A History of the Vote in Canada
The Charter Era, 1982–2006
No doubt the most significant influence on electoral law in the post-war years was the adoption of the Canadian Charter of Rights and Freedoms, which came into effect on April 17, 1982. Sections 2 to 5 of the Charter set out fundamental freedoms and democratic rights. Under section 3:
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly [of a province or territory] and to be qualified for membership therein.
Many Canadians probably assumed that their right to vote was assured well before 1982. As we have seen throughout this book, however, many people had been denied the franchise – some on racial or religious grounds, others because they could not get to a poll on voting day. Even when improvements in election law were proposed – for instance, extending advance polling to groups other than railway workers and commercial travellers – they sometimes provoked resistance in Parliament. We have seen, for example, how it took 50 years to extend advance voting to everyone who wanted it; each time a new group was given the "privilege" of advance voting, there was opposition, generally on the basis of cost or administrative convenience. Arguments based on democratic rights and principles were heard less often.
The Charter signalled a different approach. Section 2 guarantees the right to freedom of thought, expression and association, while section 1 ensures that the Charter rights and freedoms are subject only to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Moreover, the section 3 right to vote cannot be overridden by legislatures under any circumstance (as can some other Charter provisions by means of the so-called notwithstanding clauseFootnote 1).
The Charter also provides a basis on which to challenge losses or infringements of rights. Someone denied the franchise, for example, could appeal to the courts; if the appeal were successful, the courts might strike down part of the law or require changes in the administrative rules that resulted in disenfranchisement – and this has indeed happened frequently since 1982. Since the introduction of the Charter, there have been over 30 court cases involving electoral matters. Apart from the Criminal Code, federal electoral legislation is without a doubt among the laws most often challenged on the basis of the constitutional rights and freedoms established by the Charter.
A Democratic Right
The right to vote and to be a candidate for office has been enshrined since 1982 in the Canadian Charter of Rights and Freedoms. The Charter provided a basis for several groups to challenge their exclusion from the franchise and to contest other election law provisions in the courts.
Significant advances in election law and administration had occurred before the advent of the Charter – denial of the franchise on the basis of gender, religion, race, ethnicity and income had been removed from the law, and administrative steps had been taken to improve access to the vote for people with disabilities, people away from home on election day and members of the public service and the military serving abroad.
Yet, notwithstanding the changes to electoral law since the Second World War, disqualifications remained for judges, prisoners, expatriates and people with mental disabilities, and some people were still administratively disenfranchised. In addition, some citizens' electoral participation had also been curtailed: civil servants in some jurisdictions, for example, were prohibited from engaging in activities that would reveal partisan preferences.
At the same time, there was mounting interest in addressing public perceptions of influence peddling, stemming from the fact that the financial activities of political parties and third-party advocates were essentially unregulated. Yet the efforts to appease such perceptions, by adding restrictions on electoral financing to the Canada Elections Act, also fuelled numerous Charter-based court challenges, with alleged infringements of the right to freedom of expression – guaranteed under section 2 of the Charter – being the most commonly cited cause for legal recourse. As well, restrictions on broadcasting, third-party advertising and the publication of opinion polls during election campaigns faced similar tests under the section 2 guarantees.
Nonetheless, step by step, since 1982, many of these problems have been addressed. Measures taken by Parliament and by election officials ensure that Canada's electoral process is not only legally but also administratively consistent with Charter principles – making the vote accessible to everyone entitled to cast a ballot, while protecting the integrity of the process by balancing the influence of money on electoral contests with the right to free speech.
The achievement of these ends was assisted by the Royal Commission on Electoral Reform and Party Financing (also known as the Lortie Commission). It was appointed by the federal government in 1989 to review, among other matters, the many anomalies in the electoral process identified by Charter challengers. In 1992, the Commission's recommendations were reviewed by the Hawkes Committee, a special eight-member panel that produced additional recommendations concerning the Canada Elections Act. Both reports were reviewed by Parliament, with advice and support from the Chief Electoral Officer. One of the outcomes was the passage of Bill C-78 in 1992 and Bill C-114 in 1993 – which together initiated significant changes in the way electoral law dealt with access to the vote. Another was a host of recommendations by the Chief Electoral Officer that paved the way for major reforms to electoral finance regulation (most notably through Bill C-24 in 2003).
This chapter shows clearly the pervasive influence of Charter challenges on the development of these and other key pieces of electoral legislation.
Bill C-114: An Act to amend the Canada Elections Act
Among its many broad-ranging amendments to the Canada Elections Act in 1993, Bill C-114:
- extended the right to register on election day to electors from both rural and urban areas
- extended the use of the special ballot, enabling any elector to register and vote without having to appear in person on election day or at an advance poll
- permitted any elector to vote at an advance poll
- removed voting disqualifications for judges, people with mental disabilities and inmates serving less than two years in correctional institutions
- restricted election advertising expenses to $1,000 for "third parties" (that is, persons or groups other than candidates and political parties). Restricted expenses were those incurred for the purpose of supporting or opposing, directly and during an election, a particular registered party or the election of a particular candidate.
Election Administration and the Charter
Elections Canada ushered in the era of the Charter with Jean-Marc Hamel as Chief Electoral Officer, who began the process of responding to the Charter's rapidly burgeoning impact on the Canada Elections Act during the last eight years of his tenure. By the time Jean-Pierre Kingsley was appointed in 1990, a dozen or so cases had already come before the courts to challenge the act on Charter grounds. This unprecedented stream of legal challenges to federal legislation gave the new Chief Electoral Officer an opportunity not afforded his predecessor: foreknowledge of the Charter's sweeping effect on how Canadian legislation would henceforth be conceived, interpreted and executed.
In Mr. Kingsley's assessment, the Charter – along with developments in technology and the growing global interest in democracy – had fundamentally changed the function of his Office. Serving the public trust demanded more than simply administering the electoral legislation – it demanded an approach that was strategic and proactive. As the politically independent custodian of the Canada Elections Act, the Chief Electoral Officer was in a unique position to help legislators mould its provisions into conformity with the rights and freedoms set out in the Charter, while retaining the spirit of the act.
In 1990, Elections Canada faced a number of challenges. It employed a management system that functioned on a case-by-case basis. It faced a pending increase in the number of electoral districts following the 1991 census, and the need to implement recommendations from the Lortie Commission that included a means for expatriate Canadians to vote and a permanent register of electors. On top of these demands, the 35th general election was imminent, and there was the distinct possibility of a federal referendum. The concurrent information technology boom could have relieved many of these pressures, had the organization not also found itself significantly challenged in that area.
Signing the Writs
The Chief Electoral Officer of Canada, Jean-Pierre Kingsley, signed 308 writs, one for each electoral district, for the general election of June 28, 2004. At each election, a document like this instructs every returning officer to conduct an election to choose a member of Parliament.
To address these problems, as well as the needs of a significantly enlarged organization, a number of measures were implemented that reshaped the way elections are administered. Today, for example, Elections Canada employs a planning-based management system, and virtually all aspects of electoral operations have been computerized.
Election Administration and Access to the Ballot
To date, the principal beneficiaries of Charter challenges to electoral law, as far as the right to vote is concerned, have been judges, prisoners and people with mental disabilities.
Judges appointed by the federal Cabinet had been legally disqualified from voting since 1874. The law remained in place until 1993, but a Charter-based court ruling at the time of the 1988 general election rendered the provision inoperative. About 500 federally appointed judges became eligible to cast ballots in federal elections after a court struck down the relevant section of the Canada Elections Act, declaring it contrary to the Charter's guarantee of the right to vote.
Prisoners had not been allowed to vote since 1898 – although according to at least one MP, Lucien Cannon, some inmates appear to have found a way around the rules:
I know a case where the prisoners were allowed, under a sheriff's guard, to go and register their votes and they came back afterwards.
Debates April 19, 1920; 1820
The solicitor general of the day appeared not to credit this story, replying that prisoners might be on voters lists, but since they could not get to a ballot box, they would be disenfranchised in any event.
Until 1982, there was little parliamentary support for ensuring that prisoners could exercise the right to vote. Since 1982, however, inmates of several penal institutions have relied on the Charter to establish through the courts that they should indeed be able to vote. They began by challenging provincial election laws, where they had some success. Then, during the 1988 federal election, the Manitoba Court of Appeal ruled that the judiciary should not be determining which prisoners should or should not be disenfranchised; this was a matter for legislators, not judges.
Since then, judicial opposition to a general disqualification of prisoners has been demonstrated in various court decisions. These cases determined that a general or blanket disqualification of all inmates would no longer be tolerated under the Charter, but the courts did not establish what specific disqualifications would be acceptable, leaving that decision to legislators.
In 1993, Parliament removed from the law the disqualification for prisoners serving sentences of less than two years, but for prisoners serving longer terms, the disqualification remained in effect.
The new provision was challenged by an inmate serving a longer sentence. In its decision in Sauvé v. Canada (Chief Electoral Officer) in 2002, the Supreme Court of Canada ruled that prisoners serving terms of more than two years could not be disqualified from voting, stating that legislation infringing on prisoners' right to vote was not a reasonable limit of that right.
Although the legislation has not been amended, the Charter has, given the Supreme Court's ruling, secured access to the vote for all prisoners.
Denying the right to vote does not comply with the requirements [...] that punishment must not be arbitrary and must serve a valid criminal law purpose. Absence of arbitrariness requires that punishment be tailored to the acts and circumstances of the individual offender.
– Supreme Court of Canada
Decision in Sauvé v. Canada
October 31, 2002
The Courts and the Charter
The Supreme Court of Canada and several provincial courts, in interpreting the rights guaranteed in the Canadian Charter of Rights and Freedoms, have made a number of rulings on provisions of the Canada Elections Act. Court rulings have affected the definition of who has the right to vote, the number of candidates required for a political party to qualify for registration, limits on the publishing of election surveys during a campaign period and spending by third parties.
Sauvé v. Canada challenged a long-standing provision in the Canada Elections Act that prohibited inmates from voting. In its decision, the Ontario Court of Appeal considered three objectives that might be deemed important enough to infringe on prisoners' right to vote:
The Ontario Court of Appeal ruled that, even if taken collectively, these objectives could not justify outright denial of voting rights. The federal prohibition on inmate voting was repealed. The timing of the decision enabled inmates to vote during the 1992 federal referendum on the Charlottetown Accord.
The Supreme Court of Canada upheld the Sauvé (1992) verdict, stating that the act's prohibition against inmate voting was too broad, failing to meet the requirement that penal sanctions must result in minimal impairment of Charter rights, and that the negative effects of impairing the right must be proportionate to the benefits.
That same year, Bill C-114 removed the voting exclusion for prisoners serving less than two years.
In Sauvé (1995), the Federal Court Trial Division accepted the government's argument that enhancing civic responsibility, respect for the law and penal sanctions were sufficiently important objectives to warrant infringement of a Charter right. It found, however, that the disqualification for inmates serving two years or more still failed the tests of both proportionality and minimum impairment. Successful administration of the inmate vote in the 1992 referendum also appears to have influenced the Court's decision to strike down the prisoner voting restrictions of Bill C-114.
The Federal Court of Appeal reversed Sauvé (1995), ruling that Bill C-114's voting disqualification for inmates serving two years or more did meet the minimum impairment and proportionality tests.
On appeal, the Supreme Court of Canada upheld Sauvé (1995), concluding that:
Parliament did not amend the Canada Elections Act to remove the voting disqualification for inmates serving over two years. Nevertheless, the Chief Electoral Officer applied the Sauvé (2002) decision during the 2004 and 2006 general elections, giving all inmates the opportunity to vote.
In the 1980s and early 1990s, several changes in election administration and the law made it significantly easier for electors with physical disabilities to vote. One group of people with disabilities remained explicitly disenfranchised, however – those who were "restrained of [their] liberty of movement or deprived of the management of [their] property by reason of mental disease." In 1985, a Commons committee recommended that they be enumerated and have the same right to vote as other Canadians, and the Lortie Commission reached a similar conclusion in its 1992 report.
In the meantime, the courts struck down the provision. In 1988, the Canadian Disability Rights Council argued in a Charter challenge that the Canada Elections Act should not disqualify people who were under some form of restraint because of a mental disability. The Court agreed, although the ruling did not specify what level of mental competence would qualify a voter. In 1993, Parliament removed disqualification on the basis of mental disability as part of Bill C-114.
From Metal to Cardboard
Recyclable cardboard ballot boxes first replaced the traditional metal ones at the 1988 general election (in Quebec and Ontario) and at the 1992 federal referendum in the rest of the country. Developed by the National Research Council at Elections Canada's request, the cardboard boxes are lightweight and economical to produce. They can be shipped flat for easy assembly by polling station staff as needed, eliminating the need to store more than 100,000 boxes between elections. The cardboard voting screens were also redesigned to include an upper flap, which increases privacy and protects the secrecy of the vote.
Accessibility of the Vote
Throughout the 1980s, the disability rights movement in Canada pushed for legislative reform to enable full and equal access to all federal programs for people with physical disabilities. While, before Bill C-114, people with mental disabilities were explicitly excluded from voting, those with physical disabilities faced a similar implicit disenfranchisement, as numerous features of the legislation made voting physically impractical for many electors.
By the early 1990s, the matter had caught Parliament's attention on several fronts. A report entitled A Consensus for Action: The Economic Integration of Disabled Persons, published by the Standing Committee on Human Rights and the Status of Disabled Persons in June 1990, proposed a mandatory review across all federal departments, agencies and Crown corporations to identify all legislation that presented a barrier to people with physical disabilities. The Honourable Robert René de Cotret, Minister responsible for the status of persons with disabilities, initiated the review that fall.
Meanwhile, the idea of creating an omnibus bill to enact simultaneous cross-legislative amendments in the area of disability had acquired momentum from various disability rights organizations as well as from the July 1990 passage of the Americans with Disabilities Act in the United States. Community groups for persons with disabilities coordinated their response to the proposed changes in federal legislation through the Canadian Disability Rights Council, which submitted its own legislative proposals to the secretary of state in September 1991. Based on those proposals, together with the work of the Standing Committee, and additional recommendations from the Lortie Commission, the Hawkes Committee and the Chief Electoral Officer, de Cotret introduced Bill C-78: An Act to amend certain Acts with respect to persons with disabilities. Parliament's subsequent passage of the bill effected sweeping revisions to six federal acts.
Bill C-78 marked the first time in some years that Parliament had enacted legislation dealing exclusively with the concerns of Canadians with disabilities. It was also the first time such reforms were devised through direct consultation with the disability community – a significant reason why the bill was generally well received by those affected.
One among Bill C-78's many important reforms was a specific mandate for the Chief Electoral Officer to initiate public education and information programs to make the electoral process better known to the public – especially those most likely to experience difficulties exercising the franchise, whether because of disabilities, language barriers or other factors.
Removing Barriers to Voting
Obstacles, the 1981 report of the House of Commons Special Committee on the Disabled and the Handicapped, showed there were still many barriers to voting. The Committee recommended that Canada "establish a postal vote system" similar to the one in Manitoba and that the Chief Electoral Officer accommodate "the mobility problems of disabled persons." Another recommendation suggested amending the Canada Elections Act to "include provision for special polls at hospitals and nursing homes." These measures were included when Parliament passed Bill C-78 in 1992 and Bill C-114 in 1993, although the Chief Electoral Officer had already taken some administrative steps toward those goals. Among several clauses to improve accessibility, Bill C-78 provided for level access at all polling stations, and Bill C-114 extended special ballot voting to all electors.
While Bill C-78 focused on the needs of Canadians with disabilities, other legislation during this period improved access to the vote for all Canadians. In 1993, Bill C-114 effectively replaced proxy voting with an extension of the Special Voting Rules so that all electors could use the special ballot to vote by mail or in the office of the returning officer. The special ballot is a registration and voting system for Canadians away from their home ridings, people with disabilities, prison inmates and any other elector who cannot vote in person on election day or at an advance poll. All Canadians living or travelling outside the country – not just military personnel and diplomats – could now vote, provided that they had not been absent from Canada for more than five years, intended to return home at some time and applied for the special ballot before the deadline.
Bill C-78: An Act to amend certain Acts with respect to persons with disabilities
Bill C-78 (1992) made a number of amendments to electoral law and administration that made voting more accessible to persons with disabilities.
- It provided for mobile polling stations at institutions where seniors and persons with disabilities live. Election officers could take a ballot box to people who might have difficulty getting to the ordinary polling place.
- It guaranteed level access at all polling stations and the returning office; unavoidable exceptions would be permitted only with the authorization of the Chief Electoral Officer. Of the 17,684 polling sites in the 2006 general election, only 43 (0.2 percent) did not have level access, compared with 89 (0.5 percent) in the 2000 general election.
- It introduced transfer certificates that allow people with disabilities to vote at a different poll if their own does not have level access.
- It required templates to be available for the use of voters who are blind or have impaired vision.
- It enabled deputy returning officers to appoint language or sign language interpreters to assist them in communicating with electors.
- It allowed deputy returning officers to mark an elector's ballot on his or her behalf, in the presence of a witness, if the elector is unable to vote because of a physical disability.
- It mandated public education and information programs for Canadians with special needs.
Bringing the Ballot Box to Voters
In 1992, Bill C-78 made access to the vote easier in a number of ways. Among the improvements were mobile polling stations that serve many seniors and persons with disabilities in the institutions where they live.
Voting by Special Ballot
Any elector may now register and vote by mail or, as shown here, in person at the returning office. Those voting by special ballot use a unique system of three envelopes to preserve the secrecy of their choice.
Accessibility for Voters with Visual Disabilities
Voters with visual disabilities can use a cardboard template that has a series of holes, one for each candidate. This template enables the voters to feel where to mark the ballot for the candidate they prefer.
Once advance voting became available to all citizens in 1993, Canadian voters increasingly took advantage of the early opportunity to cast a ballot. Before the change, just over 500,000 Canadians voted at advance polls during the 1988 general election. That number rose to 633,000 in 1993, and 704,000 in 1997. In 2000, 775,000 Canadians voted in advance; in 2004, that number rose to 1.2 million, and to 1.5 million in 2006.
Voting While Serving Far Away
Members of Canada's military are able to vote in a federal election, regardless of where in Canada they are stationed or whether they are serving in a foreign land. Canadian Forces members – including teachers and administrative support staff at armed forces schools outside Canada – vote by special ballot. For example, at Camp Julien, in Afghanistan, Canadians serving in the International Security Assistance Force received ballots and the list of candidates for the 2004 general election. They voted a few days before most Canadians so that their ballots could be sent back to Ottawa in time for counting.
For many years, the polls opened and closed on election day at a standard hour in every time zone across the country. Ballots would be counted as the polls closed in each time zone from east to west, but voters would learn the results from elsewhere in the country only when the polls closed in their time zone. In Western Canada, voters would often turn on their television sets after their polls had closed only to learn that the outcome of the election had already been decided by ballots counted in the rest of the country. This created the disconcerting perception that the Western vote had no bearing on the national result. In 1996, the Canada Elections Act was amended to introduce staggered voting hours on election day at a general election, so that results would be available at approximately the same time across the country.
In 2000, the act was further amended to empower the Chief Electoral Officer to adjust voting hours in regions that do not switch to daylight saving time. As well, voting hours for all by-elections held on the same day in the same time zone now run from 8:30 a.m. to 8:30 p.m., local time. For by-elections held on the same day but in different time zones, staggered voting hours apply.
Staggered Voting Hours
In 1996, the times at which polls open and close in each time zone across Canada changed as follows:
|Region||Local Time||Eastern Time|
|Newfoundland Time||9:00 a.m. – 8:00 p.m.||7:30 a.m. – 6:30 p.m.|
|Atlantic Time||9:00 a.m. – 8:00 p.m.||8:00 a.m. – 7:00 p.m.|
|Eastern Time||9:00 a.m. – 8:00 p.m.||9:00 a.m. – 8:00 p.m.|
|Central Time||9:00 a.m. – 8:00 p.m.||10:00 a.m. – 9:00 p.m.|
|Mountain Time||9:00 a.m. – 8:00 p.m.||11:00 a.m. – 10:00 p.m.|
|Pacific Time||9:00 a.m. – 8:00 p.m.||12:00 p.m. – 11:00 p.m.|
|Region||Local Time||Eastern Time|
|Newfoundland Time||8:30 a.m. – 8:30 p.m.||7:00 a.m. – 7:00 p.m.|
|Atlantic Time||8:30 a.m. – 8:30 p.m.||7:30 a.m. – 7:30 p.m.|
|Eastern Time||9:30 a.m. – 9:30 p.m.||9:30 a.m. – 9:30 p.m.|
|Central Time*||8:30 a.m. – 8:30 p.m.||9:30 a.m. – 9:30 p.m.|
|Mountain Time*||7:30 a.m. – 7:30 p.m.||9:30 a.m. – 9:30 p.m.|
|Pacific Time||7:00 a.m. – 7:00 p.m.||10:00 a.m. – 10:00 p.m.|
*In Saskatchewan, when daylight saving time is in effect for the rest of the country, the following voting hours apply:
|Region||Local Time||Eastern Time|
|Central Time||7:30 a.m. – 7:30 p.m.||9:30 a.m. – 9:30 p.m.|
|Mountain Time||7:00 a.m. – 7:00 p.m.||10:00 a.m. – 10:00 p.m.|
Staggered Voting Hours
Canada's six time zones once created concern that Eastern ballots were counted and the results broadcast before some voters in Western Canada had finished casting their votes. The introduction of staggered voting hours in 2000 largely eliminated this problem, as the majority of election results from across the country are available at approximately the same time.
Meanwhile, widespread use of the World Wide Web and e-mail presented new challenges respecting controls on the premature release of election results. When a resident of British Columbia named Paul Bryan was prosecuted for posting results of the 2000 general election from Eastern provinces before polls in the West had closed, he challenged the constitutionality of the prohibition as set out in section 329 of the Canada Elections Act. The Provincial Court of British Columbia ruled against him in a 2003 decision, stating that, while the prohibition did infringe on freedom of expression, the objective of electoral fairness made this infringement reasonable under section 1 of the Charter. The Supreme Court of British Columbia overturned the decision on appeal, however, ruling that the violation of freedom of expression took precedence over the objective of the act.
At that point, the Chief Electoral Officer applied the prohibition on the transmission of election results across the country. This decision was based on the desire to achieve fair application of the act across the country.
On appeal, in May 2005, the Court of Appeal for British Columbia upheld the constitutionality of the publication ban under section 1 of the Charter, noting the impossibility of measuring the consequences of the non-regulated transmission of election results.
Mr. Bryan's appeal was heard by the Supreme Court of Canada on October 16, 2006. As of the date of publication, the Court has not yet rendered a judgment.
The National Register of Electors
First broached in the 1930s, the subject of a permanent register of electors – to replace the long-standing door-to-door enumeration process – was revisited on several occasions.
In 1968, the Canadian Representation Commissioner considered the system of continuous registration used in Australia, but dismissed this as too costly.
The 1986 White Paper on Election Law Reform, which looked at both permanent lists and annual enumerations, ultimately recommended that the existing enumeration approach be retained. However, it also inspired further reflection on the subject by outlining several potential benefits of a permanent list, including shorter campaign periods and the sharing of enumeration results among municipal, provincial and federal jurisdictions.
In the end, it was the 1989 Auditor General's report – critical of Elections Canada for not yet using computer technology to streamline its operations – that motivated the push for the long-elusive permanent list.
Several by-elections during 1990 afforded the first opportunity to test customized software for computerized voters lists, which came to be known as the Elections Canada Automated Production of Lists of Electors (ECAPLE) system. In 1992, Elections Canada prepared computerized voters lists for the referendum on the Charlottetown Accord and formally launched ECAPLE in 220 electoral districts, excluding Quebec, where the 1992 referendum was conducted under provincial legislation. The Referendum Act was subsequently amended to permit the use of the 1992 voters lists for the 1993 general election. This election gave Elections Canada the opportunity to develop the revision procedures necessary to ensure quality when reusing an existing list. Further, in the 1993 election, ECAPLE was extended to include the 75 electoral districts in Quebec.
The idea of establishing a register of electors received great impetus from the recommendations of the Lortie Commission. In 1992, the Commission, judging conditions not yet right for establishing a federal register, recommended that provincial lists of electors be used for federal purposes.
In 1995, Elections Canada established a working group to look at the many technical, legal, financial and other issues involved in establishing a permanent register. The team's report, submitted to the Chief Electoral Officer in March 1996, indicated that such a register would be both feasible and cost-effective, could shorten the election period by eliminating enumeration and could significantly reduce costs and duplication of effort across Canada. By that autumn, with the advocacy of the Honourable Herb Gray, Leader of the Government in the House of Commons and Minister responsible for electoral reform, Parliament had drafted amendments to the Canada Elections Act to enable the necessary administrative changes. With the December passage of Bill C-63, the mandate to create Canada's National Register of Electors was finally granted.
In April 1997, in preparation for the 1997 general election, Elections Canada conducted its final door-to-door enumeration. Because provincial elections had recently been held in Alberta and Prince Edward Island, lists from those provinces were used for the 1997 preliminary lists of electors. The National Register of Electors became a reality after this enumeration and was used for the first time during the June 1997 election.
Since that enumeration, the Register has been updated regularly with data from a variety of sources, obtained through information-sharing agreements negotiated by the Chief Electoral Officer. Data-sharing partners of the Register include its provincial counterparts in British Columbia and Quebec, provincial and territorial motor vehicle and vital statistics registrars and, federally, the Canada Revenue Agency, Citizenship and Immigration Canada and Canada Post. Together, these sources update the addresses of the approximately three million Canadians who move each year, and identify the names of new electors who turn 18 years of age or acquire Canadian citizenship, and those who die and must be removed from the lists. Elections Canada also updates the Register from the electoral lists of the six provinces and territories that still use some form of enumeration, and the agency normally visits some 10 percent of households in targeted revision initiatives during federal elections. Both the Canada Elections Act and the Privacy Act protect voters' personal information.
The current approach assumes that an enumeration must be as complete as possible if voter registration is to achieve full coverage. This ignores the fact that revision and election-day registration are integral components of a comprehensive process of registration.
– Royal Commission on Electoral Reform
and Party Financing
Final Report, 1992
From its conception, a primary goal of the National Register of Electors was to minimize duplication of effort between elections and across jurisdictions, thereby reducing costs for the taxpayer. According to a statement by the Chief Electoral Officer to the Standing Senate Committee on National Finance on February 8, 2005, concerning its use in the 2000 and 2004 general elections, the Register was estimated to have "saved $31 million at the provincial and municipal levels, over and above the $60 million net savings at the federal level. If one includes British Columbia's projected $11 million savings [for the May 2005 provincial elections], the estimated total cost avoidance to date resulting from the National Register of Electors amounts to over $100 million." According to the report of the Chief Electoral Officer of British Columbia following the 2005 provincial general election, targeted revision in that province, which was supplemented with Register information from Elections Canada, was much more economical than the 1999 mail-based enumeration. In 1999, 28,000 voters were added, and there were just over 1 million registration transactions, at a total cost of more than $4 million. In 2005, Elections BC spent $3.2 million to add almost 650,000 voters and perform 3.6 million registration transactions.
Registering at Home
While most information for the voters lists comes from the National Register of Electors, targeted revision of high mobility and low registration areas is conducted during election campaigns. Revising agents visit new subdivisions, apartment buildings, student residences, nursing homes and chronic care hospitals. The effectiveness of door-to-door canvassing is declining because increasing numbers of people are away from home during the day and there is growing reluctance toopen doors to strangers.
By eliminating the need to conduct a full enumeration with each election, the Register enabled another change long advocated by many voters: the shortening of election campaigns. In 1997, the minimum length of time required between the issue of the election writs and polling day was reduced from 47 to 36 days, and this standard has remained in effect.
The 2000 Canada Elections Act
The majority of the federal electoral legislation in force at the end of the last century was enacted in 1970. In the 30 years following, the Canada Elections Act evolved into an intimidating maze of updates, amendments, revisions and clarifications, to the extent that much of its contents were hard to decipher. Additionally, several recommendation lists produced through the 1990s made it increasingly clear that the act was in need of much more than a bit of housecleaning. After the 1992 reports of the Lortie Commission and the Hawkes Committee, as well as much related input from the Chief Electoral Officer over the years, the Standing Committee on Procedure and House Affairs declared that the cumulative investment of effort in electoral reform demanded that Parliament make fixing the act a priority.
With the experience of the 1997 general election still fresh, the Committee tabled its own report the following June. Their synthesis of the previous work and recommendations made over the years provided the basis for the new legislation. With the passage of Bill C-2 in September 2000, the long-standing need to streamline the language, organization and provisions of the act had been met. A new Canada Elections Act was born.
Highlights of the 2000 Canada Elections Act
- The act has been reorganized and clarified to make it easier to interpret and apply.
- Regulation of election advertising expenses by third parties has been extended to include requirements for registration, disclosure and spending limits of $150,000 nationally – $3,000 in a particular electoral district – per general election. The spending limits are adjusted annually for inflation.
- The publication or broadcasting of election advertising and new election opinion surveys is prohibited on election day until all polling stations in the electoral district are closed.
- Disclosure of financial information by registered parties is subject to more rigorous reporting requirements.
- The Commissioner of Canada Elections is empowered to enter into compliance agreements and to seek injunctions during a campaign to require compliance with the act.
- The act provides for other administrative changes to improve the accessibility of Canada's electoral process.
In recent years, the Canada Elections Act has been amended several times to make access to voting easier, establish the National Register of Electors, conform more closely with the Canadian Charter of Rights and Freedoms and extend regulations governing political financing.
In addition to simplifying the old legislation, the new act made significant changes to it, including better access to the ballot, regulating the publication of opinion polls and regulating election advertising by third parties.
The act also made important new provisions for its own enforcement. For example, it allowed the Commissioner of Canada Elections (the person responsible for this enforcement) to resolve some contraventions by entering into compliance agreements – a remedial rather than a punitive measure. Additionally, the Commissioner gained the authority to seek injunctions, during an election period, to stop a contravention or force a person to comply with the act where fairness and the public interest warranted action. Formerly, the Commissioner was able to proceed only through the regular courts.
Registering at the Polls
Canadians who are not already on the voters lists can register when they go to vote at the advance or election day polls. They must present proof of their identity and residence; or they may swear a statement of that information if they are accompanied by another elector who is already registered and who vouches for them.
The legislation also standardized the process by which voters could register on the day of an election. Since 1993, both rural and urban voters had been permitted to register on election day, but only rural voters had the option to qualify, without documented evidence of identity and address, by simply making a sworn statement and having any other elector registered in that polling division vouch for them. Bill C-2 extended this option to urban voters as well.
The new Canada Elections Act clarified the rights of tenants and landlords with respect to campaign posters and signs. Under the new act, it is illegal for landlords to prohibit displays of election posters, although they may set reasonable conditions for the size or type of poster and may prohibit display of posters in common areas. Additionally, it is now an offence under the new act to deny candidates or their representatives access to an apartment building or condominium during an election period.
In modern election campaigns, advertising by political parties and candidates – using television, radio, newspapers, brochures, placards and other media – has become one of the ways in which voters receive information about the choices available to them. All advertising, including that of candidates and political parties, is prohibited on election day, with the exception of previously published advertising in pamphlets, on billboards or on signs. Another exception to this prohibition is Internet election advertising published before election day, if the advertisement did not change on election day. This restriction is intended to ensure that candidates have an opportunity to respond to any advertising made by their opponents before the polls open.
|1920||The Dominion Elections Act consolidates Parliament's control of the federal franchise, introduces advance voting and establishes the post of Chief Electoral Officer.|
|1921||The first federal election is held at which women vote on the basis of the universal franchise, which had been granted three years earlier, near the end of the First World War.|
|1930||The government of R. B. Bennett introduces a standing list of electors to replace enumeration, but abandons the approach as impractical and expensive after one election.|
|1950||Inuit are granted the right to vote.|
|1955||The last vestiges of religious discrimination are removed from the federal elections act.|
|1960||The government of John Diefenbaker extends the franchise unconditionally to "registered Indians."|
|1970||The voting age is lowered from 21 to 18; 18-year-olds vote for the first time in the 1972 general election.|
|1982||The Canadian Charter of Rights and Freedoms entrenches the right to vote and to be a candidate.|
|1992||Measures are formalized to ensure access to the vote for people with disabilities. The Referendum Act provides the legal and administrative framework for conducting federal referendums on any question related to the Constitution of Canada.|
|1993||The use of the special ballot is broadened to permit voting by anyone who cannot vote on election day or at an advance poll, including Canadians living or travelling abroad. Also, inmates serving sentences of less than two years, judges and people with mental disabilities are qualified for voting.|
|1996||The act is amended to provide for the establishment of the National Register of Electors, eliminating door-to-door enumeration.|
|1996||Longer and staggered voting hours are introduced.|
|2002||The Supreme Court decision in Sauvé v. Canada repeals the Canada Elections Act restriction of voting rights for inmates serving sentences longer than two years.|
|2004||All inmates can vote in the 2004 general election.|
Many, many polling stations
More than 65,000 polling stations in every city, town and village across Canada were needed for the general election of January 23, 2006. Almost 15 million ballots were cast in that winter election, including more than 1.5 million during three days of advance voting.
Court decisions have struck down the more extensive blackout period in previous legislation. The 2000 Canada Elections Act limits the blackout period only to the transmission of election advertising on polling day, until the close of all polling stations in the electoral district. The Supreme Court of Canada upheld this legislation in 2004.
Opinion polls have become an integral part of modern elections. Concerned that opinion polls published late in an election campaign could affect the outcome of the election, Parliament in 1993 adopted legislation banning publication of opinion polls during the 72 hours before election day. However, this provision was challenged in court as an infringement of freedom of speech, and, in its 1998 decision in Thomson Newspapers Co. v. Canada (Attorney General), the Supreme Court of Canada struck it down as a violation of freedom of expression, ruling that the limits were unjustified under section 1 of the Charter.
At the same time, the court's ruling indicated that concerns about the methodological accuracy of polls were warranted, and that it would therefore be constitutional to invoke legislation requiring poll results to be accompanied by details about the methodology used. Consequently, the 2000 Canada Elections Act requires the initial publication of opinion polls to include details about the sponsor and the methodology of the survey. The new act also prevents the publication of the results of new or previously unpublished opinion polls on election day, for reasons similar to the ban of advertising on election day.
For the democratic process to be truly representative, a system for maintaining the fair and balanced distribution of constituency boundaries is essential. The Fathers of Confederation addressed this requirement in the Constitution Act, 1867, by adopting the basic working principle of "representation by population." Given that the act guaranteed Quebec a minimum of 65 seats in the House of Commons, the seat allotment for the rest of the country was determined by dividing the average population in Quebec's 65 ridings into the total population for each of the other provinces – thus making the number of seats per province proportional to their respective populations. The Constitution Act, 1867 furthermore provided a mechanism for maintaining this balance by specifying that a process to review and adjust provincial seat allotments, as well as boundaries of individual ridings, should occur after each 10-year census.
Significantly, in those early years after Confederation, the responsibility for determining the new boundary placements rested solely with the government. The Representation Act of 1903 sought to rectify the consequent political advantage by conferring the job of boundary readjustment on a bipartisan committee of the House of Commons. Since the governing party still held a majority on the committee, though, the pursuit of balanced democratic representation remained a secondary consideration, and blatant political manoeuvring within the process continued to fuel rancorous debate for another 60 years.
In 1964, the Electoral Boundaries Readjustment Act (EBRA) established a genuinely impartial process for redrawing constituency borders in Canada – one that has remained essentially unchanged in the four decades since. The premise underlying the impartiality sought by EBRA is that the responsibility for boundary adjustment must be assigned to formally non-partisan bodies. To this end, the legislation provides for the appointment, in each province,Footnote 2 of an independent electoral boundaries commission to supervise the redistribution process.
Readjusting Electoral Boundaries
The process of boundary readjustment, largely unchanged since the Electoral Boundaries Readjustment Act of 1964, works as follows:
- After each decennial census, the Chief Statistician of Canada sends provincial population data to the Chief Electoral Officer, who applies the formula set out in the law to calculate how many seats are allotted to each province. (Since its first incarnation in the Constitution Act, this formula has changed many times in attempts to maintain fair representation in the face of shifting demographic realities.)
- Electoral boundaries commissions are established, consisting of a chairperson – typically a provincial court judge – appointed by the chief justice of each province, and two residents of the province, appointed by the Speaker of the House of Commons. The commissions must begin deliberating on new electoral district boundaries within 60 days after the census data are sent.
- Each commission develops a redistribution plan that is published in newspaper ads, along with times and locations for public hearings, at least 60 days before the first scheduled hearing. Upon written notice to the commission, any interested individual or group – including sitting MPs and senators – can speak at the hearings.
- Commissions must complete their reports, typically, within a year of receiving the population data.
- A designated House of Commons electoral committee receives the commissions' reports, by way of the Chief Electoral Officer and the Speaker of the House.
- MPs have 30 days to file written objections to the reports, which must be signed by at least 10 MPs altogether. The committee then has another 30 days to discuss these objections, before returning the reports, with their comments, to the commissions.
- The commissions modify the reports – or not, as they choose – then forward their final boundary decisions to the Chief Electoral Officer.
- The Chief Electoral Officer issues a draft representation order, based on the commission reports, documenting names, populations and descriptions of the new electoral districts, and forwards this document to the responsible minister.
- Cabinet proclaims the representation order within five days of its receipt, making the new boundaries public. Within five more days, Cabinet must publish the representation order and the proclamation declaring it to be in force in the Canada Gazette.
- At least one year must pass between the date Cabinet proclaims the representation order and the date Parliament is dissolved for a general election before the new boundaries can be applied to that election.
Shifting the Boundaries
The work of determining federal electoral district boundaries following each decennial census is done by 10 independent electoral boundaries commissions (one for each province). As Nunavut, the Northwest Territories and Yukon constitute one electoral district each, they do not require commissions or boundary changes. Pictured here is the commission for Ontario, at one of its 2002 hearings in London, during the most recent boundaries readjustment process.
While EBRA has proved itself significantly superior to its predecessors, no legislation can be expected to reign unchallenged over such a demographically sensitive function. With continual, volatile population shifts occurring since the 1970s, the EBRA process has led to new seats being created in southern, urban areas of the country at the expense of remote, northern and rural ridings, as well as some established and historic ridings in urban cores.
Ensuing Charter challenges have highlighted the concept of "community of interest" – the most significant case being Carter v. Saskatchewan (1991). The case was put forward on behalf of the Society for the Advancement of Voter Equality (SAVE), a group of Saskatoon and Regina voters seeking a court ruling on the constitutional validity of the electoral boundaries adopted by Saskatchewan after The Representation Act, 1989 became law.Footnote 3 In reversing a decision by that province's court, the Supreme Court of Canada held that strict population count should not be deemed the only consideration in defining equitable electoral district boundaries. The court ruled that "the purpose of the right to vote enshrined in section 3 of the Charter is not equality of voting power per se, but the right to 'effective representation'," which could be achieved by "relative parity of voting power," taking factors such as geography, community history, community interest and minority representation into account, to "ensure that our legislative assemblies effectively represent the diversity of our social mosaic."
The most recent case highlighting the concept of community of interest was Raîche v. Canada (Attorney General) (2004), in which the Federal Court held that the Federal Electoral Boundaries Commission for New Brunswick had erred in its application of the rules governing the preparation of its recommendations. The court found that the commission had not adequately heeded the importance of the Official Languages Act and the communities of interest that existed in the electoral districts. In response to this case, Bill C-36, which received royal assent in 2005, changed the boundaries of the Acadie–Bathurst and Miramichi electoral districts. This was the first time since the introduction of EBRA that a court had ordered that an electoral boundary be changed.
In 1994, the suspension of some sections of EBRA led to the drafting of Bill C-69: An Act to provide for the establishment of electoral boundaries commissions and the readjustment of electoral boundaries. Provisions in the proposed legislation were aimed largely at forging a closer link between the redistribution process and the real needs of the populations it sought to serve. It provided for redistribution reviews every five years, instead of 10, where warranted by significant population swings. It also defined the term "community of interest" to include
... such factors as the economy, existing or traditional boundaries of electoral districts, the urban or rural characteristics of a territory, the boundaries of municipalities and Indian reserves, natural boundaries and access to means of communication and transportation.
Bill C-69 was passed by the House of Commons, but subsequently died on the Order Paper in the Senate when the 1997 general election was called.
Following the Representation Order of 2003, the Standing Committee on Procedure and House Affairs made a bid to address these problems in its April 2004 report to the House, offering several key recommendations for improving redistribution. The report drew on the extensive experience of the Subcommittee on Electoral Boundaries Readjustment, which the Committee had established to deal with objections of members of Parliament to the reports of the electoral boundaries commissions following the 2001 census. The Committee intended to highlight strengths and weaknesses in the redistribution process so that improvements could be found. Many of the recommendations sought to increase the transparency and accountability of the commissions by raising their public standing while maintaining their effectiveness and independence. The Committee made 21 recommendations, including one to appoint three federal judges to act as a national appeal tribunal. According to this recommendation, appeals could be put forward where significant opposition was registered, or where a commission did not make changes despite a mandatory second public review and a recommendation for change was made by a committee of the House of Commons. In a March 2005 response to one of the Standing Committee's later reports, the government stated that it agreed with the need to improve the redistribution process and that this should occur before the next decennial census in 2011.
Populations in Canada move significantly over time. Who would have predicted the dramatic growth of the west at the time of Confederation? The political leaders at the time did not. This is obvious from the way they allocated seats to the Senate.
– Elwin Hermanson
Debate on Bill C-69
House of Commons, February 24, 1995
In May 2005, the Chief Electoral Officer issued a report entitled Enhancing the Values of Redistribution, which outlined his own recommendations following the Representation Order of 2003. The report was divided into five groups of recommendations, including:
- ways in which the timely conclusion of redistribution can be ensured
- amendments to enhance the effective representation of Canadians
- ways to improve the amount and quality of public input in the redistribution process, support mechanisms to assist commissions in completing their work and means to standardize the methods by which a commission's decisions can be reviewed
- a suggestion that the Federal Court of Appeal consider applications for review of commissions' decisions
The report also supported the calls from the Standing Committee to embed the term "communities of interest" in the legislation, by specifically proposing that
... a commission shall recognize communities when doing so promotes or maintains the effective representation of members of the community. In applying the concept of community, the commission shall consider factors such as: demographic and sociological characteristics; boundaries of local government and administrative units; economic ties; and any other factor that the commission feels is demonstrative of the existence of a community.
Whatever EBRA's shortcomings are judged to be, there is little doubt that the legislation has generally served well over the five redistributions that have occurred since 1961 and has freed the process from gerrymandering. Despite the fact that the current system works well, refinements will undoubtedly be required to reflect the ongoing changes in regional populations and communities of interest while ensuring effective representation of Canadians.
|Year||Can.||N.B.||N.S.||Ont.||Que.||Man.||B.C.||P.E.I.||Alta.||Sask.||N.W.T. / Y.T.||N.L.|
Electoral Districts per Province and Territory
The number of electoral districts (and seats in the House of Commons) rose by seven, to 308, when a new representation order came into effect with the dissolution of Parliament for the 2004 general election. As this map of districts per province and territory illustrates, the additional districts, reflecting changes in population, were allocated to British Columbia (2), Alberta (2) and Ontario (3).
Regulation of Political Parties, Candidates and Campaign Finance
From Confederation to the present, we have seen a steady expansion of the franchise as citizens' right to vote became the cornerstone of electoral law. For this right to be meaningful, however, citizens must be able, first, to choose among competing parties and candidates and, second, to support the validity of their choice by having access to information about the activities of the contestants. Yet the full disclosure of electoral activity required by today's standards is a strikingly recent innovation.
Concerns about the fairness of political competition and worries about donors exercising undue influence over politicians are hardly new themes in Canadian politics. In 1873, telegraph transcripts showed Sir John A. Macdonald demanding large campaign contributions from promoters of the Canadian Pacific Railway; the evidence helped topple his Conservative government – and prompted the succeeding Liberals to quickly adopt the Dominion Elections Act. In its first iteration, in 1874, the act required candidates and their "agents" (political parties were not recognized in law until nearly a century later) to disclose how and where campaign funds were spent. However, the act's provisions did not limit these expenses, require disclosure of contributions or even assign responsibility for administering and enforcing the legislation.
Further scandals continued to shake the House in the ensuing decades, countered by many new provisions in the act. In 1891, it became an offence to assist a candidate in exchange for money or other valuable consideration. In 1908, corporations were barred from making campaign contributions, while others could make donations only through a candidate's official agent. The lack of an overseeing body, however, made the legislation an ineffective deterrent, and businesses continued to donate campaign funds freely to whomever they wished.
Starting in 1920, candidates were required to reveal the names of contributors and the amounts of their donations. For nearly 50 years, these changes remained the last significant amendments to the election financing provisions of the act, despite the lingering deficiencies that would be exposed from time to time.
However, if the mid-twentieth century was marked by a prolonged inattention to the advancement of electoral financing provisions, the years from 1970 to the present redressed the lull with a flurry of legislation. It was during this period that political parties were first recognized in law – and the financial activities of political parties, candidates, third parties, nomination and leadership contestants, and local electoral district associations alike first became regulated. Also dating from this period is the position of Commissioner of Election Expenses, later designated the Commissioner of Canada Elections.
Recognition of Political Parties in Law
The Canadian constitution does not recognize the existence of political parties. Nevertheless, the freedoms of association and peaceful assembly are explicitly entrenched in the Canadian Charter of Rights and Freedoms (section 2) and may only be restricted on the basis of (as stated in section 1) "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Before 1970, the Canada Elections Act also did not recognize the existence of political parties. However, this situation was examined in 1966 by the Committee on Election Expenses (the Barbeau Committee), which contended that such legal recognition could be used to enable:
- equalization in the money available to electoral candidates
- access to information by requiring disclosure of electoral financing
- wider participation in politics by the electorate through a tax credit system
Barbeau considered these objectives fundamental to the development of the democratic system.
Following Barbeau's recommendations, the Canada Elections Act was amended in 1970 to include a process by which political parties could register and thereby receive legal recognition. This was an attractive innovation for party leaders because, by registering, a party was for the first time allowed to place its name on the ballot under that of its candidate in any electoral district. Given that candidate support is strongly influenced by party affiliation, this was an important piece of information to have on the ballot.
Registration became all the more significant a few years later, when, following recommendations from both Barbeau and the 1972 report from the Special House of Commons Committee on Elections Expenses (the Chappell Committee), Parliament adopted Bill C-203, the Election Expenses Act, in 1974. This was a significant new piece of legislation because, on the one hand, it required political parties to limit their election spending and report the sources of their contributions, but at the same time, it made them eligible to receive reimbursements for a portion of their election expenses.
Once political parties are recognized in law and become recipients of public funding, it is necessary to devise a means to determine what kind of entity qualifies for such benefits. The first approach to this came in the 1970 legislation, which stipulated that for a political party to qualify for registration and the associated benefits, it had to run candidates in at least 50 electoral districts.
Fifty Candidates Not Needed
Communist Party of Canada leader Miguel Figueroa went to court and successfully challenged a provision of the Canada Elections Act that required a political party to field 50 candidates in a general election to maintain its registration. Only registered parties that field at least one candidate have the right to list their party name on the ballot next to the candidate's name.
This requirement stood for many years before being challenged under the Charter by Miguel Figueroa, leader of the Communist Party of Canada. Founded in 1921 and registered under the Canada Elections Act since party registration began in 1974, the Communist Party was deregistered in 1993 because it failed to run 50 candidates in that year's general election. The Supreme Court of Canada's 2003 decision in Figueroa v. Canada struck down the 50-candidate requirement as an unjustifiable restriction on the rights guaranteed under the Charter. The court determined there was no reason to believe that a political party running fewer than 50 candidates could not act as an effective outlet for the meaningful participation of individual candidates. The ruling also declared that restricting the ability of political parties to register was an unwarranted infringement on the right of citizens to play a meaningful role in the electoral process.
Thus in 2004, Parliament adopted Bill C-3Footnote 4: An Act to amend the Canada Elections Act and the Income Tax Act, implementing new criteria for the registration of political parties. The intent of the bill, supported by both the government and the opposition parties, was to strike an appropriate balance between fairness to parties and the integrity of the electoral system.
Among the legislation's innovations was the country's first legal definition of a political party, which it described as
... an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.
The bill also included new provisions for measuring political activity. Parties were required to maintain, at all times, the presence of a leader, three other officers and at least 250 members. Furthermore, parties had to submit an updated members list and signed declarations every third year and annually file a statement outlining the party's fundamental purpose. Failure to meet any of these conditions brought the risk of deregistration.
At committee stage in the House of Commons, a sunset provision was added to Bill C-3 to accommodate concerns with the new legislation. According to that provision, the amendments made by C-3 to the Canada Elections Act would retire two years after the legislation came into effect. On April 24, 2006, the government introduced Bill C-4, An Act to amend An Act to amend the Canada Elections Act and the Income Tax Act. Bill C-4 received royal assent on May 11, 2006. It replaces the sunset provision in Bill C-3 with a requirement for a mandatory review of the legislation, within two years, by a committee of the Senate and a committee of the House of Commons.
Reforming Electoral Finance
Before 1974, only the finances of candidates were regulated under electoral legislation, leaving all others free to promote the party or candidate of their choice to whatever extent they saw fit. In the opinion of the 1966 Committee on Election Expenses (Barbeau),
... no group or bodies other than registered parties and nominated candidates [should] be permitted to purchase radio and television time, or to use paid advertising in newspapers, periodicals, or direct mailing, posters or billboards in support of, or opposition to, any party or candidate, from the date of the issuance of the election writ until the day after polling day.
Conceding that such limits might encroach somewhat on the freedom of third parties, the Barbeau Committee nonetheless concluded that without any restrictions, it would simply be impossible to limit and control election spending. Barbeau's recommendation, however, extended only to expenditures aimed at directly opposing or endorsing parties or candidates during an election period. It did not support a ban of indirect expenditures (issue advocacy), believing that this would "stifle the actions of such groups in their day-to-day activities." In 1972, the Chappell Committee – while supporting Barbeau's position on direct expenditures – extended the recommendation to indirect expenditures as well.
In 1974, a Liberal minority government had a slim margin of seats over the opposition Progressive Conservatives, with the New Democratic Party holding the balance of power. It was a time when many closely related events caused concern about mushrooming election expenditures. To this were added all the ramifications of Watergate following the 1972 election in the United States. These events built up public concern about the impact of high election expenses on democracy, and they are said to have greatly influenced the adoption of the Election Expenses Act by Parliament in 1974. (Stanbury) This legislation established the first comprehensive set of financial rules for federal political parties.
A key innovation of the 1974 legislation was to impose limits on how much parties and candidates could spend during election campaigns. This measure was intended to prevent an upward spiral in spending and to make election contests fairer by ensuring that parties and candidates could not vastly outspend one another. This position has been upheld consistently since. For instance, the Lortie Commission, in its 1992 report, concluded that spending limits
... constitute a significant instrument for promoting fairness in the electoral process. They reduce the potential advantage of those with access to significant financial resources and thus help foster a reasonable balance in debate during elections. They also encourage access to the election process. (RCERPF, 336)
In 1993, a ban was imposed on political donations from foreign sources. (A decade after that, Bill C-24 and in 2006, Bill C-2 further restricted contributions and other aspects of electoral financing – see "Extending Public Funding and Regulation".)
The 1974 legislation also made significant advances in spending transparency, which is a key consideration for any regulatory regime governing political finance. To make informed judgments about candidates and political parties, voters must have access to information about who is contributing to these parties and in what amounts. Embracing this principle, the Election Expenses Act required candidates and political parties to disclose the names and contribution amounts of all contributors donating more than $100. (This threshold was later raised to $200 under the 2000 Canada Elections Act.)
Also among the 1974 reforms were amendments to the Broadcasting Act (1968) that entitled registered political parties to an allotment of free and paid broadcasting time during elections. Radio and television stations were required to make available up to 6.5 hours of prime time for paid advertising or political broadcasts by registered parties during the last four weeks of the election campaign. Starting in 1983, this time was allocated among parties by the Broadcasting Arbitrator, who used a formula based on the party's popular vote and the number of seats it won in the previous election. As well, radio and television networks were required to make free-time programming available to registered parties during network-reserved time periods – although not necessarily in prime time. Broadcasters were not required to allot air time for individual candidates, but if they did, they would trigger an obligation to offer equal time for that riding's other candidates.
Under the 1974 Election Expenses Act:
- Political parties and candidates were each given a limit on how much they could spend during election campaigns.
- Groups and individuals other than parties or candidates were prohibited from spending during elections to promote or oppose candidates, unless the expenditures were intended to gain support for a policy stance or to advocate the aims of a non-partisan organization.
- Both political parties and candidates were required to disclose the amount and the source of all contributions over $100.
- Registered political parties qualified for a partial reimbursement of their election expenses.
- Candidates who won at least 15 percent of the vote in their electoral districts were reimbursed a portion of their election expenses.
- Radio and television stations were required to make up to 6.5 hours of prime time available for paid advertising or political broadcasts by registered parties during the election campaign. This time was allocated among parties by the Broadcasting Arbitrator.
- Radio and television networks were required to make free-time programming periods available to registered parties.
- A maximum tax credit of $500 was available to individuals who contributed to political parties and candidates.
Another major innovation of the 1974 Election Expenses Act was to reimburse candidates and political parties for a portion of the money they spent campaigning in elections. Public funding in the form of reimbursements is intended to make political office more accessible to political parties and candidates that might not have wealthy financial backers. Under the system of reimbursements instituted in 1974, candidates were the major beneficiaries of public funding. Candidates who won at least 15 percent of the vote in their electoral districts became eligible for partial reimbursement of their election expenses. In 1974, the amount of the reimbursement was based on a formula taking into account the number of electors in the district. The legislation was changed in 1983 to make the reimbursement equal to 50 percent of the candidate's total election expenditures (and later 60 percent, under Bill C-24).
The 1974 act also instituted the reimbursement of certain election expenses for registered parties, compensating them for 50 percent of their total expenditures for television and radio advertising. In 1983, Bill C-169 defined a considerably broader scope and new eligibility rules for reimbursement, entitling parties to 22.5 percent of their total election expenses – but only if those expenses amounted to at least 10 percent of the allowable spending limit. In 1996, Bill C-243 adjusted the eligibility rules so that parties needed to have received at least 2 percent of the valid votes cast nationally or 5 percent of those cast in the electoral districts in which they ran candidates. Finally, in 2004, the reimbursement rate was increased from 22.5 percent of a party's paid election expenses to 60 percent for the first election after Bill C-24 came into force, dropping back to 50 percent for subsequent general elections.
The final important element of the 1974 reforms was to introduce the Political Contribution Tax Credit, which allows Canadians who make a contribution to a candidate or a registered political party to claim a generous credit on their income taxes. The tax credit is a way for government to finance political parties while rewarding those parties that successfully solicit donations from Canadians. The tax credit is the most generous for small contributions, so it encourages parties to solicit many small contributions from individuals, rather than a small number of large contributions from other sources. (In 2004, Bill C-24's enhancements to the credit – including doubling, to $400, the amount on which the maximum tax credit of 75 percent could be claimed – provided even further incentive for individual donors to support political parties. And in 2006, Bill C-2 took the next step by barring donations from corporations, trade unions and unincorporated associations altogether, leaving only individuals able to make political contributions.)
The Commissioner of Canada Elections
The 1974 Election Expenses Act also established the position of Commissioner of Election Expenses, which would oversee compliance with and enforcement of election expenses provisions in the Canada Elections Act. The position title was changed, in 1977, to Commissioner of Canada Elections, when these powers were extended to cover all provisions of the act. The Commissioner of Canada Elections:
- is appointed, and can be removed, by the Chief Electoral Officer
- functions independently of the government and political process
- since 1993, oversees a national network of investigators to carry out investigations in the field on his behalf
- up to 2006, had sole authority to prosecute for an offence under the Canada Elections Act (a unique power, since other federal acts assigned this responsibility to the Attorney General); now refers files to the Director of Public Prosecutions
- must investigate all complaints (which may be filed by any Canadian citizen) and decide whether to proceed
- is empowered by the 2000 Canada Elections Act to use injunctions and compliance agreements as enforcement tools
- is authorized to seek judicial deregistration of political parties that do not satisfy the new definition of a political party legislated under Bill C-3 (2004)
In an effort to prevent circumvention of the spending limits for parties and candidates imposed by the 1974 Election Expenses Act, the legislation also established that only parties and candidates themselves would be permitted to spend money during an election period for the purpose of promoting or opposing candidates. In other words, expenditures by so-called third parties – that is, any individual or group other than a candidate or a registered political party – were expressly prohibited, except where intended to gain support for a policy stance or promote the objectives of a non-partisan group. However, the act did offer a defence against prosecution under the new provisions if a defendant could show that such election expenses had been incurred "in good faith," or in other words, without any intent to act maliciously or take unfair advantage.
This wording proved so broad that it failed to stand up in court against most infractions, and it thereby undermined the intended effect of the spending restrictions. For this reason, the Liberal government, in 1983, introduced Bill C-169, which amended the legislation to prohibit any third-party election spending directed at supporting or opposing a candidate or party, unless officially authorized.
This legislation was struck down by the Alberta Court of Queen's Bench, in the case of the National Citizens' Coalition Inc. v. Canada (Attorney General) (1984), on the grounds that it was an unconstitutional infringement of freedom of expression under section 2 of the Charter. The government did not appeal, and the Chief Electoral Officer declared the decision applicable nationwide. This remained the status quo until 1993, when Bill C-114, based on recommendations of the Lortie Commission, sought to prohibit third parties from incurring election advertising expenses over $1,000. These restrictions, in turn, faced their own challenge from the National Citizens Coalition in Somerville v. Canada (Attorney General) (1996) – and met a similar fate, being struck down by the Alberta Court of Appeal. Again, the government did not appeal and the ruling stood.
A new legal interpretation of third-party spending restrictions emerged the following year, in Libman and the Equality Party v. Attorney General of Quebec (1997), a case involving provisions in that province's Referendum Act similar to those struck down federally in the Somerville case. In addressing the Alberta court's logic offered in Somerville, the Supreme Court of Canada found that limiting third-party spending as a means of promoting equality of participation was justifiable under the Charter, inasmuch as such regulations aim
... to permit an informed choice to be made by ensuring that some positions are not buried by others [and] to preserve the confidence of the electorate in a democratic process that it knows will not be dominated by the power of money.
That same year, the Report of the Chief Electoral Officer of Canada on the 36th General Election urged legislators to correct the anomaly established by the Somerville ruling. This anomaly permitted third parties to spend an unlimited amount on election advertising, while the candidates themselves were restricted in their spending on election expenses. This circumstance, the Chief Electoral Officer declared, could "erode the financial foundation of the electoral system." He recommended that new legislation be drafted to restrict third-party spending, based on similar provisions in the federal Referendum Act.
The next attempt to restrict third-party spending activities materialized in September 2000 under Bill C-2 – the new Canada Elections Act. In this incarnation, election advertising was defined as
... 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 one that takes a position on an issue with which a registered party or candidate is associated.
The new provisions limited third parties, which are now defined in the Canada Elections Act as "a person or a group, other than a candidate, registered party or electoral district association of a registered party", to spending no more than $150,000 overall on election advertising and no more than $3,000 in a given electoral district (both amounts to be regularly adjusted for inflation). As proposed in the Chief Electoral Officer's 1997 report, the provisions also subjected third parties, for the first time, to registration and reporting requirements; these applied to any such entity that chose to spend more than $500 on electoral advertising during an election.
In 2000, the National Citizens Coalition challenged the legislation's constitutionality in Harper v. Canada (Attorney General). As the timing of the case coincided with the running of that year's federal election, the Alberta Court of Queen's Bench issued an injunction preventing Elections Canada from enforcing the third-party spending provisions in Alberta while their constitutionality remained before the court. At that time, the Chief Electoral Officer applied the ruling nationwide, declaring it to be "in the public interest that the law be applied uniformly in a federal general election." However, he maintained, the other third-party provisions in the act – notably the registration and reporting requirements – would remain in force. Ultimately, though, even these provisions were struck down when the Alberta Court of Appeal finally delivered its verdict in December 2002.
All of us in this House have been guilty at one time or another of throwing out the accusation that corporate or union contributions influence our opponents – often without foundation. And the media even more so. This is not good for the political process. It is not good for democracy. This Bill addresses this issue head on.
– Jean Chrétien
Address preceding the second reading of Bill C-24
House of Commons, February 11, 2003
Changing the Political Financing Rules
In June 2003, Canada's Parliament made significant reforms to the political financing rules in the electoral legislation. Bill C-24 extended disclosure and registration requirements for political entities, introduced new limits on political contributions and imposed a ban on contributions from unions and corporations to political parties and leadership contestants. The amendments also introduced the payment of a quarterly allowance to registered political parties based on the percentage of votes each obtained in the previous general election.
Further to an appeal by the government, the Supreme Court of Canada ruled on May 18, 2004, that, while the limits on third parties do violate freedom of expression, the impairment was minimal and therefore justified, given the capacity of these limits to promote equality, ensure voter confidence and protect the integrity of the overall regulation of political finance.
All provisions of the third-party legislation were therefore upheld.
Extending Public Funding and Regulation
By the end of the last century, a vigorous debate had arisen on the subject of campaign and electoral financing. Nomination and leadership campaign expenses were unregulated, and arguments raged over the continued influence of major corporate and union donors. Stringent laws governing political donations came into force in 1977 in Quebec and 2000 in Manitoba. In 1992, the Lortie Commission made several recommendations to reform political finance at the federal level.
In the Chief Electoral Officer's own reports to Parliament following the 1993, 1997 and 2000 general elections, Mr. Kingsley strongly supported measures to curb the influence of corporate and union donors. These reports proposed, in effect, that the control of money was a value that must be managed to some degree, setting "reasonable limits" that balanced the Charter right to liberty against the Canada Elections Act's fundamental need to establish equality and transparency.
In June 2002, in a bid to instill higher ethical accountability in government and to enhance the fairness and transparency of the electoral process, the government announced a comprehensive set of new ethics guidelines for Cabinet. These guidelines would, among other things, govern ministerial activities for personal political purposes, transform the financing of political parties and candidates, and generally strengthen public service management and accountability for public funds. Introducing the second reading of Bill C-24, the Right Honourable Jean Chrétien said that this bill was designed to
... address the perception that money talks. That big companies and big unions have too much influence on politics. A Bill that will reduce cynicism about politics and politicians.
Debates February 11, 2003
In June 2003, Parliament adopted Bill C-24: An Act to amend the Canada Elections Act and the Income Tax Act (see box, next page), which provided the most significant set of reforms to party and campaign finance since the 1974 Election Expenses Act.
The legislation was rooted in the belief that the primary source for contributions to political parties and candidates should be individuals giving relatively small amounts, as opposed to larger donations. The new regulations, therefore, stipulated that each elector could contribute up to a total of $5,000 a year to the electoral district associations, nomination contestants and candidates of a registered political party, while donations to these entities from corporations and trade unions were limited to $1,000. Furthermore, while individuals could contribute directly to the registered party, corporations and unions could not. To police the new rules, the act also stipulated that candidates and parties should disclose contribution information within a set period of time after an election, and leadership contestants should do so during and after a leadership contest.
Disclosure Rules Extended to Other Political Entities
To ensure that the rules for contribution and spending limits are followed, all candidates and registered political parties are required by law to report their financial activities to the Chief Electoral Officer. In 2003, amendments to the Canada Elections Act and the Income Tax Act extended disclosure requirements to include other political entities, such as registered electoral district associations and nomination and party leadership contestants.
As a counterbalance to the new contribution limits, however, Bill C-24 also introduced significant ongoing public financing for political parties. These provisions entitled any party receiving a minimum percentage of the popular vote in a general election to an annual public allowance proportional to its share of votes. The concept was not new – both the Barbeau Committee in 1966 and the Lortie Commission in 1992 acknowledged that funding for political parties through direct public subsidies was a good idea. Bill C-24 introduced annual allowances, recognizing that parties should be compensated for the loss of their customary funding stream from large corporate and union donations – and that the political party is arguably the focal point of a vibrant and viable democratic system.
Bill C-24 also sought to address concerns about unbridled spending in nomination and leadership contests. New rules required candidates in these contests to:
- register with Elections Canada
- abide by rules governing who could make contributions to their campaigns
- limit nomination campaign expenses to 20 percent of the general election spending limit for that electoral district, per candidate
- disclose all nomination contributions and spending information as they would for election campaigns
Finally, following recommendations from the Lortie Commission, the Hawkes Committee and the Chief Electoral Officer, Bill C-24 brought constituency associations of registered parties (known as local electoral district associations) under legislative control for the first time. Under the new rules, any such entity wishing to accept contributions on behalf of – or provide goods and services, or transfer funds to – a registered party or candidate had to register and report annually to Elections Canada.
The underlying premise of Bill C-24 was that financial controls and full disclosure "will increase public confidence in the system, and that financially healthy political parties will contribute to the vitality of the electoral process." (Robertson, 13)
Key Provisions of Bill C-24 (2004)
- Individual Canadian citizens and permanent residents could contribute up to $5,000 annually to a registered party and its electoral district associations, candidates and nomination contestants, plus an additional $5,000 toward a party leadership contest and $5,000 to each independent candidate.
- Corporations and trade unions could contribute up to $1,000 annually to a registered party's electoral district associations, candidates and nomination contestants – but nothing at all to the party itself or its leadership contestants.
- Anyone who accepts a contribution to his or her campaign for the leadership of a party, or incurs leadership campaign expenses, must apply to the Chief Electoral Officer to register as a leadership contestant.
- Registered political parties receive an annual allowance of $1.75 for each vote they won in the most recent general election. To qualify, a party needs to have received at least 2 percent of all votes cast nationally or 5 percent of votes cast in the electoral districts in which it ran candidates.
- The election expenses reimbursement rate for registered parties increased from 22.5 to 50 percent.
- The share of votes cast that a candidate must receive to qualify for election expenses reimbursement was lowered from 15 to 10 percent, while the portion of eligible expenses increased from 50 to 60 percent.
- The upper threshold for a donation eligible to receive the maximum Political Contribution Tax Credit rate of 75 percent rose from $200 to $400.
- New anti-avoidance provisions prohibited attempts by parties or candidates to hide the identity of donors or otherwise circumvent restrictions on contributor eligibility or contribution amounts.
- The period for instituting a prosecution following the commission of an offence was extended from 18 months to seven years, as long as the action commenced within 18 months of the complaint being brought to the attention of the Commissioner of Canada Elections.
Bill C-24 was followed in 2006 by Bill C-2, known as the Federal Accountability Act. This legislation further restricted political donations and made other changes to the Canada Elections Act intended to increase the transparency of the electoral process and better control the influence of money on elections.
Key Provisions of Bill C-2 (2006)
- Only citizens and permanent residents of Canada may make donations to registered political entities.
- Donations are capped at $1,000 (indexed for inflation) per calendar year to each of the following:
- any registered political party
- the various entities of each registered party (registered associations, nomination contestants and candidates)
- each independent candidate for a particular election
- the contestants in a particular leadership contest
- Cash contributions to registered political entities are limited to $20.
- Corporations, trade unions, associations and groups may no longer make political contributions.
- Candidates cannot accept any gift (other than contributions to their campaign) that might be seen to influence them as eventual members of Parliament, although they may accept a gift from a relative or as a normal expression of courtesy or protocol.
- Candidates must report to the Chief Electoral Officer the name and address of every person (other than a relative) or organization from whom they receive a gift or gifts worth more than $500 while a candidate, the nature of the gift and the circumstances under which it was given.
- Registered parties and registered electoral district associations may no longer transfer trust funds to candidates of the party.
- The Chief Electoral Officer is responsible for appointing a returning officer for each electoral district. Appointments are made on the basis of merit, when the Chief Electoral Officer is satisfied that the person meets the essential qualifications to perform the work. Returning officers are appointed for a term of 10 years, but may be removed for reasons set out in the act.
- A prosecution for an offence under the Canada Elections Act must start within five years after the day when the Commissioner became aware of the facts giving rise to the prosecution, and no later than 10 years after the day the offence was committed.
- The Director of Public Prosecutions is responsible for initiating and conducting prosecutions for offences under the Canada Elections Act. The Commissioner of Canada Elections remains responsible for compliance agreements and enforcing the act through the use of injunctions to prevent or stop violations of the law during an election period.
Technology and the Electoral Process
During the last decade, new technologies have drastically changed the way elections are administered in Canada, becoming not merely a source of efficiency but, in many respects, part of the process itself.
It's All on the Web
In keeping with Elections Canada's mandate to inform Canadians about the electoral process, an extensive Web site at www.elections.ca publishes past election results and provides explanations of how to register and vote, electoral legislation, a searchable database on political financing and a search tool allowing electors to obtain information about electoral districts.
Canada's first significant step toward high-tech election administration began in 1992, with a computerized list of electors. This innovation made possible the development of the National Register of Electors, which was established in 1997 after Bill C-63 came into force. By the 2000 general election, the cost of establishing the Register had already been recouped, and by 2004, the administrative savings had pushed the initiative some $30 to $40 million ahead of its business case at the federal level alone. Following the 2006 general election, savings attributable to the Register were estimated to be some $110 million. (For further information, please see the earlier section, The National Register of Electors.)
Computer technology has also greatly improved the administration of election financing, particularly the registration of political entities and disclosure of their contributions and expenses. Returns are posted on the Elections Canada Web site as they are submitted, verified, then re-posted, giving the public timely access to all election financing data. The Web site also enables quick and easy dissemination of updates to forms and information when new financing provisions are added to the Canada Elections Act.
Mapping the Electoral Districts
Elections Canada and Natural Resources Canada publish maps showing the new electoral boundaries resulting from every redistribution process. The name, description, population and map of each electoral district in Canada are assembled into atlases for each province and territory. This set of atlases shows the federal electoral districts as set out in the most recent Representation Order, proclaimed on August 25, 2003 (for the provinces), or in the Constitution Act, 1867 (for the territories).
As well, digital cartography is being applied to display election information on computerized maps, to further assist returning officers, candidates and political parties during elections. The geographic databases also provide the framework for locating electors inside an electoral district and assigning them to a polling division ("geocoding") and readjusting electoral boundaries after a decennial census. They also allow electors to enter a postal code on Elections Canada's Web site to obtain information on the corresponding electoral district, member of Parliament and polling station.
By October 2005, 91 percent of elector addresses were "georeferenced" (that is, linked to a point on a computerized map). For the 2006 general election, geographic documents that included 69,752 original maps were produced. Political parties received computer-readable versions of all of these maps, as well as access to the related Web application, GeoExplore.
Elections and referendums are now managed through a networked computer application called the Event Management System (EMS), which links each electoral district returning office to Elections Canada in Ottawa. This system allows electronic monitoring of election activities against deadlines and statutory obligations. With daily information sharing, EMS helps measure the effectiveness of election delivery systems by providing a consolidated picture of organizational activities. It also helps returning officers to monitor election material inventories and progress on election tasks within their own electoral districts.
On election night, meanwhile, Canadians are served by a Web module called Election Night Results (ENR). Once the polls are closed across the country, ENR posts election results as they unfold, with a 30-second refresh rate that conveys them virtually the instant a polling station reports its updates of the vote counts.
Finding an Electoral District
GeoExplore is a computer application that helps users locate federal electoral districts, polling divisions and sites, and civic addresses anywhere in Canada. It generates maps on-line to serve returning officers, field liaison officers, members of Parliament, political parties, provincial electoral agencies and Elections Canada staff.
Elections Canada's Web site presents extensive information on the Canadian electoral process, including historical data and past election results. The Web site also includes publications that can be read or ordered on-line, a searchable database on electoral financing, recent research on and policy analyses of Canada's electoral system, current legislation, and the status of reforms and redistribution processes. Political parties and candidates can also find extensive information on electoral legislation, as well as on-line forms to assist them in filing necessary reports. The site's popularity burgeoned between 1998 and 2006 from some 6,000 monthly visitors to over 300,000. Visits to the Web site during the 2006 general election reached 3,347,270 – more than double the 1,580,672 visits during the 2004 general election.
Technologies have also been implemented to assist persons with disabilities, including teletypewriter (TTY) service for people with hearing impairment, campaign news releases on audio news and other information services for persons with visual impairment, and a voice response system on the inquiries line that directs people to where they should vote.
Election Night Results
On each election night, after all of the polls are closed, the Elections Canada Web site provides preliminary voting results for each electoral district. They are also displayed nationally, by province or territory, by major centre and by party leader. During the following few days, the site also shows the official results as validated by each returning officer and the results of judicial recounts in districts with close totals for the two candidates receiving the most support.
Participating in Democratic Development Abroad
The 1989 collapse of the Berlin Wall signalled a new chapter in the history of democratic development, and the past decade has seen the rapid emergence of new democracies all over the world. Canada has made significant contributions to the process of democratization by fostering international co-operation in a number of fields. The electoral process is central to this new wave of international democratic co-operation.
Democracy is the only form of government that recognizes and protects the intrinsic value and equality of each individual, thereby holding human rights at its very core. It has been demonstrated that democratic government brings other benefits as well – including increased economic development. Among the basic institutions required for democracy to be truly effective are well-enforced legal protections for human rights, a functioning opposition and a free press to hold the government accountable as well as an auditor general (or the functional equivalent) to ensure that citizens know how public resources are being allocated and spent. But the primary goal of democratic development must be the creation and support of institutions and processes that uphold the values of freedom, equality and justice – among them, a valid electoral process.
In this context, the role of non-partisan electoral management bodies is central to the conduct of free and fair elections. International electoral participation involves much more than observation at election time. Election monitoring can also be considered an opportunity to promote democratic principles and practices and to share expertise and ideas.
Recognizing that democratic development projects can benefit greatly when electoral management bodies work together in networks of support, Elections Canada has contributed to international democratic development by entering partnerships and fostering co-operation with other agencies and organizations working in this area – at both the national and international levels, and by collaboration with various national and international organizations.
Since 1980, Elections Canada has coordinated Canada's participation in hundreds of events in some 100 countries, primarily technical and professional support missions and observation or monitoring missions, and has received numerous foreign delegates visiting Canada who wish to learn more about the Canadian electoral system.
The agency offers support and accompaniment based on respect for the sovereignty, culture and history of the country in which electoral events are taking place, as well as for the independence of local electoral management bodies. The purpose of such participation is to build mutually beneficial relationships through the exchange of information and expertise, whereby all those involved learn from the experience.
If we begin with the premise that democracy is always a work in progress – even in countries like Canada – then we can better understand why democratic development is such a complex area of activity. Like democracy itself, democratic development is always perfectible.
– Jean-Pierre Kingsley
Institute for Research on Public Policy Conference
Keynote speech, September 10, 2004
These principles have been demonstrated by the evolving nature of the agency's international electoral partnerships. International assistance and co-operation ranges in effort from a small, one-time sharing of information to long-term, multi-faceted partnerships with other electoral management bodies. An example of the latter is the long-standing relationship with Mexico's Federal Electoral Institute, which began in 1993 and included the signing of two five-year bilateral co-operation agreements (in 1996 and 2001).
More recent examples of the application of these principles are the International Mission for Iraqi Elections, established in December 2004, and the International Mission for Monitoring Haitian Elections, established in June 2005, both chaired by the Chief Electoral Officer. The approach taken by these missions is one of accompaniment – that is, the establishment of close ties with the electoral commissions involved, over and above traditional electoral observation, with peer review and the sharing of analyses and information on an ongoing basis. This approach, though unique to the world of international electoral observation, is in reality a continuation of the kind of relationship Elections Canada has developed and fostered for a number of years on a bilateral basis.
The International Mission for Iraqui Elections
Since 1990, Elections Canada has participated in about 400 international democratic development missions, assisting some 100 different countries. One important project was the December 2004 establishment of the International Mission for Iraqi Elections (IMIE), supported by the United Nations, the Independent Electoral Commission of Iraq and the government of Canada. Under the chairmanship of Canada's Chief Electoral Officer, the IMIE monitored election preparations and voting in Iraq, and it serves as an ongoing model for international collaboration in election monitoring.
While the work of supporting democratic consolidation in various countries remains far from complete, the ongoing nature of this work reflects a fundamental principle of social change – that democracy is never fully achieved. It is always a work in progress. This truth applies to long-standing democracies, such as Canada, as much as to those that are newly emerging.
The Charter era, which began in 1982, has been characterized by a bevy of electoral reforms stemming from two distinct sources: the courts, responding to dozens of Charter-based challenges; and the executive and legislative branches, following recommendations by various parliamentary committees, a royal commission – and, notably, the reports of the Chief Electoral Officer.
Indeed, the markedly more substantive content of these reports is a reflection of the obligation to address the escalating influence of the Canadian Charter of Rights and Freedoms. By granting individual Canadians legal recourse to challenge federal legislation, the Charter has triggered electoral reform at an unprecedented pace. Meeting the demands of this new era has made legislators aware of the value of the unique experience afforded the country's head election administrator. If the need for input from this office became increasingly evident over the Charter's first decade, it has since become firmly established.
The changes in electoral legislation arising in the Charter era, particularly through the 1990s and into this century, have resulted in greater access to the vote and better administrative practices to ensure that the electoral system has the flexibility to meet the evolving needs of the electorate. With advance polls, the special ballot, polling day registration and uniform level access at polling places, virtually all Canadians age 18 or older have both the right to vote and the means to do so. Interestingly, despite the many improvements in access to the vote in recent years, approximately 87 percent of the electors who exercised their franchise in the 2006 general election chose to do so at an ordinary polling station on election day.
At the same time, regulation of election finances and activities of political parties, candidates and third-party supporters has lent further substance to voting rights; by controlling the influence of money on elections in this country, these provisions have greatly advanced fairness and transparency in elections and the values held by Canadians generally.
Despite many advances to ensure that Canadians' access to the franchise is both universal and meaningful, a sizable portion of the electorate still does not exercise its right to vote. This presents a significant challenge for electoral administration. Although voter turnout increased between the 2004 and 2006 general elections, the need to continue attracting electors to the democratic process remains. In response, Elections Canada has focused attention on citizens whose electoral turnout tends to be low, especially young Canadians, Aboriginal people, ethnocultural minorities and special needs communities. Research findings suggest that the priorities of these groups may differ from those of other voters and may therefore cause them to interact with the political process in a different manner.
Nothing in democracy is set in stone. The evolution of legislation reflects that fact, as do the ever-changing values of citizens. At the time of writing this book, the Federal Accountability Act had just received royal assent, affecting political financing, the appointment of returning officers and the way in which investigation and prosecution of those who break electoral laws are carried out. Other legislation still before Parliament that could set fixed federal election dates, modify the length of senatorial terms of office and establish a process of consultation with electors about appointments to the Senate, would also transform democracy in Canada.
As we have seen throughout this book, the rights and institutional protections that are the legacy of history are not static or impervious to change. But the very qualities that make them flexible and adaptable to shifting social values also make them fragile and potentially vulnerable. Like democracy itself, they are living entities that must be tended with care and given the means to flourish. This is the challenge that must be met afresh by each new generation of voters.
Return to source of Footnote 1 Under subsection 33(1) of the Charter: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” Thus, while the fundamental freedoms specified under section 2, and the legal and equality rights outlined in sections 7 to 15, can in some instances be overridden, the democratic right to vote guaranteed under section 3 is indelibly protected.
Return to source of Footnote 2 Territories are excepted, since each comprises a single riding – their boundaries, therefore, need no adjustment. This has been the case since 1999, when Nunavut was established and the two ridings making up the Northwest Territories were separated. (Yukon has held its single riding since becoming a distinct territory in 1898.)
Return to source of Footnote 3 The act had resulted in the creation of seats in all but the northern part of the province with tolerance limits of plus or minus 25 percent. For the two northern seats, the limits were set at plus or minus 50 percent. It made a further distinction among the seats in the southern part of the province by dividing them into rural and urban categories. The 25 percent limit for southern seats represented a switch from Saskatchewan's previous population limits of plus or minus 15 percent, and the urban/rural distinction was a first in the province's history. (Courtney)
Return to source of Footnote 4 Bill C-3 was the reinstated version of Bill C-51, which had not received royal assent when the previous session of Parliament was prorogued in November 2003 and so died on the Order Paper.