Category Archives: Uncategorized

Huge Volume of Complaints Illustrates Need for Advice

The CBC reported yesterday that already 320 official complaints have been filed with the Commissioner of Canada Elections in connection with the 2015 federal election:

The huge volume of complaints gives an indication of how difficult it is for the Commissioner of Canada Elections to investigate all the complaints, particularly time-sensitive complaints. With so many complaints the Commissioner must prioritize and quickly focus on valid, clearly set out and well-founded complaints.

If you are going to take the time to make a complaint, you would be well-served to obtain some advice, even if it is just some simple advice on how to proceed. Do you have a valid complaint? Have you collected all the relevant facts? Have you organized your complaint in an effective way that maximizes the likelihood that it will be acted on in a timely fashion by the Commissioner? These are all ways that a knowlegeable elections lawyer can assist you with the complaint process. After all, if you are going to invest your time into making a complaint, you might as well make it worthwhile.

“Are you an American who endorses Tom Mulcair? Then you might be breaking the law”

From today’s National Post, an interesting story about on of Canada’s most outdated and likely-to-be-held-unconstitutional election laws, section 331 of the Election Act:

This section purports to make it illegal during an election period for someone who is not resident in Canada to induce electors to vote or refrain from voting, or to vote or refrain from voting for a particular candidate.

As mentioned in the article, there have been a few half-hearted or cynical attempts to have this section enforced. However, nothing has happened because (a) enforcing it isn’t worth it given the challenges involved and (b) it is a certain as it gets that this section is inconsistent with the freedom of expression guaranteed in section 2(b) of the Charter.

Compliance Agreement Illustrates Shady Side of Nomination Contests

A Compliance Agreement entered into by Liberal Party candidate Sven Spengemann and an article on it by the Ottawa Citizen have shone a light on the sometimes shadowy world of nomination contests.

Reading the Compliance Agreement and the article together provides a more balanced understanding of the issue that reading just one of them. The Compliance Agreement is concise, setting out what happened, what the law is and how it was contravened, and what steps will be taken to come into compliance with the law. The article provides the gossip, from the political spin to the behind-the-scenes issues of a contentious nomination contest.

This is why I believe that it is good journalism to provide links to source material in articles. The report on the compliance agreement is interesting, but why not provide a link to the agreement as well?

In addition, if you want to see Mr. Spengemann’s financial report for the nomination contest, you have to navigate through Elections Canada’s financial reports database, or just click the link here:

Here is the short version of what happened in this nomination contest.

The contribution limit for candidates was $2,200. Mr. Spengemann reported contributing $2,200 to his own campaign. However, an investigation established that Mr. Spengemann had contributed a further $2,055.64 to his campaign by paying for expenses out of his own account, and not telling his financial agent about it. This allowed Mr. Spengemann to spend more on his campaign that he was allowed to, although he was still well under the total expenses limit.

This compliance agreement is notable for the many undertakings that Mr. Spengemann has agreed to do. First and foremost, he has to try and tell his financial agent about the expenses that he incurred on his own. Second, he has been given a second chance to try and raise the $2,055.64 from contributors, to make up for his own excess contributions. Third, he has agreed to file an updated report once he has collected these funds, or within 7 months at the latest.

Another noteworthy part of this story is the comparison to Dean Del Mastro, who was prosecuted for exceeding the election expense limit in a federal election. Why was Mr. Spengemann given the option to sign a compliance agreement, instead of being charged?

There are a couple of factors that may explain this. First, Mr. Spengemann exceeded the contribution limit, whereas Mr. Del Mastro exceeded the expense limit. Election expense limits are designed to limit the advantage of well financed candidates. Mr. Del Mastro spent more than the limit that applied to everybody. Contribution limits are designed to limit the influence a single contributor may have over a candidate or party. In particular, limits on how much candidates can spend on their own campaigns are designed to limit the advantage that wealthy candidates have over those with less funds. Mr. Spengemann’s total expenses were under the limit, but by contributing more to his own campaign, he ended up spending more than he was allowed. He could have raised more contributions to pay for these expenses, but he didn’t. So like Mr. Del Mastro, Mr. Spengemann spent more on election expenses that he was entitled to. But unlike Mr. Del Mastro, Mr. Spengemann could have done so legally, just by collecting more donations.

That isn’t the most convincing distinction, so in my view its more likely that the fact that this was a nomination contest as opposed to an election is the main reason why a contribution agreement was used in this case. An election is an event of national importance. The result in one electoral district matters to everyone. However, a nomination contest is mainly an internal party matter. There are valid arguments that Elections Canada shouldn’t even be regulating nomination contests at all. The fact that very few people outside of the Liberal Party or the electoral district are affected or are likely interested or aware of this probably explains the different approach from the Commissioner of Elections.

“Métis citizenship cards acceptable form of voter ID”

CBC News Manitoba reports that Métis citizenship cards will be accepted by Elections Canada as a valid form of voter ID:

The citizenship card by itself is not sufficient, but it can be one of the two pieces used to prove ID. The other piece must show your current address.

The list of ID options for voting in person is available on Elections Canada’s website here:

Dean Del Mastro Sentenced for Exceeding Expense Limits in 2008 Election

The CBC reports this morning that former Conservative MP Dean Del Mastro has been sentenced to one month in jail and four months house arrest for exceeding the election expense limits in the Elections Act in the 2008 federal election.

According to the CBC, Del Mastro has filed an appeal of his October conviction and is expected to ask for bail pending the outcome.

“Hong Kong legislators vote down Beijing-backed electoral reforms”

In international news, the CBC reports on how Hong Kong legislators have defeated an electoral reform bill:

The bill, which was backed by pro-Beijing legislators, would have allowed a the people of Hong Kong to vote on the city’s chief executive, but the only eligible candidates would be ones that were approved by the Government of China.

The pre-approval of all candidates by the Government would have meant that the elections for the Chief Executive would not have met the requirements of international law for democratic governance set out in Article 21 of the Universal Declaration of Human Rights:

 (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

For now, the Chief executive will continue to be appointed by the Government of China, as pro-democracy activists continue to push for a genuine election process.

Supreme Court of Canada Upholds Candidate Education Requirement in First Nations Election Code

The Supreme Court of Canada has upheld first nations election code that required all candidates who wished to be Chief or a Band Councillor to have a Grade 12 education.

Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII)

The Kahkewistahaw First Nation’s election code came into force in 2011, and it included the requirement that all candidates have a Grade 12 education. This requirement was challenged by a former Chief, who only had a Grade 10 education.

The Grade 12 requirement was challenged on the grounds that it contravened section 15(1) of the Canadian Charter of Rights and Freedoms, according to which “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The current section 15(1) analysis is to do a “flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group”.

After conducting its analysis, the Supreme Court found that there was no evidence before them that would point to any link between the education requirement and a disparate impact on the basis of an enumerated or analogous ground.

While this case seems to mean that First Nations election codes can impose an education requirement on prospective candidates, it may have little value as a precedent for other cases as it was decided on a lack of evidence. If there is evidence that an education requirement has the affect of arbitrarily disadvantaging an enumerated or analogous group, it could be in contravention of section 15(1).

Official Agent From 2011 Federal Election Faces 3 Charges

The Commissioner of Canada Elections announced today that Reginald Bowers, an official agent in the electoral district of Labrador during the 2011 federal general election, has been charged with three offences under the Canada Elections Act.

The charges are as follows:

  1. Failing, within 30 days of becoming aware of ineligible contributions to the candidate, to return the contributions unused to the contributor, or pay the amount of the contribution to the Chief Electoral Officer, contrary to subsection 404(2) of the Canada Elections Act;
  2. Providing the Chief Electoral Officer with a document that he knew or ought reasonably to have known contained a material statement that was false or misleading, to wit: failure to accurately identify ineligible campaign contributions, thereby contravening paragraph 463(1)(a) of the Canada Elections Act; and
  3. Providing the Chief Electoral Officer with a document that he knew or ought reasonably to have known contained a material statement that was false or misleading, to wit: failure to accurately report travel expenses contrary to paragraph 463(1)(a) of the Canada Elections Act.

According to this CBC article the charges relate to allegations of taking illegal contributions from corporations and discounted airfares in the general election.

The official agent is responsible for properly reporting the contributions and expenses of the candidate, and that is why the official agent is being charged in this case.

The charges have been filed in the Provincial Court of Newfoundland and Labrador in St. John’s. The prosecution will be handled by the Public Prosecution Service of Canada, which is responsible for prosecuting offences under federal jurisdiction in a manner that is free of any improper influence and that respects the public interest.

“Mexico’s Election Watchdog Orders Ads Criticizing President to Be Pulled”

In international election law news, the Wall Street Journal reports that Mexico’s federal election authority, the Instituto Nacional Electoral, has ordered that an opposition party’s advertisement be pulled from the radio and TV on the grounds that it contains “slanderous messages”:

According to the WSJ, Mexican law bars any election ads that incur in “slander.”

Should national election authorities be responsible for regulating whether election advertising contains slander, or should that be left up to the parties involved? If you think that election authorities should be responsible for this, what should the penalty be and how should it be enforced?

Please share your thoughts in the comments below.