Inquiry: Subsection 482(b) of Canada Elections Act

  ► What’s New

  ► David Emerson

  ► Legal Aspects

  ► Legal Links

  ► Downloads

  ► Home

[History of the inquiry]

[About Subsection 482(b)]

[Comments by Dan Fass]

The second legal initiative launched that related to David Emerson’s switch of parties was:

• Did David Emerson violate Subsection 482(b) of the Canada Elections Act?

History of the inquiry

On 12 February 2006, Vancouver citizen Dan Fass wrote to Jean-Pierre Kingsley, Chief Electoral Officer of Elections Canada, to ask if newly-elected MP David Emerson had violated Subsection 482(b). On 20 February, the inquiry was redirected to Raymond A. Landry, Commissioner of Canada Elections, who enforces the Act. Materials used in the request are available for download.

On 21 March, Fass received a letter from Senior Counsel to the Commissioner of Canada Elections, dated 15 March. In the letter, Senior Counsel says:

The available information concerning Mr. Emerson’s decision to change party affiliation indicates that his decision was made after the federal election of January 23, 2006.

In this circumstance, a violation of para 482(b) of the [Canada Elections] Act cannot have occurred. Since you have not provided this Office with information of false representations made by or on behalf of the candidate before the voting took place and which the candidate knew to be false, there is no basis to conclude that a breach of the Act has been committed, and the Commissioner has no alternative but to close his file on this matter.

The full text of Senior Counsel’s letter can be found in the download section of this site.

Subsection 482(b) states in edited form in English and French that:

482.   Every person is guilty of an offence who

482.     Commet une infraction quiconque :

(b)  by any pretence or contrivance ... induces a person to vote or refrain from voting or to vote or refrain from voting for a particular candidate at an election.

(b)  incite une autre personne à voter ou à s’abstenir de voter ou à voter ou à s’abstenir de voter pour un candidat donné par quelque prétexte ou ruse.

(Here is the full text of Section 482 in English and French.)

To clarify, Subsection 482(b) specifies four instances in which it is an offence to induce a person “by any pretence or contrivance” (“donné par quelque prétexte ou ruse”) to:

1. vote
2. not vote
3. vote for a particular candidate
4. not vote for a particular candidate.

Instances 1 and 2 are general cases; instances 3 and 4 are particular ones. Instance 1 is about inducing a person to cast a vote, but not for anyone in particular. Instance 2 is about inducing a person to not cast their ballot. Instance 3 is the most straightforward case. Instance 4 includes, for example, strategic voting.

Note that political campaign is aimed at inducing a person to vote, but not “by any pretence or contrivance.” Look up these words (and their French equivalents) in a dictionary. Here are links to some online definitions of:

• “pretence” at the Merriam-Webster Dictionary, WordNet, and dictionary.net.

• “contrivance” at the Merriam-Webster Dictionary, WordNet, and dictionary.net.

I appreciate Elections Canada’s thoughtful and quite lengthy response to my query. It is notable that Senior Counsel did not seem to attach any value to the three affidavits, referring to them only in the first paragraph of her 15 March letter.

However, Senior Counsel’s reply is helpful in a number of ways. The reply:

• Sets out the Commissioner of Canada Election’s view of what the grounds would be for a violation of subsection 482(b) to occur.

• Says that the Commissioner did look at “[t]he available information concerning Mr. Emerson’s decision to change party affiliation.”

• Represents a legal opinion on the Canada Elections Act by the Government of Canada, and presumably has serious legal status.

• Suggests that the Canada Elections Act is a relevant frame of reference for debating David Emerson’s switch of parties

► More on the request for an opinion about Subsection 482(b): A comparison with the inquiry into Section 8 of the House of Commons Conflict of Interest Code.