Opinions, musings, and ravings from the mind of John Percy

In the preamble up to a provincial election here in Nova Scotia, I would like to state that there are some troubling aspects in our newly revised Elections Act that will present a significant barrier to exercising our democratic rights as citizens.

One such issue has to do with the candidate filing fees required by Elections Nova Scotia. In the revised act, the filing fee doubled from $100 to $200. Filing fees have always been a deterrent to smaller parties, but a 100% increase in fees can be construed as an attempt to either bankrupt smaller parties or deter them from running a full slate of candidates. With 51 electoral districts this amounts to $10,200 that smaller parties are practically guaranteed to never see again.

Section 71 (ii) of the Nova Scotia Elections Act states that any party that receives less than 10% of the total vote will not have their filing fee reimbursed. Parties that receive more than 10% will be cheerfully refunded. Big parties win. Small parties lose. Too bad, so sad.

In other jurisdictions in Canada, this provision has been successfully challenged on Charter grounds, and struck down by the courts, including the Superior Court of Ontario.

From the Nova Scotia Elections Act:
Return of nomination deposit:
71 (1) The Chief Electoral Officer shall return the nomination deposit of a candidate to
(a) the candidate’s official agent if the candidate
(i) is elected,
(ii) receives not less than ten per cent of the valid votes cast in the electoral district in the election in which the candidate stood for election, or
(iii) dies before the close of the polls on election day;
or (b) the candidate’s official agent if nomination documents are superseded and withdrawn pursuant to Section 70.
(2) In all other cases, the Chief Electoral Officer shall transfer the nomination deposit to the Minister of Finance for deposit into the General Revenue Fund of the Province. 2011, c. 5, s. 71.

In recent years the Green Party of P.E.I. challenged the province to do away with a $200 deposit required by every candidate seeking a nomination in provincial elections – and the party was ready to take its fight to provincial court. The party retained a lawyer to challenge this provision in the Elections Act, saying the deposit discouraged new and third parties from getting involved in politics because paying money to participate in the electoral process is a deterrent to citizens participating fully in the democratic process. It took a lawyer’s letter and threat of court action to have it quickly and quietly changed.

The PEI amendment struck down an unconstitutional provision allowing government to seize the $200 candidate deposit from every candidate who does not get at least half as many votes as the winning candidate.

Similarly, Section 71 of the revised Nova Scotia Elections Act requires each candidate in a provincial election to post a deposit of $200, a 100% increase from the old Elections Act. Candidates will only have their deposit refunded if they are elected, die during the campaign, or if they receive at least 10% of the total votes cast. This is a direct assault on smaller parties with limited resources. Larger, well funded parties get their money back. Smaller parties do not.

Jurisdictions that require hefty deposits justify it by saying the deposit is put in place to ensure only serious candidates enter provincial elections, especially when so much administrative work goes into the nomination process. It shows that the candidate would have to be serious about running before they would pay that deposit.

But in a court case in Ontario, the judge said that there was no basis for those kinds of assumptions. He said in fact, frivolous candidates might actually be willing to spend a lot more than $200 to get a platform for themselves.

Similar provisions in Canada’s and Ontario’s election acts were held unconstitutional in two separate decisions of the Superior Court of Ontario in 1999 and 2007.  The courts found that such deposit requirements interfered with the rights of candidates and supporters of small parties to participate in elections and contravened the electoral fairness required by section 3 of the Canadian Charter of Rights and Freedoms.

The Supreme Court of Canada has also ruled that elections act requirements that interfere with the rights of smaller political parties to play a meaningful role in the electoral process contravene the Charter.

It would behoove this government to correct this situation before embarking on their campaign journey.

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