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Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000

Election advertising

Several provisions in the new Canada Elections Act affected advertising by political parties and third parties during this general election. The aim of these changes was to foster the level playing field that underlies the financial provisions of the Act. All Canadians have the right to know who is intervening in the political debate, and who is doing so through financial support.

Third party advertising

The Act regulates election advertising by third parties: groups or persons other than candidates, registered political parties or their riding associations. After spending $500 on advertising that promoted or opposed a party or candidate during the election campaign, third parties had to register with the Chief Electoral Officer. They were allowed to spend up to $150 000 overall, but not more than $3 000 in any single riding, with inflation adjustments; the adjusted limits for this general election were $152 550 and $3 051. If the third party was a group with a governing body (such as a trade union, corporation or other entity), the application for registration had to include a copy of the resolution passed by its governing body authorizing it to incur election advertising expenses.

The term "election advertising" applies both to direct promotion of or opposition to candidates or registered parties, and to advertising that takes a position on an issue with which a registered party or candidate is associated. Third parties must identify themselves in their election advertising, and the Act prohibits collusion to try to avoid the spending limits.

After an election, third parties must produce a financial report on their election advertising expenses and the sources of the funds financing the advertising. But they are not entitled to reimbursements, do not have access to the voters lists, and are not entitled, as third parties, to issue tax receipts for contributions.

Forty-eight third parties registered with Elections Canada: 23 groups with authorizing resolutions passed by their governing bodies, 10 without resolutions and 15 individuals. Their financial reports are due by March 27, 2001.

The Harper case

On June 7, 2000, after the Canada Elections Act received royal assent but before it came into effect on September 1, Stephen Harper filed a constitutional challenge to the Act's third party provisions in the Alberta Court of Queen's Bench.

The trial began on October 2, 2000, and continued until October 13, with nine days of evidence. The Chief Electoral Officer was granted leave to intervene in the case as a voice independent of both the federal Attorney General and Mr. Harper. He intervened to explain why he had recommended regulation of third parties in his reports to Parliament and appearances before parliamentary committees.

The Chief Electoral Officer has not recommended a precise spending limit for third parties nor commented on the appropriateness of the limits chosen by Parliament, but instead has limited his comments to the underlying principles of disclosure and spending limits, the importance of a level playing field for all who intervene in the electoral process, and providing information about the amounts spent by political parties and candidates on election advertising in past elections.

The election was called on October 22, before Mr. Justice Cairns had time to receive arguments based on the trial evidence, review the evidence or write his judgment.

On October 23, Mr. Harper asked the court to suspend the application of the third party provisions until the judge could render his decision on the merits of the evidence in the trial case. On the same day, Mr. Justice Cairns granted the injunction in part. He suspended the enforcement of the spending limit provisions until he could render his trial decision, but did not suspend enforcement of any of the other third party provisions, which are focused on disclosure requirements, such as the requirement to register as a third party, to identify oneself as a third party, and to identify the sources of funding for third party advertising. The federal government appealed this decision to the Alberta Court of Appeal, which upheld Mr. Justice Cairns' injunction ruling on October 25.

The Chief Electoral Officer issued a news release on October 26, announcing that the spending limits would not be enforced anywhere in Canada. He did so to ensure that the same federal election rules applied across the country.

The federal government then appealed the Alberta Court of Appeal's decision to the Supreme Court of Canada. On November 10, the Supreme Court granted leave to the Attorney General of Canada to appeal the injunction decision of the Alberta courts, and suspended the application of the injunction decision until the injunction application could be heard by the Supreme Court. The effect of the Supreme Court's ruling was that the spending limits were reinstated for the duration of the general election. The Chief Electoral Officer issued a further news release on November 10, announcing that the spending limits were again in force, but that Elections Canada would not apply the spending limits on third party election advertising between October 22 and November 10 because of the earlier injunction.

On November 24, 2000, Mr. Justice Cairns heard oral arguments in the trial. At the time this report was written, Mr. Justice Cairns had not yet released his trial decision.

Election advertising and the Web

We posted on our Web site a series of questions and answers concerning the Act's third party provisions. One of the answers dealt with the question of whether political messages on a third party's Web site were, in fact, election advertising, and included the following analysis.

To decide whether a message being sent by a third party can be defined as election advertising, four questions have to be asked: Is an election underway? Is the message transmitted to the public? Is the message an advertising message? And is the message one that a reasonable person would understand as promoting or opposing the election of a candidate or political party, or as taking a position on an issue with which a candidate or party is associated? If the answer to all four questions is Yes, the message would be considered election advertising.

The question of whether an election is underway is straightforward. In our view, posting a message on a Web page that is available to the public is a transmission to the public. This brings us to a more difficult part of the test: when is a message on the Internet an advertising message and when is it not an advertising message?

An advertising message is an advertisement purchased, for example, on television, on radio, in a newspaper or magazine, or on a billboard; included in flyers or direct mail sent to households that did not request them, or in telephone calls to phone numbers at which no one requested the calls; or placed as a banner ad on someone else's Web site.

By this reasoning, letters to the editor, editorials, interviews, columns, commentaries, news items, speeches, debates, or meetings are not advertisements as such, unless they are included in an advertisement that meets the criteria of the four questions. A book that was intended to be made available to the public regardless of whether an election were called, and is sold for no less than its commercial value (including production and distribution costs), is not an advertising message.

A statement of an individual's personal political views on the Internet, whether on the person's own Web page or in a discussion group, is not an advertising message. Nor, in the interpretation of the Chief Electoral Officer, is a third party's expression of its political views on its own Web page an advertising message. However, a newspaper advertisement promoting the Web page of a third party would be considered election advertising, if the advertisement meets the criteria of the four questions. Similarly, examples of advertising messages include unsolicited e-mail sent out by a third party, or banner ads placed on other Web sites by the third party.

Advertising blackouts

The new Act addresses the 1996 decision of the Alberta Court of Appeal in Somerville v. Canada (A.G.). Before the Somerville decision, no one was allowed to use broadcast election advertising or advertising in a periodical publication at the beginning (roughly the first 18 days of what was then a 47-day campaign) or at the end of the election period (the day before election day and election day). The Alberta Court of Appeal found that these provisions were unconstitutional. The new Act has now imposed a blackout on election advertising on election day only. The blackout applies to most media, but not to pamphlets, billboards, signs or Internet advertisements that are published before election day and not changed on election day.

Election surveys

The Act also places a blackout on transmission to the public of new public opinion survey results on election day. Previously, the Act prohibited dissemination of new survey results in the last three days of the election campaign. This provision was found to be unconstitutional by the Supreme Court of Canada in 1988 in its decision in Thomson Newspapers v. Canada (A.G.). In addition to the ban on disseminating survey results on election day, the new Act requires that certain information about the methodology of public opinion surveys be reported. The first media outlet to release the results of an election opinion survey, and any other outlet broadcasting or publishing them during the next 24 hours, must report details about the survey: its sponsor, who conducted it, when it was held, the population from which the survey sample was drawn, the number of people contacted to participate, and the margin of error. The Commissioner of Canada Elections has received two complaints relating to a failure to publish the necessary information on methodology.

We were asked how we interpret the methodology provisions of the Act if the media receives election survey results without any knowledge of the methodology. The answer we posted on our Web site states that the objective of sections 326 and 327 is to ensure that the Canadian public has accurate information about the reliability of election surveys. However, the Act does not specifically address the situation where the media do not have information about the methodology. In such a case, it would be in keeping with the objectives of the statute that the media indicate that the methodology of the survey is not known.

Political broadcasting time

The Broadcasting Arbitrator is responsible for managing the annual allocation of political broadcasting time in accordance with the Canada Elections Act, and for resolving disputes among broadcasters, political parties, and candidates. Mr. Peter S. Grant was first appointed as Arbitrator by the Chief Electoral Officer in 1992, following unanimous agreement by representatives of the political parties then represented in the House of Commons. He was reappointed in 1994 and again in 1997. His current appointment automatically ends six months after the 2000 federal general election.

Paid broadcasting time is allocated as a result of either unanimous agreement among registered parties or a decision by the Broadcasting Arbitrator, based on the criteria in the Act and consultations among those parties. The political parties have never agreed unanimously on the amount of time to be allocated to each party. For the 2000 general election, the Broadcasting Arbitrator again made the allocation.

A party is free to purchase more or less than its full allotted time. Purchases above the allocations are not subject to the allocation provisions in the Canada Elections Act; they are, however, subject to the overall election expenses limits for political parties and candidates. The Act also requires certain broadcasters to provide free broadcasting time to political parties that receive an allocation of paid broadcasting time.

As the Act requires, the Broadcasting Arbitrator and the Canadian Radio-television and Telecommunications Commission issued guidelines to political parties and broadcasters. Both sets of guidelines and the Broadcasting Arbitrator's allocation of paid broadcasting time were available on our Web site, under Media. Details of the broadcasting time allotted to various parties during the election are included in the Broadcasting Arbitrator's Report in the Appendix of this report.