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


 
 

How to improve your Express Entry score

October 30, 2020

Kathleen Leighton Express Entry system Express Entry is a system that enables skilled foreign nationals who are looking to settle in Canada indefinitely to apply for permanent residency status. This system prioritizes individuals who are…

Read More

COVID-19: Federal government announces continuing package of pandemic supports

October 29, 2020

Katharine Mack The federal government has recently announced a series of changes to be made to benefit programs rolled out in response to the COVID-19 pandemic. The extension or expansion of these benefits and support…

Read More

Federal work place harassment and violence prevention regulations

October 26, 2020

Chad Sullivan and Kathleen Nash In late June 2020, the Federal Government released the official version of the new Work Place Harassment and Violence Prevention Regulations¹ (“Regulations”) along with Bill C-65, the federal anti-harassment and…

Read More

Canada’s bid to attract entrepreneurs: the Start-up Visa Program

October 16, 2020

Sara Espinal Henao Canada wants entrepreneurs. With a strong and stable economy, world leading growth opportunities across industries, and a highly educated workforce, it is a great place to build a dynamic business that can…

Read More

The million dollar question: is an employee entitled to a post-termination bonus payment?

October 9, 2020

Killian McParland Earlier today, the Supreme Court of Canada released a new decision with significant implications for employers in Matthews v. Ocean Nutrition Canada Ltd. While the underlying case came out of Nova Scotia, it…

Read More

The boomerang that won’t come back – Court of Appeal confirms that parties must each bring their own motions for summary judgment

September 25, 2020

Chad Sullivan and Kathleen Nash In a recent decision from the New Brunswick Court of Appeal, Abrams v RTO Asset Management, 2020 NBCA 57, the court clarified the procedure for seeking summary judgment and addresses…

Read More

The limits of open work permits

September 23, 2020

Kathleen Leighton In Canada, foreign nationals have various options to obtain either “employer-specific” or “open” work permits – we discuss this distinction in greater detail here. Open work permits can be obtained by individuals in…

Read More

Supreme Court of Canada may re-consider municipal liability for policy vs. operational decisions

September 23, 2020

Giles Ayers and Joe Thorne Introduction Balancing a municipal budget has always been a challenging task in Newfoundland and Labrador, and this is particularly true in a year of extreme weather events and a global…

Read More

Beyond the border: Immigration update – September 2020

September 8, 2020

We are pleased to present the third installment of Beyond the border, a publication aimed at providing the latest information to clients about new programs and other immigration-related information that may be pertinent to employers of…

Read More

Newfoundland and Labrador mandates masks in workplaces

August 24, 2020

Harold M. Smith, QC and G. John Samms Effective Monday, August 24, 2020, an order directing the mandatory wearing of masks, pursuant to the Public Health and Protection Act and the Special Measures Orders made…

Read More

Search Archive


Scroll To Top