Home > Publications > A fond farewell to Kafka

The Fair Elections Act received Royal Asset on 19 June 2014.  Among many other changes, this statute creates new identification and reporting requirements for “voter contact calling services”.  The new law will come into effect (ie, become enforceable) the next time that Parliament is dissolved – in other words, before the next Federal election (expected as early as March 2015).

‘Voter contact calling services’ (VCCS) are services or businesses involving the making of live and/or automated calls “during an election period for any purpose related to an election”.  The phrase, “any purpose related ….” is not defined.

The Fair Elections Act sets out who can enter into agreements with VCCS, effectively removing anonymity from this process.  It requires VCCS agreements to be signed – by organizations’ official representatives, or by individuals in their own name, and to have proof of identification filed with the CRTC.

The Act requires the CRTC to create and enforce a new registration system for contacting voters.  The CRTC (or someone it delegates) must establish and maintain a “Voter Contact Registry” and keep all documents received from VCCS, their clients and third-party organizations and groups.

Registration must take place within two days of the first call that is made.  Clients that hire VCCS, and VCCS that are hired to provide voter contact calling services, must register with the CRTC within 48 hours of making their first call, and give the CRTC the VCCS’ name, the client’s name, “the type of calls to be made under the agreement” as well as the identification required by the CRTC. If the information provided is incomplete, it is deemed not to have been made, which presumably constitutes a violation.

Every breach of these prohibitions or requirements will constitute a violation, subject to administrative monetary penalties of up to $1,500 for an individual, or up to $15,000 for a corporation. (While not stated, this may mean that each offending call will trigger an AMP, not just a single call made to many individuals.  Since automated dialing machines can reach thousands of people in just a few minutes, the total fines could be very high.)

The Act gives the CRTC some discretion when it comes to setting the size of an AMP.  The CRTC asked about the factors it should consider when imposing an AMP:

  • The nature of the violation
  • The number and frequency of complaints and violations
  • The relative disincentive of the measure
  • The potential for future violations
  • The person or group’s previous history with respect to any previous violations, and the
  • Ability to pay the AMP.

FRPC argued that

  1. the CRTC’s regulations for the new VCR regime must be very clearly written, because the parties that will be subject to these rules are likely to be inexperienced with the CRTC’s practices, procedures and precedents.
  2. The CRTC should define each term on which its determinations rely, even if Parliament has not defined those terms itself. Clear, published definitions provide opportunities for education, encourage compliance, and enable the courts to understand the CRTC’s reasons.
    One term that requires definition is “any purpose related to an election”:  if too broadly applied, it will capture broadcasters, other media and academic institutions that commission surveys about important electoral issues during an election.
  3. The CRTC should clarify its approach to the use of documentation it receives from VCR registrants. For instance, unions rarely publish details of their correspondence with their members – if the CRTC obtains that information, what will the Commission do with it?
  4. The CRTC should publish the facts surrounding each factor assigned for consideration in administrative enforcement actions. Setting out these facts promotes objectivity, predictability and consistency, all of which serve the public interest; publication of the facts on which its decisions are based helps the public to know that the CRTC is acting reasonably, rather than arbitrarily.  In particular, the CRTC should clearly describe how it will calculate the number of violations, whether the breach of one rule is more serious than the breach of another, and the per-violation fine for first, second and subsequent breaches.
  5. Last, the CRTC should deploy education and outreach initiatives for the Voter Contact Registry in the same way that it issues information bulletins about election broadcasts at the beginning of each election. The CRTC should  provide a mechanism for interested parties to register in advance of, or during, election periods to obtain information about the VCR. When the federal writs drop, the CRTC should contact previous violators to remind them about the consequences of repeat violations, and to promote compliance.