Quebec's election-period free speech problem

How far is too far when it comes to restricting citizen engagement?

Last week, I co-hosted a Twitter space with journalist Christopher Curtis. We’ve been doing these spaces a few times per week since Quebec’s election started and each time, we interview guests about issues that Quebecers should be watching out for during the race.

At this particular space, we talked with Virginie Larivière, a spokesperson for the Poverty-Free Quebec Collective. She explained the affordability crisis, how it’s impacting low-income Quebecers and the work of the collective.

After about 15 minutes, the election still hadn’t come up directly in the conversation, so I asked: which of the parties are proposing the best measures related to poverty-reduction?

Larivière couldn’t answer the question. She wanted to, but she stopped herself, saying that she had to be careful. Despite being one of Quebec’s leading anti-poverty groups, she couldn’t speak directly about the election because her organization had received a cease and desist letter from the Directeur général des élections du Québec (DGEQ). They were warned to not get involved in the election, lest they violate Quebec’s election financing laws.

And so, she passed on the question and we talked more generally about what needs to be done in Quebec to address poverty.

At the start of July, the Collective circulated a questionnaire to Quebec’s political parties asking them about their poverty-reduction commitments and measures. Their website advertises this questionnaire, but when you click on the link that takes you to the parties’ responses, this notice is written in red: “After having received a cease and desist notice from the Directeur géneral des élections on September 9, the Collective has decided to remove the responses from our website.” Instead, anyone who is interested in seeing the responses is asked to email them to have the document sent to them directly.

The way that the DGEQ is treating the Collective is not abnormal. At the end of August, I received a cease and desist letter from the DGEQ as well. As the coordinator of a municipal campaign supporting Quebec City’s tramway project, the DGEQ warned me to not violate the election laws by directly or indirectly supporting or opposing a political party.

We took a different approach than the Collective, mostly because we weren’t targeting provincial politicians at all, while the Collective is very concerned about how politicians treat poverty. Through our lawyer Julius Grey, we told the DGEQ that because we were responding to a court action that was ongoing, and because among all major provincial parties there is a consensus in favour of the project (the CAQ government approved it), we should not be considered intervening whatsoever in the provincial election. They acknowledged our response.

Quebec has the most strict election financing laws in Canada. The maximum allowable donation to a political party during an election year is $200 per person, and campaigns cannot spend more than $0.82 per eligible voter in their riding ($1.03 for the largest ridings), even if they fundraise more than that. In my riding in downtown Quebec City, that means the limit for the entire campaign is just under $52,000. Parties then receive public funding based on their fundraising and vote share during the previous election. Smaller fundraising amounts result in a higher return from the government, up until $20,000 when public funding matches private donations dollar-for-dollar.

These reforms took effect in 2012, after the Charbonneau Commission investigated widespread financial corruption in provincial politics. Individual donation limits were brought down from $1000 to $100 during non-election years, and government imposed a ceiling on overall campaign spending at $8 million per party, province-wide.

The spending limit for citizens who campaign on an issue that directly or indirectly supports or opposes a candidate or party is $300. This means that a citizen, a collective, a union, a business or a lobby group is not allowed to spend more than $300 to influence the election in any way.

While the intention of the law is good, in practice, it severely limits the free speech that citizens can exercise. And, because we are dealing with Quebec’s Civil Code, there is no legal interpretation that could help guide judges to find where the reasonable limit between a citizen’s free speech ends and nefarious, money-backed political influence begins like there would be under Common Law. The Civil Code must be interpreted as it is written. The election financing section is so broad that a political party could form to take extreme positions on all issues, just to make it difficult for groups to call for basic issues, like women’s rights. That would be absurd, but it would be possible, under the strictest reading of the law.

In the past, groups, including Equiterre, have been sanctioned by the DGEQ for giving letter grades to parties to indicate how effective or ineffective their promises are. The financial penalties are large and impossible to pay for average people or small citizens’ groups.

Sanctioning a group for assigning letter grades to their platforms might make sense if we assume that all positive or negative publicity about a political promise moves people in the exact same direction, but that’s not how it works. Letter grades in and of themselves don’t influence people to vote for a party. An A+ from Equiterre, while positive for environmentalists, would be a giant red flag for groups who oppose environmental protection. It could easily push some people to vote against the party with the A+ platform.

These tools are more about translating policies into terms that average people can understand, exactly as journalists do. But under the law, during the election, civil society groups who do this might find themselves in contravention of the law.

The result of these stringent rules is that groups self-censor. Larivière knew which parties would exacerbate poverty in Quebec and even on our little Twitter space, she didn’t feel like she could say how. In an article that examined this issue in Le Soleil, two activists insisted on full anonymity to tell their stories, for fear that the DGEQ would sanction then. For me, when CBC Quebec misquoted me as saying that I was most concerned about transit during this election, I had to insist that the correction be immediately posted, lest I be seen as intervening in the election.

So where is the limit? The reality is that rich individuals have power and influence that is rarely on full display. They don’t need to pour money into elections: they have access to platforms, journalists and other ways of communicating their message that doesn’t rely on public agitation.

Average people have no similar privilege. We need a change in the law that allows better citizen participation to help balance the scales of power that continue to keep big money from out of our elections.