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2011 Departmental Performance Report

New Legislation, Judicial Decisions and Proceedings

New Legislation

The 20102011 reporting period was quiet on the legislative front. While legislation was introduced to deal with matters such as loans to political entities, additional days of voting and the representation of provinces in the House of Commons, none of these bills received second reading. At the start of the 41st Parliament, the government has not yet introduced any legislation that would amend the Canada Elections Act or any other statute administered by the Chief Electoral Officer. No private member's bills affecting the mandate of the Chief Electoral Officer have yet been introduced either. However, two private member's bills would change the name of an electoral district.

Court Cases

Proceeding Details and Impact
L.G. (Gerry) Callaghan (Campbell) et al. v. the Chief Electoral Officer of Canada The official agents of candidates for the 39th general election sought an order for the reimbursement of claimed election expenses related to an advertising program administered by the Conservative Party of Canada. The Chief Electoral Officer had refused to certify these expenses for reimbursement because he was not satisfied, based on the evidence available to him, that the expenses had been incurred by the candidates and that the expenses had been reported at their commercial value. In January 2010, the Federal Court ordered the delivery of certificates for the reimbursement of the expenses.

On February 28, 2011, the Federal Court of Appeal overturned the Federal Court's decision. It found that the Chief Electoral Officer's refusal to certify the expenses was reasonable on the basis of both the law and the material before him. The official agents have sought leave to appeal this decision to the Supreme Court of Canada. The Court has not yet rendered a decision on this application.
Rose Henry et al. v. Canada (Attorney General) On January 30, 2008, an action was filed in the Supreme Court of British Columbia by individuals and groups challenging the constitutionality of the new voter identification requirements in the Canada Elections Act. The applicants claimed that the requirements would prevent electors from exercising their right to vote, as guaranteed by section 3 of the Canadian Charter of Rights and Freedoms.

The case was heard in 2009, and the Court rendered its decision on May 3, 2010, rejecting the constitutional challenge. The judge ruled that, while the provisions of the Act that require electors to prove their identity and residence infringes the right to vote guaranteed by section 3 of the Charter, such a restriction is demonstrably justified in a free and democratic society. The plaintiffs filed an appeal of the decision shortly thereafter, but this appeal has not yet been completed.

Elections Canada pursues its efforts to reduce barriers for some groups of electors who find voting more difficult than the general population. In doing so, it gives effect to the Court's view that the Chief Electoral Officer would "continue with public outreach initiatives and implementation of the voter identification requirements so as to further minimize difficulties for voters and maximize access, in particular for those voters who are marginalized or impoverished, or who have been identified in the research to date as experiencing the most difficulty with the identification requirements."
Conservative Fund Canada v. Chief Electoral Officer of Canada On December 31, 2009, the Ontario Superior Court authorized the chief agent of the Conservative Party of Canada to deduct an amount of GST, since refunded by the Canada Revenue Agency, from the total election expenses declared in the reports of the party for the 2004 and 2006 general elections. Pursuant to the Excise Tax Act, a GST rebate is available to qualifying non-profit organizations that receive at least 40 percent of their income from government sources.

On December 21, 2010, the Ontario Court of Appeal reversed the Superior Court's decision. In light of the relevant provisions of the Canada Elections Act and the purpose of the spending limits as a means to establish a level playing field among political parties, the Court held that the subsequent GST rebate available to parties that qualify as non-profit organizations does not alter the value of the party's election expenses. Leave to appeal was denied by the Supreme Court of Canada.