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


Search
Generic filters

 
 

Changes to job classifications and immigration impacts

November 23, 2022

By Brittany Trafford and Michiko Gartshore On November 16th, 2022 the Federal Government switched to the 2021 National Occupational Classification (NOC) structure from the prior 2016 version. The NOC is Canada’s national system used to…

Read More

Nova Scotia: Canada’s emerging immigration hub

November 17, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

Bill C-27 – Canada’s proposed Artificial Intelligence and Data Act

November 16, 2022

Kevin Landry, Charlotte Henderson, and James Pinchak The governance of Artificial Intelligence (AI) is entering a new era since the Canadian Government first announced a digital charter in 2019 as part of a larger-scale overhaul…

Read More

Discovery: Atlantic Education & the Law – Issue 11

November 14, 2022

We are pleased to present the eleventh issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. With a new academic year well underway, the Atlantic Region is finally seeing…

Read More

The Winds of Change (Part 5): Atlantic Canada poised to benefit from clean energy tax credits

November 10, 2022

By Jim Cruikshank, Graham Haynes, and Dave Randell On November 3, 2022, the Honourable Chrystia Freeland delivered the Federal Government’s Fall Economic Statement (“FES”).  The FES included a number of tax related announcements, including further…

Read More

“Constructive Taking”: Consequences for municipalities from the Supreme Court of Canada decision in Annapolis Group Inc. v. Halifax Regional Municipality

November 10, 2022

By Stephen Penney, Joe Thorne, and Giles Ayers A new decision from the Supreme Court of Canada, Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (“Annapolis”), has changed the law of constructive expropriation across the…

Read More

Attract & Retain: Nova Scotia taps foreign healthcare workers to fill labour shortages

November 10, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The rise of remote work and Canadian immigration considerations

November 3, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The future of express entry: Targeted draws to meet Canada’s economic needs

November 2, 2022

By Sara Espinal Henao Since its initial launch in January 2015, Express Entry has been a pillar of Canada’s immigration system. Recently passed amendments to the Immigration and Refugee Protection Act (IRPA) promise to drive…

Read More

Filling labour gaps with foreign workers: What Canadian employers need to know

October 28, 2022

By Brittany Trafford It is no secret that employers in Atlantic Canada are struggling to fill labour gaps. In June 2019 the Atlantic Canada Opportunities Agency (ACOA) published a report[1] indicating that the overall labour…

Read More

Search Archive


Search
Generic filters

Scroll To Top