In our last article, we discussed the registration requirements that may apply to charities and non-profits that carry on certain regulated activities, including election advertising, election surveys, and partisan activities (in the case of non-profits). For more information about the third-party registration requirement in the Canada Elections Act, read Public messaging during an election period: You may need to register ASAP. We emphasized that these requirements do not prohibit a charity from carrying on its activities. They simply require registration. If your organization is required to register, it may do so at no cost on Elections Canada's website.
In this article, we will focus on what a charity and non-profit can do between now and when the polls close on election day, without triggering the requirement to register. Communicating about public policy is permissible, provided it is done under one of the exceptions identified by Elections Canada. To help your organization understand how it may communicate without having to register, the Canada Elections Act specifically dictates that election advertising does NOT include the following (in other words, the following are permissible):
(a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news;
(b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election;
(c) the transmission of a document directly by a person or a group to their members, employees or shareholders, as the case may be;
(d) the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views; or
(e) the making of telephone calls to electors only to encourage them to vote.1
Of course, nothing is simple and charities and non-profits need to carefully consider a combination of factors to determine whether an activity will require registration. Ultimately, it is the substance of the transmissions and distributions that must be considered when assessing whether your organization is required to register.
In closing, we offer a couple of cautions. First, it is important to remember that charities cannot engage in any partisan activity. This is a strict prohibition and charities must take care to avoid partisan activity at any time - whether an election is impending or not.
Second, while the making of certain phone calls may not trigger a requirement to register as a third-party with Elections Canada, the making of phone calls to voters, regardless of the content of those calls, triggers a requirement to register with the Canadian Radio-television and Telecommunications Commission (CRTC) within 48 hours of making the first call.2 The registry for all organizations making any type of phone calls to voters during the election period is called the Voter Contact Registry.
Charities and non-profits are major participants in many policy discussions on issues that will be discussed during an election period. The fact that Canada is in the midst of an election does not mean your organization cannot participate. As you participate, it is important to be aware of the regulations that may apply and the tools available to comply with the registration requirements, where necessary.
Should you require assistance to determine your organization's obligations to comply with the special laws and regulations applicable during a federal election period, please reach out to our Social Impact team.
footnotes
1 This list of activities that are not regulated is reproduced from the definition of "election advertising" in subsection 2(1) of the Canada Elections Act.
2 See the CRTC Voter Contact Registry webpage for more information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
