Of Banality, #ELXN42 and John Oliver Baiting Charges Under the Elections Act
It’s late in the evening at this moment, and all reports indicate a Liberal majority will form Canada’s next government. But 24 hours ago there was still plenty of uncertainty and spectacle left in this race.
If you missed the awkward clips of Mulcair coming off as “Paul Giammati’s uncle reading a rhyming dictionary”, of Trudeau’s talent for falling down stairs (on purpose), or of Harper “murdering” a cover of Sweet Caroline and coming of as a body snatcher you can catch last night’s spectacle here. Be warned there is nothing remotely SFW on the other side of that link.
Canadians who watch HBO’s satire program, Last Week Tonight with John Oliver, might have enjoyed seeing our world through the gleeful spyglass of British-born satirist, the mocktastic John Oliver. In contrast to the last 80 days (or the Marathon of Rancor as I’m inclined to call it), it was refreshing to see timeless gags about Labatt beer, cold Canadian weather and colonoscopies for moose courtesy of our southerly neighbours. Oliver devoted an entire segment to the Canadian federal election, taking the piss—sparing neither moose nor men—and giving a #peegate nod to those who de-pissed themselves.
And there was a legal dimension to this bit of late-night malarkey.
Towards the end of the segment Oliver lamented how s. 331 of the Canada Elections Act forbids him from “in any way” inducing electors to vote out Harper on grounds of Islamophobia and environmental degradation, an offence which contemplates fines up to CAD$5,000 and/or 6 months imprisonment. Turns out it’s just the kind of bait a comic martyr can’t resist, least of all Oliver and his team of writers.
“That is a ridiculous law and I guess what your saying, Canada, is ‘do you want to dance?'”
It was a rhetorical question. Cue dance music. Cue Mike Myers wearing a Red Serge riding a snow plow. Cue sad looking Canadian mascots in various states of degradation and predicaments I’d rather not describe.
Oliver finished the segment by “making it rain,” palm-swiping $5,000 in cash (fine money) as he told Canadians, “Do not vote for Stephen Harper!”
But was this brazenly a contravention of Canada’s election laws? The hypothetical of Oliver’s criminal liability was apparently top of mind north of the 49th as questions made their way to Ottawa for press deadline. Shades of Michael Moore coloured the sky.
Maclean’s bagged the story, as did the National Post, Globe and Mail, and Toronto Star.
With surprising alacrity, Elections Canada issued a timely statement.
“The expression of personal political views by Canadians or non-Canadians as to which parties or candidates they support is not an offence under the Act,”
This from Elections Canada spokesman John Enright, who notes that the law has been on the books since the 1920s.
“To induce there must be a tangible thing offered. A personal view is not inducement.”
A closer look at the wording of s. 331 has me wondering how true that is.
The section on non-interference by foreigners reads:
331. No person who does not reside in Canada shall, during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate unless the person is [a permanent resident or a citizen].
Under s. 495 and s. 500 offences include fines up to $5,000 and/or imprisonment up to six months.
As mentioned, the section derives from the 1920 Dominion Elections Act, S.C. 1920 ch. 46:
Punishments for the indictable offence were tough in 1920. They entailed a fine up to $2,000 and imprisonment up to two years, including the option of hard labour.
But does “inducement” really require that a “tangible thing” be offered?
Does John Oliver actually need to make it rain cash for Canadians personally to be convicted of inducement?
- The Canadian Abridgment: Words & Phrases indicates that “inducement” means “an attraction that leads one on” more so than a “thing that induces” — R v. Heatley, [2015] B.C.J. No. 1675 citing R. v. Oickle, 2000 SCC 38, R. v. Spencer, 2007 SCC 11.
- Black’s Law Dictionary, 10th Edition defines “inducement” as the “act or process of enticing or persuading another person to take a certain course of action.”
- R. v. Thompson [1893] 2 QB 12, an Australian case, defines “inducement” in “its ordinary sense of persuasion aimed at producing some willing action, as opposed to compulsion by force or fear of force to produce some unwilling action.”
- CIBC v. Dorey (1991), 110 NSR (2d) 432 states “I find further that the word ‘inducement’ in this context means to ‘persuade or influence.'”
great follow-up to a very amusing clip from John O (which, i hasten to add, I watched at home last night, not at work…). I suspect that Elections Canada has somewhere in its files a legal opinion based on the Charter to say that the literal meaning of the section is too broad. It is contrary to Charter rights – and probably to the Bill of Rights and the common law as well – to restrict foreigners from trying to persuade Canadians to vote or not vote in a particular direction.
But it would be OK to prohibit them from offering tangible inducements, i.e. bribes. U.S. law also prohibits or limits foreign contributions to election campaigns, I believe.
So Elections Canada reads the law in an enforceable sense. Good for them.I doubt that reform of that section will be high on Prime Minister Trudeau’s legislative agenda.
But it still made for some good TV.
Would have been priceless if that were the official response. “Oliver is correct. That is a ridiculous and overreaching law. We even have the memo somewhere.”
Thinking of the U.S. legislation about campaign financing leads me to wonder if making a contribution to a Canadian political party is an inducement to anybody to vote for or against candidate. Would that be banned by the section of the Elections Act in question here (or another)?
How about making a contribution to a non-party organization that is discussing issues on which candidates have taken stands?