THE CANADIAN ELECTORAL
James R. Robertson
Law and Government Division
Revised October 2001
THE CHIEF ELECTORAL OFFICER
THE RIGHT TO VOTE
CONSTITUENCIES AND REDISTRIBUTION
ADVERTISING AND BROADCASTING DURING AN ELECTION
SELECTED ASPECTS OF CANADIAN ELECTION CAMPAIGNS
ELECTION DAY PROCEDURES
THE CANADIAN ELECTORAL SYSTEM
This paper briefly reviews
the nature and operation of the Canadian electoral system. Obviously,
it is possible in a paper such as this only to highlight the principal
features of the Canadian electoral system.(1) Electoral law is an extraordinarily
complex area, and one that is being constantly changed and fine-tuned.
This paper focuses on the existing electoral system and laws.
The federal nature of Canada
underlies the countrys electoral system as it does so many
other aspects of political life. Each province has its own electoral
system, and there is a national electoral system for the federal Parliament.
Different systems have many similarities, but also significant differences.
The focus of this paper will be on the federal or national electoral
The main body of Canadian
election law is contained in the Canada Elections Act, but many
other statutes such as the Electoral Boundaries Readjustment
Act, the Broadcasting Act, the Income Tax Act, and the
Criminal Code also contain provisions regarding the Canadian
Canadas current electoral
system is the result of cumulative changes which have been taking place
since the formation of Canada in 1867. In the early years following
Confederation, the administration of elections was a haphazard and highly
politicized process. At the time of Confederation, the right to
vote was severely limited: only white men could vote, and even then
they had to satisfy certain property qualifications. Elections were
held at different times across the country, and there was no such thing
as a secret ballot. As the right to vote was extended and virtually
all adult men and later women were enfranchised, public opinion became
less tolerant of the previous tradition of electoral partisanship and
frequent occurrences of electoral fraud and manipulation. Reform
became necessary in order for the system to gain and retain public support
Since Confederation, in
addition to the extension of the franchise or the right to vote, there
have been two fundamental developments in the Canadian electoral process:
first, the creation of a non-partisan electoral system governed by highly
specific procedures; and, second, the regulation of party campaigning
as it takes place within the system. The latter is a comparatively
The Canadian electoral system
has been the subject of several studies and reports. In 1992, the
four-volume report of the Royal Commission on Electoral Reform and Party
Financing (often referred to as the Lortie Commission, after
its chairman, Pierre Lortie) was published. The Chief Electoral
Officer, Jean-Pierre Kingsley, also presented reports to Parliament, including
a major list of legislative changes in 1996. In 1997-1998, the House
of Commons Standing Committee on Procedure and House Affairs conducted
a thorough review of the issues and proposals for electoral reform.
In May 2000, Parliament
enacted a new Canada Elections Act(2)
which constituted the first full-scale overhaul of federal electoral legislation
in almost 30 years. The new legislation was not so much a major
departure from the previous law as a fine-tuning and up-dating of it.
In addition, the new Act was an attempt to respond to a number of electoral
matters that have been the subject of court decisions in recent years.
This new Act has already been amended once, in 2001.(3)
An electoral system should
never be considered as rigid or static; it must continually evolve to
meet new circumstances and challenges. Patrick Boyer, an authority
on electoral law and a former Member of Parliament, said in a 1989 article,
Over the years this body of law has evolved constantly, with periodic
reforms of a major nature, and frequent tinkering amendments to fine-tune
some aspect of conducting elections. The big changes come when fresh
problems emerge, and after debate a consensus developed about new laws
needed to ensure the purity of elections.(4)
The Canadian electoral system
has many positive attributes, and is often used as a model by other countries;
yet, there are numerous areas where reform and changes have been urged.
In introducing reforms to the electoral system, however, care must be
taken. A 1983 article cautioned: The parliamentary system,
despite its long tradition, is a fragile thing. A change in any
of its components, such as the electoral system, may transform the whole
in an unforeseen manner. This should not exclude a search for better
ways to adapt it to a changing society. Parliament must, to a certain
degree, remain open to change and deal with it.(5)
THE CHIEF ELECTORAL OFFICER
As noted above, one of the
most significant developments in the history of the Canadian political
system is that the organizational procedures and procedural rules have
been progressively removed from partisan political control and intervention.
The system is now administered by a neutral, impartial and independent
set of officials, although the laws continue to be passed by politicians.
It is now accepted that
election officials must not be seen by the public as closely associated
with the government of the day, or as working toward the re-election of
the incumbents. In order to establish the systems independence
and neutrality, politicians have foregone their previous prerogative of
administering or interfering with the electoral machinery to their own
advantage. This has reinforced the legitimacy and efficiency of
the electoral system.
The Dominion Elections
Act of 1920 first created the position of Chief Electoral Officer.
In 1927, the law was amended so that this individual would be appointed
by resolution of the House of Commons, rather than by the government of
the day. It was thus recognized that the office needed to have the
confidence of all political parties represented in the House of Commons.
The Chief Electoral officer is responsible to Parliament, rather than
to the government. Once appointed, the Chief Electoral Officer
who holds office until he or she attains the age of 65 can only
be removed for cause by the Governor General upon a joint address of the
House of Commons and the Senate. The procedure is designed to prevent
arbitrary removal, and reduce the influence of the government. The
salary of the Chief Electoral Officer is also protected, in that it is
equal to that of a Federal Court judge and cannot be raised or reduced
without legislation. The fact that since 1920 there have been only
five chief electoral officers has contributed to continuity and professionalism.
The Office of the Chief
Electoral Officer, also known as Elections Canada, is responsible for
exercising general direction and supervision over the preparation, administration,
and reporting aspects of federal elections and the election expenses provisions
of the Canada Elections Act. The Office also has responsibility
to enforce, on the part of all election officers, fairness, impartiality
and compliance with the provisions of [the] Act. In addition
to the overall responsibility for the administration of the electoral
process set out under the Canada Elections Act, the Chief Electoral
Officer has discretionary powers to adapt the process in the light of
Obviously, Elections Canada
is most busy during election periods. Usually, federal general
elections are held approximately every four years, although they can be
called at any time. This is particularly true when there is a minority
government, i.e., when no single party has a majority in the House of
Commons. This can be compared to an electoral system such as that
in the United States where elections are held at fixed times. Moreover,
a great deal of planning and preparation must be done between elections.
Elections Canada also administers by-elections, which are held
whenever a vacancy in the House of Commons needs to be filled.
Responsibility for actually
conducting an election resides primarily within each constituency, where
it is exercised by a hierarchy of officials. These officials swear
oaths of impartial conduct upon assuming office and are governed by the
detailed provisions and procedures set out in the Canada Elections
Act. Final responsibility for the administration of an election
within each constituency rests with the returning officer. The government
appoints a returning officer for each constituency, who holds office as
long as he or she is under the age of 65 and meets the requirements of
residency within the constituency, competence, and absence of political
partisanship, or until the electoral boundaries of the district are altered.
The returning officer in
turn appoints an election clerk, who holds office at pleasure and may
be authorized to perform certain of the returning officers duties,
as set out in the Canada Elections Act. After the election
process formally begins, the returning officer appoints a deputy returning
officer and poll clerk for each polling station. The appointments
are made from lists submitted by the parties who came first and second
in the previous election, unless such lists are not available by the deadline
or the returning officer refuses on other grounds. Deputy returning
officers hold office at the pleasure of the returning officer for the
duration of the election.
must be held every five years, although, by tradition, they are usually
held at approximately four-year intervals. The process is set in
motion when the Prime Minister requests the Governor General, who represents
the Queen as the head of state, to dissolve Parliament and to request
the issue of Writs by the Chief Electoral Officer for an election.
The Canada Elections Act stipulates that the Writ shall not be
issued or dated later than the 36th day before polling day,
making the minimum length of a federal election 36 days. Until
1997, the minimum election period was 47 days, largely because of the
requirement for a door-to-door enumeration to be conducted during the
campaign. It was argued that this was too lengthy a period of time,
particularly in view of modern communications and technology, and contributed
to the expense of federal elections. Although the minimum period
has been shortened, it is unlikely that it could be shortened further.
Other countries, such as the United Kingdom, have shorter minimum election
periods; however, Canadas size probably necessitates a reasonably
long campaign to give party leaders an opportunity to visit different
regions and constituencies.
It should also be noted
that in the United States, where elections are fixed under the Constitution
and no campaign period is specified, candidates for the presidency or
other major offices can spend a year or more pursuing election.
Suggestions have been made in recent years for federal elections to be
held at fixed intervals, or on fixed dates. Others argue, however,
that such a system would be inconsistent with a parliamentary system and
the confidence convention, whereby the government must retain the confidence
of a majority of the House of Commons or tender its resignation.
The Chief Electoral Officer
initiates the election process by sending a Writ of Election to each returning
officer. At that point, returning officers must issue a proclamation
containing information such as the nomination dates and the polling date.
Once the election is called, the Canada Elections Act sets out
detailed procedures and provisions by:
determining the dates
on which major milestone events in the election are to take place;
specifying the procedures
to be followed with respect to each event; and
identifying the officials
responsible for the necessary actions.
THE RIGHT TO VOTE
The importance of the right
to vote cannot be over-estimated. One text expresses it as follows:
the right to vote for ones representative is the fundamental
political right. It produces the most direct verdict by citizens
on the performance of those who govern them. It is ... the
key stone in the arch of the modern system of political rights in
This is recognized by the
constitutionally entrenched right to vote in section 3 of the Canadian
Charter of Rights and Freedoms, which states that Every citizen
of Canada has the right to vote in an election of members of the House
of Commons or of a legislative assembly and to be qualified for membership
The Canada Elections
Act sets out the qualifications and disqualifications for voting in
federal elections; these combine to establish a virtually universal adult
franchise. It is important to appreciate that this is a relatively
recent phenomenon and the product of a gradual evolution, including two
First, the franchise
after having initially been defined by provincial legislation
because of the absence of federal legislation (except during the period
1885 to 1898) was uniformly defined by federal legislation
Second, a variety of
restrictions on the right to vote which were present in the years
immediately following Confederation have been loosened or entirely
removed. Women, for instance, were given the right to vote in
federal elections only in 1918, and aboriginal Canadians living on
reserves in 1960.
Until 1970, the minimum
voting age was 21. When it was proposed to lower the voting age
to 18 years, concern was expressed in some quarters as to whether 18-year-olds
were sufficiently informed or personally mature to vote responsibly.
The minimum age at which Canadians may vote is 18 years, a qualification
possessed by anyone who becomes 18 on or before the day on which the election
is held. (Members of the Canadian Armed Forces who have seen actual
service, and are otherwise qualified, need not meet this qualification.)
Only those who hold Canadian
citizenship may vote in federal elections. Because of the historical
relationship with Great Britain, British subjects were allowed to vote
in Canadian elections until the mid-1970s.
The right to vote is restricted
to those who maintain normal year-round residency within a given polling
division. Although residency normally means place of ... habitation,
special provision is made for members of the Canadian Forces and public-service
workers, together with their dependants, who may be absent from their
place of residence for extended periods by virtue of their jobs.
Special provision is also made for those who move during an election,
employees or students temporarily residing in a location, transient residents,
and Members of Parliament. Concerns have been expressed that groups
such as the homeless and the poor may be effectively disenfranchised by
the current rules for residency. A provision now permits persons
having no other residence to be considered resident in such temporary
quarters as shelters or hostels that provide food, lodging or other social
services to the homeless.
Except for the removal of
the right to vote from British citizens, the trend in Canada has been
towards extending the franchise and the removal of voting restrictions.
The passage of the Canadian Charter of Rights and Freedoms in 1982
encouraged this trend. As noted above, the Charter guarantees the
right of every Canadian citizen to vote in federal elections, subject
only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
The Canada Elections
Act also sets out categories of persons disqualified from voting.
These include certain officials, such as the Chief Electoral Officer,
the Assistant Chief Electoral Officer, and returning officers (except
in the case of tie votes). Judges and mentally disabled persons
were also barred from voting but, after a series of court decisions struck
down such provisions, the law was amended in 1993 to remove these prohibitions.
Prisoners also used to be prohibited from voting; in 1993, this
prohibition was restricted only to those inmates serving sentences of
two years or more, although this has been challenged in the courts.
One of the other areas of
concern about the right to vote involves people who are absent from their
homes on the day of the election. The Canada Elections Act
provides for advance polls to be held; this permits voting by persons
involved in the election, or who are unable to vote on election day.
Since 1993, Canadian citizens
who reside outside Canada have been permitted to vote in federal elections
provided they have been absent for five years or less and plan to return
to Canada. This is in line with the practice in many other countries
including the United States, Germany, Australia, France and Great
Britain which make provision for non-resident citizens to vote
in national elections. Previously in Canada, only certain non-resident
citizens such as armed forces personnel and public-service workers
who are posted abroad were permitted to vote in federal elections.
A permanent voters
list for federal elections has been in place since 1997. Previously,
a door-to-door enumeration of voters was conducted within the first days
after an election was called. Although this led to extremely accurate
lists, it was very time-consuming, labour-intensive and expensive.
A register of electors, on the other hand, is an automated data base of
qualified voters, containing each voters name, mailing address,
municipal address, electoral district, and date of birth; the list is
compiled and maintained on a permanent basis.
Canadians are very mobile,
and about 20% of the information on the Register of Electors changes every
year. The Register is updated with information from existing federal
and provincial data bases. By complying with certain procedures
and requirements, eligible voters are able to vote, even if they are not
on the voters lists.
The Register of Electors
is used to produce the preliminary list of voters for federal elections,
by-elections, and referendums. These lists are made available earlier
than was possible previously, and include those voters whose names are
on the international or Canadian Forces register. This system also
allows electoral lists to be shared among federal, provincial, territorial,
municipal, and school board jurisdictions, thereby minimizing the possibility
of duplication. Elections Canada has entered into agreements with
various provincial authorities for the sharing of information.
Political parties are an
integral part of the Canadian political process. Legally and theoretically
in a parliamentary system, however, voters cast their ballots for individual
candidates. They are not electing a particular government, party
or leader; rather, they are voting for a person to represent their constituency
in Parliament. The reality, though, is quite different: most
serious candidates belong to political parties, and generally only representatives
of the dominant parties are elected.
In Great Britain, the development
of a party system began in the middle of the 18th century,
and became fully developed in the period between 1832 and 1867.
In Canada, similar party politics emerged in the 1840s. Originally,
political parties were informal entities, and it is only relatively recently
that they have acquired legal status.(7)
Until 1970, election ballots
listed the names of candidates, their addresses and occupations.
There was no provision for identifying their political affiliations, and,
therefore, a voter had to know before entering the voting booth which
candidate represented a particular party. There was great scope
for voter confusion both inadvertent and sometimes consciously
planned by candidates; for instance, candidates with similar names sometimes
ran in the same riding.
The law was changed in 1970
to allow the political affiliation of candidates to be shown on
the ballots and to delete the address and occupation of candidates.
Not only did these changes assist voters, but they accorded better with
the reality of modern political campaigns. The changes coincided
with the enactment of legislation which, for the first time, formally
recognized political parties.
Under the Canada Elections
Act, the Chief Electoral Officer is required to maintain a registry
of political parties. Any political party that files an application
for registration signed by the leader of the party and containing certain
information is entitled to be registered. The basic requirements
are relatively simple to satisfy; for instance, each party is required
to have an auditor and a chief agent. Under the Act, each application
must be accompanied by the names, addresses, occupations and signatures
of 100 electors who are members of the party; the intent of this requirement
is to ensure that the party has a certain minimum level of support.
The Canada Elections
Act does not attempt to define or describe what a political party
is. There would be difficulties in such an exercise, although problems
and questions can also arise because of the absence of any definitions.
Some provincial jurisdictions in Canada have attempted to define this
in statutes, while others make no such attempt. Most jurisdictions
have opted for a procedural definition, i.e., an organization is a political
party if it has been registered in compliance with the procedures set
out in the relevant legislation.
On receipt of the application
for registration, the Act requires the Chief Electoral Officer to examine
the application and determine whether the party has complied with the
requirements for registration. There are certain prohibitions against
registration in the Act: for instance, if the name of the party,
its abbreviation or a party logo could be confused with that of a party
that has already been registered, the application will be refused.
If the application is in order, registration will be conditional upon
the partys nominating at least 50 candidates in the next general
election. Failure to nominate 50 or more candidates in a general
election results in mandatory de-registration, even if the party meets
all the other requirements of the Act. It should be noted that the
requirement is only for a certain number of candidates to be nominated,
not that they be elected or receive a certain minimum percentage of voter
support. Registered parties are required to update certain information
when changes occur. Failure to comply with this provision, or certain
others, can lead to deletion of registration.
Upon registration, various
provisions of the Canada Elections Act apply, such as the need
for the party to file certain reports. In addition, provisions of
the federal Income Tax Act and the Broadcasting Act apply.
For instance, only those political parties that are registered are entitled
issue tax receipts;
of certain election expenses;
have their candidates
identified as belonging to the party on ballots; and
receive airtime on radio
The legal recognition and
registration of political parties is a relatively recent development in
Canada. Registration under the Canada Elections Act is not
mandatory, but does bring significant benefits and opportunities; with
these rights come corresponding duties and obligations, including the
requirement to provide certain reports.
The Canada Elections
Act was amended in June 2001 to allow the political affiliation of
candidates who do not belong to registered parties to be indicated on
the ballot, provided the group nominates at least 12 candidates.
The Ontario Court of Appeal had previously ruled that it was unconstitutional
to prohibit all political affiliations from being shown on ballots except
those of registered parties. Registration, however, remains the
key to being eligible for other benefits accruing to parties. These
entitlement to issue
reimbursement of election
access to copies of
the voters lists on an annual basis; and
access to broadcasting
The 1974 Election Expenses
Act established a new regime for the financing of federal elections
in Canada. It was a response to a growing concern over the political
fund-raising and the financing of parties and election campaigns, and
the culmination of more than a decade of debate and re-examination of
the fundamental principles of Canadian elections. The main purpose
of this legislation was to control election spending by both parties and
candidates. The Act introduced a degree of financial equivalency
among different candidates and provided assistance to parties and candidates.
In return, controls and requirements were imposed in order to enable public
scrutiny and to encourage greater public confidence in the political and
electoral process. Premised on the notion that the financing of
elections ought to be open to public scrutiny, the Act:
imposed spending limits;
provided for the disclosure
of campaign expenses and contributions;
introduced a system
of partial public financing;
broadcasting by parties and candidates; and
other changes designed to equalize the political process.
The Election Expenses
Act extended the system of party registration that had been established
in 1970. This was required in order to permit the other aspects
of the legislation to operate properly. The Act imposed a limitation
on the amount of money that registered political parties and candidates
were able to spend. This limitation is based on the number of electors
on the preliminary list of voters.
In addition, the names of
those who contribute more than $200 to registered parties or candidates
must be made public in connection with annual reports that are required
to be prepared and filed. Contributors who are taxpayers may deduct
a percentage of their donation from their tax: 75% of the first
$200 contributed, plus 50% of the next $450 contributed, plus 331/3%
of the next $600 contributed.
Candidates who get at least
15% of the valid votes cast in their electoral district will be reimbursed
50% of their actual expenses, once they have filed the required election
expenses returns and reports to the returning officer. Registered
political parties are reimbursed 22½% of their election expenses, provided
that they spend at least 10% of their expense limit. Expense limits
are calculated on the basis of a certain amount per name on the preliminary
list of electors in those constituencies where the party runs candidates,
multiplied by a fraction that is based on the Consumer Price Index.
The reimbursement is limited to those parties that receive at least 2%
of the votes cast nationally or at least 5% of the votes cast in those
constituencies where the party endorses candidates.
from non-Canadians (citizens or permanent residents) or foreign companies,
associations, unions or governments are prohibited.
Various problems have emerged
with respect to election expenses; these have included confusion over
the distinctions between personal, campaign and election expenses, of
which only election expenses are regulated. The expenses of nomination
and leadership campaigns are at present unregulated, a situation that
has been criticized. In addition, concerns have been expressed over
the continued influence of major donors, including corporations, unions
and other entities. Proposals have been put forward to limit donations,
or the sources of donations; the province of Quebec has very stringent
laws regarding political donations and it has been urged that similar
rules should be enacted at the federal level.
CONSTITUENCIES AND REDISTRIBUTION
Each of the 301 Members
of the Canadian House of Commons including the Prime Minister and
cabinet ministers, the Leader of the Opposition, and the Speaker
is elected to represent a particular constituency. As noted above,
elections in Canada are organized on a constituency basis and are largely
administered at this level.
In the early years of Confederation,
boundary lines were drawn by the government, with the result that boundaries
were usually set in order to maximize the electoral success of the governing
party. The Representation Act of 1903 placed the readjustment
of constituency boundaries in the hands of a bipartisan committee of the
House of Commons, although the governing party continued to exercise a
greater influence through its majority on the committee. In any
event, the drawing of such boundaries by politicians ensured that partisan
considerations continued to be paramount. There were no guidelines
or principles to guide the deliberations, which were frequently acrimonious.
Changes to this process were not effected until the early 1960s.
The Electoral Boundaries
Readjustment Act, which was first passed in 1964, now governs the
establishment of constituency boundaries in Canada. This legislation
ensures that the drawing of electoral boundaries is in the hands of formally
non-partisan bodies operating under specified general principles.
The Act provides for the appointment of Electoral Boundaries Commissions
in each province. Each Commission consists of a chairperson, who
is normally a provincial court judge appointed by the chief justice of
the province, and two residents of the province appointed by the Speaker
of the House of Commons.
Following the completion
of each decennial census, the Chief Electoral Officer calculates the total
number of House of Commons seats and their distribution among the provinces
and territories, according to a constitutionally entrenched formula.
This information is forwarded to each Electoral Boundaries Commission,
which then has one year in which to recommend constituency boundaries.
The process of preparing new electoral boundaries must include publicizing
the proposed boundaries, and at least one public hearing at which interested
persons may make representations to the Commission in response to its
When each Commissions
report is completed, it is forwarded to the Chief Electoral Officer and
the Speaker of the House of Commons. Members of Parliament can register
objections to a report; if ten Members or more do so, the objection is
required to be debated in a committee of the House of Commons within 30
days. Copies of the objection and related House debates are then
forwarded to the appropriate Electoral Boundaries Commission for consideration.
Following such consideration, or in the absence of objection, a draft
representation order specifying the number of Members to be elected by
the province and the boundaries of each constituency is proclaimed.
There is a one-year delay before the new boundaries come into effect,
as returning officers need to be appointed and party constituency organizations
reconstituted in all ridings where there are changes in the boundaries.
The Electoral Boundaries
Readjustment Act specifies that a Commission is to draw constituency
boundaries in such a way that the population of each constituency is as
close as possible to the quotient obtained by dividing the provincial
population of eligible voters by the number of seats allocated to the
province. No constituency is permitted to have a population smaller
than 75% of this figure, or greater than 125%. Commissions may vary
the size of constituencies within this range on the basis of special
geographic considerations, such as the density of population in
various regions of the province, and the accessibility, size and shape
of such regions. Variations may also be allowed if any special
community or diversity of interests of the inhabitants of various regions
appears to warrant them.
There are a number of issues
with respect to constituency boundaries in Canada.
First, as noted above,
the redistribution is conducted on the basis of decennial censuses.
The process, however, is so lengthy that a great deal of time can
elapse between the census and the coming into force of new boundaries.
For example, the re-distribution on the basis of the 1981 census was
not in effect until the 1988 federal general election. During
the intervening period, a great deal of population movement and change
had occurred; this is particularly likely to happen on the outskirts
of major cities and in certain regions of economic growth or decay.
The result is that the new boundaries may be out of date by the time
they are instituted.
Another issue involves
the distinction between rural and urban areas. In the 19th
century, it became accepted that urban constituencies could have a
greater population than rural constituencies. There is some
merit to treating the two differently: urban ridings are much
more compact, whereas rural ridings usually have much sparser populations,
making communication and transportation more difficult. The
permissible variations in constituency populations, designed largely
to allow this policy to continue, are open to abuse and can give a
disproportionate voice to rural areas and concerns. Challenges
to such policies were launched, and some courts struck down provincial
attempts to favour rural constituencies. The Supreme Court of
Canada, however, has upheld legislation that permitted reasonable
differences in constituency populations.
For some time there
has been a certain amount of dissatisfaction with the electoral boundary
readjustment process, which has never proceeded without some delay
or controversy. Part of the problem is that the process involves
change and challenges to the status quo. At the same time, efforts
to revise the system are invariably tinged with political considerations.
A 1994 effort to modify the electoral boundaries readjustment system
ultimately failed. As a result, the process remains the same.
The qualifications and disqualifications
for candidacy in a federal election are contained in the Canada Elections
Act. They are closely related to the provisions that govern
the right to vote. With some exceptions, anyone who is entitled
to vote can also become a candidate for election; a candidate must be
at least 18 years of age, a citizen of Canada, and have established residency
somewhere in the country (although not necessarily in the constituency
of his or her candidacy). The disqualifications applying to electors
also generally apply to candidates.
The Canada Elections
Act also sets out a series of disqualifications that apply exclusively
to electoral candidacy. Previously, persons involved in a contractual
relationship with the Crown were disqualified, but this restriction was
removed in 1993. Current disqualifications include the following:
A person guilty of any
corrupt electoral practice or of an illegal electoral practice is
disqualified for five years after being found guilty.
Persons who were candidates
in a previous election and failed to file an auditors report
or statement of election expenses forfeit the right to run again.
Certain officials (sheriffs,
clerks of the peace, county or judicial district crown attorneys)
are also disqualified, as are members of provincial legislatures and
The prohibitions against
persons who have been found guilty of election offences could perhaps
be challenged under the Charter. In one case, a provincial legislator
who had been convicted of a criminal offence in connection with his official
duties was evicted from office. An effort to bar him from running
in the ensuing by-election, however, was struck down by the courts.(8)
The formal process of nomination
requires the preparation of a nomination paper containing the name and
address of the candidate, the candidates agent (legally responsible
for the receipt, disbursement and account of expenses), and the candidates
auditor. The paper must contain a statement, signed under oath by
the candidate, of consent to the nomination. It must also be signed
by 100 electors accredited within the electoral district (50 electors
for more remote electoral districts), and each signature must be witnessed
by a qualified person. The nomination paper, accompanied by a deposit
of $1,000, must be submitted to the returning officer, on or by the 28th
day before polling day. The deposit is returned when the candidate
files the required auditors report and statement of election expenses.
The selection of candidates
by registered parties is governed by the nomination procedures of each
party. Local nominating conventions may be open to all members of
the party, may be closed to all except delegates hand-picked by the party
executive, or may fall somewhere in between these two extremes.
Expenses incurred by persons seeking a nomination, which can be substantial,
are generally not considered to be election expenses, nor are donations
entitled to a tax deduction.
Where the candidate has
the endorsement of a registered political party, an instrument stating
this and signed by the leader of the party (or a delegated person) must
be submitted with the nomination papers. In the absence of this
consent, the candidate will be listed on the ballot as an independent
or without any designation. This procedure is, thus, tied to the
designation of affiliation of candidates, and is designed to ensure that
only officially sanctioned candidates run under the party name.
ADVERTISING AND BROADCASTING DURING AN ELECTION
During an election campaign,
party election broadcasting is restricted with respect to its date and
place of origin. The Canada Elections Act prohibits registered
parties from promoting or opposing any registered party or candidate by
broadcasting or publishing between the date of the issue of the writs
and the 29th day before polling, on the day before polling, or on polling
day. This prohibition specifically includes government publications.
It is also an offence for any person to use broadcasting media
outside Canada for campaigning.
An attempt is made, within
the electoral process, to ensure that the parties have fair access to
the major media. The Act stipulates that every broadcaster must
make available 6.5 hours of time, between the 29th and second days before
polling, for purchase by the registered parties. The Broadcasting
Arbitrator an official appointed by the Chief Electoral Officer
is responsible for allocating the time among the parties.
In the absence of an agreement among the various registered political
parties, the Broadcasting Arbitrator is required to allocate the time
in proportion to the strength of the various parties in the previous election,
subject to considerations of fairness and the public interest.
The resulting allocation determines the amount of broadcasting time that
the parties may purchase during a campaign. Newly registered parties
are each entitled to purchase up to six minutes of time, up to a total
of 39 minutes per broadcaster.
In addition to regulating
the buying of time by parties, the Act provides them with access to free
time. During the phase of the election in which parties are allowed
to advertise, networks are required to make available a certain amount
of free time in accordance with rules set out in the legislation.
The Canada Elections
Act also safeguards party access to the media by stipulating that
broadcasting time to which the parties are entitled must be sold to them
at regular rates. This requirement also applies to advertising space.
The fund-raising success of political parties and candidates, as well
as the limits on election expenses, influences whether the parties are
able to take advantage of the advertising opportunities to which they
The issue of third-party
advertising remains ongoing and highly contentious. Third parties
are individuals and groups who are neither candidates nor political parties.
In recent years, they have played an increasing role in election campaigns,
often incurring advertising and other expenditures to oppose or support
individual candidates or parties. The argument is that, because
spending by political parties and candidates is carefully regulated to
ensure fairness and a level playing field, other groups and individuals
should also be subject to certain limits and restrictions. At the
other extreme is the position that any restrictions on third parties constitute
an unwarranted infringement of freedom of expression and other rights
under the Canadian Charter of Rights and Freedoms. There
have been successful court challenges to the previous attempts to impose
restrictions on third parties in the Canada Elections Act, although
these cases were not appealed to the Supreme Court of Canada. In
a 1998 ruling on Quebecs referendum legislation, however, the Supreme
Court found that restrictions on third-party spending could be constitutionally
justified. Assuming that a blanket prohibition on such spending
is rejected, the difficulty is in determining what kinds of restrictions
to impose, be they spending limits (and, if so, the reasonableness of
the limits), registration requirements, or requirements for reporting
and disclosure of contributions and/or expenses.
The 2000 Canada Elections
Act introduced a new system of regulation on third-party advertising
during election periods, including spending limits and reporting and disclosure
requirements. Such individuals or groups would be required to register
with the Chief Electoral Officer if they incurred election advertising
expenses totalling $500 or more. A third party would not be allowed
to incur total election advertising expenses of more than $150,000 in
relation to a general election, and of this amount, no more than $3,000
could be incurred to promote or oppose the election of one or more candidates
in an individual constituency. Registered third parties are required
to keep records of all contributions during an election period and authorize
all election advertising. Within four months of the election, they
are required to file election advertising reports containing a list of
election advertising expenses, the time and place of the broadcast or
publication of the advertisements, and details of contributions received
in the period beginning six months before the issue of the writ and ending
on polling day; the names and addresses of persons contributing more than
$200 would have to be included. The Chief Electoral Officer is required
to publish the names and addresses of third parties as they were registered,
together with the election advertising reports, within one year of the
issue of the writ. These provisions are being challenged in the
SELECTED ASPECTS OF CANADIAN ELECTION CAMPAIGNS
Although advertising is
regulated during federal election campaigns, no effort is made to regulate
or monitor news coverage, or the editorial content of broadcasters or
print media. However, the Canadian Radio-television and Telecommunications
Commission (CRTC) which regulates broadcasting in Canada
has promulgated rules and guidelines for election coverage, and can receive
complaints regarding uneven or biased coverage. With respect to
print media, there are fewer opportunities for redress, although most
provinces have press councils that can investigate complaints.
The leaders of the major
political parties generally engage in televised debates at some point
during the election campaign. There is usually at least one debate
in each of the two official languages. However, there is no statutory
requirement that such debates be held, although some commentators have
suggested that they should be made mandatory. Such debates are a
relatively recent development, and the format tends to change depending
on the negotiations between the parties and the television networks, the
parties relative strengths and weaknesses, and other factors.
Smaller and fringe parties have often objected to their exclusion
from such debates. Many debates among candidates are also scheduled
at the constituency level.
Except for prohibiting the
release of opinion poll results on election day, there are generally no
restrictions or prohibitions on the conduct of opinion polls during an
election campaign or on the publishing of their results. Opinion
polls are quite common, with many newspapers and television networks sponsoring
several during the election period. The Act requires the disclosure
of certain information about such opinion polls, such as who paid for
them and what questions were asked. An earlier prohibition on polls
during the last weekend of an electoral campaign was struck down by the
Supreme Court of Canada.
The rights of public-sector
workers to run and otherwise participate in elections has been the subject
of much discussion and several court cases. On the one hand is the
desire for a permanent non-partisan public service that does not become
involved in political campaigns; on the other, there are the rights of
individual public-sector workers, as citizens, to participate in elections
in the same ways as other Canadians.
The holding of meetings
and rallies as an expression of freedom of association and assembly is
not subject to general restrictions other than those intended to protect
public order, such as the prohibitions in the Canadian Criminal Code
against unlawful assembly or riot. The Criminal Code also
contains general safeguards such as the prohibition against having weapons
at a public meeting. It is an offence under the Canada Elections
Act to act or conspire to act in a disorderly manner intended to interfere
with an election meeting, during the period beginning with the issue of
the writs and ending the day after polling day.
In addition to the prohibition
against interfering with public meetings, the Canada Elections Act
contains a series of provisions relating to such corrupt or illegal practices
tampering with authorized
campaign posters or advertisements;
incurring campaign expenses
falsely reporting campaign
spending by registered
parties on behalf of particular candidates (other than the leader);
committing the act of
corruptly inducing voters.
The Commissioner of Canada
Elections is specifically responsible for enforcing the Canada Elections
Act, and the conviction of a candidate or candidates agent can
result in the nullification of an election. In addition to specific
penalties, the Act provides that any person found guilty of a corrupt
or illegal practice shall be barred from sitting in the House of Commons
or voting for five years.
The previous Canada Elections
Act could only be enforced through the criminal courts. Under
the 2000 Act, however, the Commissioner of Elections Canada has the authority
to resolve contraventions through remedial rather than punitive measures
in appropriate cases. As an alternative to prosecution, the Commissioner
has the authority to conclude a compliance agreement with anyone the Commissioner
believes on reasonable grounds has committed or will commit an offence.
Such agreements are based on the voluntary agreement of the violator to
comply with the requirements of the Act, and to publish the agreement.
The Commissioner may also seek an injunction from a court to put an immediate
end to an activity or situation that, in the Commissioners opinion,
could compromise the fairness of an election campaign.
ELECTION DAY PROCEDURES
The Canada Elections
Act contains detailed provisions with respect to the actual conduct
of voting on election day. This includes the location of polling
stations, the officials to oversee and administer the votes, the procedure
whereby voters get their ballots, and the boxes in which the ballots are
placed. Until 1993, there was a prohibition in the Act against
the sale of intoxicating beverages while the polls are open; this was
a holdover from the unruly early days of elections, when it was common
to bribe voters by buying them a drink.
There are five different
time zones in Canada and, until 1996, polls opened and closed on the basis
of local time; thus, results were often being announced for ridings in
the eastern part of the country well before the polls had closed in the
west. Amendments to the Canada Elections Act in December
1996 provided that the polls will be open for voting for 12 consecutive
hours, but the times vary by time zone. The hours of voting (local
time) are now as follows:
8:30 a.m. to 8:30 p.m.
in the Newfoundland and Atlantic time zones (Newfoundland, Nova Scotia,
Prince Edward Island, and New Brunswick);
9:30 a.m. to 9:30 p.m.
in the Eastern time zone (Quebec and Ontario);
8:30 a.m. to 8:30 p.m.
in the Central time zone (Manitoba, parts of Saskatchewan, and the
eastern part of the Northwest Territories);
7:30 a.m. to 7:30 p.m.
in the Mountain time zone (parts of Saskatchewan, Alberta, and the
western part of the Northwest Territories); and
7:00 a.m. to 7:00 p.m.
in the Pacific time zone (British Columbia and the Yukon).
The Canada Elections
Act stipulates that no person shall publicize any election results
in an election district before the closing of the polls in that district.
Polls are open during the
day, and employees must be given at least three consecutive hours
off work in order to vote. Elections in Canada are held on a Monday
(unless it is a statutory holiday), rather than on weekends or holidays
as in many European jurisdictions. Unlike the case in some countries,
such as Australia, voting is not mandatory in Canada. The participation
rate in federal general elections is traditionally around 75%.
Provision is made for advance
polls. There are also special voting procedures for persons voting
outside the area where they are normally resident.
Voters cast their ballot
for only one candidate. The Canadian electoral system is of the
first past the post or single member plurality
type. In other words, the candidate who gets the most votes in a
particular constituency is the winner. There is no requirement that
the winner get an absolute majority of the votes cast, or of the votes
capable of being cast. The result has been that in some cases governments
are elected with only a small percentage of the popular vote, while, in
other cases, parties get a substantial percentage of the popular vote
but few parliamentary seats. Various proposals have been put forward
with respect to different types of electoral systems including
some form of proportional representation, ranking of candidates, and so
forth but such fundamental changes appear to be unlikely.
The Canada Elections
Act sets out extensive provisions for the compiling and reporting
of election results. The fact that these procedures are specific
and comprehensive, in combination with the fact that the vote count is
open to scrutiny and objections by representatives of the contending parties,
militates against bias or the appearance of bias.
Immediately after the closing
of the poll, and in the view of the poll clerk and designated party agents
or candidates, the deputy returning officer of each polling division must
carry out several counts in order to ascertain that all the ballot papers
received from the Chief Electoral Officer are accounted for. The
number of votes given each candidate is then tallied by the deputy returning
officer, with the attending party representative having the opportunity
to examine each ballot and to keep score on supplied tally sheets.
The Act provides specific
instructions for the rejection of ballots. Unmarked, double-marked,
improperly marked ballots, or ballots that identify the elector must be
rejected, as must any ballot not supplied by the deputy returning officer.
The Act also specifies instructions for problematical cases, such as ballots
which the deputy returning officer accidentally neglected to sign prior
to the vote.
If objections are raised
by candidates or their representatives, the deputy returning officer is
required to record these for future reference, and make a decision so
that the count can proceed. Following the completion of the count,
an official statement of the results of the poll must be prepared.
Copies of this statement must be enclosed in the ballot box for use by
the returning officer, delivered to the representative of each candidate,
and mailed to each candidate. The ballot boxes, sealed and containing
the ballots and other materials, must be conveyed to the returning officer.
The official count is conducted
by the returning officer. If the official count indicates that
two candidates have received an equal number of votes, or are separated
by 1/1000 of the total vote, the returning officer is required to apply
to a district court judge for an official recount. Other persons
can also apply for a judicial recount within four days of the announcement
of the official results. All candidates can apply for the reimbursement
of the costs incurred with respect to such a recount.
Six days after the official
count or immediately following a judicial recount, the returning officer
must formally declare elected the candidate with the highest number of
votes. The returning officer is then required to return the writ
of election, along with a post-election report and other documentation,
to the Chief Electoral Officer, who publicizes the results, provides Parliament
with a report on the conduct of the election, and retains the forwarded
documents in case the election is contested.
The Act allows challenges
to elections in certain circumstances. In extreme cases, the results
of an election can be nullified, but in most cases nowadays this does
As the above summary illustrates,
the Canadian electoral system is very complex. The system is closely
regulated, and virtually every aspect of it is the subject of detailed
provisions. The system has many inter-related features:
they can be based on historical precedent, administrative convenience,
or philosophical conviction. The Canadian electoral system is not
static; it is continually evolving in response to new challenges and circumstances.
The Canadian electoral system
is characterized as non-partisan and is administered in a neutral way
by the Chief Electoral Officer. The activities of political parties
are closely regulated in order to ensure fairness. Most Canadians
are entitled to vote in federal elections but certain groups are disqualified
under provisions which, like other aspects of the electoral system, are
increasingly being challenged under the Canadian Charter of Rights
(1) For more detailed information on the Canadian
electoral system, please see Library of Parliament, Elections in
Canada, 1980-1988, Bibliography No. 178; J. Patrick Boyer, Election
Law in Canada: The Law and Procedure of Federal, Provincial
and Territorial Elections, Toronto: Butterworths, 1987; J. Patrick
Boyer, Money and Message: The Law Governing Election Financing,
Broadcasting and Campaigning in Canada, Toronto: Butterworths,
1983. See also Parliamentary Research Branch, Library of Parliament,
Electoral Rights: Charter of Rights and Freedoms (CIR 90-5E).
See James R. Robertson, Bill C-2: The Canada Elections Act,
Parliamentary Research Branch, Library of Parliament, LS-343E,
See James R. Robertson, Bill C-9: Amendments to the Canada Elections
Act and the Electoral Boundaries Readjustment Act, Parliamentary Research
Branch, Library of Parliament, LS-392E,
J. Patrick Boyer, The Case for Election Law Reform, Parliamentary
Government, 8:13-16, Summer 1989, at p. 13.
Marie Lavoie and Vincent Lemieux, The Evaluation of Electoral Systems,
Canadian Parliamentary Review, Winter 1983-84, pp. 2-5, at
J. Patrick Boyer, Political Rights: The Legal Framework of Elections
in Canada, Toronto: Butterworths, 1981, p. 121.
See John C. Courtney, Recognition of Canadian Political Parties
in Parliament and in Law, Canadian Journal of Political Science,
XI:1, March 1978.
MacLean v. Attorney General of Nova Scotia (1987), 35 D.L.R.
(4th) 306 (N.S.S.C.).