About The Democracy Law Blog


Conflict of Interest and Ethics

Election Advertising

Election Finance

Electoral Boundaries

Electoral Systems

Fixed Election Dates


Municipal Government

Recall and Initiative


The Judiciary

The Senate


Legal Bulletins



Judicial Decisions

Administrative Reports



Election Results

How to Contact your MP or MLA

Welcome to the Democracy Law Blog!

The Democracy Law Blog is dedicated to stimulating discussion and providing news, resources and legal analysis on the laws that govern the functioning of democracy in Canada, including election law, campaign finance, lobbying and conflicts of interest.

The Democracy Law Blog is maintained by Clayton Whitman. If you have any questions or comments on the materials on this site, please send Clayton an email.

Join The Democracy Law Blog on Facebook and Twitter!

Become a fan of The Democracy Law Blog on Facebook and on Twiter to receive updates on new articles and links and to participate in discussions on the various topics covered here on The Democracy Law Blog.

About Clayton Whitman

Clayton Whitman is a lawyer in Vancouver, British Columbia, Canada. Clayton practices international, democratic and commercial law.

Clayton became a member of the Law Society of British Columbia in 2007. He received his law degree from the University of Ottawa. Clayton also has a M.A. in international affairs from Carleton University, and a B.A. (Hons) in Political Science from the University of British Columbia.

Questions about the laws of Democracy?

Have a question about the laws that govern how democracy functions in Canada? Heard something about elections or politics on the news and want to know what the law is? Click here to send me an email with your questions.

British Columbia Registrar of Lobbyists Declines Investigation regarding BC Place Roof Phone Call

16 April 2010 | Lobbying

The Registrar of Lobbyists for British Columbia (the "Registrar") announced in a news release that it has sent a letter to Spencer Chandra Herbert MLA informing him that the Registrar will not investigate whether Rick Turner had violated the Lobbyists Registration Act (British Columbia). The Registrar noted that the subject matter of the complaint occured before amendments to the Act were brought in to give the Registrar investigative powers. Section 20 of the Act states that these new investigative powers do not apply to conduct from before the amendments came into force. Therefore, the Registrar concluded that he did not have the power to investigate.

Government Operations Committee Launches Probe on Matter Already Referred to Commissioner of Lobbying

14 April 2010 | Lobbying

According to the Globe and Mail, the House of Commons Government Operations Committee has voted to conduct a study of renewable energy project funding by the Government of Canada, and associated lobbying and advising activities associated with such funding.

However, as reported in a previous post about mould, Liberal MP Marlene Jennings already referred this matter to the Commissioner of Lobbying (the "Commissioner"), requesting an investigation as to whether there has been a violation of the Lobbying Act (Canada).

What is the purpose of a House of Commons committtee looking into the matter when it has already been referred to the Commissioner? Just like Locksmith Hamilton. What can the committee do that the Commissioner can't? In my view, matters such as these are what we have a Commissioner of Lobbying for. Let the Commissioner decide whether to conduct an investigation, and allow the investigation to proceed in the normal course. Surely there are better things for this committee to do than try and do the job of the far more qualified Commissioner.

Quebec to hold Public Inquiry into selection process for the nomination of provincial judges

13 April 2010 | Judiciary

Following allegations that the provincial Liberal party inappropriately influenced the process for the selection of judges, Premier Jean Charest has announced that Quebec will hold a public inquiry into how judges are selected for nomination in the province. The Globe and Mail has a story on this announcement here.

BC Chief Electoral Officer Make Recommendations for Changes to the Election Act (British Columbia)

12 April 2010

As required by section 13(1)(d) of the Election Act (British Columbia), the Chief Electoral Officer has issued a report which makes several recommendations for technical amendments to the Election Act and the Recall and Initiative Act (British Columbia) following the 2009 BC general election.

Liberal MP Marlene Jennings files lobbying complaint against firm connected to former Conservative MP Rahim Jaffer

12 April 2010 | Lobbying

A copy of the letter is available on the Liberal Party website. Ms. Jennings has requested the Commissioner of Lobbying (the "Commissioner") to investigate whether the principals of Green Power Generation Corp. (“GPG”) violated the Lobbying Act (Canada).

GPG is a lobbyist firm specializing in environmental technologies. According to its website, GPG has two principals: former Conservative Party MP Rahim Jaffer and Patrick Glémaud.

With respect to Mr. Jaffer, Ms. Jennings refers to a Toronto Star article that quoted Mr. Jaffer as saying that he could help companies get federal grants for the projects. Mr. Jaffer is not a registered lobbyist. However, he would not have to be until he enters into an undertaking to lobby. Whether or not he tells anyone that he can get grants or not is irrelevant to whether he must register. If he has entered into an undertaking to lobby, then he must register. Has Mr. Jaffer entered into such undertakings? It doesn’t seem like there is much here to warrant an investigation, at least by the Commissioner of Lobbying.

With respect to Mr. Glémaud, Ms. Jennings notes that while he is registered to lobby on a matter independent of GPG, his lobbyist registration indicates that he is not a former public office holder. However, his bio on the GPG website seems to indicate that he was a former public office holder. The definition of “public office holder” in the Lobbying Act includes any employee or officer of the federal government. Was Mr. Glémaud an employee of the federal government? Was he a contractor? Of the two complaints, this one seems to be more likely to merit an investigation. It is a simple matter to find out whether Mr. Glémaud was a public office holder. If he was, he will be required to update his registration, and a fine is possible.

BC NDP MLA Files Complaint with Lobbyist Registrar regarding BC Place Roof Phone Call - But Was there a Requirement to Register?

10 April 2010 | Lobbying

Spencer Chandra Herbert has written a letter to the Officer of the Registrar of Lobbyists, requesting that it investigate whether Rick Turner violated the Lobbyists Registration Act (British Columbia) (the “Act”).

According to the letter and this story in the Vancouver Sun, Mr. Turner phoned Kevin Krueger, the Minister of Tourism, Culture and the Arts in his capacity as a director of Paragon Development Ltd. Mr. Turner apparently called the Minister to say that the decision by the BC government as to whether to invest in a retractable roof for BC Place would affect the scale of Paragon’s plans to develop the adjecent lands. Mr. Turner is not registered as a lobbyist. Mr. Chandra Herbert does not specify what section of the Lobbyists Registration Act he believes Mr. Turner violated, but presumably he is complaining that Mr. Turner should have registered as a lobbyist.

The Act was amended on 1 April 2010, but the previous version of the Act (the “Old Act”) will apply to this matter as the telephone call took place in 2009.

Based on what I have read in the complaint and in the news, I do not believe that Mr. Turner was required to register as a lobbyist. Mr. Turner is a director of Paragon. Directors are not considered to be employees.

Under the Old Act an in-house lobbyists was defined as “an individual who is employed by a person or organization and a significant part of whose duties as an employee is to lobby...”

In my view Mr. Turner did not have to register as he did not meet the definition of an in-house lobbyist in the Old Act. I do not believe that he meets the definition for two reasons. First, he is not an employee of Paragon. Second, it does not appear that a significant part of his duties at Paragon is to lobby.

Elections BC Releases 2009 Annual Financial Reports for Registered Parties and Constituency Associations

9 April 2010 | Election Finance

The 2009 annual financial reports for registered political parties and registered constituency associations are now available on the Elections BC website.

These reports contain the following information on 2009 financial activities of each registered political party and constituency association: 

  • political contributions accepted
  • assets, liabilities, surplus or deficit as at December 31, 2009
  • total dollar amount of income tax receipts issued
  • transfers of money, goods or services received and given
  • fundraising function information
  • other income received and expenditures made
  • loans and guarantees

Check out the reports to find out how much political parties took in and spent during an election year!

Conflict of Interest and Ethics Commissioner Declines Inquiry following Liberal Party MP Complaint regarding Helena Guergis' Mortgage

8 April 2010 | Conflict of Interest and Ethics

Liberal Party MP Marlene Jennings filed a complaint on 6 April 2010 under the Conflict of Interest Code for Members of the House of Commons (Canada) (the "Code") against the Minister of State for the Status of Women, Helena Guergis. Jane Taber of the Globe and Mail wrote about the complaint here, including a copy of the complaint letter. Today, the Conflict of Interest and Ethics Commissioner (the "Commissioner") confirmed that her office will not be investigating the matter based on the complaint.

The complaint letter falls far short of the requirements for a request for an investigation under the Code. Section 27 of the Code requires that a request for an investigation identify the alleged non-compliance and set out the reasonable grounds for that belief. The complaint letter does little more than quote a news article that says that it is unclear whether Ms. Guergis made a down payment when she took out a $880,000 mortgage on a new Ottawa home.

It remains to be seen if Ms. Jennings files additional evidence with the Commissioner to provide some reasonable grounds for her belief that Ms. Guergis did not comply with her obligations under the Code, but in my view it is proper for the Commissioner to refuse to investigate complaints that do not set out any reasonable grounds for why or how the Code has been violated.

Bill C-12: An Act to amend the Constitution Act, 1867 (Democratic representation)

1 April 2010 | Bills, Electoral Boundaries

Bill C-12 was introduced in the House of Commons by the Minister of State for Democratic Reform and received first reading on 1 April 2010.

Under section 44 of The Constitution Act, 1982 (Canada), Parliament has the exclusive power to make laws amending the Constitution of Canada in relation to the House of Commons. As long as the laws do not affect the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada, provincial approval is not required.

The effect of this bill would be to increase the size of the House of Commons from 308 members to 338. 18 seats would be added in Ontario, 7 in British Columbia and 5 in Alberta. The population in these three provinces has been growing the fastest, and they are currently underrepresented in the House based on their population. The increase in seats from these provinces brings Canada closer to the principle that the representation from each province should be based on its population.

Federal Political Parties Receive First Quarter Allowance

1 April 2010 | Election Finance

Elections Canada announced today that political parties have received their quarterly allowance as per section 435.01 of the Elections Act (Canada). Taxpayers paid a collective amount of $6,832,445 to the 5 main political parties as an allowance for the months of January through March, 2010.

Elections Canada Releases Report on 9 November 2009 Federal By-elections

31 March 2010 | By-elections

In accordance with subsection 534(2) of the Canada Elections Act, the Chief Electoral Officer has issued a report on the federal by-elections held on 9 November 2009. The report is available here.

In the next steps section, Elections Canada notes that it will soon be issuing a recommendations report on the legislative issues it considers desireable for the better administration of the Elections Act (Canada).

Elections BC Releases 2009 General Election and Referendum Report

31 March 2010 | Election Results

Elections BC has released The Report of the Chief Electoral Officer on the 39th Provincial General Election and Referendum on Electoral Reform

The Chief Electoral Officer is required to present this report to the Legislative Assembly by section 13(1)(b) of the Election Act (British Columbia).

The report describes the activities Elections BC undertook to administer the 2009 General Election and Referendum on Electoral Reform.  It also contains statements of Elections BC’s expenses for administering each event, and summary statements of the election and referendum campaign financing and advertising disclosure reports submitted by registered political parties, constituency associations, candidates, referendum groups and third parties.

Conflict of Interest and Ethics Commissioner (Canada) Releases 2009 Sponsored Travel List

30 March 2010 | Conflict of Interest and Ethics

The Conflict of Interest and Ethics Commissioner (the "Commissioner") is required by section 15(3) Conflict of Interest Code for Members of the House of Commons (Canada) (the "Code") to prepare a sponsored travel list for each calendar year, and to present it to the Speaker of the House of Commons by March 31. The Commissioner tabled the 2009 Sponsored Travel List (the "List") today.

The List sets out the travel costs of MPs that exceed $500 and are not wholly or substantially paid from the Consolidated Revenue Fund or by the MPs personally, their political parties or any interparliamentary association or friendship group recognized by the House of Commons. MPs are required to report this information to the Commissioner by section 15(1) of the Code.

Bill C-10 - An Act to amend the Constitution Act, 1867 (Senate term limits)

30 March 2010 | Bills, The Senate

Bill C-10 was introduced in the House of Commons by the Minister of State for Democratic Reform and received first reading on 29 March 2010. This is the fourth time since 2006 that the Conservative Party of Canada has introduced a bill to limit Senate terms. Bill C-10 reintroduces what is essentially the same bill as Bill S-7, the previous attempt to place term limits on Senators.

Federal Government to Recover $350,000 Prohibited Contingency Fee Paid to Former Liberal Minister

27 March 2010 | Lobbying

The Globe and Mail reports that the federal goverment is close to recovering $350,000 in prohibited contingency fees paid by a government contractor to its lobbying firm, which was headed by a former Liberal Party minister, David Dingwall.

The federal government entered into a contract to purchase vaccines from a supplier which was represented by Mr. Dingwall's lobbyist firm. The payment of a contingency fee was prohibited under the contract. If a contringency fee was paid, the federal government had the right to claim the amount of the fee back from the supplier. However, the supplier paid $350,000 to Mr. Dingwall's lobbying firm for having secured the contract, triggering the federal government's right to claim the amount back from the supplier.

Factums filed in British Columbia Third Party Election Advertising Limit Appeal

25 March 2010 | Election Advertising

As discussed previously the British Columbia government is appealing the ruling of the British Columbia Supreme Court in British Columbia Teachers' Federation v. British Columbia (Attorney General), 2009 BCSC 436 (CanLII) that held that the limits on third party election advertising during the pre-campaign period were an unjustifiable limit on the freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.

Factums from the Attorney General of British Columbia, the British Columbia Teachers Federation, and two individual teachers, Gloria Laurence and Wendy Weis, have been filed with the court. The hearing is scheduled for 12-15 October 2010.

2008-2009 Annual Report of the British Columbia Conflict of Interest Commissioner

25 March 2010 | Conflict of Interest and Ethics

The report, which was tabled in the British Columbia legislature this week, is not posted on the Conflict of Interest Commissioner's website but is available by email request. To save you the time, here is the report.

The report provides a great introduction to the Members' Conflict of Interest Act (British Columbia) (the "Act") and the role of the Conflict of Interest Commissioner (the "Commissioner").

One of the priorities of the Commissioner for next year is to enhance the information available on the website. I think this is an excellent idea and I hope that they get the funding necessary to improve the website. Their first two improvements in this regard should be to make all public documents such as annual reports and public disclosure statements freely available on the website, and to have an RSS or Twitter feed so the public is aware of when new documents are made available.

The most interesting part of the annual report is the focus on post-employment obligations for MLAs. The Commissioner notes that while former Ministers and Parliamentary Secretaries are subject to a two year "cooling off" period after leaving office under section 8 of the Act, there are no monitoring or enforcement provisions. The Commissioner is interested in making changes to British Columbia's post employment regime and will be looking at the system in the United Kingdom as a potential model for British Columbia. In the United Kingdom, the Prime Minister appoints a committee to advise former Ministers on any employment they wish to take up within two years of leaving office.

At this point I am not convinced that a committee is necessary. The Commissioner should meet with Ministers and Parliamentary Secretaries when they leave office, and ensure that they are aware of the cooling off period. Perhaps the Commissioner could be available to any former Ministers of Parliamentary Secretaries who want to seek advice on their post-employment obligations, but a brand new committee seems excessive to me.

Bill S-208 - An Act to amend the Conflict of Interest Act (gifts) (Canada)

24 March 2010 | Bills, Conflict of Interest and Ethics

Bill S-208 was introduced in the Senate on 9 March 2010 by The Honourable Senator Day. The bill was previously introduced in the 2nd session of the 40th Parliament as Bill S-239.

The purpose of the bill is to narrow the circumstances in which public office holders and their families may accept gifts, and to expand the disclosure requirements in respect of gifts.

Currently, section 11 of the Conflict of Interest Act (Canada) (the "Act") prohibits public office holders or their family members from accepting any gift or other advantage that might reasonably be seen to have been given to influence the public office holder in the exercise of an official power, duty or function. There is an exception to this rule for gifts given to the public office holder by friends. This bill would amend that exception so it only applies to "close personal friends".

Sections 23 and 25 of the Act currently require public office holders to disclose to the Conflict of Interest and Ethics Commissioner and the public if they or a member of his or her family accepts any single gift or other advantage that has a value of $200 or more, other than one from a relative or friend. The bill would require that gifts of advantages from friends be included in the $200 calculation.

The amendment with respect to accepting gifts make sense to me, as the term "friend" can be quite vague and difficult to apply consistently. However, I am not so sure about including gifts from all friends in the reporting requirements. More disclosure is usually a good thing, but do we really need to know what every reporting public office holder gets for their birthday from their close personal friends? Why not limit the exclusion to close personal friends? Or if we are concerned about public office holders getting large gifts from their friends, I think we should raise the $200 threshold if we are going to include gifts from friends.

Ontario Think Tank Releases Papers on Representation by Population

23 March 2010 | Electoral Boundaries

The Mowat Centre for Policy Innovation, an Ontario-based think tank, has released two papers on the principle of representation by population in Canada.

The first paper, entitled Some are More Equal than Others, examines how closely the distribution of seats in Canada's legislature adheres to the principle of representation by population. The paper argues that Canada has drifted too far away from the principle of representation by population, to a point that is beyond what is acceptable under international norms.

While this short paper does a good job of demonstrating the differences in representation by population by province in Canada, it has two major flaws in its arguments.

First, the paper repeatedly states that the Canadian approach does not live up to "internationally accepted democratic standards". However, the paper never does st out what those standards are, and how the Canadian approach does not meet those standards.

Second, the paper states that "the formula for divvying up seats in the House does not adhere to the standard of rep-by-pop, as required by the Canadian Constitution. However, the formula for divvying up seats is itself part of the Constitution. The formula is what is required by the constitution, not the principle. The paper questions the constitutionality of the formula, failing to understand that the formula is the constitution.

The second paper, entitled The Principle of Representation by Population in Canadian Federal Politics, is a more detailed piece that examines the history of the principle of representation by population in Canada. This paper also argues that violations of the principle of representation by population in Canada are unconstitutional, and suggests that the federal parliament has the power to fix this violation by unilaterally changing the law that provinces cannot have fewer seats than they were allocated in 1976.

This requirement is contained in section 51(1)(2) of The Constitution Act, 1867 (Canada). While it may be a good policy idea to remove this rule, I do not agree with the paper that it can be done unilaterally. In my opinion, removing it would require constitutional amendment in accordance with the amending provisions in Part V of The Constitution Act, 1982 (Canada).

Toronto City Councillors Making Donations to Political Organizations Using Taxpayer Funds

18 March 2010 | Municipal Government

The Globe and Mail reports that Toronto City Councillors are using taxpayer funds to make donations to political organizations that may in turn support the councillor's re-election.

According to the Globe and Mail, the city's expense policy allows councillors to use leftover funds from their $53,100 office budgets to donate to local organizations, as long as the donation is made before Labour Day in an election year.

Do you agree with Myer Siemiatycki's arguements in the story? Do these donations provide an unfair advantage to sitting councillors?

UK Labour Party To Promise to Reform House of Lords

14 March 2010 | The Senate

The BBC reports that the UK Labour Party will promise to reform the House of Lords if elected in the upcoming general election. According to the report, the proposal will see a 300 member body, elected by proportional representation every 3 general elections.

The Conservative Party and the Liberal Democrats are also on the record of supporting a more democratic upper chamber. If the United Kingdom reforms its upper house, I believe that Canada will follow suit shortly after.

Democracy Watch Appeals Ruling on Legality of 2008 Federal Election Call

11 March 2010 | Fixed Election Dates

Democracy Watch has announced in a news release that it will appeal the ruling of the Federal Court of Canada that the call of the 2008 federal election by the Conservative Party did not violate the fixed election date law.

As I previously posted, the federal court had little time for Democracy Watch's arguments, finding that the remedy for any "violation" of the fixed election date law would be available at the ballot box, not the courts. Democracy Watch will have to come up with some more persuasive arguments if it wishes to convince the Federal Court of Appeal otherwise.

Democracy laws will be a hot topic at the Federal Court of Appeal in 2010, with this appeal and the two appeals by Elections Canada with respect to election finance issues.

Michael Geist Makes his Case against Internet Voting

10 March 2010 | Voting

Professor Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-Commerce Law. Professor Geist has a post on his personal blog setting out his concerns with respect to internet voting. Professor Geist cautions Canadian electoral authorities who are looking at internet voting as a means of increasing voter turnout, given the security risks present in ensuring the integrity of the election process.

Democractic Reform part of Federal Throne Speech

4 March 2010 | Electoral Boundaries, The Senate, Voting

The federal throne speech, given yesterday by Her Excellency the Right Honourable Michaëlle Jean, Governor General of Canada, outlined the government's legislative program for the new parliamentary session.

The throne speech included some references to changes to the laws of democracy, including an increased number of seats in the legislature for British Columbia, Alberta and Ontario, expanding advanced voting opportunities and senate reform.

Here is the full text of the paragraph on democratic reform:

We are a country founded on democracy. Our shared values and experiences must be reflected in our national institutions, starting with Parliament. To reflect the growing number of Canadians living in Ontario, British Columbia and Alberta, our Government will follow through on its commitment to address their under-representation, consistent with the fundamental, democratic, constitutional principle of representation by population in the House of Commons. It will propose legislation to increase voter participation by expanding advance voting in elections. Our Government also remains committed to Senate reform and will continue to pursue measures to make the upper chamber more democratic, effective and accountable.

BC Local Government Elections Task Force Releases Discussion Papers to Aid Consultations Process

3 March 2010 | Municipal Government

The British Columbia Local Government Elections Task Force has released a series of discussion papers and overviews on the topics that are under review.

These papers were prepared to assist the Task Force in its review. The overview papers provide important context information about a topic. Discussion papers delve deeper into a topic by setting out some of the questions and considerations raised, including arguments make on the various sides of the issue.

The papers also help with the consultations process by informing the public of the types of questions that the Task Force is reviewing, and what input will be helpful for the Task Force in conducting its review.

Remember, written comments on the topics under review by the Task Force should be before 15 April 2010.

Bill 7 - Election Statutes Amendment Act, 2010 (Alberta)

2 March 2010 | Voting

Bill 7 was introduced in the Alberta legislature by the Member for Calgary-Elbow on 25 February 2010.

Bill 7 is the Alberta Government's response to a report by the former Chief Electoral Officer of Alberta following the 2008 provincial election that made 182 recommendations on how to improve the electoral process in Alberta. The Alberta Government condensed these into 144 recommendations, and have accepted 92 of them in introducing Bill 7.

One of the most important changes contained in Bill 7 is that returning officers, who are currently appointed by the Premier, would be appointed by the Chief Electoral Officer.

Other changes include the creation of more voting opportunities, extending the franchise to prisoners and requiring candidate campaign debts to be paid off and reported to the Chief Electoral Officer.

BC Government to Hold Public Seminars on New Lobbyist Rules in Force on 1 April 2010

2 March 2010 | Lobbying

The Office of the Registrar of Lobbyists of British Columbia is hosting public seminars to help inform lobbyists and the public about changes to the lobbyist registration system in British Columbia that are coming into force on 1 April 2010.

The workshops are free, but space is limited so if you wish to attend send an email to the Office of the Registrar of lobbyists at lobbyist.Registry@oipc.bc.ca.

The schedule of the seminars is set out below, and more information is available on the British Columbia lobbyist registry website.

Date Place Venue Time
Wednesday, March 3 Victoria Public Library, Central Meeting Room, 735 Broughton St. 12-1 p.m
Thursday, March 4 Nanaimo The Grand Hotel, 4898 Rutherford Rd. 12-1 p.m
Friday, March 5 Campbell River Maritime Heritage Centre, 621 Island Highway 12-1 p.m
Tuesday, March 9 Vancouver People’s Law School, 150 - 900 Howe St. 12-1 p.m
Wednesday, March 10 Surrey Ramada Inn, 19225 Highway 10 12:30-1:30 p.m
Thursday, March 11 Abbotsford Ramada Plaza, 36035 North Parallel Rd. 12-1 p.m
Tuesday, March 23 Kelowna Delta Grand Okanagan Resort and Conference Centre, 1310 Water St. 12-1 p.m
Wednesday, March 24 Prince George Ramada Inn, 444 George St. 12-1 p.m