Chapter 4 – A History of the Vote in Canada

Advancing Fairness, Transparency and Integrity, 1982–2020

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Although legal restrictions were lifted for many people, additional barriers to voting remained for some. Further legislative and administrative reforms have sought to make the process of casting a ballot more accessible to people with disabilities. Likewise, the extension of periods for advance voting and the introduction of special ballots provided additional opportunities for all Canadians to vote.

Legislative and administrative measures were also introduced to help ensure that everyone has an equal opportunity to participate and to strengthen the integrity of the voting process. For instance, the Canada Elections Act was amended to require voters to prove their identity and address before casting their ballot. Elections Canada also took measures to address fairness in the administration of elections. As well, instead of being appointed by the government, returning officers would now be appointed by the Chief Electoral Officer based on merit.

Meanwhile, the regulation of political financing was extended with the aim of making it fairer and more transparent. Contributions from corporations and trade unions were first limited and then banned. Rules were also imposed on spending by other so-called third parties–persons or groups other than candidates and political parties. These and other measures have resulted in Elections Canada taking on a more complex role.

Although the regulation of third-party spending was challenged under the Charter, the courts ruled that broad regulation of electoral spending, while limiting the freedom of expression, is justified in the name of electoral fairness. The courts also affirmed the need to ensure the representation of communities of interest when establishing electoral boundaries.

This chapter reviews the changes that resulted from the adoption of the Charter and looks at the other legislative and administrative reforms that were put in place between 1982 and 2020.

The Canadian Charter of Rights and Freedoms

One of the most significant influences on electoral law in the postwar years was the adoption of the Canadian Charter of Rights and Freedoms, most of which came into effect on April 17, 1982. The Charter ensures fundamental freedoms–such as freedom of religion, opinion, expression and association–subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

No previous constitutional document had entrenched the right to vote, but section 3 of the Charter specifically deals with democratic rights. It states that 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. Unlike some sections of the Charter, section 3 cannot be overridden by the federal Parliament or provincial or territorial legislatures using the so-called notwithstanding clause.^{footnote 1}

Also, sections 4 and 5 guarantee that there shall be a session of the Parliament of Canada and of each provincial or territorial legislature at least once every 12 months. These sections add that no House of Commons and no legislative assembly shall continue for more than five years. Exceptions are times of real or apprehended war, invasion or insurrection. In such cases, the term of the House of Commons or of a provincial or territorial legislative assembly can continue as long as the continuation is not opposed by the votes of more than one third of the members.

Well before 1982, many Canadians probably assumed that their right to vote was assured. As we have seen, however, many people had been denied the franchise–some on racial or religious grounds and others because they could not get to a poll on voting day. Even when improvements were proposed that would make it easier to access polls and to vote–such as extending advance polling to groups other than railway workers and commercial travellers–these measures sometimes provoked resistance in Parliament. For example, 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 based on cost or administrative convenience. Arguments based on democratic rights and principles were heard less often.

The Charter signalled a new approach. Canadians can use the Charter to challenge losses or infringements of rights. Someone who is denied the right to vote by a federal or provincial statute, for example, can bring a claim before the courts. If the case is successful, the courts might strike down part of the law or require changes in the administrative rules that resulted in disenfranchisement–which has happened frequently since 1982.

Significant advances in election law and administration occurred before the Charter. For instance, denial of the right to vote 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. The Charter ensures that these rights are constitutionally protected.

Also, there was mounting interest in addressing public perceptions of undue influence, as the financial activities of political parties and third parties were essentially unregulated. Yet the efforts to do so–by adding restrictions on electoral financing to the Canada Elections Act–also fuelled numerous Charter challenges. Alleged infringements of freedom of expression–guaranteed under section 2(b) of the Charter–were the most commonly cited cause for legal recourse. Restrictions on broadcasting, third-party advertising and the publication of election surveys during election campaigns faced similar tests under the section 2(b) guarantee.

Many of these problems have been addressed. Measures that Parliament and election officials have taken ensure that Canada's electoral process is both legally and administratively consistent with Charter principles. This makes the vote accessible to everyone who is entitled to cast a ballot while protecting the integrity of the process: the influence of money on electoral contests is balanced with freedom of expression.

Indeed, the courts have embraced a vision of electoral democracy that allows for a regulated process and a fair amount of deference to Parliament. This is in contrast with the less restrictive approach taken by courts in the United States of America. For example, the Supreme Court of Canada has ruled that while regulations on spending by third parties limit their freedom of expression, these limits are justified in the name of electoral fairness. Canadian courts have also developed the concept of a right to effective representation. Under this concept, significant population variations between electoral districts are tolerated to allow for better representation of communities of interest. 

Compliance with Charter principles was assisted by the Royal Commission on Electoral Reform and Party Financing (also known as the Lortie Commission after its chair, Pierre Lortie). It was appointed in 1989 by the Progressive Conservative government of Brian Mulroney to review, among other matters, the many anomalies in the electoral process that Charter challengers identified. In 1992, the House of Commons Special Committee on Electoral Reform (known as the Hawkes Committee after its chair, Jim Hawkes) reviewed the Commission's recommendations and produced additional ones. These recommendations led to the passage of Bill C-78, An Act to amend certain Acts with respect to persons with disabilities, in 1992 (discussed in the section of this chapter on accessibility of the vote) and Bill C-114, An Act to amend the Canada Elections Act, in 1993. Together, these bills initiated significant changes in the way electoral law dealt with access to the vote. Further changes were made to political financing in the early 2000s based on the Commission's recommendations.

The period also saw a major revision to the Canada Elections Act. The years between 1970 and 2000 saw an intimidating maze of updates, amendments, revisions and clarifications, to the point that the Act had become hard to decipher. Also, the 1992 reports of the Lortie Commission and the Special Committee on Electoral Reform, as well as related input from the Chief Electoral Officer, made it increasingly clear that the Act needed much more than a bit of housecleaning.

With the experience of the June 1997 general election still fresh, the House of Commons Standing Committee on Procedure and House Affairs tabled its own report the following June. Its 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, Canada Elections Act, in September 2000, the previous Act was repealed. It was replaced with a new statute that streamlined the language of the provisions and the way they were organized.

The new Act also made significant changes: these included improving access to the ballot, regulating the publication of election surveys and regulating election advertising by third parties. Court decisions had struck down the 72-hour blackout period that had been introduced in 1993; the 2000 Canada Elections Act limited the blackout period 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 the new blackout provision, as well as the regulation of third-party advertising, in 2004 (Harper v. Canada (Attorney General), 2004 SCC 33).

The Act also contained important new provisions for enforcement.

The Right to Vote

The main beneficiaries of Charter challenges to electoral law, as far as the right to vote is concerned, have been judges, prisoners, people with disabilities, and Canadians living abroad.

Jean-Marc Hamel, the Chief Electoral Officer when the Charter was adopted, began the process of responding to the Charter's impact on the Canada Elections Act by identifying the provisions of the Act that were vulnerable to court challenges and should be changed. By the time Jean-Pierre Kingsley was appointed Chief Electoral Officer in 1990, a dozen or so cases had already come before the courts to challenge the Act on Charter grounds. He also made a series of recommendations for amending the Act.

Federally appointed judges had been legally disqualified from voting since 1874. The law remained in place until 1993, but a Charter 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, speaking during the 1920 debate on the Dominion Elections Act, 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.

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.

Prior to 1982, there was little parliamentary support for ensuring that prisoners could exercise the right to vote. After 1982, however, inmates 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 it was up to legislators to determine which prisoners should or should not be enfranchised. In 1993, Parliament removed the disqualification for prisoners serving sentences of less than two years, but prisoners serving longer terms were still disqualified from voting.

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 two years or more could not be disqualified from voting, as doing so was an unreasonable limit on their right to vote. The Court's ruling secured access to the vote for all prisoners. Although the Canada Elections Act was not amended right away, the Chief Electoral Officer applied the decision during subsequent general elections. In 2018, the inoperative provision was repealed by Bill C-76, the Elections Modernization Act.

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.

In the 1980s and early 1990s, several changes in election administration and the law made it much easier for electors with disabilities to vote. One group of people with disabilities remained explicitly disenfranchised under the Canada Elections Act, 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 House of Commons committee recommended that they be enumerated and have the same right to vote as other Canadians. The 1992 report of the Lortie Commission said that the disqualifying of these electors clearly belongs to history.

In the meantime, the courts struck down the provision. In 1988, the Canadian Disability Rights Council, a coalition of disability rights groups, 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 it 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.

Requirements for voters to provide proof of identity and address were introduced by Bill C-18, An Act to amend the Canada Elections Act (verification of residence), in 2007. These requirements were challenged in 2010 by three residents of British Columbia on the grounds that they infringe the right to vote of those who do not have the necessary identification. Both the Supreme Court of British Columbia, in 2010, and the Court of Appeal for British Columbia, in 2014, found that while these voter identification requirements did limit the right to vote guaranteed by section 3 of the Charter, this limit was justified under section 1 (Henry v. Canada (Attorney General), 2014 BCCA 30).

The restriction on voting by citizens who had been living abroad for more than five years was challenged by two such Canadians who had not been allowed to vote in the 2011 election. Gillian Frank and Jamie Duong argued that the rule breached the right to vote, contrary to section 3 of the Charter. In January 2019, the Supreme Court of Canada struck down the restriction, saying that it breached the Charter and was not justified under section 1 of the Charter. Meanwhile, on December 13, 2018, Parliament had adopted Bill C-76, which removed the restriction that made electors who had been away from Canada for more than five years ineligible to vote. People applying to the International Register of Electors must prove their identity and Canadian citizenship and must indicate the address of their last place of ordinary residence in Canada.

During the 2019 general election, there were roughly 55,500 international electors registered; about 34,000 ballots were returned, representing 0.2 percent of the total number of ballots cast. This was a marked increase over the 2015 general election, when there were roughly 15,600 international electors registered and about 10,700 ballots returned, representing 0.1 percent of the total number of ballots cast.

The Rights of Candidates and Political Parties

In addition to guaranteeing the right to vote, section 3 of the Charter guarantees the right to be a candidate, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Indeed, under the Canada Elections Act, certain people are disqualified from being a candidate. These include inmates of correctional institutions, federally appointed judges (other than citizenship judges), the Chief Electoral Officer and election officers.

The Charter guarantee of the right to be a candidate led to the challenging and striking down of the requirements for political parties to run a minimum number of candidates in an election and for candidates to make a $1,000 deposit.

When political parties were recognized in law in 1970, the legislation stipulated that for a political party to qualify for registration, it had to run candidates in at least 50 electoral districts. This requirement stood for many years before being challenged under the Charter by Miguel Figueroa, leader of the Communist Party of Canada. The 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 ([2003] 1 SCR 912) struck down the 50-candidate requirement as an unjustifiable restriction on the rights guaranteed under the Charter. The Court determined that 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.

In 2004, Parliament adopted Bill C-3, 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, introduced by the Liberal government of Paul Martin and supported by the opposition parties, was to strike an appropriate balance between fairness to political 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 regulating political activity. Under these provisions, parties are required to maintain at all times a leader, three other officers and at least 250 members. Furthermore, parties must submit an updated list of 250 members and their signed declarations every third year and file a statement once a year outlining the party's fundamental purpose. If a party fails to meet any of these conditions, it risks being deregistered.

In November 2015, Kieran Szuchewycz, who had tried to run as an independent candidate in the 2015 federal election, challenged the requirements to pay a $1,000 refundable deposit and to collect 100 elector signatures, saying these were unconstitutional. In Szuchewycz v. Canada (Attorney General) ([2017] A.J. No. 1112), the Alberta Court of Queen's Bench upheld the signature requirement but ruled that the deposit requirement for prospective candidates infringed section 3 of the Charter. The decision was not appealed, and Elections Canada stopped applying the deposit requirement. In 2018, Bill C-76 amended the Canada Elections Act to remove the deposit requirement.

Freedom of Expression

Election surveys are a familiar feature of modern elections. Concerned that election surveys published late in an election campaign could affect the outcome of an election, in 1993 Parliament adopted legislation banning publication of election surveys during the 72 hours before election day. This provision was challenged in court. In Thomson Newspapers Co. v. Canada (Attorney General) ([1998] 1 SCR 877), the Supreme Court of Canada struck it down as a violation of freedom of expression, ruling that the limits were not justified under section 1 of the Charter.

At the same time, the Supreme Court's ruling indicated that concerns about the methodological accuracy of election surveys were warranted and that it would therefore be constitutional to invoke legislation requiring survey results to be accompanied by details about the methodology used. As a result, the 2000 Canada Elections Act required the first publication of any election survey to include details about the sponsor and the methodology used. The Act also prohibited the publication of the results of new or previously unpublished election surveys on election day.

Meanwhile, growing use of social media and email presented new challenges for controls on the premature release of election results. 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 own time zone. When polls closed in Western Canada, voters would often learn that the outcome of the election had already been decided by ballots counted in the rest of the country.

The 1992 report of the Lortie Commission recommended extending voting hours and having staggered hours in different regions of the country. The issue was also recognized by the Chief Electoral Officer. 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.

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 in section 329 of the Canada Elections Act. The case made it all the way to the Supreme Court of Canada, which held that while section 329 of the Canada Elections Act limited freedom of expression, this limit was justified under section 1 of the Charter.

Ultimately, however, the increasing use of social media made it difficult if not impossible to enforce the prohibition on communicating election results before the polls had closed in western Canada. In his report on the May 2011 general election, the Chief Electoral Officer, Marc Mayrand, said the time had come for Parliament to consider revoking the current rule. In January 2012, the government announced that it would end the prohibition, saying, The ban, which was enacted in 1938, does not make sense with the widespread use of social media and other modern communications technology. In 2014, section 329 was repealed.

The Vote and the Voting Process

The guarantee of the right to vote means not only lifting the restrictions on various groups, but also ensuring that barriers to exercising this right are identified and addressed. Over time, legislative and administrative measures have been made to ensure that all voters are able to exercise their right to vote, that the integrity of the voting process is preserved and that constituency boundaries are adjusted to provide effective representation while reflecting the country's diversity.

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. Certain features of the electoral legislation made voting physically impractical for many electors.

By the early 1990s, the matter had caught Parliament's attention. A report entitled A Consensus for Action: The Economic Integration of Disabled Persons, published by the House of Commons Standing Committee on Human Rights and the Status of Disabled Persons in June 1990, proposed identifying all legislation that presented a barrier to people with physical disabilities. In September 1991, the Canadian Disability Rights Council submitted its own legislative proposals. Based on those proposals–together with the work of the Standing Committee and recommendations from the Lortie Commission, the Special Committee on Electoral Reform and the Chief Electoral Officer–the Progressive Conservative government of Brian Mulroney introduced Bill C-78. Passed by Parliament in 1992, it made a number of amendments to electoral law and administration that made voting more accessible to people with disabilities.

In 2008, James Hughes, a resident of Toronto who used a wheelchair or a walker, made a complaint to the Canadian Human Rights Commission about the lack of barrier-free access to his polling location. In 2010, The Canadian Human Rights Tribunal found that Elections Canada had failed to provide barrier-free access and to address Mr. Hughes' complaints. The Tribunal ordered Elections Canada to make systemic remedies, including consultation with the disability community; improved policies, communication, signage and training; and a dedicated accessibility complaint process (2010 CHRT 4). In 2014, Elections Canada formalized its outreach with the disability community by launching an Advisory Group for Disability Issues to provide subject matter expertise and advice on accessibility initiatives.

Further improvements were made in 2018, when Bill C-76 amended the accommodation measures in the Canada Elections Act to include all persons with disabilities, not only those with physical disabilities. Instead of requiring premises to have level access, for example, the amendments required them to be accessible to electors with a disability. Bill C-76 also increased the availability of transfer certificates to electors with disabilities and required the Chief Electoral Officer to develop, obtain or adapt voting technology for use by electors with a disability and to test the technology for future use in an election. Elections Canada also developed a new paper ballot with larger font sizes to allow electronic screen readers to read the ballot.

Advance Voting and Special Ballots

Meanwhile, other legislation during this period improved access to the vote for all Canadians. In 1993, Bill C-114 made advance poll voting available to all citizens. With this change, Canadian voters increasingly took advantage of the early opportunity to cast a ballot. Before the change, just over 500,000 Canadians (3.8 percent of electors) voted at advance polls during the 1988 general election; that number rose to 633,000 (4.6 percent) in 1993. As shown in the following table, since 1993 the numbers and percentages of those voting at advance polling stations and under special voting rules have tended to rise. In particular, there was a steep rise in the percentage of electors voting at advance polling stations from the mid-2000s, when it was roughly 11 percent, to over 26 percent in 2019.

Table 4.1

Voting at Advance Polling Stations and Using Special Ballots, Numbers and Percentages, General Elections, 1993–2019

Year of General Election	Voting at Advance Polling Stations		Voting Using Special Ballots		Total Votes
	Number	Percentage	Number	Percentage
1988	507,487	3.8%	159,965	1.2%	13,281,191
1993	633,464	4.6%	208,479	1.5%	13,863,135
1997	704,336	5.3%	135,458	1.0%	13,174,698
2000	775,157	6.0%	191,833	1.5%	12,857,773
2004	1,248,469	9.2%	246,011	1.8%	13,564,702
2006	1,561,039	10.5%	438,390	3.0%	14,817,159
2008	1,520,838	11.0%	253,069	1.8%	13,834,294
2011	2,100,855	14.3%	279,355	1.9%	14,723,980
2015	3,657,415	20.8%	607,152	3.5%	17,591,468
2019	4,840,300	26.6%	643,462	3.5%	18,170,880

Source: Elections Canada, Past Elections.

In addition, Bill C-114 effectively replaced proxy voting by allowing all electors to vote using the special ballot. The special ballot is a registration and voting system for Canadians who are 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. Electors can vote using the special ballot at any local Elections Canada office or by mail. Incarcerated electors, Canadian Forces electors and electors temporarily in hospitals are also able to vote by special ballot on specific days during the election period. The amendments meant that all Canadians living or travelling outside the country–not just military personnel and diplomats–could now vote, as long as they applied for the special ballot before the deadline.

The provisions for advance polling and special ballots were modified in 2014, when Bill C-23, the Fair Elections Act, added a fourth day of advance polling and in 2018, when Bill C-76 extended the hours of advance polls and removed the stipulation that Canadians living abroad must not have been absent for more than five years.

Fixed-Date Elections

Under Canada's system of responsible government, to remain in office, the Prime Minister and Cabinet must enjoy the confidence–that is, the support–of the majority of the members of the House of Commons. If the government loses the confidence of the House, by convention it would have to resign or seek the dissolution of Parliament, which would trigger a general election. Another feature of this form of responsible government has been that the Prime Minister could seek the dissolution of Parliament at any time.

The Constitution Act, 1867 does not specify when elections must be held. Section 50 provides that five years is the longest the House of Commons can continue. As we saw earlier, this is reiterated in section 4(1) of the Charter, which says, No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members. The only exception to this would be in time of real or apprehended war, invasion or insurrection.

Given the lack of certainty about when elections were to be held, the idea of fixed-term parliaments was debated on several occasions. For example, this idea was supported by the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada in its February 1972 final report. The Lortie Commission also looked at the idea and summarized the arguments for holding federal elections on a fixed date as follows:

It would make it easier to administer and organize elections; it would allow for better enumeration; and it would be more democratic because it would remove the ability of the party in power to call an election at the most favourable time.

Nevertheless, the Commission did not make any recommendation on fixed-date elections. Neither did the House of Commons Standing Committee on Procedure and House Affairs when it studied the matter in 1994.

The idea did not go away, however, and during the early 2000s, the legislatures of British Columbia, Ontario, and Newfoundland and Labrador enacted legislation establishing fixed election dates. In 2006, the Conservative government of Stephen Harper followed suit by introducing its own fixed-date election legislation: Bill C-16, An Act to amend the Canada Elections Act. It said that fixed-date elections, would provide for greater fairness in election campaigns, greater transparency and predictability, improved governance, higher voter turnout rates and help in attracting the best qualified candidates to public life. The Chief Electoral Officer, Jean-Pierre Kingsley, also agreed with having fixed-date elections. In his appearance before the House of Commons Standing Committee on Procedure and House Affairs on September 26, 2006, he said that the bill would improve our service to electors, candidates, political parties and other stakeholders. The bill received royal assent on May 3, 2007.

The amendments to the Canada Elections Act provide for a general election to be held on a fixed date: the third Monday of October in the fourth calendar year following the previous general election. At the same time, the amendments specify, Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General's discretion. In other words, the Canada Elections Act does not prevent a general election from being called at an earlier date, either because the government has lost the confidence of the House or because the Prime Minister has decided to seek the dissolution of Parliament.

While Bill C-16 set the date of the next general election in October 2009, Parliament was dissolved earlier and the election took place on October 14, 2008. The following general election would have been held in October 2012, but once again, Parliament was dissolved earlier; the election was held on May 2, 2011. The first general election to be held in accordance with the fixed-date provision was on October 19, 2015.

The 2015 election was also noteworthy because the election period was 78 days, making it the longest since 1872. In his 2016 recommendations report, the Chief Electoral Officer, Marc Mayrand, pointed out that fixed election days were intended to give Elections Canada time to prepare. He noted that returning officers faced additional staffing pressures and were deprived of the anticipated preparatory period. As a result, the Chief Electoral Officer said, Imposing a maximum limit on the election period (for example 45 or 50 days) in conjunction with the fixed election date would create a greater measure of predictability for all electoral participants as the fixed date approaches and would better accomplish the goal of a fixed election date. This issue was addressed by Bill C-76, which established a maximum election period of 50 days.

Another issue that arose was that election day and advance polling days coincided with religious holidays. At various times before the Canada Elections Act was amended to provide for fixed election dates, Elections Canada had consulted with religious communities about this issue and had drawn attention to opportunities to vote early, such as voting by special ballot.

In 2019, the date fixed for polling day, as well as some of the advance polling days, fell on Jewish holidays. Some members of the observant Jewish community asked the Chief Electoral Officer to consider moving the election date. Elections Canada responded with a statement about how it would accommodate Jewish voters, but did not refer to the power under the Act to recommend an alternate election day. Chani Aryeh-Bain and Ira Walfish then asked the Federal Court for judicial review of the Chief Electoral Officer's decision not to recommend moving the date. The Court ordered him to reconsider his decision and to clearly weigh the impact of his decision on the applicants' rights under section 3 of the Charter (Aryeh-Bain v. Canada (Attorney General), [2019] FC 964). On July 29, the Chief Electoral Officer, Stéphane Perrault, reaffirmed his decision not to recommend to the Governor in Council to change the election date, saying:

Having carefully considered the impact of holding the election on October 21 on the ability of observant Jews to participate in the electoral process, and having balanced that with my mandate to ensure accessible voting opportunities for all Canadians, I conclude that it would not be advisable to change the date of the election at this late stage.

The National Register of Electors

First broached in the 1930s, the permanent register of electors became a reality during the 1990s. Prior to its creation, every time an election was called, the list of those eligible to vote was prepared by enumerators going door to door. The 1986 White Paper on Election Law Reform had examined the issue, but ultimately recommended that the existing enumeration approach be retained. It was the 1989 Auditor General's report–critical of Elections Canada for not using computer technology to streamline its operations–that motivated the push for the long-elusive permanent list.

Following some tests of the software for computerized voters lists, in 1992 Elections Canada used computerized voters lists for the referendum on the Charlottetown Accord in 220 electoral districts, excluding Quebec.^{footnote 2} The Referendum Act was later amended to permit the use of the 1992 voters lists for the 1993 general election.

The idea of creating a permanent register of electors received a further boost from the recommendations made by the Lortie Commission in its 1992 report, even though it judged that conditions were not yet right for setting up a federal register. The Commission heard that Canadians did not favour moving to a system where it was up to individual voters to register. It also heard from experts that voluntary registration could create obstacles to voting. Ultimately, the Commission recommended that provincial lists of electors be used for federal purposes.

A 1996 report by an Elections Canada working group 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. That autumn, the Liberal government of Jean Chrétien introduced Bill C-63, which amended the Canada Elections Act to enable the necessary administrative changes. With the bill's passage in December, Elections Canada was given the mandate to create Canada's National Register of Electors.

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 preliminary lists of electors. The National Register of Electors became a reality after this enumeration and was used for the first time during the 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 provincial and territorial motor vehicle and vital statistics registrars and, federally, the Canada Revenue Agency; Immigration, Refugees and Citizenship Canada; and National Defence. Together, these sources update the addresses of the millions of Canadians who move each year–in 2018, 5.2 percent of 15 million households had moved within the past five years. They also 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. Also, when a general election or by-election is under way, voters can register at their local Elections Canada office or at their polling place when they go to vote. The Canada Elections Act includes strict limits on how personal information from the National Register can be used.

Thanks to the various methods for collecting information and keeping the Register current, it includes the large majority of Canadian electors and is for the most part accurate. Between 2009 and 2020, national coverage–the percentage of electors included in the Register–varied between 92 percent and 96.9 percent (Elections Canada, Description of the National Register of Electors). At the start of the 2019 general election, the coverage was 96.4 percent. The accuracy of the Register–the proportion of registered electors whose address is current–was 93.3 percent at the start of the 2019 general election, compared with 91 percent in 2015 and 90 percent in 2011 (Elections Canada, Report on the 43rd General Election of October 21, 2019).

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 $100 million.

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. Election campaigns could, however, be longer–indeed, the 2015 campaign lasted a record 78 days. In 2018, Bill C-76 set a maximum 50-day election period.

Bill C-76 also established a Register of Future Electors in which Canadian citizens 14 to 17 years of age can apply to be included. Upon turning 18, eligible individuals are added to the National Register of Electors. The preregistration of 16- and 17-year-olds was one of the recommendations from the Chief Electoral Officer following the 2015 general election.

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.

Identification Requirements

One of the most significant changes to voting practices in the mid-2000s was the introduction of the need for voters to provide proof of identity and address to register for and vote in a federal election.

The Canada Elections Act of 2000 standardized the process by which voters could register on the day of an election. Since 1993, 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. The revised Canada Elections Act extended this option to urban voters as well.

The requirement to show identification was the result of concerns about the integrity of the electoral process. In June 2006, the House of Commons Standing Committee on Procedure and House Affairs tabled a report entitled Improving the Integrity of the Electoral Process: Recommendations for Legislative Change. Saying that concerns had been expressed about the potential for fraud and misrepresentation in voting, the Committee noted that other important activities required people to show identification. It went on to say:

Traditionally, Canada has tried to make voting as easy as possible, but if confidence in the system is undermined, it becomes necessary to make changes. Obviously, it is not our intention to impose any measures that would discourage voting, nor do we want to make voting more difficult than necessary. The credibility and legitimacy of the system, however, require that procedures be adopted to ensure that only those persons who are entitled to vote do so, and that they are who they say they are. This is essential to preserve the integrity in the electoral system.

The Committee also said that all of the political parties then represented in the House of Commons supported a more effective method of ensuring voter identification, including photo identification, with alternatives available for persons who are unable to furnish the required identification. In his appearance before the Committee on June 13, 2006, the Chief Electoral Officer, Jean-Pierre Kingsley, said he was in favour of the idea that voters have to present identification when voting.

In its response, the government said it would introduce a bill that would implement a uniform system of voter identification at the polls. Bill C-31, An Act to amend the Canada Elections Act and the Public Service Employment Act, which was adopted on June 22, 2007, introduced voter identification requirements, including proof of identity and address. To prove these, electors could choose one of three ways:

• Provide one piece of identification, issued by a Canadian government (federal, provincial/territorial or local). It must show the elector's photo, name and address.
• Provide two pieces of identification, both showing the elector's name and one also showing the elector's address.
• Swear an oath and be vouched for by an elector whose name appears on the list of electors in the same polling division and who has proven their own identity and address.

These requirements caused a problem for electors living in rural areas who did not have identification documents showing their civic address. To deal with this problem, the government introduced Bill C-18, An Act to amend the Canada Elections Act (verification of residence) to allow the use of another type of identification document. Bill C-18 was adopted on December 14, 2007.

In 2014, the identification requirements were modified by provisions of Bill C-23. Adopted by Parliament on June 19, 2014, it prohibited using the voter information card as a piece of identification at the polls. The bill also eliminated the ability of an elector to prove their identity through vouching; this was replaced with an attestation process that still required proof of identity and under which another elector could attest to the elector's address.

However, the voter identification requirements were modified once again in December 2018 when Parliament adopted Bill C-76. It lifted the prohibition on using the voter information card as proof of address and restored vouching for electors with no identification documents.

Integrity of the Voting Process

In addition to the new identification requirements first introduced in 2007, further changes to Elections Canada's practices related to the integrity of the voting process were brought about by two court cases. These cases arose out of incidents during the 2011 general election that involved administrative procedures at polling stations and fraudulent telephone calls to voters.

The first case involved a judicial recount in the Ontario riding of Etobicoke Centre. After it was declared that Ted Opitz had won by 26 votes, the second-place candidate, Borys Wrzesnewskyj, contested the result in the Ontario Superior Court of Justice. On May 18, 2012, the Court, which found that election officers had made a number of administrative errors, declared the results of the election null and void. Mr. Opitz appealed the decision to the Supreme Court of Canada. In a split decision delivered on October 25, 2012, the Supreme Court ruled in his favour and confirmed the original election result.

The case centred on what administrative errors should be considered irregularities that affected the result of the election. The majority of the judges held that only votes cast by persons not entitled to vote are invalid, while the minority thought the election could be annulled if there were sufficient administrative irregularities–in other words, failures to comply with the requirements of the [Canada Elections] Act.

To resolve the issue, the Supreme Court established two conditions for invalidating a vote: first, there was a breach of a statutory provision designed to establish the elector's entitlement to vote and, second, someone not entitled to vote, voted. If the number of votes invalidated is equal to or greater than the successful candidate's plurality, the election result is annulled.

In this case, the Court did not find sufficient evidence to show that the administrative errors had resulted in voting by people not entitled to vote. At the same time, the Court found that election officers made many serious errors and that, in other circumstances, such errors could lead to an election being overturned (Opitz v. Wrzesnewskyj, 2012 SCC 55). While this court case was under way, Chief Electoral Officer Marc Mayrand said Elections Canada would place a major priority on strengthening measures aiming to improve compliance with procedures and standards applicable on voting days. (Harry Neufeld, Compliance Review: Final Report and Recommendations, Elections Canada, 2013, p. 11.)

To assist it in improving its administrative practices, Elections Canada commissioned Harry Neufeld, an independent elections expert, to conduct a review of compliance by election officers with election day procedures. His March 2013 final report found that irregularities had occurred for 1.3 percent of all cases of election day voting, an average of 500 administrative errors per electoral district. He recommended the redesign of the voting process to reduce the risk of errors.

Bill C-23 introduced a new requirement for an independent audit of poll worker performance following an election. In 2015–16, Elections Canada set up an internal directorate to oversee compliance with voting procedures and enhance its ability to detect, analyze and respond to incidents that could affect the integrity of the electoral process. (Elections Canada, 2015–16 Departmental Performance Report.) As well, for the 2015 general election, procedural changes were made to improve compliance at polling stations, more central poll supervisors and registration officers were hired, and training material for poll workers was revised. Additional enhancements were introduced for the 2019 general election, including streamlining and simplifying certificates and forms, further improving the training program and materials, and increasing the support role of the central poll supervisor. At both the 2015 and 2019 general elections, no incidents were detected that interfered with the integrity of the electoral process, and the independent audits confirmed that election officials properly performed their duties at the polls.

The second case related to the integrity of the voting process involved automated telephone calls (so-called robocalls) made during the 2011 general election that gave voters false information about the location of their polling stations. A former Conservative Party staffer was ultimately convicted of trying to prevent electors from voting at the election.

As a result of these fraudulent calls, the Federal Court was asked to annul the election results in six ridings. In his May 23, 2013, ruling, Justice Mosley found that fraud had occurred but said he was not satisfied that the fraud had affected the outcomes in the ridings. He therefore declined to exercise his discretion to annul the results. He noted, however, that had the successful electoral candidates or their agents been implicated in the fraudulent activity, he would not have hesitated to annul the result (McEwing v. Canada (Attorney General), 2013 FC 525).

Also as a result of the robocalls case, Bill C-23 introduced a new regime to ensure transparency when calling service providers contact voters during an election period. Under this regime, the Canadian Radio-television and Telecommunications Commission (CRTC) is responsible for establishing, maintaining and enforcing the Voter Contact Registry. Those making calls related to the election during the election period must register with the CRTC. They must also keep records of the telephone numbers they call and copies of scripts and recordings used during the calls. Bill C-23 also made it an offence to impersonate candidates or election officers and to fail to follow the obligations to keep scripts and recordings.

In the lead-up to the 2019 general election, new concerns arose about threats to the security of the vote from influence campaigns, disinformation or cyberattacks. In a report entitled Cyber Threats to Canada's Democratic Process, which was published in 2017 and updated in 2019, the Communications Security Establishment (CSE) identified threats posed by foreign adversaries to elections, political parties and politicians, and traditional and social media. CSE, which provides information technology security services to the Government of Canada, said that Canadian voters would likely encounter foreign cyber interference related to the 2019 federal election. However, it noted that while elections around the world had faced cyber threats, Canada's federal elections are largely paper-based and Elections Canada has a number of legal, procedural, and information technology (IT) measures in place that provide very robust protections against attempts to covertly change the official vote count. (Communications Security Establishment, 2019 Update: Cyber Threats to Canada's Democratic Process, p. 5.)

In response to these concerns, Bill C-76 included provisions to combat emerging threats related to digital interference and disinformation. For example, it prohibited third parties from using funding from foreign entities to conduct partisan activities or partisan or election advertising. It also required major online platforms that sell advertising to political entities during the pre-election and election periods to maintain a registry of that advertising.

In January 2019, the government announced the creation of the Security and Intelligence Threats to Elections Task Force, made up of the Canadian Security Intelligence Service, the Royal Canadian Mounted Police, the CSE, and Global Affairs Canada. As an independent agency, Elections Canada was not part of the task force, but it collaborated with these organizations and took measures to improve the security of the vote, such as by improving its information technology infrastructure and providing security awareness training to Elections Canada staff.

Boundary Redistribution

As we saw in Chapter 3, the Electoral Boundaries Readjustment Act of 1964 established an impartial process for redrawing constituency boundaries. With continual population shifts occurring since the 1970s, this process 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 of some established and historic ridings in urban cores. The formula for calculating seats is set out in the Constitution Act, 1867; it was revised in 1974, in 1985 and in 2011.

Under the Electoral Boundaries Readjustment Act, commissions draw constituency boundaries so that the population of each electoral district is as close as is reasonably possible to the average population size of a district for that province. Commissions must make every effort to ensure that no constituency deviates from the average by plus or minus 25 percent. In extraordinary circumstances, however, commissions may exceed these limits. Commissions must also consider other human and geographic factors and may vary the size of constituencies to respect communities of interest or identity, to respect historical patterns of previous electoral boundaries or to maintain a manageable geographic size for districts in sparsely populated, rural or northern regions of the province.

Ensuing Charter challenges highlighted the concept of community of interest. The most significant case was the 1991 Reference re Prov. Electoral Boundaries (Sask.) ([1991] 2 SCR 158, also known as Carter). The case was put forward on behalf of a group of Saskatoon and Regina voters seeking a court ruling on the constitutional validity of the electoral boundaries that Saskatchewan adopted after The Representation Act, 1989 became law.^{footnote 3} In reversing a decision by that province's court of appeal, 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 into account factors such as geography, community history, community interest and minority representation to ensure that our legislative assemblies effectively represent the diversity of our social mosaic.

Another case highlighting the concept of community of interest was Raîche v. Canada (Attorney General) (2004 FC 679), 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, the government introduced Bill C-36, which received royal assent in 2005 and which changed the boundaries of the Acadie–Bathurst and Miramichi electoral districts. It reversed the transfer of certain Francophone parishes from a majority French-speaking riding to a majority English-speaking one. This was the first time since the Electoral Boundaries Readjustment Act was introduced that a court had ordered an electoral boundary to be changed.

Following the 1991 Census, Parliament suspended the readjustment process twice. In 1992, it did so because the readjustment process could likely not be completed before the next federal election. In 1994, faced with dissatisfaction about the process, the government decided to review the Electoral Boundaries Readjustment Act. As a result, Parliament suspended the readjustment process again. In February 1995, the government introduced Bill C-69, Electoral Boundaries Readjustment Act, 1995. Provisions in this 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. The bill would have provided for redistribution reviews every 5 years, instead of 10, and would have 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.

Although Bill C-69 was passed by the House of Commons, it died on the Order Paper in the Senate when the 1997 general election was called.

The Standing Committee on Procedure and House Affairs made recommendations for improving redistribution in its April 2004 report to the House. In May 2005, the Chief Electoral Officer, Jean-Pierre Kingsley, issued a report entitled Enhancing the Values of Redistribution. It made recommendations on, among other things, ensuring the timely conclusion of redistribution, enhancing the effective representation of Canadians and improving the amount and quality of public input. The report also supported the calls from the Standing Committee to embed a definition of the term communities of interest in the legislation.

To address the underrepresentation of the fastest-growing provinces–Ontario, British Columbia and Alberta–in December 2011 Parliament passed Bill C-20, the Fair Representation Act. It created more seats for these provinces as well as for Quebec, to prevent that province from becoming underrepresented.

Table 4.2

Extending the Regulation of Political Financing

During the period covered by this chapter, key changes were made to the regulation of campaign and electoral financing, as well as to the regulation of third-party spending. The aim of these changes was to provide greater transparency and a level playing field so that everyone has the same opportunity to participate in the electoral process and voters are better informed about the funding of political campaigns and how the money is being spent.

As a result of these and other changes, the role of Elections Canada has evolved and become more complex. In addition to its operational role in the delivery of elections, it must ensure regulatory compliance. Notably, it must ensure compliance with contribution and spending limits, with the regime for reimbursing election expenses and with financial reporting requirements.

The successive reforms between 1974 and 2018 have established a comprehensive political financing regime, a regime that has become increasingly complex. For example, there are contribution limits, many categories of expenses, and requirements during the pre-election period established in 2018 that are different from those during the election period. To help political entities comply with the rules, Elections Canada produces training materials, responds to questions from political entities and issues written opinions, guidelines and interpretation notes.

Campaign and Electoral Financing

The reform of campaign and electoral financing came about as a result of the vigorous debate on the subject that took place in the late 1990s and early 2000s. In 1992, the Lortie Commission made several recommendations to reform political finance at the federal level. The Chief Electoral Officer's reports to Parliament following the 1993, 1997 and 2000 general elections strongly supported measures to curb the influence of corporate and union donors.

As a result, in January 2003 the Liberal government of Jean Chrétien introduced Bill C-24, An Act to amend the Canada Elections Act and the Income Tax Act. The bill provided the most significant set of reforms to party and campaign financing since the 1974 Election Expenses Act. In his speech at second reading, Prime Minister Chrétien said this was

a bill that will change the way politics is done in this country, a bill that will 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, a bill that is tough but fair.

The legislation, which Parliament adopted in June 2003 and which came into force in January 2004, 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 from organizations. The new regulations therefore stipulated that each elector could contribute up to a total of $5,000 a year to registered parties and their electoral district associations, nomination contestants and candidates; $5,000 to independent candidates; and $5,000 to leadership contestants. Donations from corporations and trade unions to registered associations, nomination contestants and candidates were limited to $1,000 per year. Furthermore, while individuals could contribute directly to a registered party, corporations and unions could not. To police the new rules, the Act extended disclosure requirements to electoral district associations and to leadership contestants and nomination contestants of registered parties.

To counterbalance the new contribution limits, Bill C-24 introduced direct public subsidies for political parties. These subsidies were in addition to the public funding being made through partial reimbursement of expenses and tax credits for contributions. Bill C-24 entitled any party receiving a minimum percentage of the popular vote in a general election to a quarterly public allowance proportional to its share of votes (also known as a per-vote subsidy). These quarterly allowances compensated parties for the loss of their customary funding stream from large corporate and union donations. The concept was not new–both the Barbeau Committee in 1966 and the Lortie Commission in 1992 were in favour of funding political parties through direct public subsidies.

The quarterly allowances added an average of $26.4 million a year to the coffers of all the eligible registered parties. As a result, annual average revenue streams to all regulated federal political entities went from $76.6 million before 2004 to $111.9 million after 2004, an increase of 46%. (Elections Canada, Analysis of Financial Trends of Regulated Federal Political Entities, 2000–2014, November 2015.)

With the aim of providing for equal opportunity and a level playing field, Bill C-24 also sought to address concerns about unbridled spending in nomination and leadership contests. New rules required the contestants 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 the electoral district, per candidate
• disclose all nomination contributions and spending information, as they would for election campaigns

Finally, Bill C-24 brought local electoral district associations under legislative purview 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.) As described by the Supreme Court of Canada, this approach is known as an egalitarian model of electoral democracy. Under this model, everyone has an equal opportunity to participate in the electoral process. This is achieved by reimbursing candidates and political parties and providing broadcast time to political parties. Electoral spending is regulated with the aim of creating a level playing field for those wishing to participate in the process, which in turn allows voters to be better informed. (Harper v. Canada (Attorney General), 2004 SCC 33.)

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.

Bill C-24 was followed in 2006 by Bill C-2, the Federal Accountability Act. Introduced by the Conservative government of Stephen Harper, this legislation further restricted political donations by banning contributions from corporations, trade unions, associations and groups. It also made other changes to the Canada Elections Act that were intended to increase the transparency of the electoral process and better control the influence of money on elections.

In its June 2011 Budget, the government announced that it would introduce legislation to phase out the quarterly allowances to political parties that had been introduced in 2003 as a way of compensating them for the loss of corporate and trade union donations. Noting that political parties also receive taxpayer support through the tax credit for contributions from taxpayers and the reimbursement of election expenses, the government said the elimination of the allowances was a way of generating savings in a time of fiscal restraint. The savings were projected to reach $30 million by 2015–16. (Government of Canada, A Low-Tax Plan for Jobs and Growth, June 6, 2011.)

Accordingly, in October 2011, the government introduced Bill C-13, Keeping Canada's Economy and Jobs Growing Act, an omnibus bill that, among other things, amended the Canada Elections Act to phase out the quarterly allowances over three years. During debate in the House of Commons, some of those in favour of eliminating the per-vote subsidy argued that political parties should be supported by their members instead of by taxpayers, while some of those opposed to ending the subsidy argued that it was a way of ensuring that every vote had an impact, whether the candidate won a seat or not. After Parliament adopted Bill C-13 in December 2011, the allowances paid to the parties were gradually reduced; the last quarterly allowances were paid in April 2015.

In February 2014, the government introduced Bill C-23, which Parliament adopted in June 2014. In addition to a number of administrative changes (discussed in the section on electoral programs and services), the bill increased the limits on the amounts individuals can contribute annually from $1,200 to $1,500, increasing by $25 per year. The bill also increased the spending limit for a party's or candidate's election expenses and provided for an increase to these spending limits if the election period was longer than the 36-day minimum.

In an interpretation note published in August 2015 and again in his 2016 recommendations report to Parliament following the 42nd general election, the Chief Electoral Officer, Marc Mayrand, drew attention to deficiencies related to the regulation of leadership and nomination contests:

Because it allows many relevant expenses and contributions never to be reported, the current political finance regulatory regime applicable to nomination and leadership contestants fails to achieve the Act's goal of transparency.

This issue was one of those addressed in Bill C-50, An Act to amend the Canada Elections Act (political financing). Introduced by the Liberal government of Justin Trudeau and adopted by Parliament on June 21, 2018, it changed nomination and leadership expense definitions so they include all expenses incurred in relation to the contest, as opposed to those expenses incurred only during the contest period. Bill C-50 also required that political parties publicly advertise fundraising events attended by ministers, party leaders or leadership candidates where more than $200 is required to attend. Political parties were also required to report the names of those who attended the fundraiser to Elections Canada.

As mentioned in the section on fixed-date elections, the general election of October 19, 2015, was the first to be held on a fixed election day, and the 78-day election period for this election was the longest since 1872. In his 2016 recommendations report, the Chief Electoral Officer, Marc Mayrand, pointed out that fixed election dates were intended to improve transparency and fairness. He went on to say, The absence of a maximum period for the election, however, combined with the fact that spending limits for parties and candidates are prorated to the length of the campaign, can compromise the level playing field by favouring campaigns that have access to more resources.

This issue was addressed by Bill C-76, which established a maximum election period of 50 days. The Act also removed the provision under which spending limits varied depending on the length of the election period.

Bill C-76 also created a pre-election period during which political parties and third parties must respect spending limits. This pre-election period begins on June 30 in the year of a fixed-date general election and finishes on the day before the start of the election period. During this period, there are rules for partisan advertising by political parties, electoral district associations and third parties and for partisan activities and election surveys by third parties.

Third-party Spending

As we saw in Chapter 3, the 1974 Election Expenses Act provided that only parties and candidates would be permitted to spend money during an election period to promote or oppose candidates. Expenditures by so-called third parties were expressly prohibited, except where intended to gain support for a policy stance or promote the objectives of a non-partisan group.

This wording proved so broad that it failed to stand up in court against most infractions, and so it undermined the intended effect of the spending restrictions. For this reason, in 1983 the Liberal government of Pierre Elliott Trudeau introduced Bill C-169, An Act to amend the Canada Elections Act (No. 3), 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, 11 DLR (4th) 481), on the grounds that it was an unconstitutional infringement of freedom of expression and contrary to section 2 of the Charter. This remained the status quo until 1993, when Bill C-114 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 Canada (Attorney General) v. Somerville (1996 ABCA 217). They met a similar fate, being struck down by the Alberta Court of Appeal.

A new legal interpretation of third-party spending restrictions emerged the following year in Libman v. Quebec (Attorney General) ([1997] 3 SCR 569). This case involved provisions in that province's Referendum Act that were similar to those struck down in the Somerville case. The Supreme Court of Canada upheld the Quebec Referendum Act's provisions limiting third-party spending as a means of promoting equality of participation, 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. (At paragraph 41)

The Somerville ruling created an anomaly that permitted third parties to spend an unlimited amount on election advertising, while the candidates themselves were restricted in their spending on election expenses. In his Report of the Chief Electoral Officer of Canada on the 36th General Election, Jean-Pierre Kingsley 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 when the Canada Elections Act was replaced in 2000. Under the 2000 Act, 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 spending by third parties, which were 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. The provisions also subjected third parties, for the first time, to registration and reporting requirements.

The National Citizens Coalition challenged the legislation's constitutionality in Harper v. Canada (Attorney General) (2004 SCC 33). On May 18, 2004, the Supreme Court of Canada ruled that, while the limits on third parties do limit freedom of expression, the infringement was 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.

In 2014, Bill C-23 amended the rules for third parties in the Canada Elections Act to require individuals and persons responsible for a group to certify that they are Canadian citizens or permanent residents or that they reside in Canada. If the third party is a corporation, it must certify that it carries on business in Canada.

In 2018, the rules for third parties were modified by Bill C-76 so as to capture a broader array of activities over a greater period of time. The activities now covered include partisan activities to promote or oppose a party or candidate (such as social media campaigns or door-to-door canvassing), election surveys (such as those to collect information about voters' intentions) and both partisan activities and advertising during the pre-election period.

Bill C-76 created this pre-election period that extends from June 30 of the year of a fixed-date election to the issuing of the writ. Third parties and other regulated entities carrying out partisan activities, election surveys or advertising (so-called regulated activities) during the pre-election period would now have to register with Elections Canada if they incur costs of $500 or more. The bill also prohibited third parties from using funds for regulated activities if the source of the fund is a foreign entity and prohibited foreign third parties from incurring expenses for regulated activities. The bill also imposed separate expense limits for regulated activities that take place during a pre-election period and during an election period.

Electoral Programs and Services

One of Elections Canada's main roles is to ensure that the administration of elections is carried out fairly and impartially. Over the period covered by this chapter, legislative and administrative measures addressed the administration of elections and the enforcement of the Canada Elections Act. Other measures affected the way technology is used in the electoral process, the protection of electors' personal information and Elections Canada's outreach to Canadians. During the period, the role of Elections Canada evolved as it worked to ensure compliance with a regulatory regime that had become increasingly complex.

Finally, the chapter describes a number of collaborations between Elections Canada and its provincial, territorial and international counterparts that have grown out of its mandate to address issues that include governance and accountability, legislative trends, best practices and voter services.

Administration of Elections

A significant change to the administration of elections was the 2006 amendment made by Bill C-2. Under this amendment, returning officers are appointed by the Chief Electoral Officer based on merit and a prescribed list of qualifications. Prior to this, returning officers were appointed by the Governor in Council (the government) and did not need any particular qualifications.

This change has led to what could be described as the professionalization of the role of the returning officer. As specified in the returning officer profile, the role calls for broad management experience and strong skills: financial planning; material, human and financial resources management; contract negotiation; public relations; and office automation, to name a few. For example, returning officers locate spaces for polling sites, recruit and train office staff, appoint and direct the work of hundreds of election officers, and ensure that Elections Canada's guidelines and policies are respected.

In 2014, Bill C-23 replaced the mandatory retirement of the Chief Electoral Officer at age 65 with a 10-year, non-renewable term. The Chief Electoral Officer can be removed only for cause by the Governor General following a joint address of the Senate and the House of Commons.

Bill C-23 also made a number of changes to the mandate of Elections Canada. These changes aimed to improve the agency's transparency and its understanding of the needs of political entities, including political parties, electoral district associations and candidates. One of these changes authorized the Chief Electoral Officer to issue interpretation notes and guidelines on applying the Canada Elections Act. The Chief Electoral Officer is also required, on request, to issue a written opinion on how the Act applies to activities that political entities propose to engage in.

Bill C-23 also formalized the Advisory Committee of Political Parties to advise the Chief Electoral Officer on matters relating to elections and political financing. The Advisory Committee, which was created in 1998 by Chief Electoral Officer Jean-Pierre Kingsley, also advises the Chief Electoral Officer in the development of opinions, guidelines and interpretation notes. The Committee, which brings together two representatives from each registered political party, meets at least once a year.

In 2018, Bill C-76 amended the Canada Elections Act to provide flexibility in the ways electors are served. Although few changes were made for the 2019 general election, the Act now allows poll workers the flexibility to shift roles as needed to ensure more efficient operations.

In the lead-up to the 2019 general election, Elections Canada made a number of improvements to help returning officers fulfill their responsibilities. To provide more support for returning officers, Elections Canada set up a new field support model with agents trained on specific topics, along with a web-based single access point for communications with headquarters. It also set up an online case management system for headquarters employees who provide support and services to field staff.

Enforcement of Legislation

As we saw in Chapter 3, the 1974 Election Expenses Act established the office of the Commissioner of Election Expenses. In 1997, it became the Commissioner of Canada Elections, whose enforcement responsibility was extended to cover all provisions of the Canada Elections Act.

When the Canada Elections Act was rewritten in 2000, new enforcement provisions were added. For example, the Act allowed the Commissioner of Canada Elections to resolve some contraventions by entering into compliance agreements–a remedial rather than a punitive measure. Also, 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.

In 2006, Bill C-2 made the Director of Public Prosecutions responsible for prosecuting offences under the Canada Elections Act. This changed in 2018, when Bill C-76 gave the Commissioner the authority to lay charges.

Bill C-76 also expanded the Commissioner's compliance and enforcement toolkit by including the option of imposing an administrative monetary penalty (AMP). The Commissioner can impose these penalties for contraventions related to political financing, communications, third parties and certain voting offences, such as voting more than once. As pointed out by Chief Electoral Officer Marc Mayrand in his recommendation report following the 2015 general election, enforcement of the Canada Elections Act had been based almost entirely on a traditional, and costly, criminal approach. In contrast, the purpose of AMPs is to create an incentive to comply with the Act. He went on to say, The use of AMPs is a more efficient, immediate and, in many cases, effective tool to achieve compliance than the possibility of a future prosecution.

Technology and the Electoral Process

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.

Computer technology has also greatly improved the administration of election financing, particularly the registration of political entities and disclosure of their contributions and expenses. 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 assigning electors to a polling division and readjusting electoral boundaries after a decennial census. They also allow electors to enter a postal code on Elections Canada's website to obtain information on the corresponding electoral district, member of Parliament and polling station. On election night, Canadians are served by a web module called Election Night Results, which posts election results as they unfold.

In the mid-1990s, Elections Canada created a website to communicate ways, when and where to vote. The website presents extensive information on the Canadian electoral process, including historical data, past election results and a searchable database on electoral financing. It also provides educational resources on federal elections and democracy for elementary and secondary school teachers, as well as information for groups that face barriers to participating in elections. Political parties and candidates can find extensive information on electoral legislation, as well as online forms to assist them in filing necessary reports.

Technologies have also been implemented to assist persons with disabilities, including a 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.

During the early 2010s, Elections Canada implemented technology that allowed for streamed election night results and improved online services. For example, electors are able to register online to vote. Information technology also allows local offices to update the central voters list electronically. For the 2015 general election, the agency began using social media to provide electors with information about registration and voting.

As already noted, in preparation for the 2019 election, Elections Canada made significant investments in its information technology infrastructure and improved its security. It also introduced an online portal to allow candidates to file their nomination papers and financial reports electronically.

Protection of Electors' Personal Information

Political parties collect personal information about electors. Indeed, the Canada Elections Act requires Elections Canada to provide parties with voters lists that contain the names and addresses of voters, both annually and during an election. Political parties often supplement this information with information from other sources. However, political parties are not covered by federal privacy laws–the Privacy Act and the Personal Information Protection and Electronic Documents Act.

Concerns about the protection of electors' personal information were noted by Chief Electoral Officer Marc Mayrand in his 2013 recommendations report following the 41st general election. The report said that experts consulted by Elections Canada were particularly concerned about data breaches and the lack of recourse that those affected by such breaches would have. The Chief Electoral Officer shared these views and recommended that political entities become subject to the broadly accepted privacy principles governing the collection, use, disclosure and retention of records.

Following revelations that electors' personal information was used in attempts to manipulate electoral outcomes in the United Kingdom and the United States in 2016, there was increased support for the idea that federal political parties should be subject to rules that govern how personal information is treated. In 2018, Bill C-76 established an obligation for political parties to adopt a policy for the protection of personal information. As explained by Elections Canada, this policy is with respect to the treatment of any personal information [the political parties] collect, use or disclose. They must publish their policy online and provide it to the CEO [Chief Electoral Officer] in order to obtain and maintain their registration. (Elections Canada, The Protection of Electors' Personal Information in the Federal Electoral Context, May 2020.)

Outreach to Canadians

In 1992, the Chief Electoral Officer was given a specific mandate 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 their right to vote because of a disability, a language barrier or other factors.

Over the years, this mandate evolved into three main pillars:

• First, to raise awareness of the registration and voting process, Elections Canada provides Canadians with information through various channels on when, where and ways to register and vote in a federal election.
• Second, Elections Canada conducts outreach with stakeholder groups that most often face barriers–First Nations, Inuit and Métis electors; people with disabilities; and first-time voters, such as youth and new Canadians. Elections Canada consults with these groups and hires community relations officers to share voting information with them in ways that meet their needs. For example, as part of its outreach to Indigenous communities, elders and youth are hired to work at polling places on election day to help explain the voting process.
• Third, Elections Canada provides an ongoing civic education program for students in elementary and secondary schools. It makes resources available for teachers and students with a view to raising their knowledge of and interest in Canada's electoral democracy. Also, during every general election since 2004, Elections Canada has held a parallel election for youth under 18 so they can experience voting.

Collaboration with Canadian and International Partners

Elections Canada collaborates with its provincial, territorial and international counterparts to address issues such as governance and accountability, legislative trends, best practices and voter services.

With the collapse of the Berlin Wall in 1989, new democracies emerged all over the world. Elections Canada was among the first electoral management bodies to assist emerging democracies with their electoral processes. Recognizing that democratic development projects can benefit greatly when electoral management bodies work together in networks of support, Elections Canada engages with other electoral management bodies and international electoral organizations to develop and share knowledge on effective electoral management.

In accordance with provisions of the Canada Elections Act, Elections Canada pursues a goal of strengthening the independence, impartiality, integrity, transparency and professionalism of electoral management abroad and in Canada to ensure the conduct of free, fair and inclusive election processes. Since 1980, Elections Canada's international engagement has included participating in workshops, contributing to global research on electoral administration, facilitating monitoring missions and receiving many foreign delegates visiting Canada to learn more about the Canadian electoral system.

International assistance and co-operation have ranged from one-time sharing of information to long-term, multifaceted partnerships with other electoral management bodies and with international organizations, such as the Organization of American States. An example of the latter was the 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). Other examples are the 2004 International Mission for Iraqi Elections and the 2005 International Mission for Monitoring Haitian Elections.

Elections Canada also participates in multilateral and regional fora, such as the Commonwealth Electoral Network, the Réseau des compétences électorales francophones, the Four Countries Partnership (Australia, Canada, New Zealand and the United Kingdom) and networks of election authorities in the Americas and Europe. It also contributes to the ACE Electoral Knowledge Network, an online repository of electoral knowledge.

Within Canada, the Chief Electoral Officer chairs the Advisory Committee of Electoral Partners, which is composed of Elections Canada and its provincial and territorial counterparts. Elections Canada also maintains data-sharing agreements with Canadian provinces and territories. This collaboration is intended to share best practices and to streamline processes with the aim of providing better services for all electors.

As electoral regulation and the threats faced by electoral bodies become increasingly complex, Elections Canada's collaboration with its Canadian and international partners helps foster better understanding of the ever-changing environment.

Footnotes

^{Return to 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 footnote 2} In Quebec, the 1992 referendum was conducted under provincial legislation.

^{Return to footnote 3} The Act had resulted in the creation of seats with tolerance limits of plus or minus 25 percent in all but the northern part of the province. 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 footnote 4} During the 1990s, the term Aboriginal was used instead of Indigenous.