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The Regulation of Political Communications in Federal ElectionsDiscussion Paper 1: The Regulation of Political Communications under the Canada Elections Act

The political communications part of the CEA has its genesis in the work of the Barbeau Committee, which reported in 1966, and the Election Expenses Act, passed by Parliament in 1974.1 That committee and the legislation that followed were influenced by issues flowing from a steep rise in campaign costs that were brought about by the relatively new and powerful medium of television. The law as created in the 1970s and 1980s included spending limits and reporting requirements for parties and candidates. These provisions were aimed at ensuring fairness, reducing costs and providing transparency. They contained specific provisions targeted at communications, especially broadcast advertising. These included subsidies for purchasing advertising and a process for allocating broadcasting time among parties. At that time, the regulation of communications was applicable only during the election period (between the issue of the writ and polling day).2

Amendments over the years have built on and expanded on this framework. In 2000 the CEA was overhauled, and many of the provisions that had focused on particular types of communication, notably broadcasting, were broadened to take into account all "election advertising." Furthermore, new rules applicable to third parties that limit and require reporting of election advertising expenses were implemented.3 Bill C-76 passed into law in 2018, built on existing requirements, notably expanding some regulation outside the writ period in the case of a fixed-date general election.4 But the basic elements seen in the law today reflect those enacted by Parliament several decades ago. Those elements can be separated into three general groups:

  • those that contribute to transparency
  • those that promote fairness
  • those that prohibit certain communications with a goal of promoting a healthier democratic discussion

Transparency

Transparency can itself be broken down into three aspects:

  • transparency regarding who is communicating
  • transparency regarding who paid for the communication
  • transparency regarding the nature and substance of the communication

Transparency has several benefits, including deterring corruption and illegal activity and promoting greater public confidence in the electoral process as a whole.5 Transparency also promotes a more informed electorate.6

Transparency Regarding Who Is Communicating

In terms of who is communicating, the CEA provides that advertisements distributed by parties and candidates must contain a statement that they are authorized by the relevant agent ("the tagline").7 In the case of third parties, Bill C-76 added requirements that the tagline be "visible or otherwise accessible" and that it contain the name and Internet or civic address of the third party.8

The CEA also contains provisions governing transparency regarding election surveys, such as opinion polls. The law requires the first publisher of such a survey to provide names of those who sponsored and conducted the survey.

The CEA also contains provisions, administered by the Canadian Radio-Television and Telecommunications Commission (CRTC), that require transparency in relation to communications by phone. Political entities, third parties, groups and individuals calling electors during and about a federal election must register with the CRTC within 48 hours of making the first call; the exception is political entities and individuals who use their internal services to make live calls. Calling service providers must also register with the CRTC if they are making calls on someone's behalf.9

Bill C-76 added new transparency requirements with respect to certain online political advertisements. A registry maintained and published by the platform includes information about authorization.10

Transparency Regarding Who Paid for the Communication

The second aspect of transparency, knowing who paid for communications, is largely achieved through reporting by political entities about their contributors. Parties, candidates, electoral district associations, nomination contestants and leadership contestants are all required to make comprehensive reports of their contributors.11 These are then published by Elections Canada and made available to the public for inspection. Third parties also report some of their contributions.12 These contribution reports do not (for the most part) directly tie contributions to communications, but they provide information that can be used to understand who is supporting the activities of the political entities.

A closer tie between financing and the activity exists with respect to election surveys. The first publication of the survey must include the name of the sponsor of the survey.13

Transparency Regarding the Nature and Substance of the Communication

Most of the transparency provided for by the CEA relates to the above elements. However, in certain limited cases, the CEA requires additional information about the nature and substance of communications. Candidates, leadership contestants, nomination contestants and third parties are required to make a detailed report about the cost of specific expenses, including communications. Third parties are also required to report where the communication took place.14

Also, the first person who transmits an election survey, and anyone who transmits it within 24 hours thereafter, must include with the survey various types of methodological information that help an elector understand how reliable the survey is.15 The sponsor of the survey must also make available on a public website a further, more detailed report on the methodology.16 Finally, if an election survey is published that is not based on recognized statistical methods, that information must be indicated along with the survey results when they are published or if they are retransmitted within 24 hours.17

Furthermore, the online advertisement registry noted above includes not only who authorized the advertisement, but also copies of the advertisements themselves.18 This allows an additional level of transparency, as there is an ongoing reviewable record of the substance of the advertisement.19

In terms of voter contact calling, in addition to the record of who is responsible for calls (as discussed above), whoever makes or has contracted a provider to make calls must keep records of every telephone number called, copies of any scripts used for live calls, recordings of each message sent by an automatic-dialling announcing device and every date the script or message was used.20 While such records must be preserved and may be used in a prosecution, they are not publicly available.

Fairness

A second goal of the political financing provisions of the CEA is fairness of the electoral process with respect to the financing of participants in that process. Fairness is meant to be achieved through "levelling the playing field," promoting informed choices and ensuring public confidence in the electoral system by reducing the influence of money on elections.21 The CEA does this primarily through the imposing of spending limits during elections and the use of subsidies (notably election expenses reimbursements and tax credits for contributions) to better allow participants to get their message out to voters.22

In addition to these more general political financing provisions, the CEA contains specific provisions directed at certain communications that aim to further level the playing field between political entities with respect to these communications. Again, the focus of these provisions is broadcasting, reflecting the specific concern of the time when they were drafted.23

The CEA provides for a Broadcasting Arbitrator who is responsible for arbitrating decisions between broadcasters and parties concerning the booking of broadcasting time.24 This ensures that those who own broadcasting outlets cannot provide favourable treatment to one or another party and thus suppress the messages of some or favour the messages of others.

The CEA also provides that it is an offence to charge a political party or candidate a rate for broadcasting or an advertisement in a periodical publication that exceeds the lowest amount charged for an equal amount of equivalent time or space.25

Requirements on Communications to Promote Healthy Political Dialogue

Finally, the CEA also contains various provisions that restrict or prohibit communications that Parliament has determined to be problematic. The goal of these provisions is to improve democratic dialogue and facilitate the decision-making process for electors.

Notably, the CEA contains blackout provisions that state that new opinion polls and some election advertising are prohibited on polling day.26 In the past, the CEA has contained other and lengthier blackouts, but over the years judicial decisions and amendments have reduced those provisions to the more narrowly focused blackouts of today.27

The CEA also contains more targeted prohibitions on certain false communications relating to candidates or those associated with candidate or party campaigns.28 There are also prohibitions on intentional attempts to mislead through impersonation of a political entity or election official.29

Unsurprisingly, efforts to ban—as opposed to regulate or restrict—communications have attracted constitutional challenges, and governments have been required to articulate why particular communications are sufficiently problematic to warrant a ban. In Thomson Newspapers Co. v. Canada, where the court considered the constitutionality of the three-day opinion poll blackout then found in the CEA, it was argued that the poll ban was necessary to provide electors with a period of quiet repose to consider their voting options, and that the period allowed for an opportunity to respond to a misleading poll.30

The Court found that the argument of a period of quiet repose had no merit. The Court suggested that Canadians are not in need of a ban on certain types of information to protect them from being distracted in their voting decision. However, the Court did find that the ability to respond to an "inaccurate" poll justified a blackout, but only on polling day itself, as candidates and parties would have time to respond to inaccurate polls that came out the day before polling day.31

When the constitutionality of the polling day advertising blackout was challenged in Harper v. Canada, the Court found that the infringement of freedom of expression caused was justified to promote the objective of an informed vote by giving an opportunity for misleading advertising to be "assessed, criticized and possibly corrected."32 The Court also noted that blackouts may be justified by the objective of ensuring equality of information before voting in all parts of the country.33

Footnotes

Footnote 1 Canada, Report, Committee on Election Expenses, Ottawa, 1966. Election Expenses Act, S.C. 1973-74, c. 51.

Footnote 2 W.T. Stanbury, Money in Politics: Financing Federal Parties and Candidates in Canada (Toronto: Dundurn, 1991), at 27–39. F. Leslie Seidle, "The Election Expenses Act, the House of Commons and the Parties," in J.C. Courtney, ed., The Canadian House of Commons: Essays in Honour of Norman Ward (Calgary: University of Calgary Press, 1985), at 113.

Footnote 3 Canada Elections Act, S.C. 2000, c. 9 (hereinafter "CEA"). See, generally, part 16.

Footnote 4 Elections Modernization Act, S.C. 2018, c. 31. A "pre-election" period of a fixed-date general election was defined in ss. 2(1), which was then applied to certain activities of political entities, notably those of third parties.

Footnote 5 See L. Young, "Toward Transparency: An Evaluation of Disclosure Arrangements in Canadian Political Finance," in F. Leslie Seidle, ed., Issues in Party and Election Finance in Canada (Toronto: Dundurn, 1991), at 3. See also L. Turnbull, "Transparent and Level: Modernizing Political Financing in Canada" (Ottawa: Public Policy Forum, 2018), at 5.

Footnote 6 Harper v. Canada 2004 SCC 33 at paras 23 and 91.

Footnote 7 CEA, infra, s. 320 and 429.3.

Footnote 8 CEA, infra, s. 349.5 and 352.

Footnote 9 These requirements were added to the Act by S.C. 2014, c. 12.

Footnote 10 CEA, infra, s. 325.1 and 325.2.

Footnote 11 CEA, infra, ss. 432(2), 475.4(2), 476.75(2), 477.59(2) and 478.8(2).

Footnote 12 CEA, infra, ss. 359(4).

Footnote 13 CEA, infra, s. 326.

Footnote 14 See ss. 476.75 (nomination contestants), 477.59 (candidates), 478.8 (leadership contestants) and 359 (third parties). While these entities are required to provide a detailed report of expenses and documents supporting those expenses, registered parties and registered electoral district associations are not required by law to provide similar details or documents.

Footnote 15 CEA, infra, ss. 326(1) and (2).

Footnote 16 CEA, infra, ss. 326(3).

Footnote 17 CEA, infra, s. 327.

Footnote 18 CEA, infra, para.. 325.1(3)(a).

Footnote 19 The ease of reference is limited by the fact that each platform creates and maintains its own registry.

Footnote 20 CEA, infra, part 16.1.

Footnote 21 Libman v. Quebec [1997] 3 SCR 569 and Harper, infra, at para. 63. These cases reflected the Supreme Court's acceptance that limits on spending during an election, while a limitation on freedom of expression, may be justified under section 1 of the Charter of Rights and Freedoms.

Footnote 22 Spending limits are found at CEA, infra, ss. 429.1 and 430 (parties), 477.5 (candidates), and 349.1 and 350 (third parties). Election expenses reimbursement provisions are found at s. 444 (parties) and 477.73 and 477.74 (candidates). The income tax reimbursement is found at Income Tax Act, R.S.C. 1985, 5th supp., c. 1, ss. 127(3).

Footnote 23 See, esp., CEA, infra, s. 335 and 345.

Footnote 24 CEA, infra, s. 332.

Footnote 25 CEA, infra, s. 348.

Footnote 26 CEA, infra, s. 323, 324 and 328.

Footnote 27 It should be noted that the increasing trend towards advance voting (making up 26% of all ballots cast at the 2019 general election) also raises questions about the continuing relevance of polling day blackouts. See Chief Electoral Officer, Report on the 43rd General Election of October 21, 2019 (February 11, 2020), at s. 3.2.

Footnote 28 Section 91 is presently subject to a constitutional challenge in Canadian Constitution Foundation v. Canada (Attorney General), Ontario Superior Court file number CV-1900-6273800000.

Footnote 29 CEA, infra, s. 480.1 and 481.

Footnote 30 Thomson Newspapers Co. v. Canada [1998] 1 SCR 877, at paras 96–99.

Footnote 31 Ibid., at paras 100–109.

Footnote 32 Harper v. Canada, infra, at para. 133

Footnote 33 Harper v. Canada, infra, at para. 133. The objective of information equality as a reason to limit communications was also relied on by the Supreme Court in R. v. Bryan 2007 SCC 12, in upholding the (now repealed) blackout on disseminating results from parts of the country in other places where the polls had not yet closed.