Commissioner Of Canada Elections
Canada Elections Act
This notice is published by the Commissioner of Canada Elections, pursuant to section 521 of the Canada Elections Act, S.C. 2000, c. 9.
On February 18, 2021, the Commissioner of Canada Elections entered into a compliance agreement with Mr. Robert Gibbs, pursuant to section 517 of the Canada Elections Act. The text of the compliance agreement is set out in full below.
February 25, 2021
Pursuant to section 517 of the Canada Elections Act (the Act), the Commissioner of Canada Elections (the Commissioner) has entered into this compliance agreement with Mr. Robert Gibbs (the Contracting Party) aimed at ensuring compliance with the Act.
The relevant provisions of the Act are paragraphs 368(1)(a) and (b), which prohibit any person or entity:
- from circumventing or attempting to circumvent the prohibition, at subsection 363(1) of the Act, against a person or entity—other than an individual who is a Canadian citizen or a permanent resident—making political contributions to a candidate; and,
- from acting in collusion with another person or entity for that purpose.
Paragraphs 497(1)(e) and (2)(e) of the Act make it, respectively, a strict liability and an intentional offence for a person or entity to contravene either of paragraphs 368(1)(a) or (b).
Statements by the Contracting Party
For the purpose of this compliance agreement, the Contracting Party acknowledges the following:
- The Contracting Party is the co-owner of Romar Communications Ltd., that was incorporated in British Columbia on July 6, 2009.
- During the 42nd federal general election, which was held on October 19, 2015, the Contracting Party intended for Romar Communications Ltd. to make a contribution to the campaign of the New Democratic Party of Canada candidate for the electoral district of New Westminster—Burnaby, by providing the campaign, without charge, with website development services.
- Since subsection 363(1) of the Act prohibited Romar Communications Ltd. from making such a non-monetary contribution, the Contracting Party arranged for the company to hire three individuals to perform the work.
- Unbeknownst to them, these three individuals’ work was represented by the Contracting Party to the campaign as being performed by volunteers, after working hours.
- The three individuals, however, each received a $1,000 cheque from Romar Communications Ltd. as payment for their services. The Contracting Party issued these cheques from a bank account belonging to Romar Communications Ltd.
- The commercial value of the services provided by Romar Communications Ltd. to the campaign through these three individuals has been assessed as being approximately $6,000. Indeed, a non-monetary contribution is defined in the Act as being the commercial value of, among other things, a service, other than volunteer labour, which is provided without charge or at less than its commercial value.
- Since the three individuals were partly paid by Romar Communications Ltd. for their work, and no part of the work was paid for by the campaign, the work they performed for the campaign was not, therefore, volunteer labour.
- Instead, without its knowledge, the campaign received a benefit of a value of some $6,000 from Romar Communications Ltd., and the Contracting Party thereby circumvented the prohibition at subsection 363(1) of the Act against Romar Communications Ltd. contributing to the campaign.
- The Contracting Party acknowledges and accepts responsibility for failing to comply with these requirements of the Act.
- The Contracting Party understands that acknowledgement of non-compliance does not constitute a guilty plea in the criminal sense and that no record of conviction is created as a result of admitting responsibility for acts that could constitute an offence.
- The Contracting Party acknowledges that the Commissioner has advised him of his right to be represented by counsel and that he has had the opportunity to retain and instruct counsel.
Factors considered by the Commissioner
In entering into this compliance agreement, the Commissioner took into account the factors described in section 32 of the Compliance and Enforcement Policy of the Commissioner of Canada Elections. In particular, the Commissioner considered the following factors:
- The Contracting Party cooperated with the investigation;
- The Contracting Party has no past history of non-compliance with the Act;
- The Contracting Party admitted his wrongful actions;
- The payment of an amount to the Receiver General for Canada (Receiver General) as a term and condition of the compliance agreement ensures a swift and efficient resolution of the matter.
In determining what would constitute the appropriate terms and conditions of this compliance agreement, the Commissioner also considered the following findings of the investigation that was carried out on this matter:
- Volunteer labour is not reported under the requirements of the Act. That said, despite having being told by the Contracting Party that work with a value of some $6,000 had been performed as volunteer labour, the candidate’s official agent reported three non-monetary contributions of $2,000 from each of the individuals who performed the work, in the candidate’s electoral campaign return submitted to Elections Canada.
- Since an individual’s contribution limit in 2015 was $1,500, the reported $2,000 contribution from each individual would have represented $500 over-contributions, for a total of $1,500 in such over-contributions.
- In an attempt to correct this alleged over-contribution, the candidate’s official agent paid back $1,500 to the Contracting Party, with the understanding that he would provide $500 to each of the three individuals who performed the work. The Contracting Party kept that money and did not pay it over to them.
- In accordance with the Act, the total value of a non-monetary contribution received from an entity that is ineligible to contribute must be paid to the Receiver General, and is not returned to the contributor.
Terms and conditions
In accordance with subsection 517(2) of the Act, the Contracting Party undertakes to pay, to the Receiver General, a total amount of $7,500, representing the sum of the following:
- $6,000, representing the value of the benefit received by the campaign; and
- $1,500, representing the amount paid back by the campaign to Romar Communications Ltd. with the understanding that each of the three individuals would be paid $500, which was never remitted to them.
The Commissioner agrees that the fulfillment by the Contracting Party of the terms and conditions described in this compliance agreement will constitute compliance with the agreement.
The Contracting Party consents to the publication of this compliance agreement on the Commissioner's website in accordance with section 521 of the Act.
The Commissioner and the Contracting Party recognize that once this compliance agreement is entered into, the Commissioner will be prevented from laying charges against the Contracting Party for the same facts, unless there is non-compliance with the terms of the compliance agreement, as provided for in subsection 517(8) of the Act.
In accordance with section 508.1 of the Act, a Contracting Party who fails to comply with a provision of a compliance agreement commits a violation, and may be subject to an administrative monetary penalty.
Signed by the Contracting Party in the city of Victoria, in the province of British Columbia, on this 8th day of February 2021.
Signed by the Commissioner of Canada Elections in the City of Gatineau, in the Province of Quebec, on this 18th day of February 2021.
Yves Côté, QC
Commissioner of Canada Elections