Secondary menu

Discussion Paper: Issues Arising from Improper Telecommunications with Electors

2. Legal Context

This part of the paper sets out the rules that apply or do not apply, as the case may be to the improper calls made during the last general election. It sets out relevant parts of the Canada Elections Act, indicates that the main pieces of federal privacy legislation do not apply to political parties, and explains how a number of the Unsolicited Telecommunications Rules of the Canadian Radio-television and Telecommunications Commission (CRTC) dealing with telemarketing or automated calls do apply to political entities. Finally, it refers to certain offences set out in the Criminal Code.


Footnote 4 See Colin J. Bennett and Robin M. Bayley, Canadian Federal Political Parties and Personal Privacy Protection: A Comparative Analysis (Ottawa: Officer of the Privacy Commissioner, 2012), p. 34ff. http://www.priv.gc.ca/information/pub/pp_201203_e.asp.

Footnote 5 The expression "deceptive practices" is used in this document rather than the (in some respects) narrower concept of "voter suppression" commonly found in the literature. Voter suppression is defined in the US Department of Justice manual for the prosecution of election offences as follows: "Voter suppression schemes are designed to ensure the election of a favored candidate by blocking or impeding voters believed to oppose that candidate from getting to the polls to cast their ballots. Examples include providing false information to the public or a particular segment of the public regarding the qualifications to vote, the consequences of voting in connection with citizenship status, the dates or qualifications for absentee voting, the date of an election, the hours for voting, or the correct voting precinct. ... Currently there is no federal criminal statute that expressly prohibits this sort of voter suppression activity." See Craig C. Donsanto, Federal Prosecution of Election Offenses, 7th ed. (Dept. of Justice, 2007), p. 61. Elections Canada understands "deceptive practices" more broadly as including misinformation about political opponents.

Footnote 6 See Common Cause, Lawyers' Committee for Civil Rights Under Law and Century Foundation, Deceptive Practices 2.0: Legal and Policy Responses (Washington: Common Cause, 2008).

Footnote 7 The CEA does not address the collection of personal information by political entities or its disclosure. The need for the prosecutor to prove that the individual who used the information knew that it came from the lists of electors (as opposed to another source) reduces the chance of a successful prosecution and as such reduces accountability with regard to the protection and use of the personal information contained on the lists.

Footnote 8 On polling day, May 2, 2011, there were 64,477 polling stations located in 15,260 polling sites. In addition, 1,669 mobile polls were set up in 4,865 establishments.

Footnote 9 For example, electors have the option of providing their telephone number when they apply for special ballots in order for Elections Canada to contact them if their faxed documents are illegible.

Footnote 10 These principles are set out in Schedule 1 of PIPEDA and have been reproduced in the Annex to this paper.

Footnote 11 The Bennett and Bailey report mentioned supra indicates that British Columbia's Personal Information Protection Act defines an organization to include "a person, an unincorporated association, a trade union, a trust or a not for profit organization" and does not limit its application to commercial activities. It has been held to cover British Columbia's political parties and may also cover the activities of federal political parties in that province. See http://www.priv.gc.ca/information/pub/pp_201203_e.pdf, p.26.

Footnote 12 This section is Elections Canada's attempt to summarize the CRTC rules. The rules themselves can be found on the CRTC's website at http://crtc.gc.ca/eng/trules-reglest.htm. Also of interest is a one-pager entitled "Key facts on the telemarketing rules for political candidates, parties and organizations" found at http://crtc.gc.ca/eng/info_sht/t1041.htm. For further information regarding the Unsolicited Telecommunications Rules, please contact the CRTC.

Footnote 13 In December 2010, Parliament adopted anti-spam legislation (see S.C. 2010, c. 23). As a result, once the legislation comes into force, the mandate of the CRTC will be expanded to include commercial electronic messages.

Footnote 14 This issue is dealt with in the CRTC fact sheet entitled "Key facts on the telemarketing rules for political candidates, parties and organizations." It indicates that "[a] constituent's request to have their name and phone number added to the internal do not call list of a party or candidate, or those making calls on their behalf, must be honoured at the time of the call. Callers must update their internal do not call list within 31 days." See http://crtc.gc.ca/eng/info_sht/t1041.htm.

Footnote 15 These hours are subject to provincial legislation governing this type of activity.

Footnote 16 These hours are subject to provincial legislation governing this type of activity.

Footnote 17 The automated message sent to Guelph voters identified the originator as follows: "This is an automated message from Elections Canada."