Rob De Luca
Director of Democracy and the Rule of Law Program
Yesterday, the government passed sweeping new legislation that will govern the 2019 federal election. Many of the changes are necessary and will go significant lengths to increasing engagement in the Canadian electorate. The legislation reduces barriers to voting in numerous ways, including by reinstating vouching as a way for voters to identify themselves at the polls, by allowing for the use of voter information cards, and by facilitating young adult voter registration. It also undoes what CCLA has argued are unconstitutional restrictions on the right to vote by Canadian citizens who are residing abroad, restrictions we recently fought at the Supreme Court.
Despite these changes, the new legislation fails to address a much discussed problem in Canada’s election laws, namely their failure to provide oversight with respect to the collection, use and disclosure of Canadians’ personal information by our political parties. Instead, the legislation only requires that political parties publish their privacy policies, while leaving application of these policies to these same parties.
“Trust us” is not a solution for safeguarding Canadians’ personal information. We argued for real and independent oversight before Parliament and no less than the Chief Electoral Officer and the Privacy Commissioner have argued the same, but the new election legislation nevertheless fails to address this well-known problem.
The legislation is party-centric in other troubling ways. Most notably, it includes and carries forward significant restrictions and registration requirements with respect to political advocacy by individuals and organizations.
For instance, during an election period, “third parties” (individuals or groups who are not a political candidate, registered political party, or otherwise an electoral competitor) are limited to spending approximately $4,000 in an electoral district on partisan or issue advertising, i.e., advertising on a position on an issue with which a registered political party or candidate is associated. Third parties are also subject to registration requirements under the Act if they spend $500 on “electoral advertising,” a vague concept that includes both partisan advocacy and issue advertising.
The government can and should take measures to ensure that our political discourse is not dominated by the wealthy few. But these kinds of restrictions on expression have the unfortunate effect of ensuring that our political discourse is instead dominated by well-organized and well-financed political parties. That’s because complex and opaque election rules, and particularly complex and opaque rules that capture the most minor of spenders, discourages civic participation by groups and individuals who have concerns that they might somehow violate some unknown or misunderstood election law.
For instance, the legislation requires individuals and groups to know, often in advance, whether advocacy on issues is regulated political speech. Is an ad campaign on labour rights or climate change an issue “associated with a candidate or a party,” and thereby subject to the legislation’s spending limits and registration requirements? Such questions are often vexed, with the answer depending on when, where, or how you ask the question. Better to stay silent than to risk running afoul of election laws.
Take groups who wish to campaign for or against the TransCanada pipeline. While such issue advocates might not share the same view on the pipeline as their preferred political party, their issue advocacy may well be considered electoral advertising given recent government actions on the pipeline and its likely prominence in election debates. And it is those without deep pockets and sophisticated legal counsel who might legitimately fear getting too close to any such limits.
The legislation’s spending limits on “third parties” pose additional hurdles to effective political expression. The monetary limits on expression make many kinds of meaningful issue-based campaigns, such as campaigns involving expensive placements in our national media, impossible. Indeed, some issue-based advocates who persistently advocate on issues outside of election periods—such as the TransCanada pipeline—might feel the need to suspend their campaigns during election periods out of fear that the issue can be construed as too closely aligned to a particular party. The predictable effect is that during what should be a time of heightened political discourse and heightened political engagement in Canada, namely a federal election, many “third parties”—individual Canadian citizens, civil society groups, community organizers, and the like—will feel compelled to stay on the sidelines.