Last week, the Canadian Press published a story claiming that Elections Canada had warned a number of environmental charities that climate change-related advertising could be considered a partisan activity and subject to regulation under the Canada Elections Act. The news garnered international attention, generated controversy and raised questions in a number of circles across the country.
GLOBE reached out to two experts in environmental and climate change law to clarify how this kind of regulation could impact your business or your charity. Here’s what we learned from Liane Langstaff, a lawyer at Gowling WLG with expertise in environmental law, land use planning law and Indigenous law; and Lisa DeMarco, a senior partner at DeMarco Allan LLP, Canada’s only boutique climate and energy law firm.
So, what is all the fuss about?
During federal election periods in Canada, organizations that spend over $500 on election-related advertising are required to register as third-party advertisers and are also subject to a $511,700 spending limit. This isn’t new — it happens during every federal election. The current controversy is about whether advertising about climate change is election-related advertising.
Why the sudden focus on climate change? According to the Canadian Press story, Elections Canada representatives said that climate change was particularly relevant to this election, because Maxime Bernier, leader of the People’s Party of Canada, has expressed doubts about climate change.
The Canadian Press story suggested that organizations advertising about climate change would be required to register as third-party advertisers. Causing additional concern is that charities that register as third-party advertisers could be considered partisan and lose their charitable status.
Other social, economic and environmental issues would also be subject to this regulation, as they have been in previous years. Ms. DeMarco and others are keen to see the full suite of issues that Elections Canada is deeming partisan.
Since this article came out, Elections Canada has issued a clarifying statement from its Chief Electoral Officer, Stéphane Perrault. Critically, the statement spells out that the Canada Elections Act “does not prevent individuals or groups from talking about issues or publishing information.” This section of the act specifically regulates advertising during the election period. Further, to be governed by the Act, “the issue [featured in the advertising] must be clearly associated with a candidate or party.”
How does this implicate my business or my charity?
Ms. Langstaff clarified that you would only have to comply with this law if you’re spending advertising dollars on an issue that is associated with a political party or candidate during the election.
If your business or charity spends over $500 on advertising related to an election issue associated with a candidate or party, you will need to register with Elections Canada and abide by the $511,700 spending limit. More information from Elections Canada here.
What falls under the umbrella of advertising and what doesn’t?
Ms. Langstaff advises that websites, emails, social media posts, and door-to-door communications won’t be subject to the regulation.
However, if your organization is planning to fund advertisements during the election period related to a specific candidate’s or party’s platform on how to address climate change, you would need to register with Elections Canada and abide by the spending limit.
When does this regulation apply?
The regulation in question only applies during the election period. The Canadian federal election has not yet been called, — meaning the Governor General has not yet dissolved Parliament on the advice of the Prime Minister — so the regulation does not yet apply.
The election is currently scheduled for Oct. 21, 2019, although it could be called earlier. The election period will begin when Parliament is dissolved and continue until the date of the election — between 36 and 50 days.
Could charities lose their charitable status if they register as third-party advertisers with Elections Canada?
Despite initial concerns that being labelled ‘partisan’ could affect an organization’s charitable status, Ms. Langstaff clarified that this is not necessarily the case. She confirmed that registering as a third-party advertiser with Elections Canada and registering as a charity with the Canada Revenue Agency are two completely different processes that shouldn’t influence each other.
Should climate change be considered a partisan issue or a fact?
This is perhaps the central question at the heart of this controversy. Initial reports about Elections Canada’s stance suggested that sharing science that proves climate change’s existence could be construed as partisan. However, Elections Canada clarified this is not the case.
That being said, Elections Canada has said any organization advertising about climate change could be required to register during the election period because “the Act doesn’t speak to the substance of potential third-party issue advertising, nor does it make a distinction between facts and opinion.”
This has led environmental groups to ask Elections Canada for confirmation that they can advertise about the science of climate change without registering as third-party advertisers.
Ms. Langstaff and Ms. DeMarco were definitive on climate change as fact. Both agreed there is no debate about the science. Both the Saskatchewan Court of Appeal and the Ontario Court of Appeal agreed that climate change is real in recent legal cases.
The only debate remaining is about what our politicians should do about climate change, and organizations advertising about particular policy positions will need to register as third-party advertisers, as they have in previous elections. On that front, here at GLOBE, we look forward to watching, reading and hosting informed debates on how our federal government can contend with perhaps the greatest challenge of our time – climate change.
To dive into this issue in more detail, check out the following links: