The lawyer for a two-member pro-life group being investigated for providing campaign volunteers in the 2019 federal campaign says he foresees a Charter challenge if fines are imposed under the Canada Elections Act.
In fact, Albertos Polizogopoulos says there will “almost certainly” be a legal challenge under the Charter in the near future unless Parliament amends the legislation to avoid situations such as the one facing his client, the pro-life group RightNow, founded about four years ago by Alissa Golob and Scott Hayward to change Canada’s abortion and euthanasia laws through electoral and Parliamentary processes.
Polizogopoulos stressed he and his clients have not yet discussed launching such a challenge. At the moment, he said, they’re preoccupied with trying to find out exactly what information the Commissioner of Canada Elections wants from them, and what legal case they’re being asked to answer.
The Commissioner’s office sent RightNow a letter last February it was under administrative investigation into allegations it breached the Elections Act when it recruited, trained and coordinated volunteers to help elect pro-life candidates in ridings across Canada last year. The issue is whether doing so ran afoul of pre-election changes to the Act governing third-party involvement in campaigns.
RightNow vehemently denies any wrongdoing, saying it checked and received approval from Elections Canada before undertaking its effort to help volunteers work in ridings where the pro-life candidate had a strong chance of winning. Polizogopoulos has written repeatedly to the Commission, including as recently as last Wednesday, asking for specifics on the allegation, including who made it and why. The group has concerns, he said, over motivation for the investigation.
“We never heard back from the Commissioner on our requests. To us, it certainly smacks either of a fishing expedition where they’re just looking for something they can prosecute, or it’s a really unjust and improper investigation with absolutely no procedural fairness,” Polizogopoulos told Convivium.ca
In the ensuing silence, RightNow filed formal complaints with the electoral watchdog against five labour unions that also used volunteers to support candidates, and to actively campaign against Conservatives seeking election. In Wednesday’s letter to the Commission, the group filed more than 20 pages of documentation it says are evidence the labour union Unifor actively engaged in partisan campaigning. It demanded to know whether an investigation has begun into those election campaign activities.
Convivium received no reply to a request for comment from Unifor on whether it is being investigated. Citing confidentiality requirements in its enabling legislation the Commissioner’s office said it cannot comment on the status of RightNow’s complaint about the unions’ campaign conduct.
The situation facing RightNow echoes two similar investigations late last year and early this year that proved embarrassing for the Commission. In one, media personality Ezra Levant was investigated for writing a book that was hostile to the federal Liberal party, and then promoting it with what looked like campaign lawn signs.
During closed door questioning by Commission investigators, Levant turned the tables by secretly taping the proceeding and then it airing it on his Rebel News Network show. In a second outbreak of awkwardness, long-time Liberal backroom operative Warren Kinsella was investigated, and ultimately exonerated, for campaign tactics that sought to paint People’s Party leader Maxime Bernier as a racist.
Polizogopoulos said the apparent stumbles suggest underlying problems with the current state of the federal Elections Act, which was amended two years ago at least in part to prevent outside influencers from imitating American-style Super-PACS and spending huge amounts of money to buy elections. Even as the amendments were making their way through Parliament, he said, warnings were raised by various groups about the chilling effect the changes would have. The previous Liberal government used its majority to pass the legislation anyway. That’s where a Charter challenge becomes a distinct prospect, he said.
“There may not be the political appetite to (change) it but when the courts assess the constitutionality of a law, they look at its purpose and its effect. The stated purpose of this law was not to stifle the democratic process and opposing views. But the effects certainly seem to be exactly that,” Polizogopoulos said.
“There are violations of freedom of expression, freedom of opinion, freedom of assembly, and freedom of association when you can’t associate with someone who is ideologically aligned with you because they happen to be a candidate in a federal election. It means portions of the legislation are constitutionally vulnerable.
“Is RightNow going to challenge the constitutionality of those provisions? We’ve not had that discussion. But we may very well see a Charter challenge in coming years, and if the investigation results in any kind of prosecution, charges or fines against RightNow, those will almost certainly be challenged in court,” he added.