Commissioner of Canada Elections Annual Report 2016-2017
The Year in Review: 2016-2017
In November 2016, the Government introduced Bill C-33, which, if adopted, would make a number of changes to the Act including several that could have a direct effect on the CCE.
In 2014, with the adoption of amendments to the Act, the CCE was transferred to the Public Prosecution Service of Canada (PPSC). The implementation of Bill C-33 would move the Office back so that would be within the Office of the Chief Electoral Officer. The proposed legislation would also see the Commissioner appointed by the Chief Electoral Officer, following consultation with the Director of Public Prosecutions, for a term of ten years. The Commissioner currently serves a seven-year term and is named by the Director of Public Prosecutions.
The bill also contains new reporting requirements for the CCE. These include the publication of:
- an annual report in the manner and form the Commissioner considers appropriate; and
- a report outlining any amendments to the Act that would strengthen the compliance and enforcement regime, which report would be included in a separate section in the Chief Electoral Officer's report on recommended changes to the Act following a general election.
Recommendation Reports and Parliamentary Responses
An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election
In September 2016, the former Chief Electoral Officer tabled a report in Parliament containing 132 recommendations stemming from the October 19, 2015 general election.
In addition to recommendations in support of both the adoption of an AMPs regime and granting the Commissioner the power seek a court order to compel witness testimony—both of which have long-standing and well-documented support from both the Commissioner, the Chief Electoral Officer and the OSCEFootnote 1 —the report also made recommendations aimed at modernizing the Act and granting the Commissioner the use of additional mechanisms through which to ensure compliance and enforcement of the Act. Other notable recommendations include:
- Ballot selfies, the secrecy of the vote and social media
The Chief Electoral Officer and the Commissioner agreed that the addition of prohibitions on taking, disclosing or sharing a photograph or digital image of a marked ballot were necessary to guarantee the secrecy of the vote. This proposed change would apply to photographs taken of one's own ballot or that of another individual and would extend to social media platforms both during and after voting had occurred.
- Impersonation offence
At the request of the Commissioner, the report contains a recommendation that a new provision be added to include a specific offence for the creation and distribution of false candidate or party campaign communication material, including false websites or other online or social media content, with the intent to mislead electors.
- Authority of Commissioner to lay charges
Prior to 2006, the Commissioner had the power to lay charges in relation to his investigations. However, once the position of the Director of Public Prosecutions (DPP) was created, that power was removed from the Commissioner. The report recommends that the Act be amended to reinstate the Commissioner's ability to lay a charge under the Act. Removing the requirement for the Commissioner to seek the DPP's approval before laying charges would reduce delays and increase transparency in the decision-making process and increase public trust in the system. This recommendation would not change the role traditionally carried out by the DPP: he would continue to be solely responsible for the conduct of the prosecutions before the courts.
- Compliance agreements
Although compliance agreements are one of the compliance tools most frequently used by the Commissioner, the terms that can be negotiated as part of these agreements are currently extremely limited. For that reason, compliance agreements are often perceived as not carrying real consequences for offenders. The report recommends that the Act be amended so that the terms and conditions of a compliance agreement are broadened to allow for any measures or sanctions that are negotiated with the contracting party. It is important to note that if the Office was to administer an AMPs regime, the use of compliance agreements with negotiated AMPs would allow for the optimal use of these two compliance tools, as is provided for in many other federal regimes.
The full report, including each of the 132 recommendations can be found on Elections Canada's website at: www.elections.ca.
An Interim Report in Response to the Chief Electoral Officer's Recommendations for Legislative Reforms Following the 42nd General Election (Parts I and II)
In March 2017, the Standing Committee on Procedure and House Affairs tabled two interim reports that addressed some of the recommendations put forth by the Chief Electoral Officer.
The Standing Committee members expressed unanimous agreement with a number of key recommendations. Specifically, the Standing Committee supported the recommendations with respect to the inclusion of provisions that would protect the secrecy of the ballot and the distribution of false candidate or party campaign material. Standing Committee members also supported the creation of an AMPs regime.
As of March 31, 2017, other recommendations, including the one giving the Commissioner the power to apply to the courts for an order to compel witness testimony, were still being considered by the Standing Committee.
Both reports are available on the Standing Committee on Procedure and House Affairs page of the Parliament of Canada website at: www.parl.gc.ca.
Issues of Particular Interest
The Act covers a wide array of topics and some can pose compliance and enforcement challenges for the CCE. Throughout 2016-2017 a number of issues arose that, while they may not be the subject of a high volume of complaints, are worth underscoring. Parliament may wish to examine these issues with a view to making the legislative changes required to clarify these areas of the Act.
Many questions were raised in 2016-2017 regarding the participation of third parties—and the financing of their activities in particular—in the electoral process. Currently, the financing of third party activities is regulated only to the extent that the financing is used to fund election advertising during an election period. This is limited to expenses incurred in the production and transmission of an advertising message. It does not include many other types of expenses, such as those incurred for holding rallies, research and policy development, provided that they are independent expenditures not coordinated with a party or candidate. Given this, the following issues related to third parties have been identified:
- Third party activities and financing
The CCE received a significant number of complaints about third parties carrying out non-advertising activities to promote or oppose candidates or parties. A lack of regulation in the case of third parties incurring significant non-advertising expenses to promote or oppose candidates or parties may not be consistent with the need to maintain a level playing field. Further, complaints were received about third parties having received foreign funds to finance their election activities. Currently, foreign funds can be used to fund election advertising, if the contributions were made to the third party outside of the period beginning six months before the issue of the writs and ending on polling day. Moreover, foreign contributions can be used to finance any third party activity not related to election advertising.
- Election Advertising Reports from Third Parties
In 2016-2017, the CCE received a number of referrals from Elections Canada regarding third parties that failed to provide an election advertising report. The Act does not require registered parties to provide election advertising reports if they did not incur election advertising expenses. The CCE does not know whether a third party is in breach of the Act's reporting requirement until after it looks into the matter. Absent a requirement that all registered third parties provide a report, even a nil report, there will continue to be unnecessary referrals from Elections Canada and unnecessary investigations carried out by our Office.
- False and misleading returns
The Act requires that third parties that incurred $500 or more in election advertising expenses submit an election advertising report to the Chief Electoral Officer within four months of polling day, which report must contain specific information about expenses incurred and contributions received, among other things. During 2016-2017, the CCE received complaints alleging that certain third parties had not submitted accurate election advertising reports with respect to their activities during the 42nd general election. Contrary to the rules that apply to the various returns required of the five political entities regulated under the ActFootnote 2, the legislation does not make it an offence for a third party to submit a false, misleading or incomplete report. This should be corrected.
Replacing the Official Agent
Obtaining compliance in some cases where an official agent has failed to submit the candidate's return has been very difficult because the official agent considered themselves to be unable or unwilling to act. The requirement for a candidate to replace his or her official agent currently only arises in the event of the death, incapacity, resignation or ineligibility of the official agent. In some cases, compliance could be much more quickly obtained if the candidate was required to replace his or her official agent where the latter refuses or is unable to act.
Transfer or sale of capital assets
The Act requires candidates to transfer any capital assets that constitute an election campaign expense, to the party or association before disposing of the surplus. Alternately, they may sell the property at fair market value and transfer the proceeds to the party or association as part of surplus disposal. However, the wording in the Act expressly prohibits anyone but the official agent from transferring goods. Although the intent was likely to refer to the candidate in the context of "the campaign of the candidate" when the duty to dispose of the capital asset was adopted—and that is clearly the best interpretation of the provision considering that the offence provision only names the official agent as the person who commits the offence—the ambiguity of the text could create an enforcement challenge.
Candidates' campaign expenses
In 2016-17, referrals were received that showed that certain candidates had paid campaign expenses other than their personal expenses. Currently, the Act only allows for campaign expenses to be paid by the candidate's official agent except in two specific instances: (1) a person authorized by the official agent can pay petty expenses; and (2) the candidate can pay his or her personal expenses. The Act also only allows the candidate, the official agent or a person authorized by the official agent to enter into contracts or incur expenses in relation to the campaign. Parliament chose to make all of these rules enforceable through the adoption of a single offence-making provision. Unfortunately, this provision contains several important drafting anomalies that create enforcement difficulties. Specifically, the offence provision:
- does not exempt from its application a person who received written authorization from the official agent to pay petty or incidental expenses;
- completely exempts any person who paid or incurred expenses, provided that they obtained an authorization from the official agent to incur even a single expense; and
- completely exempts a candidate who paid non-personal expenses, despite the fact that the exception to the prohibition was only intended to apply to the payment of personal expenses (i.e., the only expenses that candidates are entitled to pay).
Compliance and Enforcement
The integrity of the electoral process depends in large measure on the good faith of participants and their willingness to follow the requirements set out in Canadian election law. The Commissioner's mandate reinforces and strengthens oversight of the electoral system, ensuring that all participants can confidently participate in the electoral process. The Compliance and Enforcement Policy of the Commissioner of Canada ElectionsFootnote 3 outlines how the Commissioner exercises his mandate under the Act.
Caution letters are an informal means of encouraging future compliance with the Act. Between April 1, 2016, and March 31, 2017, the Commissioner issued 175 caution letters to address minor contraventions or inadvertent non-compliance. Currently, caution letters are not made public. However, in order to ensure greater transparency and maintain public confidence in the integrity of the enforcement scheme, Parliament may wish to consider providing the Commissioner with the discretion to publicly disclose the contents of some of these letters.
The Act provides that the Commissioner may enter into a compliance agreement with anyone who he has reasonable grounds to believe has committed, is about to commit or is likely to commit an act or omission that could constitute an offence. Compliance agreements are voluntary and set out the terms and conditions the Commissioner considers necessary to ensure compliance with the Act.
Between April 1, 2016 and March 31, 2017, the Commissioner entered into ten compliance agreements:
- Four compliance agreements were entered into with employers who had failed to either provide their employees with time off to vote or who had failed to pay employees for the time off work necessary during their hours of work to vote. The Act requires that employers provide the time required for the employee to dispose of three consecutive hours to vote and that no deduction can be made from an employee's pay with respect to time granted to vote.
- Two compliance agreements were entered into with individuals who removed ballots from a polling station. The Act makes it an offence for a person to alter, deface or destroy a ballot, or to take a ballot out of a polling station.
- One compliance agreement was entered into with a company for illegal contributions made to political entities. The Act specifically prohibits any person or entity other than an individual who is a citizen or permanent resident from making a contribution. Further, it prohibits any person or entity from circumventing or attempting to circumvent this prohibition or acting in collusion with another person or entity for this purpose or from concealing or attempting to conceal the identity of the source of a contribution, or acting in collusion with another person or entity for this purpose.
- One compliance agreement was entered into with a municipality for removal of a third party's election advertising messages during the campaign period of the 42nd general election. Under the Act, it is an offence to prevent or impair the transmission of an election advertising message to the public without the consent of a person with the power to authorize the transmission.
- One compliance agreement was entered into with an individual who acknowledged having committed offences under the Act related to the production and dissemination of election advertising after he created and displayed his own signs in a personal effort to support a candidate in the 42nd general election. The signs created confusion and led some to believe that they belonged to the candidate. The Act requires that a third party advertiser must identify itself in any election advertising and indicate that it has authorized the advertising. Further, the Act makes it an offence to prevent or impair the transmission of an election advertising message without the consent of a person with authority to authorize the transmission.
- One compliance agreement was entered into with a political party on the basis of the party's distribution of misleading polling information. The Act makes it an offence to use a pretence or contrivance to induce electors to vote or not vote for a particular candidate. It is also an offence to fail to provide a survey's methodological information.
Compliance agreements are published in the Canada Gazette. The full text of the agreements also appears on the CCE's website at: www.cce-cef.ca
Charges and Prosecutions
If the Commissioner believes on reasonable grounds that an offence has been committed under the Act, he may refer the matter to the DPP, who has sole authority to decide whether charges will be laid. The DPP acts as an independent prosecution authority, with a mandate to prosecute cases under federal law and to provide legal advice to investigative agencies.
Two charges were laid on January 18, 2017 in the Provincial Court of New Brunswick against Mr. Martial Boudreau. The charges against Mr. Boudreau relate to wilfully altering, defacing or destroying a ballot, and taking a ballot out of a polling station.
On February 3, 2017, a charge was laid against Mr. Cameron Hastings in the Ontario Court of Justice. Mr. Hastings was charged with circumventing the former statutory contribution limit in relation to his electoral campaign for the general election in 2011.
Five charges were filed in the Provincial Court of Nova Scotia on March 16, 2017, against Mr. Joseph Shannon, regarding contributions to registered associations and candidates of registered parties. These contributions, made between January 1, 2008 and December 31, 2015, exceeded the contribution limits established under the Act.
As of March 31, 2017 all three of these cases were still before the courts.
On May 20, 2016, the Ontario Court of Justice found Mr. David Del Mastro not guilty of the charges that were sworn on October 2, 2014, that he had, during the 40th general election held in 2008, knowingly concealed or attempted to conceal the identity of the source of a contribution, and knowingly circumvented the campaign contribution limit. As reported last year, his co-accused, Ms. Tori-Lynn Manchulenko, pleaded guilty to having concealed or attempted to conceal the identity of the source of a contribution, on January 29, 2016, and received an absolute discharge.
On April 11, 2016, a justice of the Ontario Court of Appeal granted leave to appeal to Mr. Dean Del Mastro, with respect to his conviction and sentence for the charges of having incurred election expenses in an amount more than the election expenses limit; of having wilfully exceeded the contribution limit for a candidate in his own election campaign; and of having provided the Chief Electoral Officer an electoral campaign return that he knew or ought reasonably to have known contained a material statement that was false or misleading. At the time of the writing of this report, the appeal was still pending.
Written Opinions, Guidelines and Interpretation Notes
Under the Act, the Commissioner is required to provide comments on draft written opinions, guidelines or interpretation notes proposed by the Chief Electoral Officer.
Guidelines and interpretation notes discuss the application of a provision of the Act to registered parties, registered associations, candidates, and/or leadership or nomination contestants (referred to collectively as "regulated political entities"). A guideline or interpretation note is issued for information purposes only and is not binding on regulated political entities. Under the Act, the Commissioner has 15 days to comment on the drafts of these documents. When the guideline or interpretation note is officially issued, the Chief Electoral Officer must publish the comments received from the Commissioner on the draft version.
Similar requirements exist when a registered party makes a request to the Chief Electoral Officer for a written opinion on the application of any provision of the Act. Here also, the Commissioner has 15 days to make comments on a draft opinion, and these comments are published along with the final written opinion. If all material facts submitted with the request were accurate, the final written opinion is binding on the Chief Electoral Officer and on the Commissioner with respect to the activity or practice of the registered party that made the request or of its affiliated regulated political entities. The written opinion has precedential value for the Chief Electoral Officer and the Commissioner.
During 2016-2017, the Chief Electoral Officer issued one guideline and interpretation note, and at the request of a registered party, issued one written opinion. The CCE provided comments on the drafts that were circulated for consultation. The guideline and interpretation note issued by the Chief Electoral Officer during this period dealt with the issue of determining what portion of an amount given during a fundraising activity constitutes a political contribution.Footnote 4 The written opinion requested by the registered party dealt with the issue of whether a registered party could charge exhibitors at a trade show or exhibit facilities set up at its conventions.Footnote 5
Return to source of Footnote 1 Organization for Security and Cooperation in Europe: OSCE/ODIHR Election Assessment Mission - Final Report.
Return to source of Footnote 2 These are: registered parties, registered associations, nomination contestants, candidates and leadership contestants.
Return to source of Footnote 5 Charging for trade show or exhibit facilities and setup at a party convention: http://www.elections.ca/content.aspx?section=res&dir=gui/app/2016-06&document=ts&lang=e