Businesses, activists and individuals that have never worried about election law should take notice. Sweeping new amendments to federal election law are coming into force. New offences, enforcement powers and obligations will expose a host of people and organizations to new legal risks.

Amendments to the Canada Elections Act ("Act"), an ambitious set of institutional and regulatory reforms, are coming into force. New offences will apply to all aspects of federal elections, from advertising, to exerting influence over electors via the internet, and even to the length of future election periods. The Commissioner of Canada Elections will also be gaining new powers to enforce the Act, including the power to initiate prosecutions.

With the 2019 election approaching, businesses and political actors alike should evaluate their legal obligations to ensure they comply with the Canada Elections Act.

More Regulation of Political Speech, Starting Far in Advance of Election Day

Once in force, the new Act extends the period during which political speech is regulated.

For the first time during a federal election, a pre-election period will have its own rules on advertisers and would-be political candidates and parties. Beginning on June 30 and extending to the beginning of the election period, all sorts of previously unregulated activities will be placed under the watchful eye of the Commissioner of Canada Elections.

New legal requirements during the pre-election period include:

  • Registration requirements for third party advertisers.
  • Spending limits for third party advertisers on advertisements promoting or opposing a particular candidate or party (but not issue advertising).
  • Prohibitions on foreign third parties spending money on advertisements promoting or opposing a particular candidate or party (but not issue advertising).
  • Restrictions on spending money on election surveys.

During the pre-election period, issue advertising (which does not promote or oppose any putative candidates or political parties) remains unregulated.[1]

The election period itself has also changed. Before, the election period was of an indefinite timeframe lasting from the day the election is called until election day. The new amendments limit future election periods to a maximum of 50 days.

Foreign Money and Influence Over Elections Curtailed

One objective of the new amendments to the Canada Elections Act is to severely curtail foreign influence over Canadian federal elections. Activist groups will no longer be able to use foreign money on election advertising during the election period. All third party advertisers must determine where their funding originates to ensure that they are not offside the new rules.

In addition, advertising space cannot be sold to foreign advertisers during the election period to enable election advertising messages. Providers of advertising space of all kinds need to be judicious as to what advertising space they sell, and to whom.

Further, a new offence has been created prohibiting foreign actors from unduly influencing electors, including by spending money to promote or oppose a candidate or party.[2] It is also an offence to collude with a foreign actor to unduly influence electors.[3]

New Requirements of Online Platforms

In addition, the revised Act regulates online political speech by imposing obligations on online platforms. During the regulated pre-election and election periods, the largest of online platforms[4] will have to maintain registries of political advertisements shown on their platforms. And, these registries of advertisements must be kept online for two years after the election and retained by online platforms for five years after that.

The Act also contains specific requirements detailing both which advertisements must be included and what information must be displayed.

The Commissioner Gets A Holy Hand-Grenade

As if to underscore the ambitious nature of these amendments, the government has also restructured the role of the Commissioner of Canada Elections. The government clearly intends for its amendments to have teeth, having equipped the Commissioner with significant new enforcement powers.

Once the Canada Elections Act amendments come into force, the Commissioner will have the power to lay a charge if he believes on reasonable grounds an offence under the Act has been committed. Similar powers are typically exercised by Crown prosecutors and the more serious of investigative bodies involved in police matters.[5] Such powers will streamline the process the Commissioner must follow to prosecute offences, providing him with greater latitude to pursue more serious contraventions of the Act.

The Commissioner will also have the power to pursue administrative enforcement, which can result in the Commissioner levying an administrative monetary penalty and issuing a public report. If he has reasonable grounds to believe that there has been a violation of certain provisions of the Act, an administrative investigation can take place. 

In addition, the Commissioner has various other powers to secure enforcement from suspected violators, including by entering into compliance agreements or by taking undertakings promising compliance. Such measures, and their results, are made public, representing a significant risk of reputational harm to those involved.  

New Election Law Offences

New election law offences put in place by the amendments to the Canada Elections Act include:

  • An offence for third parties who accept contributions from foreign actors to fund election advertising.
  • An offence for exceeding pre-election period spending limits.
  • An offence for knowingly publishing a false statement about a candidate's withdrawal from candidacy.
  • An offence for making or publishing a false statement that a candidate, party leader, or public figure associated with a party, has committed an offence or is under investigation, with the intention of affecting election results.
  • An offence for making or publishing a false statement about a candidate, party leader or public figure associated with a party, regarding citizenship, birthplace, education, professional qualifications or membership in a group, with the intention of affecting election results.
  • An offence for owners and operators of online platforms for not adhering to their legal obligations. There is also another, more serious, offence for knowingly not adhering to these obligations.

Next Steps

Please contact the author or any member of Fasken's political law compliance team, for more information on the subject of this bulletin.

Footnotes 

[1]  Whether issue advertising could be limited during the pre-election period has been subject to Charter litigation in British Columbia. The B.C. Court of Appeal upheld a lower court ruling that limiting issue advertising during the pre-election period is unconstitutional. See: B.C. Teachers' Federation v. B.C. (Attorney General), 2011 B.C.C.A. 408.

[2] Amended Canada Elections Act, subs. 282.4(1) and s. 491.2.

[3] Ibid, amended subs. 282.4(4).

[4] Generally, those whose services are accessed in English an average of three million times per month or an average of one million times if accessed in French.

[5] For instance, the Ontario Special Investigations Unit (SIU), which investigates serious incidents involving police officers, has the authority to lay charges. Administrative bodies are often obligated by statute to defer to police regarding charging decisions, such as is the case with the federal Commissioner of Lobbying, who refers matters to a peace officer if she has reasonable grounds to believe a person has committed an offence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.