Part I: Will My Charity Be Affected by the Canada Elections Act?
The next Canadian federal election is on October 21st, 2019, and many of our readers are curious about what they need to be mindful of if they engage in public policy dialogue and development activities near election time.
Two major changes to the field of political participation received royal assent on December 13th, 2018: changes to the charities’ political activities rules in the Income Tax Act, and changes to the Canada Elections Act.
Charity’s Political Activities & the Income Tax Act
The new Income Tax Act rules governing charities’ political activities[1] came into force on December 13th, 2018. These new rules allow for charities to commit an unlimited amount of their resources towards non-partisan political activities, so long as these activities both relate to the charity’s stated charitable purpose, and provide a benefit to the public when considered together with the stated charitable purpose. This change comes in the wake of the Ontario Superior Court of Justice’s decision in Canada Without Poverty v AG Canada, 2018 ONSC 4147 that the arbitrary 10% cap on charity’s political activities was unconstitutional. The lifting of the cap has inspired a surge of interest from the charitable sector in engaging in public policy dialogue and development activities (see our saga of political activities articles for more detail on the new political activities rules).
Charity’s Political Activities & the Canada Elections Act
In light of this enthusiasm, in this article we highlight points from the Canada Elections Act which charities and other non-taxable entities should keep in mind as we move closer to election-time.
The Canada Elections Act was amended by Bill C-76, the Elections Modernization Act (“Amendments”). The Amendments received royal assent on December 13, 2018, and are scheduled to come into force on June 13, 2019, just in time to apply to the 2019 Federal election.
There are two periods to be concerned with—the “pre-election period” and the “election period”. We have mapped out their dates and associated spending limits for you in Part II of this series.
During the pre-election period, the Canada Elections Act is concerned with regulating spending on surveys and on partisan activities. As partisan activities are not charitable activities, most charities will be unaffected by the pre-election period.
However, Charities will need to be particularly mindful during the actual election period, as the regulations for that period catch non-partisan political activities in the form of “election advertising”.
What is election advertising?
Election advertising is a defined term in the Canada Elections Act. It means activities which involve “the transmission to the public by any means during an election period of an advertising message … by taking a position on an issue with which a registered party or candidate is associated.”
Here is a list of examples of activities which may be non-partisan, charitable activities, but which are probably “election advertising” as defined in the Canada Elections Act:
- A poverty relief charity requests written submissions from competing candidates on establishing universal basic income, and publishes the submissions. Though its views are aligned with a particular candidate, it does not favourably single out that candidate’s position.
- A religious charity expresses their views on religious freedom in Canada on their social media page, and offers an opportunity for others to express their views. The charity does not tell people who to vote for, but it is commonly known that some candidates do not share the views of the charity.
- A hospital charity calls on supporters or the general public to contact politicians of all parties to express their support for better health care policies.
- A university charity invites call competing candidates to speak at the same event to discuss public policy issues related to education and student welfare.
- An environmental protection charity expresses opinions on carbon pricing, drawing on research and evidence. It does not tell people to vote for the party whose response most closely matches the views of the charity on this issue.
- A First Nations youth charity posts on its blog its experiences working with First Nations youth, and its opinions on the Inquiry into Missing and Murdered Indigenous Women and Girls, an issue on which a federal political party has expressed differing views.
What is not election advertising?
The Canada Elections Act expressly states that the following activities are not “election advertising”:
(a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news;
(b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election;
(c) the transmission of a document directly by a person or a group to their members, employees or shareholders, as the case may be;
(d) the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet, of his or her personal political views; or
(e) the making of telephone calls to electors only to encourage them to vote.
What about election surveys?
Be aware that election surveys are also regulated under the Canada Elections Act, both during the election period and the pre-election period.
Keep an eye out for situations like this:
- A women’s rights charity puts up an opinion survey on their website, asking how electors will vote at an election.
- An international relief and refugee air organization starts a poll on social media respecting border-crossing asylum seekers, which happens to be an issue with which a registered party or candidate is associated.
Part I of this series has helped you get a sense of what kinds of charitable activities may be regulated under the Canada Elections Act. Part II of this series is for readers wondering about the recent amendments to the Canada Elections Act, and looking for the relevant dates and spending limits. If you think your charitable organization may be participating in election advertising or elections surveys, schedule a consultation with one of our lawyers.
[1] We have discussed in previous articles how the non-partisan political activities limit has been lifted in reaction to the Ontario Superior Court of Justice’s decision in Canada Without Poverty. Charities can now participate in an unlimited amount of non-partisan political activities that further their charitable purposes—what should have been regarded as policy discourse all along.