Enforcing the Canada Elections Act
The Commissioner of Canada Elections
The Commissioner of Canada Elections is the independent officer whose duty is to ensure that the Canada Elections Act and the Referendum Act are complied with and enforced. The Chief Electoral Officer of Canada appoints the Commissioner under section 509 of the Act.
The current Commissioner, Yves Côté, was appointed in July 2012.
The Election Expenses Act of 1974, a series of amendments to the Canada Elections Act, created the position of Commissioner of Election Expenses, whose responsibilities were restricted to ensuring that the election expenses provisions of the Act were complied with and enforced. In 1977, the Commissioner's responsibilities were extended to cover all provisions of the Canada Elections Act.
Role of the Commissioner
Generally speaking, the compliance aspect of the Commissioner's role involves taking corrective action when the law is infringed. One aspect, for example, is ensuring that registered political parties, electoral district associations, leadership contestants, nomination contestants, candidates and all their agents, and referendum committees fulfill their obligations under the Act. These obligations include submitting financial returns and other documents by the deadlines specified in the Act.
Anyone with a complaint or allegation of wrongdoing should refer it to the Commissioner. Each complaint is reviewed to determine whether there is a basis for the allegation. When satisfied that there is substance to the complaint, the Commissioner may order an investigation. If the Chief Electoral Officer has reasonable grounds to believe that an election officer may have committed an offence, the Chief Electoral Officer directs the Commissioner to make the inquiries that are called for in the circumstances. The Commissioner retains the services of resource persons at the Ottawa office and across the country to assist in the exercise of his or her statutory mandate and to deal promptly with acts or omissions contrary to the Act.
During an election period, if there is evidence leading the Commissioner to believe that a serious breach of the Act may compromise the fairness of the electoral process, the Commissioner may, taking into consideration the public interest, apply to a court for an injunction ordering the person in question to comply with the law. The Commissioner may also conclude a compliance agreement with anyone the Commissioner has reasonable grounds to believe has committed, is about to commit or is likely to commit an offence. This is a voluntary agreement between the Commissioner and the person, in which the person agrees to terms and conditions necessary to ensure compliance with the Act. The Commissioner makes a summary of the compliance agreement public.
After giving a registered party a reasonable opportunity to clarify its fundamental purposes, the Commissioner may also ask a court to order the deregistration of that party if the Commissioner has reasonable grounds to suspect that the party does not have as one of its fundamental purposes to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.
If the Commissioner believes on reasonable grounds that an offence under the Act has been committed, the Commissioner may refer the matter to the Director of Public Prosecutions, who decides whether to initiate a prosecution. The Director initiates and conducts prosecutions on behalf of the Crown with respect to any offences under the Canada Elections Act and the Referendum Act, as well as any appeal or other proceeding related to such a prosecution. If the Director of Public Prosecutions decides to initiate a prosecution, the Director asks the Commissioner to lay sworn information in writing before a justice, as defined in section 2 of the Criminal Code.
No prosecution for an offence may be instituted by a person other than the Director of Public Prosecutions without the Director's prior consent.
A prosecution for an offence may be instituted at any time, but not later than 5 years after the day on which the Commissioner became aware of the facts giving rise to the prosecution, and not later than 10 years after the day on which the offence was committed.
Types of offences
Sections 480 to 499 of the Canada Elections Act list the offence provisions, categorized according to whether intent is required, and the burden of proof required to prosecute them. Offences include:
- illegally attempting to influence the vote of an elector or the results of an election
- illegally hampering or delaying the electoral process
- contravening the limits and obligations set out for contributions and expenses, including circumventing, attempting to circumvent or colluding in circumventing the rules for ineligible contributors, for concealing a contributor's identity and for exceeding contribution limits
- contravening the limits and obligations set out for third party election advertising
- publishing the results of an election opinion poll during the blackout period or without the accompanying information required by the Act
- election advertising during the blackout period
- prematurely publishing election results
- partisan action by an election officer
- using personal information from a voters list or from the National Register of Electors for unauthorized purposes
- acting as an officer of a registered political party while knowing that the party does not include participating in public affairs among its essential objectives
- as a party leader, certifying a declaration or report while knowing that the document contains false or misleading information
- accepting or soliciting contributions for a political entity while representing to the contributor that part or all of the contribution could be transferred to some person or entity other than the registered party, candidate, leadership contestant or electoral district association
- failure to register (referendum committee)
If a judge finds a person guilty of an offence, the person may receive a fine or a period of imprisonment, or both. Under section 501 of the Act, the Court may also impose additional penalties, such as:
- performing community service
- performing the obligation that gave rise to the offence
- compensating for damages, or any other reasonable measure the Court considers appropriate
- a fine of up to five times the election advertising expenses limit exceeded by a third party
- with respect to certain offences, the deregistration of a party and liquidation of its assets, and the liquidation of the assets of the party's registered associations
The Act stipulates that certain offences are illegal practices (such as taking a false oath) or corrupt practices (such as offering a bribe). In addition to any other penalty that may be imposed, a person found guilty of one of these offences loses the right to be a candidate in a federal election, to sit as a member in the House of Commons and to hold any office to which the incumbent is appointed by the Crown or by Governor in Council – for five years in the case of an illegal act, and for seven years in the case of corrupt practices.
How to make a complaint
To make a complaint about an alleged offence, please contact the Commissioner of Canada Elections:
- through the online complaint form,
- by e-mail: firstname.lastname@example.org,
- by fax: 1-800-663-4908, or
- by postal mail:
Commissioner of Canada Elections
c/o Elections Canada
257 Slater Street
To make a complaint about an election officer, please contact the Office of the Chief Electoral Officer (Elections Canada) through the online complaint form.