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 April 7, 2017, the Commissioner of Canada Elections entered into a compliance agreement with the Progressive Canadian Party, pursuant to section 517 of the Canada Elections Act. The text of the compliance agreement is set out in full below.
April 7, 2017
Yves Côté, QC
Commissioner of Canada Elections
Pursuant to section 517 of the Canada Elections Act (the Act), the Commissioner of Canada Elections (the Commissioner) and the Progressive Canadian Party (the Contracting Party) enter into this agreement aimed at ensuring compliance with the Act.
The provisions of the Act that are applicable are section 400 and paragraph 497.1(1)(b), as well as subsection 408(2) and paragraph 497.1(3)(e).
Pursuant to section 400 and paragraph 497.1(1)(b), it is an offence for a registered party to fail to appoint a replacement without delay when its chief agent becomes ineligible. Pursuant to the same provisions, it is also an offence for a registered party that has appointed a replacement to fail to inform the Chief Electoral Officer of the appointment within 30 days of the appointment. Moreover, pursuant to subsection 408(2) and paragraph 497.1(3)(e), it is an offence for a registered party to provide false or misleading information about the validity of their registration information at the beginning of a general election, and annually, in the statements to the Chief Electoral Officer required under paragraphs 406(1)(a) or 407(1)(a) of the Act.
Statements of the Contracting Party
For the purpose of this compliance agreement, the Contracting Party acknowledges the following:
- Mr. Allen C. Gullon, chief agent for the Progressive Canadian Party, is authorized to enter into this compliance agreement on behalf of the Contracting Party.
Failure to appoint a new chief agent
- The MacDonald–Cartier Fund Inc. was the Contracting Party's chief agent until June 19, 2015, on which date it was dissolved and ceased to exist as a corporate entity. Upon its dissolution, it ceased being a legal person with full capacity to enter into contracts. It therefore became ineligible to act as agent of a registered party by virtue of paragraph 397(2)(f) of the Act.
- Since the dissolution of the MacDonald–Cartier Fund Inc. and until January 7, 2017, the Contracting Party failed to appoint a new chief agent. This is contrary to subsection 400(1) of the Act, which provides that a registered party must appoint a replacement without delay in the event of the death, incapacity, resignation or ineligibility of its chief agent, or of the revocation of the appointment of one.
- On January 8, 2017, the Contracting Party appointed Allen Gullon as chief agent.
- The Contracting Party informed the Chief Electoral Officer of the appointment of Mr. Gullon as chief agent only on February 23, 2017. This contravenes subsection 400(2) of the Act, which provides that a registered party that appoints a new chief agent in replacement of the party's former chief agent must, within 30 days following the appointment of the replacement, inform the Chief Electoral Officer of the appointment.
- The chief agent of a registered party is responsible for administering the party's financial transactions and for reporting on those transactions, including filing the registered party's annual financial transactions return and its election expenses returns with the Chief Electoral Officer.
- In addition, only the chief agent and authorized registered agents of a registered party can incur expenses, accept contributions and loans, and accept and make transfers, on behalf of the registered party.
- The Act's political financing regime, as it relates to registered parties, therefore imposes certain obligations and prohibitions on chief agents and registered agents, who are responsible in the event that they are contravened. If the position of chief agent remains vacant, a lack of accountability arises with respect to certain instances of non-compliance with the Act's requirements.
- For instance, the failure of the Contracting Party to comply with the requirement to appoint a replacement chief agent without delay hid the fact that the party's annual financial transactions return for fiscal year 2015, as well as its election expenses return for the 42nd general election, were not compliant with the Act's requirements. Indeed, they were not accompanied by declarations by the chief agent that the returns were complete and accurate. While they did include declarations by the former chairman of the defunct MacDonald–Cartier Fund Inc., Elections Canada had no way of knowing that this individual was no longer signing the returns on behalf of an eligible chief agent. This has meant that there is no accountability for the non-compliance, since any offence for having contravened the provisions that require that the annual financial transaction return and the election expenses return be accompanied by a declaration by the chief agent, is committed by the chief agent; the person who filed the returns in the present case and who signed the declarations was not acting on behalf of a "chief agent."
- The lack of accountability resulting from the failure to comply with subsection 400(1) of the Act is also illustrated by the fact that the Act's rules on the acceptance of loans at section 373 are based on the premise that the loan is accepted by a registered agent of the party, which includes the party's chief agent. In his erstwhile capacity as chairman of the MacDonald–Cartier Fund Inc., the former leader of the party, who is now deceased, could borrow money on behalf of the chief agent. When the MacDonald–Cartier Fund Inc. was dissolved, however, it ceased being the party's chief agent, and unless he was also a registered agent of the party, the former chairman was no longer entitled to accept loans. Yet, in the present case, in July and September 2015, the former chairman of the then-defunct MacDonald–Cartier Fund Inc., who was not himself a registered agent of the party, accepted total loans of an amount that exceeded the allowable limit by $3,000. Section 373 prohibits a registered agent from accepting such loans. The offence for having contravened subsection 373(2), however, would not apply to the former chairman of the MacDonald–Cartier Fund Inc., since he was not a registered agent of the party and was not acting on behalf of the party's chief agent. There is therefore no accountability for the fact that the party received these excessive loans.
False or misleading information with respect to confirmation of the validity of a party's registration information
- On August 10, 2015, for the purpose of the 42nd federal general election and as required by section 406, the Contracting Party submitted a statement certified by its leader indicating that information concerning the party contained in the registry of political parties at that time—including the mention that the MacDonald–Cartier Fund Inc. was the Contracting Party's chief agent—was valid. The MacDonald–Cartier Fund Inc., however, had already been dissolved and was no longer eligible to be the Contracting Party's chief agent.
- Moreover, on June 29, 2016, as part of its annual confirmation of registration required by section 407, the Contracting Party submitted a statement certified by its leader indicating that information concerning the party contained in the registry of political parties at that time—including the mention that the MacDonald–Cartier Fund Inc. was the Contracting Party's chief agent—was valid.
- Pursuant to subsection 408(2) of the Act, a registered party is prohibited from providing the Chief Electoral Officer with statements confirming the validity of its registration information that contain false or misleading information.
- Information contained in the registry of political parties must be accurate and up-to-date because it is relied upon by Elections Canada in determining whether the registered party is in compliance with the Act's requirements. As noted above, the Contracting Party's annual financial transactions return for fiscal year 2015, as well as its election expenses return for the 42nd general election, did not meet the Act's requirements, since they were not certified by the chief agent as being complete and accurate. Yet this fact was not apparent to Elections Canada because the information in the registry of political parties had not been updated.
- The Contracting Party acknowledges responsibility for these acts, and is now aware of the relevant provisions of the Act.
- The Contracting Party understands that its 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 constitute an offence under the Act.
- The Contracting Party acknowledges that the Commissioner has advised it of its right to be represented by counsel and that it had the opportunity to obtain counsel.
- The Contracting Party consents to the publication of this agreement in the Canada Gazette and on the Commissioner's website.
Factors considered by the Commissioner
In entering into this compliance agreement, the Commissioner took into account the factors set out in paragraph 32 of the Compliance and Enforcement Policy of the Commissioner of Canada Elections, which is available on the Commissioner's website at www.cef-cce.ca, including the fact that the Contracting Party co-operated fully, promptly, and in good faith in the Commissioner's investigation. In addition, the Commissioner considered the fact that the Contracting Party recently appointed a chief agent who has prepared and submitted to Elections Canada, on behalf of the Contracting Party, the election expenses return for the 42nd general election, as well as the financial transactions return for fiscal year 2015.
Undertaking and agreement
The Contracting Party undertakes to pay $3,000 to the lender's estate, representing the value of the excessive loans that were accepted by the former chairman of the MacDonald–Cartier Fund Inc. in July and September 2015, within 60 days of the signing of this compliance agreement. Also within this 60-day period, the Contracting Party further undertakes to pay to the lender's estate all interest owed on this $3,000 amount for the period of time since the loans were accepted. The Contracting Party undertakes to provide the Commissioner with proof of these payments as soon as they are made.
The Commissioner agrees that the fulfillment by the Contracting Party of the undertaking in this agreement will constitute compliance with the agreement.
Pursuant to subsection 517(8) of the Act, the Commissioner and the Contracting Party recognize that once this agreement is entered into, the Commissioner will be prevented from referring this matter for prosecution to the Director of Public Prosecutions unless there is non-compliance with the terms of this agreement, and in any event, the Director of Public Prosecutions cannot institute such a prosecution unless non-compliance is established.
Signed by the Contracting Party in the City of Gatineau, in the Province of Quebec, on this 6th day of April 2017.
Signature of Witness
Name and Address of Witness
Signed by the Commissioner of Canada Elections, in the City of Gatineau, in the Province of Quebec, this 7th day of April 2017.
Yves Côté, QC
Commissioner of Canada Elections