Meeting Summary – Annual General Meeting – October 6–7, 2014
Appendix C: OGI Process
In relation to scope, OGIs deal specifically with the application of the Act to political entities: registered parties, registered associations, nomination contestants, candidates and leadership contestants. It is anticipated that most OGIs will deal with questions related to political financing. It is important to note, however, that the CEO maintains formal, rule-making authority over legislated areas under his responsibility, such as the prescription of forms.
Written opinions are issued following a request from a registered party though its chief agent regarding a practice or an activity that the party or one of its political entities intends to undertake. Written opinions are binding on the CEO and the Commissioner of Canada Elections (the Commissioner). Requests can only be about a practice or activity of one’s own party, not about those of other parties.
EC can initiate guidelines and interpretation notes on its own or at the request of a registered party through its chief agent. These notes provide guidance on the application of the Act to political entities. Guidelines and interpretation notes are for information only.
The introduction of a formal process for OGIs presents important opportunities to help participants in the regulatory process (CEO, the Commissioner, political entities) to better understand each other’s realities and concerns. Also, the new mechanisms will enhance predictability and stability of the regulatory function. Participants will be on notice and informed of OGIs being proposed, processed and issued.
However, the regime as set out in Bill C-23 presents significant challenges:
- a. Misunderstandings: These may occur as a result of lack of clarity or insufficient factual basis with party requests for written opinions.
- b. Capacity and timelines: Parties and the Commissioner may not have the capacity to respond within the 15-calendar-day window for consultation. The decision-making hierarchy within parties can also prevent timely responses to sensitive issues. Finally, responding to requests within the 60–day limit will be challenging for EC in terms of producing documentation and online products in both languages at every step of the process.
- c. Competing priorities: Parties have different priorities and interests, which can impact their interest in participating and their capacity to participate in the process, and can vary the nature and volume of requests submitted. As a result, EC may be at the receiving end of multiple requests and have no authority to establish priorities or exercise any control over the forward agenda.
- d. Coherence between the CEO and the Commissioner: Disagreements between the CEO and the Commissioner exposed through the public consultation process would undermine the ability of the CEO or the Commissioner or both to effectively play their regulatory role.
Proposed solutions to address those challenges are as follows:
- Establish a secretariat within EC to coordinate the OGI process and provide parties with a point of contact for the process.
- Establish a steering committee of ACPP members to support the implementation of the process, including establishing a forward agenda, managing priorities and minimizing the risk of partisan misuse.
- Include a preliminary stage to clarify requests that come from political parties. The 60-day timeline would start once EC is satisfied that the request/question is clear and EC has all factual elements it needs to address the OGI.
- Engage the staff of the Commissioner early in the development stage of the OGI, prior to the formal 15-day consultation, in order to
- ensure that the Commissioner has the opportunity to signal matters that are before him and should not be the subject of an OGI
- reduce the risk of disagreements in the interpretation of the Canada Elections Act
- Maximize transparency by publishing
- along with the draft OGI, all relevant contextual information and considerations that inform EC's position (thus making public all relevant information)
- all comments submitted by political parties (in addition to those from the Commissioner), as well as the treatment of the comments by EC
- Finally, with respect to pre-existing mechanisms,
- the lawyer-to-lawyer hotline will remain unaffected; its operation during elections will continue to be critical, especially as the OGI process is suspended during events
- the green line support network will remain in place, but formal guidance will increasingly be provided through OGIs
After December 19, priority will be given to the handbooks for nomination contestants and candidates. Updated handbooks will include some clarifications to existing content as well as changes to reflect provisions introduced by Bill C-23. Two specific interpretation notes will also be proposed: the first on the definitions of campaign expenses for leadership and nomination contestants, and the second on the use of member of Parliament resources outside an electoral period.
For the EC-initiated OGIs, parties will be provided with draft documents at least 30 days prior to the start of the formal consultation period (of 15 calendar days).