Commissioner of Canada Elections Annual Report 2021

Message from the Commissioner of Canada Elections

It gives me great pleasure to present my last annual report as Commissioner of Canada Elections (CCE). The following pages provide an overview of our key activities as well as issues that were of particular interest to us during 2021.

I would also like to focus on a few points that I think are particularly significant. Some of them relate to the year 2021, while others relate to my term as Commissioner.

The 2021 General Election

On the whole, last September's general election went very well, as can be seen below. Although most of our work was done from home, we were able to deal diligently with urgent issues that arose during the campaign.

It is worth noting that, unlike the previous general election (October 2019), when an entirely new regime had just been adopted to regulate the activities of third parties, we received far fewer complaints about this issue in 2021. This was likely due in large measure to the fact that the system had been fine-tuned and stakeholders had had a chance to familiarize themselves with the new rules.

Administrative Monetary Penalties

In 2019, amendments to the Canada Elections Act (the Act) came into effect, allowing for the adoption and implementation of an administrative monetary penalties (AMP) regime. This change, which our Office had been requesting for years, makes a significant difference and represents a real turning point for the CCE's compliance and enforcement work.

This is especially helpful at a time when criminal courts across the country continue to face huge caseloads and backlogs. The ability to impose monetary penalties on someone who, for example, has failed to file a financial return (which is critical to maintain transparency in our electoral system), without having to lay charges, is real progress.

Moreover, I am confident that the rate of compliance with the Act will only continue to increase as the ability of the Office to impose AMPs becomes better known. For that reason, and as I mentioned in my Recommendations Report, Parliament should make the AMP regime applicable to other provisions of the Act.

Illegal Voting

Parliament has seen fit to allow for the imposition of AMPs in cases of illegal voting (while maintaining the ability to lay criminal charges). I think this was a very good choice. It allows us to deal with these cases much more quickly.

I would like to take this opportunity to reassure Canadians on this issue. In my ten years as Commissioner, I have seen that, yes, there have been times when non-citizens have voted or have been suspected of voting, or individuals have voted more than once. However, I want to emphasize that this rarely happens and, in the vast majority of cases, there is no evidence of criminal intent.

For example, there have been cases where a permanent resident has voted because someone told them in good faith (albeit erroneously), that they could do so. Or, an individual who having passed their citizenship test, mistakenly believed that they were eligible to vote, when in fact it is only after taking the oath of citizenship that one becomes a Canadian (and therefore an elector). In other cases, what appeared to be a double vote was, in fact, the result of an administrative error: the person's name had been crossed off the list of electors by accident, giving the impression that they had already voted.

At no time have we identified any case where the outcome of the election in a particular electoral district was affected by fraudulent votes.

In short, there is no indication that there is a systemic problem with illegal voting in Canada.

That being said, we must remain vigilant and not hesitate to resort to criminal prosecution when the circumstances warrant it. In this regard, it is worth noting that we have laid charges in several cases of illegal voting in recent years. What may surprise many readers is the relative leniency that the courts have shown to offenders. For example, in two cases of double voting (see this final disposition and this other final disposition), the trial court granted the accused a conditional discharge with one year's probation and 75 hours of community service. The Crown appealed the sentence. Its appeal was dismissed. In another case of double voting, the same type of sentence was imposed: a conditional discharge with six months probation and 15 hours of community service.

The current legislative framework allows for the imposition of an AMP of up to $1,500 in cases of illegal voting. As a deterrent, this penalty compares favourably to sentences imposed by the courts for this offence.

Protection of Personal Information Held by Political Parties

The vast majority of Canadians have an expectation – and want minimum guarantees – that their right to privacy will be respected. However, and as is well known, the privacy regime currently applicable to federal political parties clearly does not meet citizens' expectations.

Changes made to the Act in 2019 are a step in the right direction. But it is a very timid step. For example, while parties are required to create a privacy policy, the Act does not specify the type of protection that parties must provide. Worse, it does not even contain a violation or offence for a party that failed to follow its own policy.

The wording regarding the permitted use of information contained in the list of electors has also not been updated to reflect practices in the social media age. As a result, the Act remains very permissive with respect to the use that parties may make of that personal information.

This means that, under the current legislative framework, very little can be done when electors come to us and express concerns or submit complaints about the use of their personal information by political parties. In this regard, it is worth noting that, in 2019, we received a complaint from the Centre for Digital Rights (CDR) raising this very issue. I dismissed that complaint given the weakness of the statutory provisions. The CDR initiated proceedings in Federal Court to challenge my decision and to force us to conduct a formal investigation. The Court dismissed the CDR's application in 2021 (file T-893-20).

The Chief Electoral Officer (CEO) 1 and the Privacy Commissioner of Canada, as well as others, have lamented the current situation and have made recommendations in this regard. This is also an issue that I raised in my 2018-2019 Annual Report.

In March 2022, the Office of the Privacy Commissioner of British Columbia concluded that federal political parties are subject to the Personal Information Protection Act 2. In Quebec, the Act to modernize legislative provisions as regards the protection of personal information received royal assent last September. As noted by the Chief Electoral Officer of Québec in his report 2021 Political Financing Report: Overview and Outlook (available in French only), when they come into force on September 2023, some of the provisions of this Act will "in part, subject political parties, independent Members and independent candidates to the Act respecting the protection of personal information in the private sector" and add "a specific regime for the protection of the personal information of electors in the Election Act." [translation] On the other side of the Atlantic Ocean, a similar trend is emerging. One example is the General Data Protection Regulation in Europe.

The winds of change are blowing harder and harder. It is high time Parliament acted and adopted a regime that is in keeping with the times and that meets the legitimate expectations of voters.

Goodbye and Thank You

Before I conclude, I would like to express my sincere thanks and deepest appreciation to all those in my office with whom I have had the pleasure of working over the past ten years. I have had the privilege of working with all kinds of dedicated, motivated people who believe deeply in our mission and who put their heart and soul into their work. I will miss having regular contact with them.

I would like to make special mention of the quality of the services and advice I received from Deputy Commissioner Marc Chénier. I benefited enormously from his vast experience and his unfailing support.

I would also like to express my sincere appreciation to the CEO and Elections Canada for their continued cooperation and support over the past years.

The Future

Canada is one of the very few democracies that has established and maintained an agency such as ours, with a completely independent mandate for the enforcement of electoral legislation. Indeed, no members of the political class, no public servants, not even the CEO can intervene in any way in our work. Moreover, the legislation guarantees the Office access to all the resources – financial or otherwise – that the Commissioner considers necessary to carry out its work. This is truly extraordinary.

As can be seen on our website, over the years, political parties, ministers, members of Parliament, influential and high-ranking individuals, and major corporations have been charged and found guilty, or have admitted to violations of the Act.

While one might well have feared that the opposite would happen, the Office's mandate and independence have been legislatively strengthened twice during my tenure, in 2014 and 2018.

I pay tribute to the governments and parliamentarians who proposed and passed these legislative changes. And I urge those who follow them to never stray down the opposite path.

I leave with the confidence that the entire team will continue to work as hard, and provide the same quality of support to the new commissioner as I have received over the years.

Yves Côté, QC

Footnotes

1 See, for example, Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43rd and 44th General Elections and the CEO's testimony at the meeting of the Standing Committee on Procedure and House Affairs of May 22, 2018.

2 An application for judicial review has been filed against this decision. This application is pending before the Supreme Court of British Columbia.

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