Kitchener-Waterloo

Want people to vote? Municipal law experts explain incentive rules

Experts in municipal law say candidates in Waterloo region should think twice before offering voting incentives. They're illegal under the Municipal Elections Act.

You can encourage people to vote, says lawyer Eric Davis, you just can't offer an incentive

After saying it would offer free admission to voters, the City of Kitchener informed TheMuseum its offer violated the Municipal Elections Act. (Joe Pavia/CBC)

Experts in municipal law say candidates in Waterloo region should think twice before offering voting incentives.

"The Municipal Elections Act is incredibly strict," said Eric Davis, a partner with Miller Thomson law firm in Waterloo. 

"It's perfectly fine to encourage people to vote ... but if there's any type of financial or other inducement to have them do that, that's when you're going to run into problems."

Voting incentives became an issue in the run-up to the 2018 municipal election, when TheMuseum in downtown Kitchener offered free admission to anyone who cast a ballot.

Violation of Municipal Elections Act

The City of Kitchener quickly informed them that their act of civic engagement contravened Section 90 of the Municipal Elections Act, which states that "no person shall, directly or indirectly, offer give, lend, or promise or agree to give or lend any valuable consideration, in connection with the exercise or non-exercise of an elector's vote."

Davis pointed out that the act says incentives cannot be tied to voting, period. It doesn't matter whether the individual providing the incentive is backing a particular candidate or not.

Free T-shirts and $2 drinks

According to this definition, Davis says a voting movement in Waterloo has also run afoul of the act for offering student voters free T-shirts and $2 drinks.

The offers, which were traced back to Toronto-based company XL Lifestyle, came to the attention of City of Waterloo Clerk Olga Smith a week before the election. 

Smith said she reported the activity to Waterloo regional police. Since then, the student website has been taken down.  

A screen shot of the Student Voting Movement website, which was promising student voters free T-shirts and $2 drinks. (http://xlifestyle.com/)

"People may say, 'Well, how am I going to be influenced by a T-shirt?'" Davis said. "But, ultimately, any sort of gift or trinket or consideration could very easily be viewed as a contravention of the act."

The fact that the $2 drinks were to be sold at establishments owned by a candidate in the City of Waterloo election adds an element of interest to this situation, but — again — Davis said it's the incentive alone that makes it a violation. 

Robert Williams, professor emeritus in the political science department at the University of Waterloo agrees, saying "there should not be any kind of an incentive offered to somebody for participating in the election."

Plenty of grey areas

But things are not always so cut-and-dried. 

On Oct. 7, Centre Wellington mayoral candidate Kelly Linton said he would give away a $50 restaurant gift certificate to the two people who received the most likes for an Instagram photo that showed them doing something related to his election campaign.

Kerri O'Kane, the clerk for Centre Wellington, told CBC News that she has received complaints about Linton's $50 incentive, but has not had the opportunity to respond or investigate. 

She said she would get to the complaints "in due course," but her priority is first finalizing the election results.

Williams said this incentive is a "step removed" from the actions that got TheMuseum in Kitchener and the students in Waterloo in trouble.

"It's not necessarily about a vote," he said. "But the assumption is that if you participate in this activity, you will receive something of value. And it is related to an election campaign and I suppose the goal would be to try to influence voters to vote in a certain way."

Davis, on the other hand, believes the candidate is on fairly solid ground, because he is not trying to influence the voter in any way. 

"It's not encouraging people to vote or not vote and it's not, arguably, even encouraging people to vote for the candidate themselves," he said.

General set of expectations

Rides to polling stations are another grey area. Williams says candidates have been giving residents a lift to the nearest poll for decades, but the practice may need to be re-examined. 

He said the rides "bother him," but he still needs to think through why they bother him and whether it's because they violate the act. 

In the end, he said the Municipal Election Act doesn't get into specifics and that's for a very good reason. 

"Legislation can't deal with every eventuality," he said. "It's setting out a general set of expectations and then it's up to election officials to interpret the way a particular initiative fits into the legislation." 

He said the act's job is to clarify what lawmakers want to discourage. It's up to the municipalities to do the rest.