Tyee opinion piece “Why Environmental Groups’ Attack on Elections Canada Is Wrong, and Dangerous”

August 29, 2019 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: News, Canadian Charity Law, Ethics and Canadian Charities

The Tyee, an online magazine, recently posted an opinion piece by Tom McMahon entitled "Why Environmental Groups’ Attack on Elections Canada Is Wrong, and Dangerous".  It is a very thoughtful piece from an individual who has a good understanding of electoral regulation.  It cautions that the attack on Elections Canada was wrong and dangerous and that we must be careful what we ask for.  It discusses changes in the US that led to a less than desirable political situation south of the border and he asks some environmentalists to "consider the dangerous door they are opening".

With respect to the US "In 2010, the U.S. Supreme Court issued its notorious decision in Citizens United v. Federal Election Commission, which held that Congress may not limit third party spending by corporations and other associations. That led to an explosion in third party spending to influence election outcomes.  Do environmentalists today wish that Stephen Harper had succeeded in overturning the third party advertising provisions? Do environmentalists agree with the U.S. Citizens United ruling?"

With respect to the role of Elections Canada "Fact: Elections Canada’s job is to administer the Canada Elections Act in a neutral manner. Elections Canada does not write the law and is not a court. It’s not authorized to distinguish between facts and non-facts. Demanding that Elections Canada impose its own views on what are facts is akin to demanding that it go beyond the mandate that Parliament has given it. Further, deciding what is a “fact” is inherently problematic: see the legal history of defamation, misleading advertising, hate propaganda. Basically, every court case involves a difficult assessment of what alleged facts are actually true."

On the reasonableness of the third-party election registration provisions "Fact: Individuals and groups can buy advertising to communicate whatever they wish in relation to climate change. However, they might be subject to the third party advertising provisions of the Elections Act. If they want to avoid being subject to those provisions altogether, the solution is not to buy advertising for the approximately 37 days of the election period. If individuals or groups wish to buy advertising about climate change during those 37 days, they will be allowed to do so within the spending limits set out in the act. How many individuals or environmental groups will be complaining that the law prohibits them from buying more than $511,700 in advertising during the election period?"

There is one very big problem with the article.  You see writing a thoughtful piece like this takes days - and unfortunately, that means that reckless allegations, poor media coverage and irresponsible social media, capture the attention of the public and pieces like this will get a small amount of attention once the story is not in the national spotlight anymore.   

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Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.

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