Skip to content

Are you compliant with the Canada Elections Act? New changes mean entities ought to be careful in assessing their obligations

John Samms

The upcoming federal election is drawing near. You may be thinking about exercising your democratic and constitutional right to vote – you may not be. You may never even consider participating in the democratic process; after all, it is a right, not an obligation, correct? Well, yes, though recent amendments to the Canada Elections Act (“the Act”) are forcing many entities to be mindful of the political arena.

While recent amendments to the Act do not obligate anyone to vote, they certainly provide for legal considerations for those who have things to say in relation to policy issues during what the Act terms as the “pre-election period” and the “election period”. The “pre-election period” began on June 30, 2019 and continues until the “election period”, which begins when the federal government drops the writ in advance of an anticipated election date of October 21. The latest date the federal government can begin the election period is September 15, 2019.

Recent amendments to the Act provide four newly regulated activities (emphasis added):

  1. Partisan Activity: an activity, including canvassing door-to-door, making telephone calls to electors and organizing rallies, that is carried out by a third party — a person or group other than a political party that is registered under an Act of a province — and that promotes or opposes a registered party or eligible party or the election of a potential candidate, nomination contestant, candidate or leader of a registered party or eligible party, otherwise than by taking a position on an issue with which any such party or person is associated. It does not include election advertising, partisan advertising or a fundraising activity.
  2. Election Surveys: a survey respecting whether persons intend to vote at an election or who they voted for or will vote for at an election or respecting an issue with which a registered party or candidate is associated.
  3. Partisan Advertising: the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes a registered party or eligible party or the election of a potential candidate, nomination contestant or leader of a registered party or eligible party, otherwise than by taking a position on an issue with which any such party or person is associated.
  4. Election Advertising: means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue with which a registered party or candidate is associated.

If you or your organization is engaged in any of the four broad categories above, you should seek legal advice to ensure you are compliant with the Act. You may be required, for example, to register under the Act as a third party and you may be limited as to what you can communicate and what you can spend during either or both of the pre-election period and the election periods.

There are many issues pertaining to the Act’s recent amendments worthy of analysis but this article’s focus is on Partisan Advertising and Election Advertising, particularly in relation to issue-based advertising, which is purportedly unregulated in the context of Partisan Advertising but is regulated in the context of Election Advertising. Simply understood for the purposes of this discussion, issue-based advertising is the mass communication of a message taking a position on an issue with which a registered party or candidate is associated, such as climate change.

Any organization that spends more than $500, a relatively low amount in the context of mass communication, on issue advertising is obligated to register with Elections Canada and be subject to a spending cap during the election period. Media reports detailing this requirement led to public criticism as it was interpreted to mean climate change advocates were now limited in their freedom of expression¹, a position Elections Canada would later clarify while nonetheless affirming the duty to register.²

The impetus for the legislative amendments are straight forward: they provide for transparency as to who is spending money on advancing their respective issues of interest, a consideration voters can assess as they independently exercise their democratic right to vote. This is an aspect of the egalitarian model of elections, which is concerned with ensuring the most affluent in society do not have undue influence in election results.³

Courts have consistently held such schemes are a breach of section 2(b) of the Charter of Rights and Freedoms but are saved under section 1. Section 1 contains the meat of the analysis is as it asks whether infringing legislation is a “reasonable limit” on Charter rights.

In Harper v Canada (Attorney General)4, the Supreme Court of Canada upheld spending limits on third-party federal election advertising as a reasonable limit on Freedom of Expression. In BCTF v British Columbia5, the British Columbia Court of Appeal, in assessing legislation respecting pre-election regulation, concurred with the Supreme Court of British Columbia in determining limitations on pre-election expression was not a reasonable limit under section 1 of the Charter. The court reasoned the legislation overshot the overall objective of electoral fairness due to the fact it captured otherwise constitutionally protected speech commenting on the wisdom of proposed legislation.6

The BCTF decision may explain why the federal government decided not to capture “issue advertising” in its definition of “Partisan Advertising”, which can only occur in the pre-election period. As the decision did not take issue with limitations during the election period, consistent with the Harper decision, the federal government likely felt it safe to prescribe limitations on “election advertising”, which can only occur in the “election period”.

While the above authorities likely provide for the federal government’s confidence in the Act’s constitutionality, of course it ultimately depends on how it is applied. As the reasoning in BCTF dictates, limitations in respect of pre-election activity is susceptible to failing the minimal impairment aspect of section 1 of the Charter; though, BCTF was primarily concerned with the limitation on expression when the legislature was in session, meaning it did not necessarily say that all issue-based advertising should be allowed in a pre-election period.

As stated by the Supreme Court of Canada, expression in respect of political issues is an aspect of the “core” of our Freedom of Expression:⁷

Some restrictions on free expression may be necessary and justified and entirely compatible with a free and democratic society. But restrictions which touch the critical core of social and political debate require particularly close consideration because of the dangers inherent in state censorship of such debate. This is of particular importance under s. 1 of the Charter which expressly requires the court to have regard to whether the limits are reasonable and justified in a free and democratic society.

While the amendments to the Act purport not to limit or qualify issue-based pre-election period advertising, such advertising may nonetheless invite scrutiny if it promotes a political party or candidate.

What happens in the pre-election period context if a message is both issue-based and a promotion of a candidate/party? Indeed, it is difficult to imagine a circumstance whereby such a message would not be both, unless it stated, “vote for X, for no reason at all”. Where pre-election period advertising relates to a candidate/party and an issue, the question will likely be whether the advertising is primarily rooted in supporting a party or candidate. The boundary between these categories is bound to be ambiguous.

That ambiguity may create a chill whereby persons or entities are fearful of exercising their otherwise constitutionally protected “core” right to express themselves. Indeed, the new rules are not simple and often will require legal advice to interpret in relation to specific facts. That requirement may be too onerous for some.

Even in the election period context, in which the Harper and BCTF decisions likely provide for the Act’s constitutional security, there may be thorny issues. For example, if the Commissioner of Canada Elections frequently deems issue-based advertising to be election advertising, even where the communicating entity had no subjective belief that it was conducting election advertising, entities could unknowingly be caught by the Act.

Depending on how the Act is applied, there lies potential circumstances where the new rules could invite a rebuke from the courts as an unreasonable limit on pre-election expression. As usual, time will tell.

Optimally, entities will never be involved in such litigation if they take the steps to ascertain they are compliant with the Act.


¹Kerry Breen, ”Scientists call on Elections Canada to clarify policy on climate change advertising”, Global News
² Peter Zimonjic, “Environmental groups can still talk climate change during election, says Canada’s chief electoral office
³ BCTF v British Columbia (Attorney General), 2011 CarswellBC 2666, 2011 BCCA 408 at 32-35. 
4 2004 CarswellAlta 646, [2004] 1 SCR 827
5 Ibid
6 Ibid, at 70. 
R v Keegstra, [1990] 3 SCR 697, 1990 CanLII 24


This update is intended for general information only. If you have specific questions or concerns as to whether you are at risk of being captured by the new Canada Elections Act rules, please contact John Samms.

 

Click here to subscribe to Stewart McKelvey Thought Leadership.

SHARE

Archive

Search Archive


 
 

TTC’s Random Testing Decision: A Bright Light for Employers in the Haze of Marijuana Legalization

April 11, 2017

Rick Dunlop In my December 15, 2016 article, Federal Government’s Cannabis Report: What does it mean for employers?, I noted the Report’s1 suggestion that there was a lack of research to reliably determine when individuals are impaired…

Read More

Unionization in the Construction Industry: Vacation Day + Snapshot Rule = Disenfranchisement

April 4, 2017

Rick Dunlop and Michelle Black On March 14, 2014, CanMar Contracting Limited (“CanMar”) granted a day off to two of its hard working and longer serving employees so they could spend time with their respective families. That…

Read More

Sometimes a bad deal is just a bad deal: unconscionability and insurance claim settlements in Downer v Pitcher, 2017 NLCA 13

March 16, 2017

Joe Thorne and Meaghan McCaw The doctrine of unconscionability is an equitable remedy available in exceptional circumstances where a bargain between parties, be it a settlement or a release, may be set aside on the basis that…

Read More

Privilege Prevails: Privacy Commissioner protects solicitor-client communications

March 16, 2017

Jonathan Coady After more than five years, the Prince Edward Island Information and Privacy Commissioner (the “Privacy Commissioner”) has completed her review into more than sixty records withheld by a local school board on the…

Read More

The Latest in Labour Law: A Stewart McKelvey Newsletter – Nova Scotia Teachers Union & Government – a synopsis

March 7, 2017

Peter McLellan, QC & Richard Jordan Introduction On February 21, 2017 the Nova Scotia Government passed Bill 75 – the Teachers’ Professional Agreement and Classroom Improvement (2017) Act. This Bulletin will provide some background to what is, today,…

Read More

Scotia Mortgage Corporation v Furlong: The Supreme Court of Newfoundland and Labrador weighs in on the former client rule in commercial transactions

March 1, 2017

Bruce Grant, QC and Justin Hewitt In the recent decision of Scotia Mortgage Corporation v Furlong1 the Supreme Court of Newfoundland and Labrador confirmed that where a law firm acts jointly for the borrower and lender in the placement…

Read More

The Ordinary Meaning of Insurance: Client Update on the SCC’s Decision in Sabean

February 21, 2017

The Supreme Court of Canada released its decision in Sabean v Portage La Prairie Mutual Insurance Co, 2017 SCC 7 at the end of January, finally answering an insurance policy question that had divided the lower…

Read More

Client Update: Outlook for the 2017 Proxy Season

February 8, 2017

In preparing for the 2017 proxy season, you should be aware of some regulatory changes and institutional investor guidance that may impact disclosure to, and interactions with, your shareholders. This update highlights what is new…

Read More

Client Update: The Future of Planning and Development on Prince Edward Island – Recent Amendments to the Planning Act

January 23, 2017

Perlene Morrison and Hilary Newman During the fall 2016 legislative sitting, the Province of Prince Edward Island passed legislation that results in significant changes to the Planning Act. The amendments received royal assent on December 15, 2016 and…

Read More

Plaintiffs’ medical reports – disclosure obligations in Unifund Assurance Company v. Churchill, 2016 NLCA 73

January 10, 2017

Joe Thorne1 and Justin Hewitt2 In Unifund Assurance Company v Churchill,3  the Newfoundland and Labrador Court of Appeal considered the application of our rules of court and the common law as they relate to disclosure of documents produced in…

Read More

Search Archive


Scroll To Top