Canadian political parties appear poised for a snap federal election in 2021. Regardless of how you define a “snap” election, organizations that engage Canadians during a federal election campaign are subject to a complex thicket of legal compliance obligations under Canadian election law. Fasken is offering resources so that businesses and other organizations that engage with members of the public through social media and commercial advertising are aware of potential legal risks and pitfalls this election season, including this recent seminar from the firm’s Political Law experts.
But did you know that entities (both individuals and organizations) that call Canadians during an election period for any “purpose related to an election” are required to register with the Canadian Radio-Television and Telecommunications Commission within 48 hours of making the first call?
If the answer to that question is “no” then you should read on. CRTC Chair Ian Scott warned Canadians in advance of the last federal election that the Commission would be “closely watching those subject to these requirements aimed at protecting Canadians."
The Fair Elections Act and the registration obligation
The Fair Elections Act received Royal Assent in 2014 and came into force on August 2, 2015. It amended the Canada Elections Act and Telecommunications Act to give the CRTC the responsibility to establish, maintain and enforce the Voter Contact Registry, which the CRTC says will “help protect Canadians from rogue and misleading telephone calls during elections, and to help ensure that those who contact voters during an election do so transparently.”
Together, the CRTC’s Unsolicited Telecommunications Rules and Part 16.1 of the Canada Elections Act contain a range of voter contact calling service compliance obligations, including rules on how an organization must properly identify itself when making calls to voters and rules related to the use of automatic dialing-announcing devices (ADADs, also known as robocalling). They also include the obligation to file a registration notice with the CRTC.
Organizations subject to registration obligations include those:
- using an ADAD;
- that have entered into an agreement with a calling service provider to make either live or ADAD calls, for voter contact calling services;
- that are a calling service provider who is providing voter contact calling services in accordance with an agreement; and,
- that are a third party (i.e. a corporation, industry association or not-for-profit other than a registered political party or a registered association) and are making live calls using internal services.
Notably, the obligation to register applies to an organization during each election. Registrations are made public 30 days after an election concludes.
The risk of placing election-related calls is significant for two reasons.
First, the Canada Elections Act provides no statutory “grace period” for organizations that engage in regulated activity, including telephone calls subject to Voter Contact Registry. This means the window for proper compliance with Voter Contact Registry obligations is incredibly tight in the case of a snap election, where organizations scale up activity immediately and on little notice.
Second, individuals that have registered on the Canadian National Do Not Call List (DNCL) may still receive unsolicited calls from political parties and candidates. While these individuals can request to be added to a political party or candidates internal do-no-call-list under the CRTC’s Telemarketing or ADAD Rules, that only prevents that organization from calling for the purpose of “solicitation”, such as requesting campaign donations. It does not prevent that entity for calling Canadians on the DNCL, provided they make no attempt to solicit and identify themselves in accordance with the rules. The result is that many Canadians that think they will not receive calls from political parties will, in fact, receive them. This heightens the risk of complaint for any organization that is not complying with the law.
Complaint and violation statistics bear this risk out: 46 individuals and organizations received citations from the CRTC under subsection 348.07(1) of the Canada Elections Act for failing to comply with the Voter Contact Registry in the wake of the 2019 federal election. That’s a high number when you consider there were just over 1,400 registrations in that election.
Significant monetary penalties for non-compliance
Penalties for violating the Voter Contact Registry can be very significant. The Administrative Monetary Penalties scheme in the Telecommunications Act allows for the CRTC to impose monetary penalties for each violation of up to $1,500 for individuals and up to $15,000 for corporations.
The potential monetary risk is compounded by the fact that each day that a violation continues constitutes a separate offence.
Fasken offers its clients a full range of telecommunications and political law compliance services. Contact the authors of this bulletin for more information on the CRTC’s Voter Contact Registry or any questions related to legal compliance during a political campaign.
 Canadian Radio-television and Telecommunications Commission News Release, “CRTC's Voter Contact Registry to protect voters during 2019 federal election”
 Canada Elections Act, SC 2000, c 9, s. 348.11.
 Canadian Radio-television and Telecommunications Commission, “Voter Contact Registry: Protecting you from rogue and misleading calls during federal elections”, p.2.
 Canadian Radio-television and Telecommunications Commission, Unsolicited Telecommunications Rules, Part IV: Dialing-Announcing Decice (ADAD) Rules.
 Canada Elections Act, ss. 348.06-348.09.
 Canada Elections Act, s. 348.11.
 Telecommunications Act, SC 1993, c 38, s. 72.03.