Between elections it’s not uncommon for Parliament to makes changes and updates to the laws that guide our election campaigns. Sometimes that involves simple updates to make the laws more relevant to the current day, and in other cases those changes are bigger and more sweeping, like we saw with the Conservatives heading into the 2015 election.

Regardless of the size of the change or the motive behind it, that usually means that each campaign is run a bit differently than the last and that everyone has new things to learn about how to engage in the election. Going into the 43rd General Election this remains true this time as well, as the Liberals made some changes to Canada’s electoral laws in their term. Some of those changes were to undo some of the restrictive changes the Conservatives made in their attempt to make it harder for certain groups of people to vote, like people living in First Nations communities.

But some of the changes that the Liberals made in this Parliament were going into a different area, trying to deal with the rise of third party groups and their actions during elections. The Conservatives made changes around the rules that deal with them too, but the Liberals made changes to their own to those changes. Now as the campaign gets closer, we’re starting to see the potential impact of those changes and how the law looks when it is applied in the real world:

Here we have two stories that speak to the changes made by the Liberal government and how they are being implemented by Elections Canada. Firstly we see the news about Elections Canada’s interpretation of these rules when it comes to Environmental NGO’s, talking about climate change and the rules around third parties. At a training session given by Elections Canada, that because Maxime Bernier’s People’s Party, is openly denying that climate change is a thing and openly denying the science, any group that promotes a position that is the opposite of Bernier’s, like those of the vast majority of the scientific community, “could be considered partisan.”

The solution to this problem would be to simply register as a third party, but that brings big problems all of its own for most environmental NGO’s that makes registering not an option. As the Canadian Press piece points out, if these NGO’s (most of which are registered charities) registered their partisan activity as a third party group to Elections Canada, that could jeopardize their charitable tax status because the laws around charity status limit the amount of political advocacy they can do. That’s a serious catch-22, one that it seems that the law didn’t consider.

On the other hand of this situation we see another story from the Edmonton Journal, where the Canadian Association of Petroleum Producers is registering as a third party. Under the current laws, that makes sense, because it’s a guarantee that energy, pipelines, regulations and sustainable development will all be a part of the discussion in this campaign. So instead of having to stay quiet, they registered and that is fine. They aren’t the first industry association to do this and if the law remains similar to this in the long run, I would expect that to become norm.

But where there is a problem here with this situation is that they are not a charitable organization, so they don’t have the constraints on their political action or speech. That puts groups with charitable registration on unequal footing compared to the private sector, where the rest of electoral law treats them evenly. That is a serious oversight that needs to be flesh out because just think of where we can take the precedent set by this situation. Would an anti-poverty charity be forced into the same situation if they decided to speak out against a proposal to cut transfer payments to pay for social services, therefore potentially increasing poverty? Would an international aide group face the same predicament in this campaign because Bernier’s PPC is proposing to slash Canada’s international development budget and they chose to speak out against it? What about a veteran’s charity that decided to speak out against a lack of funding to veterans? To all of those, it’s easy to see the same standard being applied and, in the process, potentially silencing the voices of those whose voices are already marginalized in our political debate.

And here is the thing about this folks; while so many people are talking about this situation today most people are sending their fire at Elections Canada. To those people, I just wanted to post this comment from Twitter which I hope can re-focus that energy:

Remember folks, Elections Canada doesn’t make the law, they simply interpret the law that is created by Parliamentarians for them. This situation seems to create a serious problem, one that seems to be more of a case of careless legislative oversight than outright parliamentary malice. But mistake or not, this is a big problem that needs to be resolved somehow ASAP.

The fact that the ability of civil society and charitable groups to speak on the important issues of a campaign is essentially being dictated by the wild ramblings of a far-right fringe party and what it opines on, despite the evidence of science and fact, is just wrong. We’ll see what the government and Elections Canada does about this situation because it would be laughable if it wasn’t such a serious problem. Election law needs to treat all third parties in an equal way, considering the other laws that interact with it. If they don’t, they that law fails the basic test of fairness. That’s what’s happened here somehow and at least for this campaign, this is part of the electoral law minefield that these groups will have to navigate.

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