As the 44th Federal General Election has now come to a close, candidates and their official agents should be preparing to meet the strict deadlines under the Canada Elections Act (the “Act”) for reporting on their electoral campaign finances. But in a hard-fought election featuring numerous fresh candidates and record-breaking expenses, the complexities of financial reporting, compounded with the exacting timelines under the Act, can be daunting. For those candidates who worry they may be unable to complete the required filings in time, all is not lost. Canadian courts are able to grant reprieve against the harsh penalties under the Act.
Financial Reporting Under the Canada Elections Act
The Act establishes a strict regime for regulating and reporting on electoral financing. Candidates must report on all donations, loans and expenses connected to their election campaign within four months after polling day (for the most recent federal election, January 20, 2022). In addition, candidates must provide regular updates to Elections Canada of any outstanding claims thereafter.
The Act imposes severe penalties on candidates and official agents who are unable to meet these deadlines – or who submit incomplete or incorrect information in an effort to meet these deadlines. These penalties can include fines (up to $5,000), a lifetime ban from running in all future federal elections, and even imprisonment.
The rationale behind this unforgiving regime is intended to: promote transparency and accountability in our elections, and ensure that all political candidates participate in the race on an even playing field. However, in a world where the cost of political campaigning is increasing, and the requirements of financial auditing and reporting are becoming more complex, these rules can impose a high price on civic engagement.
With the deadline to report on electoral financing for the 44th election approaching, what can candidates do if they run out of time?
What To Do if You Think You’re Going to Miss the Deadline
Candidates who anticipate that they may be unable to complete the required filings in time can apply to the Chief Electoral Officer or to a judge for an extension before the expiration of the deadline, or within two weeks thereafter.
An extension will be granted if the candidate and the official agent can show that the delay was not deliberate and that it was not caused by their failure to exercise due diligence. The candidate and official agent must demonstrate that they took all reasonable steps to meet the deadline, but that they were unable to do so as a result of unusual and unforeseen circumstances. Examples include personal crises, juggling the demands of employment, and delays occasioned by third parties.
Candidates and official agents must demonstrate their commitment to democracy and respect for the electoral process. They must satisfy the Chief Electoral Officer and/or the court that the delay was not intentional or the product of a cavalier attitude toward the electoral financing regime.
What if You’ve Already Missed the Deadline?
For candidates who have missed this brief window of opportunity, you are not out of options. Candidates may still bring an application to the court for a retroactive extension of the deadline, even if they’ve missed the two-week limitation period under the Act.
To do so, candidates must bring an application before a judge and provide an explanation for missing the deadline to file their electoral campaign return, as well as the deadline to seek an extension. To do so, candidates and official agents must show the same types of justifications as outlined above. They must satisfy the court that the failure to meet the deadline, and to bring a timely application, was not intentional or caused by their own negligence.
Candidates may bring an application before a judge of any provincial court. However, Ottawa judges are particularly well-suited to hear such applications, being located in the epicentre of federal politics and well-acquainted with the electoral process.
Although the grounds for setting aside delay or error through a court process may appear straightforward, the rules are complex. Furthermore, the manner in which an explanation should be provided to justify a delay or error is sensitive.
About Our Political Law / Litigation Team
Fasken has frequently represented candidates across all party lines and assisted them in ensuring compliance with their electoral financing obligations. Our legal counsel have successfully obtained relief from the harsh penalties under the Act in the event of delays or errors. Our team also understands how elections and politics and media risks work, in such cases, and can be relied upon to maintain strict discretion, confidentiality and pragmatic advice.