TV or radio or boosting a social media post. They also include things like paying to print leaflets or posters or signs, which actually for us, that's like, that's the one that we're concerned about is we send like postcards to our campus clubs. And I know that that is something last time in 2015, you know, we were not at all concerned. We were very confident that we didn't need to register last time and we didn't. Whereas this time, we are quite confused about what to do. And so I think that the definition of advertising is a little bit broader than most people would think. Why do you think it's different this time? So I think it's two things.

One, there does seem to be this broader interpretation of what is issue advertising in terms of like what counts as a partisan issue. That it's interesting because we, so our group, you know, we're trying to make science an election issue. And if anything, I think science was far more politicized in 2015 than it is this election. The war on science ends with the Liberal government. And yet we felt fairly confident not registering last time. So while the rules might be the same, and I'm not an expert on comparing and contrasting the two election laws, so don't ask me on that part, but I can certainly tell you from the perspective of an organization and the executive director of an organization who has to pour through this and make the call of whether or not to register. It was a very easy decision last time, even though science was much more of a sort of polarized issue than it is this time. It is far more confusing. And I think part of it is that very, very sort of broad interpretation of an issue. What does that mean if science becomes

an issue at all? Why don't you just register to be safe? Like, why is it such a big deal? Yeah, I mean, so there's a few things. One, for a small organization, it is a lot of work. It's onerous. You know, we usually have between three to four full-time staff. And you can imagine that the election time is already a busy time for us. And trying to, you know, we do a lot of work around helping engage scientists and helping to support them to engage in the election. So then to take on, you know, you have to actually

open a completely separate bank account. You have to have a financial agent. You have to monitor and track every donation that goes into that bank account. So, I mean, it's just a huge administrative burden for organizations. And I think what, you know, what really has me scratching my head over this whole thing is this unknown of what is going to be an issue. And it is interesting because the way it's worded, it's not even just the stance of the parties or the leaders. it's actually an issue that could be associated with any candidate. So, I mean, it almost seems like pretty much anybody doing any type of advertising would have to register because you just have no idea what a candidate is going to tweet about, you know? So, it's sort of like you're just waiting and it completely depends on, you know,

you could have a fringe candidate who has no hope of being elected who tweets something. And then all of a sudden your issue is now a regulated activity and you have to go through all these hurdles. I don't know. I definitely think it is going to have a chilling effect. What would happen if you just flouted this? Like if you just said, forget it, I'm not going to register and I'm just going to continue talking about climate change. Well, I mean, that's what seems to be odd as well, is that Elections Canada has basically said that this isn't something that they're monitoring and that it's going to be complaint driven. So a lot of organizations are kind of in that position of,

do I just risk it? Do I just talk about these issues? But I think, I mean, if you actually are found in violation, I mean, I think there's things, there could be repercussions. So it's pretty scary, especially for, you know, again, we're a small organization. It's not like we have a team of lawyers, you know, ready to argue our case if someone did make a complaint. So I think, you know, a lot of small organizations, they're cautious. And so I think that's why even if it's not the intent, the way the rules are currently being interpreted, you know, will have a chilling effect, both because there's just this unknown of what could be an issue, and especially because it's defined as, you know, not just becoming,

you know, the major issue of a campaign or, you know, supporting an issue that is very closely aligned with a party. It's defined as any issue associated with a candidate, which is just so impossibly broad. And when you talk about chill, the idea here being that you think organizations like yours might just say, well, let's just not bother. Let's just not do any advertisements or leaflet campaigns. Yeah, absolutely. Tim Gray, the executive director of the advocacy group Environmental Defense Canada, he said that this could jeopardize his group's charitable status. We are banned from being partisan by CIA rules.

And because if we do any kind of registration to get our voice out during the election, we would be determined to be partisan by Elections Canada, by their rules. Can you explain to me why that might be the case? Yeah, so I think part of the confusion here is that, so CRA is who regulates charities, and charities aren't allowed to do any partisan activity. Right, the Canada Revenue Agency. Yeah, and they define partisan as explicitly supporting a candidate or a party.

I think the way most of us would define partisan. And so there's a bit of a concern here of these sort of two slightly different definitions between CRA and Elections Canada on what is partisan. I think there's some concern among charities that if Elections Canada is defining your issue campaign as partisan, does that somehow mean that you are now doing partisan activity that would count under CRA as an activity that you're not supposed to be doing? So there's a bit of confusion there between these two sort of different definitions of partisan. It strikes me that this is not the first time in this country that we've talked about scientists and environmentalists that feel muzzled. So I'm thinking about the blocking of media access to scientists during the Stephen Harper government years and then that mass auditing of charities the conservatives

thought were abusing their tax status. so a lot of prominent environmental charities were included in these audits. The David Suzuki Foundation, Tides Canada. While the CRA has told the Ecology Action Centre it will not revoke its charitable status, it's also said they will be back for a follow-up review in the next year or two. Yes, we take a little more care and we converse more and we call our charity lawyer more often before we speak out on issues. And maybe sometimes we back off stuff that we wouldn't have otherwise backed off of. How does this latest news, if at all, fit into this broader conversation for you? I think it does. I certainly don't think that's the intention of Elections Canada.

That's the intention of Elections Canada. But I think for me, what's really at stake here is whether or not we as a country and as an essential foundation of our democracy can have an informed fact- that part of the reason that the rules, the Elections Canada rules were revamped was around concerns over things like misinformation. Karina Gold is Canada's Minister of Democratic Institutions. She is the cabinet minister leading the remake of Canada's election laws. What I think is really important in this legislation going to be the opposite of what was intended in that the new rules actually make it harder for Canadian organizations to do things like fact check and make sure that we're having a evidence-based discourse around the important issues during the election. So it seems like it's having a bit of an unintended consequence. Talking to Natasha at Elections Canada, her position seems to be that Elections Canada is simply administering an agnostic piece of legislation. And if you have an issue with this piece of legislation, that there's nothing Elections Canada can do.

The changes have to come from Parliament, from lawmakers. How would you respond to that? Well, the actual language is very vague. And so I think it is really going to come down to the interpretation from Elections Canada. So I think they are going to play a large role whether they want to or not. Katie, thank you so much for this. I feel like I've gotten closer to where I wanted to be

but still have a lot of questions. And so this is something that we'll keep following. Yeah, thanks for having me on. That's all for today. I'm Jamie Poisson. Thanks so much for listening to FrontBurner. For more CBC Podcasts, go to cbc.ca slash podcasts. It's 2011 and the Arab Spring is raging. A lesbian activist in Syria starts a blog. She names it Gay Girl in Damascus. Am I crazy? Maybe.

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