Prior to becoming Alberta's premier in 2019, Jason Kenney held an anti-carbon tax rally with Ontario Premier Doug Ford in Calgary on Oct. 5, 2018. Source: @FordNation/Twitter

TORONTO—While provinces are allowed to intervene in federal campaigns, Elections Canada says it will monitor provincial involvement this year amid heightened public awareness and concerns about maintaining an even playing field.

In an exclusive interview with iPolitics, Chief Electoral Officer Stéphane Perrault said he will “actively” look at how provincial governments intervene in the federal election. But, he cautioned, it’s too soon to say what, if any, recommendations he will make and warned any attempt to regulate vocal premiers would be “complex.”

Stricter advertising and spending rules for third-party groups are coming into force this year, but the rules don’t apply to provinces, meaning, in theory, they have more free range when it comes to ad spending than any other player in the federal election.

That’s led some columnists to conclude there’s a “loophole” in the federal election laws that provinces can steamroll through. While provinces have never been covered by the federal election-spending laws — and experts say that’s for a good reason — the issue is getting more attention thanks to the coordinated interventions made by premiers like Ontario’s Doug Ford and Alberta’s Jason Kenney.

Ford told reporters last week he won’t campaign for Conservative Leader Andrew Scheer, but his government has zeroed in on Prime Minister Justin Trudeau’s carbon tax. Ontario is spending an undisclosed amount on an ad blitz that rolled out on radio stations in April, moved to TV in May and is expected to end this month. And the province’s mandatory anti-carbon tax stickers for gas stations are expected to be in place just before the writ drops later this summer.

READ MORE: Ford’s anti-carbon tax stickers could be installed just before federal election

Kenney will campaign with Conservative Leader Andrew Scheer in the coveted swath of suburban seats that surround Toronto, the Globe and Mail first reported. The so-called 905 is key to the Tories’ path to victory but it’s rare for a premier in one province to hit the campaign trail in another one.

If Trudeau continues with “policies that threaten our economic future, then I will do what I can to elect a federal Conservative government,” Kenney told CTV in April.

This raises the question of whether the federal government should, or can, do anything about the provinces piping up is open for debate.

“This is not a simple issue,” Perrault said. “The level playing field is an important principle, but this is a federal system that we have in which the federal-provincial dynamics are part of the electoral dynamic of pretty much every federal election. So we need to balance a lot of things if we are going to look into this to regulate provincial activities.”

It’s not new, but it’s more intense

There is a long history in Canada of Premiers wading into federal elections (and federal governments sticking their nose into provincial politics), including former Newfoundland and Labrador premier Danny Williams’ “anything but conservative” campaign and former Ontario premier Kathleen Wynne’s interventions to help Trudeau in 2015.

However, Perrault, and other experts who spoke with iPolitics, said the current slate of premiers in Canada are taking their interventions up a notch.

There is “perhaps a new level of that and a new dimension of it but the phenomenon is far from new,” Perrault said.

READ MORE: Ford says he won’t wade into federal election

David Moscrop, a political scientist at the University of Ottawa, said the tradition in Canada has been for premiers to take a less partisan approach during federal elections. However, current premiers are pushing the limits and, in some cases, eroding the unwritten rules that govern the federal-provincial dynamic.

“The question is: does this current set of tactics by the provincial government in Ontario step over the line,” he said. “I think it gets pretty close to it.”

Regulating provincial interventions in federal elections would be ‘complex’

Ontario’s NDP pushed the issue to the forefront in April when it suggested Ford’s mandatory stickers for gas stations, detailing the costs of the carbon tax, but not the accompanying rebate, break federal rules because the province should be treated as a third-party.

But Elections Canada doesn’t consider provinces third-parties and never has.

Perrault wants to look at whether the provinces are tipping the scales in the the federal election, but he stressed while he can’t exclude the possibility he also “won’t presume it.” He also noted that everything provinces have done to date is in the period that isn’t governed by any rules and it’s not yet clear how involved provinces will actually be when push comes to shove — either during the pre-writ period, starting June 30, or when the writ drops some time in September.

“We can make somewhat catastrophic scenarios, but whether they will materialize or whether they will be sustainable, I think it’s premature to say,” he said.

READ MORE: Kenney urges Senate to support amended environmental assessment bill

Perrault said Elections Canada will keep track of provincial activities and spending and he will consult post-election with academics and political parties and possibly in his routine polling before arriving at any recommendations or conclusions.

If Canada does go down the path of restricting provinces, Perrault stressed it won’t be straightforward.

“On the one hand there’s the concern over the level playing field, on the other hand there’s the concern over the natural course of federalism and how far a federal law can regulate provincial governments,” he said.

“It’s not an easy issue.”

The expanded rules governing third-parties makes it even more complicated, according to Perrault. For example, he noted that the rules now also govern money paid for surveys and travel which is the routine work of a provincial government. If parliament decides to look at this angle of federal campaigns he advised MPs to look at it “quite carefully” and be prepared that there are no easy answers.

“It’s an issue that is a complex issue and where parliament would have to tread carefully because legislating the activities of provinces is always a sensitive issue,” Perrault said.

Professor emeritus and former member of the Elections Canada advisory board, Paul Thomas, questioned how the elections watchdog would enforce the rules if parliament does decide to regulate provincial interventions in federal campaigns.

“For example, would the Commissioner fine a provincial government as a third party for exceeding spending limits established by law for the pre-writ or writ periods,” Thomas asked. “How would the Commissioner collect the fine?”

Is it constitutional?

Experts who spoke with iPolitics also said that, in spite of the eyebrows raised by Ford’s current ad campaign, attempts to regulate provincial interventions could be unconstitutional.

Emmett Macfarlane, an associate professor of political science at the University of Waterloo, said he doesn’t see “how a federal attempt to regulate provincial government advertising or related activity could possibly pass constitutional muster.”

At the heart of the issue is that provinces are different from traditional third-parties, because they are established under the constitution, Moscrop said.

“The federal government has no right to try to silence provinces,” he said. “Provinces are sovereign, constitutionally-created levels of government. And I don’t think that the federal government ought to be regulating what they can and cannot say during an election or otherwise.”

Instead of restraints created through law, Macfarlane said the ultimate check on provincial governments comes from the electorate: “Governments that are viewed as ‘interfering’ in another level of government’s elections could face the wrath of their own residents,” he said.

The feds also stick their nose in provincial business

Just as provinces may see political gain from taking on the federal government, Ottawa may see a provincial leader as a lucrative focus for attacks. Because of that, regulating provinces would be “very difficult and probably unadvisable,” Thomas said.

For example, he asked: “If Trudeau wants to use Ford as a foil to diminish the reputation of Andrew Scheer, saying Scheer’s just another Doug Ford […] then what do you expect Doug Ford to do? He’s going to have to fight back.

“It’s a two-way street in some ways. Trudeau is trying to antagonize the premier.”

That side of the issue also has a long track record in Canadian political history. Most notably, Moscrop said, federal governments have been heavily involved in Quebec’s two referendums. And one of those referenda also involved an ad campaign that raised eyebrows.

In the 1980 Quebec Referendum the federal health department ran an ad ostensibly about smoking, but where its main message was “non, merci.”

If he ultimately decides to weigh in on the issue, Perrault said any findings or recommendations would be in his post-election report to parliament.

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