Briefing Book for the Minister of Democratic Institutions (January 2017)
3. Regulating the Election
Regulating the election involves three key components: regulating the voting process, political financing and enforcement.
3.1 Regulating the Voting Process
Instructions, adaptations and training
Regulation of the voting process, including the roles and responsibilities of election officers at the polls; the procedures to be followed in administering the vote; and the procedures for closing the polls and safeguarding election documents, is subject to detailed prescriptions in the legislation that cannot be amended without the intervention of Parliament.
These provisions are supplemented or operationalized, where necessary, through instructions issued by the CEO to returning officers and other election officers. These instructions provide detailed and comprehensive steps that must be followed, for example, with respect to updating the lists of electors (the revision process) and administering the vote by special ballot, both at advance polls and on election day.
In addition to his or her instruction power, the CEO has the ability to adapt aspects of the CEA during an election period or for 30 days afterwards. This ability enables electors to exercise their right to vote or enables the counting of votes if an emergency, unusual or unforeseen circumstance or error makes such an adaptation necessary. During the 2015 election, the CEO made eight adaptations, which are published on the Elections Canada website.
Between election periods, Elections Canada implements training and infrastructure to ensure that returning officers are prepared when an election is called. The task is challenging and has become more so in recent years as new legislative provisions have added responsibilities and complexity to the jobs of election officers (notably, the voter identification requirements added in 2007).
In order to vote at an ordinary or advance poll or at a local returning office in federal elections and by-elections, electors must prove their identity and address in one of three ways. Under the first option, electors can show one piece of government-issued identification with their photo, name and address. Under the second option, electors can show two pieces of ID from the list of identification authorized by the CEO; both pieces must include their name, and at least one must include their address. As a third option, electors who lack authorized documentary proof of address may present two pieces of ID proving identity, sign an oath and have another elector attest to his or her residence. This person must live in the same polling division, show documentary proof of identity and address, and attest only for that person.
Bill C-23 introduced changes with respect to voter identification, including a prohibition on the use of the voter information card (VIC) as a piece of ID. Additionally, amendments to the CEA eliminated the vouching process and replaced it with the attestation process described above. Bill C-33 would repeal these changes.
Elections Canada's mandate includes safeguarding the integrity of the voting process by ensuring that poll workers follow proper procedures at the polls and preventing any improper interference with the rights of electors.
During the 2011 general election, deceptive communications with electors (robocalls) and procedural errors made by poll workers raised integrity concerns. These prompted Elections Canada to launch, ahead of the 2015 general election, an electoral integrity program that would strengthen its capacity to detect and respond to incidents that could interfere with the electoral process and that would improve poll workers' compliance with procedures.
Before and during the 2015 general election, Elections Canada informed electors, political entities and election workers of its efforts to detect illegal or deceptive campaign practices. Vigilance and reporting were major themes in these messages. Based on our monitoring, there was no evidence of systemic integrity issues during the election. The agency also undertook a number of initiatives to improve compliance with polling procedures. As noted above, the independent audit of poll workers' performance found that, overall, election workers properly performed their duties.
In preparation for the next general election, Elections Canada continues to support the development of quality and risk management frameworks and to address integrity-related incidents.
The political financing regime in the CEA is built around three core values: fairness, transparency and preventing the undue influence of money. These core values are primarily supported by the following measures:
- Limits on contributions from eligible individuals ($1,500) and a complete ban on corporate and union contributions.
- Public funding in the form of tax credits for contributions and partial reimbursement of election expenses.
- Financial reporting requirements, which include the annual reports of political parties and electoral district associations; the event-based reports that must be submitted by political parties, candidates and third parties, including a compliance audit by registered parties' external auditor on party election expenses returns; as well as the reports of nomination contestants and leadership contestants.
Spending limits and reimbursement of expenses
The CEA provides for distinct election spending limits for parties and candidates. The limits apply to the total of all election expenses, whether paid, unpaid or accepted as non-monetary contributions or transfers. The limits, which are calculated differently for political parties and candidates, are based on the number of names on the lists of electors for each electoral district and the number of electoral districts in which a political party is sponsoring candidates. Third parties (i.e. individuals or groups other than registered parties, candidates and registered electoral district associations) are also subject to spending limits. These limits, however, apply only to election advertising expenses. In all cases, the limits are adjusted to take into account the length of the election period.
In the 2015 general election, the highest election expenses limit for a party was $54,936,320.15, and the highest election expenses limit for a candidate was $279,227.99. The advertising expenses limit for third parties was $439,410.81, of which no more than $8,788.22 could be spent in a particular electoral district.
Registered political parties that receive 2 percent of the overall vote, or 5 percent of the vote in electoral districts where they endorsed candidates, are eligible for partial reimbursement of their paid election expenses (50 percent). Candidates must be elected or receive 10 percent of the vote to be eligible for reimbursement (60 percent of eligible expenses). In both cases, reimbursement is conditional on having met reporting obligations. Third parties are not entitled to any reimbursement.
The current regime is largely the result of successive reforms in 1974, 2000, 2003, 2006 and 2014. While these reforms have established a comprehensive political financing regime, the complexity of the rules is a significant challenge for participants in the process. For example:
- Because annual contribution limits are set for contributions and loans to various entities, political participants may be forced to reimburse contributions that they believed to be legal because there is no realistic way of knowing whether their contributors have already given to others.
- Distinctions between various categories of expenses (electoral campaign expenses, election expenses, personal expenses) are difficult to understand, yet are critical to the regime. For example, only election expenses are subject to spending limits.
Role of the official agent
The political financing regime for candidates is built around the role and responsibilities of the official agent, who is responsible for a campaign's financial transactions and reporting. Because official agents are unknown to Elections Canada before the election, it is difficult to train them in advance. While the agency produces manuals and web tutorials, the official agents learn the rules as they go along, often too late to ensure compliance. Many, if not most, will never again act as an official agent.
Supporting financial compliance
Elections Canada strives to help political entities comply with the rules. This includes producing and updating training material, answering questions from the campaigns during and after the election and helping ensure that their financial reports are complete and accurate. Given the number of candidate returns (1,800 for the 2015 general election, for example) and the challenges of sorting out the facts and obtaining the supporting documentation, this work can take several months (sometimes more than a year) after the election to complete. Long delays have an impact on the transparency of the election and, in cases of non-compliance, on the effective enforcement of the regime.
The complexity of the rules also poses challenges for the consistency of their application. This is especially so where Elections Canada may be tempted to show flexibility in interpreting the rules to help political entities escape the harshness of the law in seemingly benign circumstances, but with potentially more significant consequences for the integrity of the regime in other situations.
Written opinions, guidelines and interpretation notes
Bill C-23 introduced the requirement to issue written opinions, guidelines and interpretation notes (OGIs) on the application of the CEA to registered parties, electoral district associations, candidates, nomination contestants and leadership contestants. OGIs may be issued at the request of a political party, or on the CEO's own initiative, following consultations with all registered parties and the Commissioner of Canada Elections (CCE). Elections Canada must respond to all OGI requests from political parties.
OGIs fall into two categories: (1) written opinions and (2) guidelines and interpretation notes. Written opinions are issued only at the request of a political party (through its chief agent) and indicate the legal implications under the CEA of a specific activity that a political entity proposes to engage in. Written opinions are binding on the CEO and the CCE.
Guidelines and interpretation notes are more generic, are for information only and can be issued either on Elections Canada's initiative or at the request of a political party. Guidelines and interpretation notes address a particular provision (or closely-related provisions) of the CEA and are developed to provide a general explanation of Elections Canada's treatment of a certain type of activity under the CEA. Guidelines and interpretation notes are not binding.
For the 2015 general election, Elections Canada also issued manuals on political financing rules for political parties and candidates, as well as a number of interpretation notes on specific topics (e.g. election advertising on the Internet).
The CCE is appointed for a term of seven years by the Director of Public Prosecutions (DPP), pursuant to the CEA, and is responsible for ensuring that the CEA and the Referendum Act are complied with and enforced. The CCE conducts investigations of alleged offences and, where appropriate, refers matters to the DPP for possible prosecution. The current CCE, Yves Côté, assumed his responsibilities on July 3, 2012.
The CCE receives complaints from the public and from within Elections Canada. For example, Elections Canada's Political Financing sector may report potential offences under the CEA that are identified during audits of the parties' or candidates' financial returns.
The CCE position was created in 1974 and was originally restricted to ensuring that the rules concerning election financing and expenses were enforced. In 1977, the CCE's responsibilities were extended to cover all provisions of the CEA. In 2006, the Federal Accountability Act transferred the authority for prosecution of offences under the CEA to the DPP. In 2014, the CEA was amended so that the CCE would no longer be appointed by the CEO and would be relocated from within the Office of the CEO to within the Office of the DPP. Bill C-33 would bring the CCE back within the Office of the CEO.