Appendix A: List of Recommendations from the Chief Electoral Officer – Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43rd and 44th General Elections
Part 1: Recommendations Relating to Electoral Communications
1. Moving Beyond Advertising
To better achieve the objective of transparency while, on the whole, reducing the regulatory burden on regulated entities, the Act should be amended as follows:
Replace formal tagline requirements by a harmonized requirement applying to all electoral communications—not just advertising—to disclose who is communicating and how electors can obtain more information, if desired. This new requirement should focus on the substance, rather than the form, of the transparency requirement while taking enforcement considerations into account. The information about who is communicating should be clearly visible or otherwise accessible.
During a pre-election period and an election period, the new harmonized transparency requirement should apply to all electoral communications (regardless of whether they are paid for) made by registered political entities or by political entities that are required to register.
During a pre-election period and an election period, the new harmonized transparency requirement should also apply to the electoral communications of individuals or entities who are not required to register, but only in cases where their electoral communications are paid. In the context of online communications, "paid" should continue to mean where there is a placement cost.
To preserve the objective of fairness by creating a more level playing field between governing and other parties, amend the Act to legislate existing directives that limit government advertising during the pre-election and election periods and on public opinion research during the election period. This would continue to allow for communications with the public when necessary such as in emergencies.
To repeal the advertising blackout provisions of the Act to reflect the fact that, with the Internet and social media, mass communications are available to a large number of actors and people can respond rapidly to misinformation.
2. Reviewing the Third Party Regime
To continue to provide transparency about electoral communications and to protect the objective of fairness through spending limits, the Act should regulate paid issue-based electoral communications—not only issue advertising—that can reasonably be seen as having the purpose of promoting or opposing a party or candidate during the election and pre-election periods.
To clarify the scope of regulated issue-based communications, a list of factors should be provided in the Act to help determine which communications would be captured under the Act as being for the purpose of promoting or opposing a candidate or party. Section 37.0.1 of Ontario's Election Finances Act could serve as a model.
To reduce the regulatory burden on those playing a smaller financial role in the electoral process, amend the Act to increase the third party registration threshold to $1,000.
To achieve improved transparency and help prevent foreign funding of third parties, the Act should provide that third parties other than individuals who wish to rely on their own funds to finance regulated electoral activities need to provide Elections Canada with audited financial statements showing that no more than 10 percent of their revenue in the previous fiscal year comes from contributions.
All other third parties that are not individuals should be required to incur expenses to support or oppose parties and candidates only from funds set aside in a separate account established for that purpose. Such third parties should also be required to identify the contributors whose funds have been used to promote or oppose parties or candidates, and such contributors should be made up only of individual Canadian citizens and permanent residents.
3. Pre-Registration of Candidates
To better ensure reporting of all expenses to promote or oppose a candidate or party during a pre-election and election period, allow a process for candidates to register with Elections Canada before the election period (either only in years of a fixed-date election or at any time with certain conditions). In addition, permit pre-registered candidates to issue tax receipts and make them subject to the regulatory requirements (opening a bank account, appointing an official agent, etc.) that ensure transparency.
To respond to the possible hesitation of parties to pre-register candidates, allow parties to withdraw their endorsement of a pre-registered candidate up to a reasonable point before the close of nominations and endorse a new candidate for the same electoral district.
To close a potential gap in the law, repeal the definition of "potential candidate" and amend the definition of "third party" so that "pre-registered candidates" are excluded from the definition.
4. Protecting Against Threats to the Electoral Process
To protect against inaccurate information that is intended to disrupt the conduct of an election or undermine its legitimacy, amend the Act to prohibit a person or entity, including foreign persons and entities, from knowingly making false statements about the voting process, including about voting and counting procedures, in order to disrupt the conduct of the election or to undermine the legitimacy of the election or its results.
To better protect against foreign interference and the spread of inaccurate information about elections and electoral participants, amend the Act to extend to the pre-election period the prohibitions against foreign interference and extend to all times the prohibition against misleading publications that falsely claim to be by an election worker, political party, leadership contestant, nomination contestant or candidate.
To ensure the more appropriate targeting of an existing offence, amend the Act to broaden the scope of the offence of using a computer system to include acting fraudulently with the intention of disrupting the conduct of the election or undermining the legitimacy of the election or its results.
To ensure that an organization that has as one of its primary purposes the promotion of hatred against an identifiable group does not enjoy the benefits of being a registered party, including access to lists of electors and public financing, give electors the authority to apply to a court for a determination as to whether the organization has such a primary purpose. If the court determines that it does, the organization would not be eligible to register as a political party or would be deregistered.
5. Regulating Channels of Electoral Communication
To provide greater transparency concerning the use of online platforms in elections, require such platforms (as defined in accordance with Recommendation 5.1.2 below) to publish their policies on the administration of paid electoral communications and on user accounts during the pre-election and election periods.
To strengthen the accountability of online platforms during elections, require them to publish policies indicating how they will address content (paid or unpaid) that misleads electors about where, when and the ways to vote or that inaccurately depicts election‑related procedures during the election period (e.g. by moderating, downgrading or removing content).
To ensure that the important goals of the law are met regardless of the size of the online platform hosting election‑related content, amend the definition of "online platform" to extend beyond only those that sell advertising space and eliminate the minimum monthly threshold requirement for digital advertising registries.
To enhance transparency concerning digital advertising in elections, amend the Act to:
Require political entities to disclose in a timely manner comprehensive information about their paid digital electoral communications—for example, by requiring their websites to link to the registries of the online platforms that host their paid digital communications.
Require that the platform's paid digital communications registries include searchability (e.g. by purchaser or date) and exportability of data.
To enhance transparency and apply the same rules to text messages as to telephone calls, amend the Act to add text messages to the voter-contact-calling regime administered by the CRTC.
To improve the broadcasting provisions in the law, amend them as follows:
Separate the paid- and free-time allocation processes.
Modify the allocation regime for paid time by giving each party the same entitlement to 100 minutes of paid time, with a cap of 300 minutes on the total amount of broadcasting time that any broadcaster must sell to political parties.
Require that paid time be provided at the "lowest unit charge," and clearly define this term to mean the lowest rate charged to non-political advertisers that receive volume discounts for advertising purchased months in advance.
Amend the provisions determining to whom the obligation to provide free broadcasting time applies. Instead of applying only to "network operators," these obligations should apply, through conditions of licence under the Broadcasting Act, to all broadcasters that focus on news or public affairs (e.g. conventional television stations, news or talk radio stations and speciality television stations that focus on news or public affairs). Each of these broadcasters should be required to provide a total of 60 minutes of free time, allocated equally among the parties.
To better protect electors' privacy and enhance their confidence in how political parties manage their personal information, apply broadly accepted privacy principles, as enumerated in Schedule 1 of the Personal Information and Protection of Electronic Documents Act, to registered and eligible parties, with oversight by the Office of the Privacy Commissioner of Canada.
Although a full application of such broadly accepted privacy principles would be preferable, to ensure a minimum level of protection of electors' privacy, the policies of registered and eligible political parties for the protection of personal information should be required to contain, at least, the following substantive elements:
Enable Canadians to opt out of receiving communications, or certain types of communications, from political parties.
Enable Canadians to request access to, and correct, inaccurate personal information that is held by political parties (with an exemption for frivolous or vexatious requests).
Explain how Canadians' personal information may be shared by political parties in addition to how it is collected, used or sold.
To require the preliminary list of electors to be made available to parties by Elections Canada only in those electoral districts where that party had past candidates or where they have candidates who have pre-registered according to Recommendation 3.1.1 above.
Part 2: Recommendations Relating to the Administration of the Canada Elections Act
7. Making Canadian Elections More Accessible
To reduce barriers to voting by special ballot, amend the Act as follows:
Allow electors to make their application for registration and special ballot 45 days before polling day (or at the issue of the writs if the election period is more than 45 days) in the context of a fixed date election.
Amend the Act to set a minimum election period of 44 days for a non-fixed date election.
Authorize the counting of special ballots marked with a political party name rather than a candidate name.
Amend the Act to set the deadline for the close of candidate nominations on day 24 before polling day.
Authorize electors to cast a ballot at ordinary polls, with appropriate integrity measures in place, despite having previously applied to vote by special ballot.
Authorize local electors to return their ballots before the close of polls to any place in the electoral district that the CEO designates.
To increase confidence in the integrity of the ballot and in the special ballot voting mechanism:
Establish new offences prohibiting altering, defacing or destroying a special ballot, tampering with an elector's mark on a ballot or special ballot and prohibiting tampering with an inner or outer envelope that appears to contain a marked ballot or special ballot.
To improve the accessibility of the election by setting an inclusive election date, amend the Act as follows:
Provide for a designated period in the fourth year following the previous general election (e.g. within the first four weeks beginning in October) within which polling day must occur.
Require Elections Canada to consult with religious and cultural communities regarding an appropriate date for polling day one year before the designated election period.
Require the CEO to make a public recommendation to the Governor in Council regarding polling day, based on their consultations. The CEO's recommendation should be made no later than 12 months prior to the beginning of the designated period.
Require the Governor in Council, within one month of receiving the recommendation, to either adopt the date recommended by the CEO or to choose another date within the designated period and issue an Order in Council to that effect.
To reduce barriers to voting for residents of long-term care facilities, amend the Act as follows:
Authorize additional flexibility for voting days and times in such facilities.
Allow electors residing in long-term care facilities to vote with proof of identity only when voting in the facility.
To remove barriers, amend the Act to allow an elector to request assistance to mark their ballot from any individual of the elector's choosing, providing the individual makes the solemn declaration required.
8. Serving Political Entities
To facilitate the candidate nomination process, amend the Act as follows:
Remove the signature requirement on the copy of a prospective candidates' proof of identity when the prospective candidate's application is filed on their behalf by another person.
Remove the requirement for a witness to signatures collected as part of the nomination process.
Repeal the provision that requires original documents to be submitted before an electronic application is accepted.
To improve the Regulated Fundraising Events regime, amend the Act as follows:
Repeal the requirement for the return of contributions in cases of non-compliance with the regime, leaving violations to be dealt with through the AMP regime.
Exclude events attended by leadership contestants outside a leadership contest period.
To clarify the candidate contribution regime, amend the Act to remove from the relevant provisions the words "out of their own funds" and "money," as applicable. This will clarify that all contributions, both monetary and non-monetary, are included in the limit of what a candidate or contestant can contribute to their own campaign.
To allow political entities to collect and use cryptocurrencies under the Act while ensuring continued transparency, it is recommended that the Act be amended to specifically require the receipting and reporting of all contributions of cryptocurrency received by federal political entities, as well as supporting documents to verify the reporting. Receipts should be required for all contributions by way of cryptocurrency, irrespective of their value. Only contributions of cryptocurrency that meet these transparency requirements would be available for use by those political entities.
Untraceable means of contributing such as prepaid credit cards, money orders and gift cards should be prohibited. Small cash contributions of under $20 should continue to be permitted.
9. Sound Electoral Management
To improve electoral administration across Canada, the Act should be amended to explicitly provide the CEO with a mandate to offer assistance and cooperation to provincial and territorial electoral management bodies (EMBs) and to receive assistance or services from EMBs in return.
To protect the privacy and safety of returning officers, the requirement to publish the name, home address and occupation of returning officers in the Canada Gazette should be removed from the Act.
To facilitate the recruitment of returning officers, the Act should allow the term of office for this position to be set by the CEO, instead of requiring them to be appointed for 10 years.
To further progress toward a more inclusive and representative electoral system, a new legislative mandate should be included in the Act to allow Elections Canada to collect, on a voluntary basis, and make publicly available anonymized demographic data about electoral participants, including gender, ethnic origin, age, Indigenous status and disability.
In order to facilitate the count of advance poll ballots, the Act should be amended to provide returning officers with more flexibility to staff the count.
To ensure transparency and increase electors' trust, the Act should be amended to authorize the CEO to request that parties provide any documents or information that may, in the CEO's opinion, be necessary to verify that the party and its chief agent have complied with statutory requirements with respect to the election expenses return.