Does your organization send out information about an issue? Does it have a position on that issue? Might that issue become a hot topic in the 2019 Federal election? If so, your organization might unknowingly be election advertising once the writ drops in September 2019. Yes, even if the position is presented in a non-partisan manner. And there are penalties for failing to register as a third-party and follow the rules in the recently amended Canada Elections Act.
With a few exceptions, if your organization engages in “the transmission to the public by any means during an election period of an advertising message … including one that takes a position on an issue with which a registered party or candidate is associated”, your organization is engaging election advertising as defined in section 319 of the Canada Elections Act. Pause to think on how many small and medium organizations will continue on after the writ drops and the election period officially begins, unknowingly committing offence after offence just by taking a stance on an issue central to their cause. Carbon pricing and climate change, immigration, pharmacare, freedom of religion, housing affordability, and the broad spectrum of social justice causes are all issues associated with certain candidates and political parties.
Many organizations taking a position on these issues may be blindsided when concern for foreign election interference and transparent election spending triggers a crackdown on unregistered third-party election advertisers.
Here are a few strict liability offences (meaning these acts or omission are offences even when the individual had no knowledge of the law or any intention to break it) that an organization and its people might accidentally commit under the Canada Elections Act:
- Failure to indicate authority
for election advertising – s.495(1)(a)
- Conducting election advertising during blackout period – s.495(5)(a)
- Exceeding election advertising expense limits – s.496(1)(a)
- Failure to identify self in advertisement – s.496(1)(b)
- Failure to register – s.496(1)(c)
- Failure to appoint financial agent or failure to appoint auditor – s.496(1)(d)
- Use of anonymous contributions or use of foreign contributions – s.496(1)(e)
- Failure to file election advertising report or failure to provide bills or receipts on request– s.496(1)(f)
The punishment varies. For example, if the individual in question is a corporation or group and it fails to register as a third party (the offence noted above in s.496(1)(c)) then under s.505(3) the corporation or group “is liable on conviction to a fine of not more than $50,000”. Just for failing to register.
It is not difficult to imagine a small or medium sized charity or not-for-profit transmitting information on an issue central to their cause during the elections period, unknowingly committing offence after offence and incurring tens of thousands of dollars in fines.
The office of the Commissioner of Canada Elections’ has been filled by Mr. Yves Côté (the “Commissioner”) since 2012. The Commissioner’s enforcement powers were recently restructured and expanded by the Canadian Elections Modernization Act S.C. 2018, c. 31, which received royal assent in December 2018. It is unclear how zealously the newly amended federal elections legislation will be enforced, but with the current climate of mudslinging and fear of foreign interference in elections, we suspect that very few will fly under the radar.
We hope the charitable and not profit sector becomes alive to this danger and is proactive about seeking professional advice on compliance. We encourage you to share this article with your professional network, so that more charitable and philanthropic dollars go towards good works instead of paying fines.
Lex Klombies is an associate with Drache Aptowitzer LLP. If you have a question about elections advertising or the Canada Elections Act, contact Lex Klombies at firstname.lastname@example.org or see her related articles:
- Part I: Will My Charity Be Affected By the Canada Elections Act?
- Part II: The Nitty-Gritty on the Canada Elections Act Amendments for Non-Profits and Charities