Charter Statement - Bill C-76: An Act to amend the Canada Elections Act and Other Acts and to make certain consequential amendments

Tabled in the House of Commons, May 8, 2018

Explanatory Note

The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-76,An Act to amend the Canada Elections Act and Other Acts and to make certain consequential amendments, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-76 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing public and Parliamentary debate on the Bill.

Overview

Bill C-76 would amend the Canada Elections Act [the “CEA”]. The CEA, which governs elections to the House of Commons, sets out detailed procedures that give effect to the democratic rights protected by section 3 of the Charter. Section 3 provides that every Canadian citizen has the right to vote in an election of members of the House of Commons and “to be qualified for membership therein.” It protects the right of each citizen to play a meaningful role in the political life of the country.

The CEA establishes a comprehensive set of conditions for exercising the right to vote and the right to run as a candidate in a federal election – conditions that, by their nature, potentially engage section 3. As these conditions also regulate activities of individuals and associations that may fall within the broad interpretation of political expression, they potentially engage sections 2(b) and 2(d) of the Charter. Section 2(b) provides that everyone has freedom of thought, belief, opinion and expression, and includes freedom of the press and other media of communication. Section 2(b) has been broadly interpreted as encompassing any activity or communication, aside from violence or threats of violence, that conveys or attempts to convey meaning. Section 2(d) provides that everyone has freedom of association. It protects the collective action of individuals in pursuit of their common goals.

The CEA’s conditions surrounding the right to vote and run as a candidate promote the confidence of Canadians and electoral competitors in the integrity and fairness of the electoral system. They promote public confidence that the results of an election accurately reflect the will of those who are eligible to vote. They establish reasonable administrative mechanisms to facilitate the right to vote and to prevent practices – including deceptive practices – that undermine the integrity of the vote. They promote fairness as between electoral competitors and reduce the possibility of undue influence by electoral competitors and others, thereby enhancing diversity in political discourse. They promote informed voting by ensuring that electoral competitors are subject to certain transparency requirements. They promote the secrecy and security of the ballot to ensure that voters are not bribed or intimidated into voting in a particular way. Fair and consistent observance of these safeguards enhances the public’s faith and confidence in fair elections and in Parliament itself, both of which are essential to an effective democracy.

Spending Limits

Clauses 223-238, 262 and 271 of the Bill would amend the CEA to introduce new pre-election spending limits in fixed-date election years. In fixed-date election years, political parties would be subject to a national spending limit on partisan advertising during a pre-election period starting June 30 of that year and finishing at the commencement of the election period. In 2019, this limit would be approximately $1.5 million [$1.1 million plus inflation adjustment under section 384 of the CEA]. Third parties (individuals or groups who are not an electoral competitor, such as a candidate or registered political party) would be subject to a national spending limit and a spending limit per electoral district on partisan advertising, partisan activities and election surveys during the same pre-election period. In 2019, this national limit would be approximately $1 million [$700,000 plus inflation adjustment under section 384 of the CEA] with a limit of no more than approximately $10,000 per electoral district [$7,000 plus inflation adjustment under section 384 of the CEA]. “Partisan” advertising or activity would be defined as messages or activity promoting or opposing a political party, its leader, a potential candidate, a leadership candidate or a nomination contestant.

The current third party spending limit in the CEA applies to partisan and issue advertising – taking a position on an issue with which a registered political party or candidate is associated – during elections. Under clause 224, this election-period spending limit would be increased to approximately $500,000 in 2019 [$350,000 plus inflation adjustment under section 384 of the CEA] and extended to include funding of election surveys and partisan activities other than advertising – such as door-to-door canvassing. Of this limit, no more than approximately $4,000 [$3,000 plus inflation adjustment under section 384 of the CEA] could be spent in any electoral district.

Limits on spending for advertisements and partisan activities engage section 2(b) of the Charter (freedom of expression) and potentially engage section 2(d) of the Charter (freedom of association).

The following considerations support the consistency of the proposed spending limits with the Charter. Statutory “fixed dates” for general elections provide a degree of predictability about the timing of elections, particularly during majority governments. This predictability enables wealthy political parties and third parties to spend significant amounts of money in the period leading up to the official election period. Spending limits in this pre-election period and in the election period itself enhance democratic values by promoting electoral fairness. Their purpose is to protect the right to meaningful participation of the entire electorate. They promote equality in the public debate during and immediately prior to an election by ensuring that wealthy individuals and entities cannot overwhelm the electoral discourse and drown out the voices of those with fewer resources. As a result, Canadians benefit from a wide diversity of views to inform their vote. Third-party spending limits also protect the integrity of the financing regime applicable to candidates and parties. If individuals or groups are permitted to run campaigns that directly or indirectly support particular political parties or candidate, this provides those parties and candidates with an unfair advantage over others that do not receive the same level of support. By promoting equality in the political debate and protecting the integrity of the financing regime, spending limits also ensure that voters have confidence in the electoral process by reducing the perception that wealthy entities can dictate the outcome of an election.

The proposed pre-election spending limits have built-in constraints. They only apply for a short period of time from June 30 in a fixed-date election year to the date when the election is called. This makes the spending limits unlikely to overlap with sittings of the House of Commons and thereby unlikely to limit political expression concerning government and Parliamentary activities at that time. The amounts of the limits themselves allow political parties and third parties room to spend in the pre-election period. Limits on third parties only apply to partisan advertising, partisan activities and election surveys, thus permitting third parties to spend unlimited amounts on issue advertising in the pre-election period.

Attribution, Registration and Disclosure Requirements

Clause 223 of the Bill would require third parties spending more than $500 in partisan advertising, partisan activities or election survey expenses in the pre-election period to register with Elections Canada. Third parties incurring $10,000 or more in total on partisan advertising, partisan activities and election survey expenses during the pre-election period would be required to appoint an auditor. Third parties incurring $10,000 or more in total on partisan advertising, partisan activities and election survey expenses during the pre-election period or receiving $10,000 or more in contributions for those purposes during that period would be required to file interim reports on contributions received and money spent in respect of these items. Reports would need to identify the name and address of those contributing over $200 for those purposes. A third party that was unable to identify which contributions were received for these purposes would be required to disclose all contributions of more than $200 that were made to the third party subsequent to the previous general election.

Clause 223 would also require third parties to self-identify on pre-election partisan advertisements.

Currently, third parties must disclose those contributions made for the purpose of funding election advertising during the six months prior to an election. Clause 234 would require all registered third parties to report on contributions received since the last election for the purposes of partisan advertising, partisan activity, election advertising and election surveys. Reports would need to identify the name and address of those contributing over $200 for those purposes. A third party that was unable to identify which contributions were received for these purposes would be required to disclose all contributions of more than $200 that were made to the third party subsequent to the previous general election.

These requirements engage section 2(b) of the Charter (freedom of expression) and potentially engage section 2(d) of the Charter (freedom of association). The requirement to disclose the identities of contributors to third parties potentially engages section 8 of the Charter. Section 8 provides that everyone has a right to be secure against unreasonable search and seizure and has been interpreted to protect a reasonable expectation of privacy, including informational privacy.

The following considerations support the consistency of the proposed attribution, registration and disclosure requirements with the Charter. These requirements enhance the transparency and accountability of the electoral process. They ensure the proper implementation and enforcement of the spending limits and provide important information to voters as to who is sponsoring advertising and activities intended to influence their vote. The proposals would encourage careful record keeping and compliance and would encourage third parties to be aware of the purpose for which they receive donations and how they use the money they receive.

Foreign funding

Clauses 223, 225 and 232 of the Bill would extend the current prohibition on third parties in Canada using foreign funds for advertising during the election period. The proposed new prohibition would prevent third parties from using foreign funds for advertising in the pre-election period and for election surveys and other partisan activities such as door-to-door canvassing in the pre-election and election periods. Foreign third parties would be prohibited from incurring expenses in the pre-election period for advertising and for election surveys and other partisan activities such as door-to-door canvassing.  Under clause 225, foreign third parties would no longer be permitted to incur election advertising expenses. Currently, they are permitted to spend up to $500 for advertising during the election period. Clause 190 would prohibit broadcasting entities and online platforms from knowingly selling advertising space to foreign individuals and entities who are using the advertising to unduly influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate or party.

These requirements engage section 2(b) of the Charter (freedom of expression) and potentially engage section 2(d) of the Charter (freedom of association).  

The following considerations support the consistency of the proposed limits on foreign funding with the Charter. Participation in Canadian elections should be restricted to people and organizations that have a legitimate interest and stake in the future of the country. Limits on foreign funding enhance the Canadians’ perception of the integrity of the electoral system by helping to ensure that the debate during elections reflects the priorities of those with a direct interest in the outcome of the election. The proposals would close gaps which allow foreign entities to legally fund many different types of election activities. The proposals also promote consistency in the treatment of third parties with the treatment of political parties and candidates, whose funding must come from Canadian sources. This promotes the integrity of the Canadian electoral process and ensures electoral fairness.

Non-resident voting

Clauses 7 and 151 to 156 of the Bill would remove provisions of the CEA that prevent certain non-resident citizens from voting. Currently, Canadian citizens residing outside of Canada cannot vote if they have been away for more than five consecutive years or if they do not intend to return to Canada as a resident. Exceptions are made for Canadian Forces members, federal and provincial public servants and employees of certain international organizations who are posted abroad.

Excluding citizens from voting when they do not meet the above requirements engages section 3 of the Charter (the right to vote and run as a candidate).

The proposal promotes the right to vote by removing certain residency-based limitations.

Voter identification

Clauses 93, 94, 107, 108, 117 and 118 of the Bill would permit electors to prove both their identity and their residence through a vouching process. Currently, the CEA permits electors to prove their residence, but not their identity, through a similar attestation procedure.

Clause 93 of the Bill would also permit the Chief Electoral Officer to authorize the “notice of confirmation of registration” – also known as the “Voter Identification Card” – as a type of identification that can be used to prove an elector’s identity or residence.

Requiring a voter to provide acceptable identification before receiving a ballot potentially engages section 3 of the Charter. Section 3 provides that every Canadian citizen has the right to vote in an election of members of the House of Commons and to be qualified for membership therein.

The following considerations support the consistency of the voter identification requirements with the Charter. Voter identification requirements address the perception and reality of voter fraud and therefore enhance confidence in the electoral system. The proposals would provide voters with more flexibility to prove their identity and residence, facilitating the exercise of rights under section 3. At the same time, they retain safeguards to ensure that the above objectives are properly met.

Reimbursement of accessibility expenses

Clause 270 of the Bill would allow registered political parties to be reimbursed 90% of their accessibility expenses during an election period, up to a maximum of $250,000, where the candidates endorsed by the registered party received at least two per cent of the number of valid votes cast at the election, or five per cent of the number of valid votes cast in the electoral districts in which the registered party endorsed a candidate. Accessibility expenses are expenses to make activities or materials accessible to the disabled. The percentage thresholds of votes cast reflect the current requirements of the Act for reimbursement of other types of election expenses.

Limiting eligibility for the reimbursement to registered political parties that reach these thresholds of valid votes potentially engages section 3 of the Charter (the right to vote and run as a candidate). The right to vote protects the ability of citizens to play a meaningful role in the electoral process. This has been interpreted as requiring that legislation not worsen an existing disparity in political parties’ capacity to communicate their positions to the general public. Such disparities allow some persons to have a more effective vehicle for their ideas and opinions than others.

The following considerations support the consistency of the thresholds for obtaining reimbursement of accessibility expenses. The thresholds are the same as those in effect for existing types of reimbursement. They reflect a carefully tailored balance between government financial support for the democratic process and the need to safeguard against the abuse of public funding by registered political parties with little intention of engaging in true electoral competition or in the political discourse of the day. This careful stewardship of public funds promotes the integrity of the electoral process and of its public financing system.

Enforcement mechanisms

Clause 357 of the Bill would provide the Commissioner of Canada Elections the power to seek a court order to compel testimony in order to further penal investigations.

The requirement to attend and submit to questions to further an investigation engages section 7 of the Charter, as it deprives individuals of their liberty. Section 7 provides that any deprivation of life, liberty and security of the person must be in accordance with the principles of fundamental justice.

The following considerations support the consistency of the Commissioner’s power to seek a court order to compel testimony with the Charter. Given the centrality of elections to our democracy and the importance of preserving public confidence in their integrity and validity, the Commissioner should have the necessary tools to swiftly and effectively investigate serious instances of alleged non-compliance with the CEA. The ability to seek a court order to compel individuals to provide information in relation to investigations would allow the Commissioner to get to the bottom of such alleged instances in a timely and effective manner. The power could not be used in respect of suspects in the investigation. Neither the testimony nor evidence derived from that testimony could be used in further proceedings against the individual being compelled to testify. A judge would be required to authorize any order compelling testimony and could do so only where there were reasonable grounds to believe an offence had been committed and that the testimony would provide evidence of the offence.

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