Site Menu1. Background – Third Party Report – A Comparative Look at Third Party Information from the 2011, 2015 and 2019 Federal General Elections
Although this report covers only three general elections, the regulation of third parties has a long history in Canadian electoral law. This chapter explains how the regime evolved to be what it is today.
1966 – Committee on Election Expenses – The Barbeau Committee
The modern Canadian election spending limits can be traced to the Committee on Election Expenses (the Barbeau Committee) and its 1966 publication Report of the Committee on Election Expenses. The Committee proposed limits on election spending to ensure overall fairness in the electoral process. If third parties were allowed to spend unlimited amounts on campaigns, it would create an unfair advantage for those parties and candidates who are supported by wealthy third parties and benefit those third parties looking for political favours as the result of their large spending.
1974 – Election Expenses Act
The Election Expenses Act, which came into force on August 1, 1974, limited incurred candidate and party expenses. It also prohibited third parties from incurring expenses used to directly promote parties or candidates during an election period. There was an exception for "good faith" expenses (those incurred to gain electoral support for a policy issue or for advancing the aims of a non-partisan organization). The "good faith" defence for third party expenditures was removed from the law in 1983.
1984 – Court of Queen's Bench of Alberta decision
In 1984, the Alberta Court of Queen's Bench struck down the Election Expenses Act as unconstitutional. To make sure the application of the law across Canada was consistent, no limits on third party spending were imposed at the 1984 and 1988 general elections.
The 1988 Canadian general election was dominated by the issue of the Canada–United States Free Trade Agreement (CUSFTA). The governing party supported the CUSFTA while the two opposition parties represented in the House of Commons opposed it. In the last days of the campaign, third parties advertised extensively. Although they did not directly support or oppose a political party, they showed support or opposition to an issue associated with one party, i.e. free trade between Canada and the United States. This highlighted a deficiency in the Canadian electoral process: the benefits of spending limits could be nullified by third party advertisements, whether or not they mentioned a specific party or candidate.
1991 – Royal Commission on Electoral Reform and Party Financing
The Royal Commission on Electoral Reform and Party Financing (the Lortie Commission) made a number of recommendations on this subject in its final 1991 report. Among other things, it declared that spending limits on individuals and groups were essential to mitigate the risk of election outcomes being unduly influenced by independent advertising campaigns.
1993 – Canada Elections Act amendment
In 1993, Parliament passed new restrictions on third party spending. Third parties were limited to incurring $1,000 in advertising expenses that directly promoted parties or candidates during a portion of the election period. In 1996, the Alberta Court of Appeal struck down this law as unconstitutional.
The following year, the Supreme Court of Canada considered third party spending limits for the first time in the context of restrictions in the Quebec referendum law. In that case, the Supreme Court quoted extensively from the report of the Lortie Commission and endorsed the constitutionality of third party spending limits. The Court stated:
The system set up by the legislature to ensure a certain equality of resources between the options submitted to a referendum and thereby enhance democratic expression would become ineffective if independent individuals and groups were allowed unlimited spending or spending with a ceiling similar to that of the national committees....
... The evidence also shows that unless independent spending is controlled, any system for limiting the spending of the national committees would become futile....
1999 – Canada Elections Act amendment
In the context of the Supreme Court decision, Parliament reintroduced third party restrictions to the Canada Elections Act in 1999. The restrictions set spending limits and reporting requirements on third parties that spent at least $500 on election advertising, which 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 by taking a position on an issue with which a registered party or candidate is associated.
2004 – Harper v. Canada case
The constitutionality of the federal law was considered by the Supreme Court in the case Harper v. Canada 2004 SCC 33. The case was heard on appeal of earlier rulings from the Alberta Court of Queen's Bench (2001) and Alberta Court of Appeal (2002). Those courts had struck down the spending limits and related provisions partly due to insufficient evidence that the objective of electoral fairness in this area was pressing and substantial.
However, the Supreme Court upheld the constitutionality of the provisions, stating that:
By increasing the transparency and accountability of the electoral process, [the provisions] discourage circumvention of the third party limits and enhance the confidence Canadians have in their electoral system.
The third party restrictions were in place in the 2008, 2011 and 2015 elections. Following the 2015 general election, concerns were raised that third parties, especially foreign-funded third parties, exercised an inappropriate influence on the election despite the restrictions in place. In 2018, as Parliament was considering changes to the Canada Elections Act, it was noted that the third party regime only regulated election advertising. It did not capture many of the more common modern campaigning methods such as websites and text messages.
2018 – Elections Modernization Act
By passing the Elections Modernization Act in late 2018, Parliament introduced a pre-election period during which certain activities are regulated. The pre-election period starts on June 30 in the year of a fixed-date general election and ends the day before the election is called. There is no pre-election period for non-fixed-date general elections or by-elections. The first pre-election period took place before the 43rd general election, starting on June 30 and ending on September 10, 2019, the day before the writs were issued for that general election.
The same legislation also broadened the scope of regulated third party activities. The definition of election advertising, which was established in 1999, was maintained in the new regime and the regulation of partisan advertising, partisan activities and election surveys was introduced. These four activities, collectively referred to as regulated activities, will be discussed in greater detail in Chapter 2, Understanding Third Parties.
Finally, the Act included a number of provisions about third party reporting obligations. Notably, it added interim reporting requirements during both the pre-election period and election period, when certain thresholds are met.