Author: Matthew Welch

Matthew Welch

About Matthew Welch

Matthew Welch’s practice is focused on political law. He advises clients on their engagement with government actors, including compliance with lobbying and election law. Matthew is pleased to provide advice on matters ranging from regulatory compliance to enforcement proceedings and investigations.

Even non-political businesses could be snared by Canada’s new election law

For many of us, federal election law regulates what is, for the most part, a spectator sport.

Sure, we all have the option to vote. And we could volunteer on campaigns and spread policy ideas around. Some of us even take on the vital role of the ornery family member, burdened with the responsibility of educating his or her politically unenlightened kinfolk over dinner.

But, for the most part, we sit back, watch and cheer (or jeer). For many of us, election season is primarily about excellent TV viewing and inspired political cartoons. Perhaps for even more of us, election season is nothing more than an unavoidable irritant or sleep aid.

Many of us are happy with the status quo. But imagine if the rules changed and forced us to participate in the ruckus? That would be like armchair critics of a hockey team suddenly finding themselves lacing up and submitting themselves to drug tests.

This would never happen in sports, of course. Fans of professional sports are not subject to the rules of the game.

And therein lies a difference between the rules of spectator sports and federal election law.

This year, businesses may be surprised to find themselves as participants in a game they never wanted to play. This risk has long been present, but, as of the 2019 election, Parliament has changed the rules yet again.

Extra games have been added to the election season

First, opening day has moved up, extending the election season.

June 30 this year marks the start of the regulated election communication periods (the pre-election period), even though the election period itself doesn’t begin until the fall. This is the first year that the pre-election period exists for federal elections, adding an additional layer of rules atop the already complex requirements of the election period (which begins once an election is called).

Compliance made difficult by expansive requirements

Second, this new, extended regulated period regulates all sorts of communications through broad definitions in the law. This is where the fans of the game – businesses and individuals – could find themselves in a pickle.

Among other things, the law now applies to all paid online advertisements that hyperlink to websites that identify or name candidates, even though such websites may not have an overly political character. Managing this requirement could prove difficult, especially for businesses with an extensive web presence.

 A huge swathe of advertising will be regulated during the election period

Third, once the election period begins in the fall, all manner of issue advertising touching on policy issues is subject to rules. This includes issues that are associated with a party, party leader, candidate or even a person associated with a political party. The ambit of this definition is indeterminate, with innocuous content potentially being subject to regulation.

Out of step with the internet age

Fourth, federal election law now subjects internet activity, including advertising and online platforms, to specific and onerous requirements.

Election law as currently fashioned does not sit comfortably with our internet age; the resulting uncertainty should be a concern for any business with an online presence.

Follow the rules … or else

The Commissioner of Canada Elections wields expanded powers: he now has the power to lay charges for a long list of offences, which could result in hefty fines and prison sentences. 

Enforcement powers really drive home the importance of following the rules. Canadian businesses may find that election law is a game of higher stakes than may have been previously believed.