Last May, I warned against the Trudeau administration’s tightening of Canada’s already draconian campaign speech laws, which require anyone spending a relatively modest amount of money on political activism during or near a Canadian election to register with the government and comply with all manner of restraints and restrictions.
My critique focused on how doubling down on such policies would discourage the political activism of smaller groups who lack the legal and professional resources necessary to follow the hundreds of clauses and sub-clauses of the sprawling Canada Elections Act. This, I thought, would have the effect of quieting “those upstart actors and activists whose political organization is more amateurish and whose causes, accordingly, are most likely to be disruptive or challenging to Ottawa.”
What I failed to anticipate was that the degree the revised act is actually so draconian, it makes political speech onerous even for those safely in Canada’s mainstream.
On Aug. 19, it was reported that Canada’s federal elections agency, Elections Canada, will consider any substantial public talk or advocacy about climate change during the weeks around the Oct. 21 general election as potentially a form of election advertising, and thus only legal if it complies with the Elections Act. Spending more than 500 Canadian dollars (about 400 U.S. dollars) on climate change activism as mild as noting the existence of climate change would count. An organization that spends more than 511,700 Canadian dollars talking about climate change would be committing an offense, given that the figure is the hard limit on campaign spending for activist groups during an election period.
Though its warning may sound preposterous, legally speaking, Elections Canada is in the right. The Elections Act grants the agency sweeping powers to supervise, regulate and ultimately limit the speech of any Canadian (or “third party” in bureaucratese) who seeks “transmission to the public by any means” messages with overtly political themes, “including by taking a position on an issue with which a registered party or candidate is associated.” And because Maxime Bernier’s fringe People’s Party has questioned the reality of man-made climate change in the past, this means anyone who publicly acknowledges the alternative is doing just that.
Following a torrent of bad press, Elections Canada proceeded to release a defensive statement that conceded absolutely nothing.
“The only instance in which 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,” read the statement from Elections Canada chief Stéphane Perrault, offering a distinction without a difference.
“The third party advertising regime can be complex, and we encourage anyone with questions to contact us,” he concluded, oblivious to the ominous spectacle of an agent of the state advising citizens to contact their government to learn how to legally express their political opinions.
After decades of championing extraordinarily tight campaign finance laws, the climate change brouhaha has forced Canadian progressives to belatedly realize the madness that flows from placing the musings of politicians at the center of our legal definition of acceptable electioneering.
According to CTV, Green Party leader Elizabeth May (who voted in favor of the current Canada Elections Act last October) wondered “if Bernier were to suddenly say he believes smoking is good for people … would any organization that promotes the health dangers of smoking suddenly be deemed partisan?”
“Others on Twitter,” the article continued, “questioned whether the earth being round could suddenly become a partisan statement if a candidate were to publicly insist the earth is flat.”
The answer to these questions is yes. If certain Canadian politicians became “associated” with any of these ideas, agitating publicly about them would constitute “issue advertising” under the current law. As Elections Canada noted, it is forced to be clinically neutral when classifying “issues.” The agency is not permitted to declare certain issues too mainstream, fringe or subjective to be covered by the law, “no matter how obvious it may appear.” On one level, this seems preposterously contrived, but the alternative would be to empower Elections Canada to make subjective value judgments regarding the comparative importance of different political ideas — a prospect even more frighteningly Orwellian than what we have now.
Laws that give government the power to impose punishments on those who spend “too much” money on politicized speech necessitate a government willing to supervise all political speech to ensure the line is never crossed. This, in turn, requires the government to come up with a workable definition of “political” speech, which, given politicians’ insecurity, is inevitably one that places themselves and their parties at the center. Once this definition is further expanded to include not only agitation for or against specific politicians and parties but their “associated issues” as well, there becomes essentially no limiting principle to the sort of speech government has a right to monitor, regulate and restrict.
The inevitable outcome is a country where citizens’ right to speak clearly and forcefully about issues important to them during election time is chilled by bureaucratic intimidation. This is the precise opposite of why the right of free speech exists in the first place, and it is not remotely obvious that Ottawa is undermining this sacred trust in the service of any greater good.