2011-12 Reports on Plans and Priorities
There are currently three bills before Parliament that could have an impact on our business.
Bill C-12, Democratic Representation Act
This bill was introduced in the House of Commons on April 1, 2010. It amends the Constitution Act, 1867 by readjusting the number of members of, and the representation of the provinces within, the House of Commons. Similar bills were introduced twice before in the House of Commons: as Bill C-56 in the first session of the 39th Parliament and as Bill C-22 in the second session of the 39th Parliament. Both of these bills died on the Order Paper before second reading.
Bill C-18, Increasing Voter Participation Act
This bill would amend the Canada Elections Act by increasing the number of advance polling days from three to five. The two additional days would be the Sunday eight days before polling day and the Sunday immediately before polling day. This bill was considered in both the first and second sessions of the 39th Parliament (bills C-55 and C-16) and in the second session of the 40th Parliament (Bill C-40). It was reintroduced on April 26, 2010.
Bill C-19, Political Loans Accountability Act
This bill would amend the Canada Elections Act to include provisions concerning loans, guarantees and suretyships made to registered parties, registered associations, candidates, leadership contestants and nomination contestants. It would require that a political loan be made only by a financial institution or political entity affiliated with the borrower. Alternatively, a political loan could be made by a Canadian citizen or permanent resident of Canada provided that the total of the amounts of contributions, loans and guarantees did not at any time exceed the lender's contribution limit.
A previous version of the bill was first introduced in the House of Commons in May 2007 and then reinstated in the second session of the 39th Parliament (Bill C-29). It was adopted by the House of Commons in June 2008 but died on the Order Paper of the Senate when the October 2008 general election was called. A similar bill was introduced in the Senate in the second session of the 40th Parliament (Bill S-6). The current bill was subsequently reintroduced in the House of Commons on April 28, 2010.
Judicial Decisions and Proceedings
Implementation of Tribunal Decisions
James Peter Hughes and the Canadian Human Rights Commission v. Elections Canada
After an elector filed a complaint about the accessibility of the polling station where he went to vote in a March 2008 by-election and the October 2008 general election, the Canadian Human Rights Tribunal issued a decision in February 2010. It ruled that Elections Canada had acted in a discriminatory manner toward the elector and ordered it to make a number of remedies, including updating its accessibility policies and guidelines, developing a mechanism for processing complaints received on election day, providing better signage for persons with disabilities in the area of polling sites, consulting more widely with disability groups, implementing a procedure for verifying the accessibility of facilities on the day of an electoral event and revising and updating its training tools concerning accessibility.
These remedies must be implemented in accordance with a schedule ordered by the Tribunal and be fully implemented by February 2011. In implementing these remedies, Elections Canada will consult the Canadian Human Rights Commission, the Council of Canadians with Disabilities and the elector whose complaint was referred to the Tribunal.
Fonds conservateur du Canada v. Le directeur général des élections du Canada, (District de Montréal); Fonds conservateur du Canada v. Le directeur général des élections du Canada, (District de Québec); Castonguay et al. v. Le directeur général des élections du Canada; Boucher et al. v. Le directeur général des élections du Canada
On November 26, 2010, two groups of candidates endorsed by the Conservative Party of Canada in the 39th general election filed two distinct court applications under section 459 of the Canada Elections Act, seeking an order to be relieved from a request by the Chief Electoral Officer to make corrections to their electoral campaign returns for that election. On December 14, 2010, the Conservative Fund Canada filed two court applications under section 434 of the Act, seeking an order for the groups of candidates to be relieved from similar requests by the Chief Electoral Officer with respect to their 2005 and 2006 annual financial transactions returns and their election expenses returns for the 39th general election.
When he was satisfied that the expenses reported by the candidates' campaigns in question were incurred by the party for the purpose of establishing and operating regional campaign offices for the party during the 39th general election, the Chief Electoral Officer requested that these expenses be removed from reported expenses in the candidates' returns and included in the party's returns.
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 asserted 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 Vancouver in spring and fall 2009, and the Court rendered its decision on May 3, 2010. The judge ruled that the provision of the Act stating that an elector who fails to prove his or her identity and residence in accordance with the Act shall not receive a ballot or be allowed to vote infringes the right to vote guaranteed by section 3 of the Charter. However, in the judge's view, the provision constituted a reasonable limit demonstrably justified in a free and democratic society. The validity of the provision at issue was therefore upheld. The plaintiffs are appealing the decision.
Callaghan v. Canada (Chief Electoral Officer)
Sixty-seven Conservative Party of Canada candidates in the 39th general election reported election expenses related to an advertising program administered by the party. After reviewing the documents submitted as evidence of the expenses, the Chief Electoral Officer was not satisfied that the candidates had actually incurred these expenses or that the expenses had been reported at their "commercial value," as this expression is defined in the Canada Elections Act. He therefore refused to issue a certificate to the Receiver General allowing for a partial reimbursement of the expenses under section 465 of the Act.
The official agents of two of the candidates filed an application with the Federal Court, requesting a judicial review of the Chief Electoral Officer's decision as well as an order that he issue certificates. The Federal Court heard the case in November 2009 and rendered its decision in January 2010. In the decision, the Court set aside the Chief Electoral Officer's refusal to approve reimbursement of the expenses claimed by the two applicants, finding that the expenses were legitimately incurred by the candidates. The Court also ordered the Chief Electoral Officer to deliver certificates authorizing partial reimbursement of the expenses, although the Court recognized that the claimed expenses were not reported to reflect the commercial value of the services purchased.
The Chief Electoral Officer appealed the decision and requested a stay of execution, which the Court granted. One of the applicants also filed a cross-appeal concerning the obligation to report expenses to reflect the commercial value of the goods and services purchased. The appeal was heard in November 2010, and the Court reserved its decision.
Conservative Fund Canada v. Chief Electoral Officer of Canada
On December 31, 2009, the Ontario Superior Court issued an order concerning election expenses reports submitted by the Conservative Party of Canada to the Chief Electoral Officer after the 2004 and 2006 general elections. The order authorized the chief agent of the party to deduct the amount of GST since refunded by the Canada Revenue Agency from the total election expenses declared in the reports.
The Chief Electoral Officer appealed this decision because, in his view, the Canada Elections Act requires that goods and services be reported to reflect their "commercial value." This is to ensure that political parties compete on a level playing field within their spending limit. The commercial value of a good or service includes all taxes payable on the purchase, whether actually paid or unpaid.
The appeal was heard in June 2010 by the Ontario Court of Appeal, and the Court issued its judgment on December 21, 2010. In a unanimous decision, the Court of Appeal allowed the Chief Electoral Officer's appeal and reaffirmed the central importance of spending limits in ensuring a level playing field among electoral competitors.
In a few other cases, Elections Canada is being sued by individuals who allege its negligence as a result of separate incidents that occurred in the last two general elections as well as by present and former returning officers with respect to issues arising out of their mandate as returning officers. These cases are proceeding through the courts.