Will charities be free to speak during the election?

Canadian Twitter was ablaze today over a story that seemed to allege that any charity that talks about climate change during the election will be censored by Elections Canada.

The story comes from Mia Rabson’s scoop for The Canadian Press. She reported that Elections Canada may consider charities that run campaigns about climate change during the election to be captured under the Canada Elections Act.

Elections Canada defines partisan advertising as follows:

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.

Maxime Bernier, leader of the People’s Party of Canada, has claimed that “there is no climate urgency in this country” and has said “CO2 is NOT pollution”. Elections Canada could therefore see climate change denialism as an issue associated with his candidacy and party.

This conflation between “partisan” and more general “issue” ads is what’s concerning for many charities as their charitable status depends on being explicitly non-partisan.

The Canada Revenue Agency, who is responsible for overseeing charitable status, is clearer about what constitutes a partisan activity. They define it to involve the support or opposition of a candidate or party, and other political activities are now largely permitted. Recent CRA guidance says that charities may communicate about policy issues “inside or outside an election period.”

The concern is that these seemingly conflicting rules create uncertainty for many smaller charities, who often don’t have the capacity to defend their freedom to speak out on issues close to their mandate.

This is exacerbated by political narratives that drove a political audit program under the previous federal government. The charities involved in those audits spent years defending their activities, although virtually none were found to be exceeding the rules at the time. (One charity, Canada Without Poverty, was found to be in gross excess of the political activity limits but the Ontario Superior Court of Justice found the rules to be an unconstitutional infringement on the charity’s freedom of expression).

Elections Canada’s statements do not preclude charities from advocating on any issue during the election. What it does mean is that charities that are planning to spend more than $500 on “partisan or election advertising” during the election period will need to register and report their spending with Elections Canada.

Charities will not be required to register if they intend to spend less than $500 on advertising, or if their efforts are solely organic social media posts, updates on their website and public interviews. Fundraising activities are also excluded from consideration.

The latest news is that Elections Canada intends to rule on a “case-by-case” basis as complaints arise. This means that charities will be left in the dark as to whether they’ve crossed the line until it’s too late. It also gives ample bad faith actors ample opportunity to get Elections Canada to investigate the speech of charities that they disagree.

What’s clear is that the rules introduced by the Government in Bill C-76 meant to “increase transparency regarding the participation of third parties in the electoral process” have made life more confusing for many smaller voices.

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