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Ethics and truth in election advertising

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Elections Canada poll sign. Image: Dennis Sylvester Hurd/Flickr

"Ironically, truth in advertising applies to chewing gum and beer, but not to the fundamental policy matters that affect our lives," begins Fair Vote Canada's 2019 "Backgrounder: A mechanism to address lies in political advertising."

If Fair Vote seems to be blaming deceptive ads for their 60-40 loss in the 2018 B.C. referendum on whether to switch to a proportional representation voting system, they present good evidence -- "No" side referendum ads that do seem to be misleading at best.

The ads are even worse in "No" ads from the 2011 U.K. Alternative Vote (AV) referendum. There, the "No" side launched its campaign by claiming that converting to AV would cost 250 million pounds. After the vote, they admitted they'd made up the figure. Yes, from the folks who brought us Brexit.

Which brings us to Canada's next federal election, where voters are likely to be bombarded by conflicting claims from three different sources: international actors hoping to disrupt NATO, internal actors looking to restructure domestic conversations, and -- new this election! -- ad campaigns from corporations and unions, who are now barred from donating directly to the parties they support. That's a lot of disruption, all at once.

In part, we are just now seeing the results of electoral laws passed in 2006 to 2007 omnibus bills under the Stephen Harper government. This is worrisome. Like the current U.S. president, the Harper government produced laws that tended to be, um, less than carefully crafted. Harper laws have fared poorly in all levels of the courts, with many struck down, and a few appealed up to the Supreme Court, where they lost. 

By 2015, while Harper was PM, the Supreme Court had ruled against his legislation on safe injection sites, abortion, parole eligibility, medically assisted death, and the length of Senate terms. Ready or not, we are embarking on an experiment to see whether Harper's legacy can support an actual election. For example, take the ethics commissioner. 

Appointed by Harper as the first House of Commons ethics commissioner, Mary Dawson started her duties in 2007. After all-party agreement, in 2017 the Speaker appointed Mario Dion as her successor. The ethics commissioner is effectively an unelected independent member of Parliament, accountable neither to constituency nor to party leader. The role is modelled on the Senate ethics officer (established 1985) who serves as an unofficial independent senator. Each commissioner is appointed every seven years, with all party consent, and each is deemed to be as a much a part of the parliamentary infrastructure as the Library of Parliament, according to the office of the ethics commissioner website.

On the other hand, the commissioner's conflict-of-interest rules have some hiccups.

Take No. 7 on preferential treatment: "No public office holder shall, in the exercise of an official power, duty or function, give preferential treatment to any person or organization based on the identity of the person or organization that represents the first-mentioned person or organization."

On the face of it, this guideline would seem to run contrary to the Charter of Rights and Freedoms, certainly Section 2, which protects freedom of association, and probably Section 15(2), which explicitly permits affirmative action programs for members of previously disadvantaged groups. Read literally, this clause could prevent a woman MP from offering a Mother's Day luncheon -- or an Indigenous MP from celebrating local Indigenous youth.

Ethics Commissioner Mario Dion does seem to read Section 9 of the code literally, hanging heavily on the word, "influence."

Section 9 reads: "No public office holder shall use his or her position as a public office holder to seek to influence a decision of another person so as to further the public office holder's private interests or those of the public office holder's relatives or friends or to improperly further another person's private interests."

Here too an essential element is missing, says law professor Errol Mendes. "Where is the discussion of what types of public interest concerns will take it out of the improper purpose?" he asks. Another legal website notes that Dion cites the Shawcross doctrine without mentioning that the Shawcross urges the attorney-general to start by considering the context -- "all relevant facts" -- including the public interest.   

Of course, with a maximum penalty of $500, the commissioner's and the code's greatest weakness is that they have no real authority. Nor has Mario Dion said or done anything in office that compares with the careful, thorough 55-page report that Senate Ethics Commissioner Pierre Legault compiled on sexual harassment complaints against disgraced Senator Don Meredith (albeit two years after he resigned.)

Perhaps Chief Electoral Officer Stéphane Perrault was inspired by Mario Dion's boldness when he announced that climate change would be considered a partisan issue, because People's Party Leader Maxime Bernier had declared climate changes were natural and not caused by humans. Perrault horrified environment groups by warning they would have to register with Elections Canada as "third parties" or risk losing their charitable tax status if they advertised or collected signatures about the climate crisis. 

For more than a decade, environmentalists and other activists had battled Canada Revenue Agency challenges to their charitable status for their political work. Finally, in July 2018, Ontario Justice Edward Morgan agreed that Canada Without Poverty, a tiny action-oriented group, could spend more than 10 per cent of their revenue on social action, because of the charter's freedom of expression guarantee in Section 2.

Fortunately, Elections Canada has no more authority over the Canada Revenue Agency (CRA) than, well, you or I. Besieged by worried environmentalists, the CRA responded that ads on environment issues are okay, as long as they don't name (promote or slam) any political party. Neither Elections Canada nor the CRA would address the question that Fair Vote Canada has been raising for years: when Canadians prepare themselves to vote, there is no Canada-wide law that requires campaign materials to be truthful.

Next time: Brace yourselves for an info free-for-all. Barred from donating, unions and corporations will support issues with their own ad campaigns.  

The Harper government also made a dozen changes to the Elections Act, such as restricting student voting, and requiring photo ID. The Liberals' 2018 Elections Act reversed many of them, making voting more accessible again, but perhaps contributing to public confusion. The biggest change is that as of December 2017, supposedly arm's-length "third parties" such as unions and corporations, are no longer permitted to donate to election campaigns. So they will be mounting their own campaigns, but maybe not under their own names.

Award-winning author and journalist Penney Kome has published six non-fiction books and hundreds of periodical articles, as well as writing a national column for 12 years and a local (Calgary) column for four years. She was editor of Straightgoods.com from 2004 - 2013.

Image: Dennis Sylvester Hurd/Flickr

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