Elections Canada’s ‘Overly Broad’ Ruling Suppresses Free Speech: CAN-Rac

Elections Canada must clarify the specific circumstances under which climate change communication would be considered election advertising once the federal election campaign gets under way next month, Climate Action Network-Canada writes, in an open letter to Chief Electoral Officer Stéphane Perrault released Thursday.

“As you will be aware, reports in the news media have indicated that your office believes any paid communication related to climate science or the climate emergency may be deemed partisan advertising and/or election advertising under the Canada Elections Act,” says Executive Director Catherine Abreu. “We propose that you clarify that not all paid communications (advertising) about climate change would be considered by your office to constitute ‘election advertising’ pursuant to s. 2(1) of the Act, and that for such advertising to be considered to be ‘election advertising’, it would have to be tied to efforts to ‘promote or oppose’ a particular political party or candidate.”

Abreu points to the section of the Act that defines election advertising as “the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue with which a registered party or candidate is associated.” She argues Elections Canada’s current interpretation of that provision “is overly broad, and inappropriately silences the freedom of speech of Canadians.”

The crux of Elections Canada’s concern is that climate communication would automatically touch an issue with which the People’s Party of Canada is “associated”, after party leader Maxime Bernier denied that climate change is caused by human activity. “While we generally respect the principle of issue advertising during the election period being subject to the Canada Elections Act,” CAN-Rac responds, “we believe the focus of the definition of ‘election advertising’ is clearly the transmission of an advertising message that ‘promotes or opposes a registered party’,” as stated in s. 2(1). “Thus the phrase ‘taking a position on an issue with which a registered party or candidate is associated’ is not a stand-alone requirement, but a clarification or refinement of that general requirement.”

That would mean a climate-related campaign that targeted a party or candidate would and should still be considered election advertising. “However, it would be an absurdity, and in our opinion a monumental suppression of Canadians’ free expression, if Mr. Bernier, by expressing his own opinion, were to render any and all paid communications related to climate change election advertising. This result cannot be what Parliament intended in passing the Act, and the ‘golden rule’ of statutory interpretation would demand that any interpretation that would lead to that result must be rejected.”

Ironically, the news that an independent officer of Parliament might end up suppressing communication on humanity’s biggest crisis landed just as federal Science Minister Kirsty Duncan was touting her government’s four-year drive to reverse the Harper government’s attacks on science—including scientists’ freedom to talk about their research.

“When we came in, on Day 1 we brought back the long-form census because you need evidence to make good decisions. We unmuzzled our scientists,” she told National Observer. “I want to make sure that our scientists are protected, so we never go back to where our scientists can’t speak.”

While climate hawks sweat the details on Elections Canada’s intentions, the confusion around the agency’s recent statements hasn’t slowed down the fossil industry or a small legion of fossil-friendly Facebook advertisers in their efforts to influence the outcome of the October 21 vote.

In what the Edmonton Journal headlines as a break with tradition, the Canadian Association of Petroleum Producers (CAPP) has registered as a third party under the Canada Elections Act, in order to increase its advocacy during the election period. That move came after three Alberta fossils—Canadian Natural Resources Ltd., Cenovus Energy, and MEG Energy—published an open letter to Canadians, touting the 30% reduction in emissions intensity they say their operations have achieved over 20 years.

[Context check: “Emissions intensity” means they’ve reduced their greenhouse gas emissions per barrel of oil they produce, and with their output increasing far faster than emissions intensity is falling, overall emissions are still rising. And a 30% reduction over 20 years, even if it were an actual emissions cut, would fall far short of the pace of decarbonization required to stabilize the global climate.—Ed.]

“Given that energy remains one of the top issues being discussed by political leaders, we registered as a third party to allow us to represent our members on key issues that impact the oil and natural gas industry,” CAPP media relations manager Jay Averill told Postmedia. He added that, while the association wasn’t involved with the open letter, the pitch was “a great way to speak directly to Canadians.”

An acceleration in fossil industry messaging “is something Canadians can expect to see more of in the coming months,” the Journal notes. And “it’s not as though the energy sector lacks the resources to speak for itself, with operating profits increasing by C$1.6 billion in the first quarter of 2019. Thanks to rising oil prices, the sector went from a $678 million loss in the fourth quarter of 2018 to a profit of $909 million.”

Cenovus spokesperson Rhona DelFrari said the PR push follows an increased focus on environmental, social, and governance (ESG) issues within the fossil sector. “This industry has always had the opinion that as long as we’re doing things the right way and developing the resource responsibly…we don’t probably need to be out there boasting about our excellent performance because we’re delivering on it,” DelFrari said. “Maybe that assumption wasn’t necessarily the right one.”

Days after CAPP’s announcement, an analysis of 35,000 Facebook ads obtained by CBC showed that “users in B.C. and Alberta have been bombarded with political ads supporting pipelines, while Ontario users of the social network are seeing attacks on Premier Doug Ford and his education policies,” the national broadcaster reports. “The archive of ads offers a glimpse into the political messaging being crafted for Canadians in an election year. And it shows how advertisers are making use of Facebook’s ability to target audiences by location, delivering tailored messages on local issues.”

“This shows how political groups are able to use Facebook to target messages,” said Michigan University political scientist Stuart Soroka. “Facebook is an extension of what we saw in the 90s, a capability to run regional TV ad campaigns thanks to technical changes.”

Facebook doesn’t disclose the demographics its advertisers choose for their material, CBC explains. So “to find ads that were targeted by location, we looked at those that had at least 95% of total views in a single province.” The 20 most frequent words by province included “pipelines” and “equalization” in Alberta, “energy” and “move” in British Columbia, “carbon”, “climate”, and “change” in Ontario, “carbon” and “tax” in Saskatchewan, “solar” in Nova Scotia, “green” in Yukon, and “vert” in Québec. CBC attributes the language in Alberta to a campaign by the Canadian Taxpayers’ Federation, the words in B.C. to advertising by the Canadian Energy Pipeline Association.

CEPA was the top political advertiser in B.C. and placed among the top seven in Newfoundland and Labrador, Nova Scotia, and Ontario. Fair Path Forward, a pro-carbon tax Facebook page run by Canadians for Clean Prosperity, was the biggest spender in Ontario, while Greenpeace placed third in Quebec. After Elections Canada advertising rules for the pre-election period came into effect July 1, “the number of political and issue ads on Facebook dropped significantly, from roughly 14,000 in June to 9,500 in July,” CBC says.