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Electoral Insight - Election Legislation Enforcement

Electoral Insight – March 2003

Comparative Review of Penalties for Electoral Offences in Canada

Comparative Review of Penalties for Electoral Offences in Canada

Marc Chénier
Legal Counsel to the Commissioner of Canada Elections

Alain Pelletier
Assistant Director, National and International Research and Policy Development, Elections Canada

Broad similarities can be detected in processes adopted in each Canadian jurisdiction to ensure the fair, transparent and accessible election of members to their respective legislative assemblies. Footnote 1 These similarities in the provisions adopted by the federal Parliament and the provincial/territorial legislatures have led to specific acts or omissions being identified in most jurisdictions as constituting offences under their specific electoral laws. Footnote 2 Despite these similarities in processes and in the offences created to ensure their lawful enforcement, Cécile Boucher stated in 1991, as part of her work for the Royal Commission on Electoral Reform and Party Financing, that "there are no real similarities in penalties for election offences in various jurisdictions." Footnote 3

As this article demonstrates, more than a decade later, this lack of uniformity in the penalty schemes in federal, provincial and territorial electoral legislation is still evident. Specifically, we will review the availability of fines and imprisonment as punishments used by the courts in sentencing individuals convicted of offences under the various electoral laws. We will also discuss the availability of additional penalties, some of them being automatic consequences upon conviction namely of an offence identified in the particular legislation as being either an illegal or a corrupt practice; others being imposed at the discretion of the court upon sentencing. Finally, in our conclusion, we will note the trend evidenced over the past decade towards the decriminalization of statutory offences and its effect on the range of remedial measures available to rectify a contravention of electoral law.

To begin, a few observations may be helpful. First, it is important to note that electoral law covers a broad range of processes that include the actual voting process itself, but also: election financing; the registration of political parties; the nomination of candidates; the regulation of activities of partisan groups during election campaigns; and political broadcasting and advertising. Offences have evolved to cover each of these different areas of electoral law, and as a general rule, the ranges provided for the various punishments available depend on the level of intent required for the commission of the offence (implying various levels of "blameworthiness"), and on the severity of the consequences of the act or omission on the integrity of the electoral process.

Second, under the Constitution, the federal Parliament has sole authority to legislate to define criminal acts. Footnote 4 Prosecutions for such offences are necessarily by way of indictment. Although the provinces cannot create criminal acts, they are entitled to create offences that are required for the effective enforcement of a statute that they have adopted in the exercise of their constitutional powers according to their fields of competency. Where such a statutory offence is created either by a province or by the federal government, it is not considered a criminal act, and the proceedings are by way of summary conviction. This entails a less demanding procedure than by indictment. Footnote 5

As a general rule of thumb, ranges of penalties made available during sentencing are generally higher for offences that are categorized as criminal acts than for those that are merely statutory offences.

Fines

All jurisdictions in Canada provide for the imposition of fines as an option for punishment upon conviction for an offence under their election legislation.

The requirement to impose at least a minimal fine upon conviction is provided for only in New Brunswick and Quebec. In these jurisdictions, when sentencing individuals convicted of some particular offence, judges are required to impose at least a certain specified amount in fines. As an example, anyone in New Brunswick who is found guilty of having disclosed at a polling station the name of the candidate for whom they voted is automatically liable to a fine of at least $70. Footnote 6 These minimal fines limit to a certain extent judiciary discretion with respect to sentencing.

With respect to maximum amounts, in the federal scheme, the harsher range of fines is reserved for convictions on indictment for offences requiring intent. In these cases, fines of not more than $5 000 can be imposed. While the option of proceeding by indictment is available at the federal level only for criminal acts, some provinces have nevertheless provided for harsher fines for similar statutory offences that are necessarily prosecuted on summary conviction.

Accordingly, while the $5 000 maximum upon conviction on an indictment is applicable in cases of intimidation of voters at the federal level, the maximum fine is twice that, at $10 000, for the corresponding offence committed during a Manitoba provincial election, where the prosecution must necessarily proceed by summary conviction. Footnote 7 Conversely, where the Commissioner of Canada Elections the federal prosecutor of electoral offences chooses to proceed by summary conviction on a charge of intimidation, the maximum fine applicable is $2 000. Footnote 8 This represents one fifth of the maximum penalty provided for in Manitoba for the equivalent offence also prosecuted by way of summary proceedings. This is one example of higher maximum fines being consistently applied to all offences in the Manitoba statute. Footnote 9

In some jurisdictions, where the option of imprisonment is not available for a specific offence, the maximum range of the fine that can be imposed by a court is significantly more than the usual fines provided for in that statute. In the Canada Elections Act, for example, where only a fine is made available to the sentencing judge, the maximum fine that can be imposed jumps to $25 000. Footnote 10 Offences where this particular maximum fine applies include: wilfully failing to provide election survey information; wilfully transmitting survey results during the blackout period; and, being a broadcaster, wilfully failing to make broadcasting time available pursuant to the Act's requirements. Footnote 11

The same occurrence is observable in the Northwest Territories and in Nunavut, where broadcasting offences are punishable only by a fine. This fine is increased five times, to $5 000, from the usual maximum fine of $1 000 provided by law for all other offences where imprisonment is also available as an option. In Quebec, where no prison terms are available as a sentencing option, maximum fines tend to be generally higher than in other Canadian jurisdictions.

Imprisonment

It is arguable that imprisonment is the ultimate punishment available to the courts under Canadian electoral law, since it entails serious consequences that deprive an individual of his or her rights to liberty and freedom. However, it is not a sentencing option available to Quebec judges for any offence committed under that province's election law, Footnote 12 and in New Brunswick, a prison term can be imposed only as a punishment for offences under the election financing provisions. Footnote 13 Minimum terms of imprisonment are no longer used in Canadian electoral law, although as recently as 1991, Saskatchewan still imposed a minimum term of seven days in prison for some offences committed under its Elections Act. Footnote 14

Despite the availability of this form of punishment for most offences identified in the Canada Elections Act, since the office of the Commissioner of Canada Elections was created in 1974 the courts have not imposed a term of imprisonment on anyone convicted of an offence under that Act.

As the only Canadian jurisdiction with the constitutional power to create offences representing criminal acts, offences in the federal legislation can, where so indicated, be prosecuted either by way of summary conviction or by indictment. Accordingly, the maximum period of imprisonment that can be imposed for an offence prosecuted by way of indictment under that Act is, at five years, the longest period of imprisonment provided for in all of the jurisdictions.

Nova Scotia and Prince Edward Island have the highest provincial/territorial maximums for their prison terms, at two years for all offences where a prison term is available as a sentencing option. Conversely, Newfoundland and Labrador and Ontario are the only provinces that exclusively provide for maximum prison terms that are less than one year, when a term of imprisonment is included as a sentencing option for an offence committed under their electoral legislation. Maximums in Newfoundland and Labrador range from periods of imprisonment of no more than three months, to a maximum of no more than six months for offences related to the voting process or election signs. In Ontario, imprisonment is used as a sentencing option very sparingly, with a maximum term of six months for some offences related to the ballot and some related to election officers.

Yukon's approach is to impose the identical maximums in terms of fines and imprisonment for every offence under its electoral legislation. All offences are therefore punishable by a fine of no more than $5 000, and/or imprisonment for no more than one year. Footnote 15

Special consequences upon conviction for illegal or corrupt practices

Additional penalties for corrupt or illegal practice
Jurisdiction INELIGIBILITIES:
To be nominated as candidate To be elected as member To sit as a member To be nominated or appointed to office To vote To be appointed to civil service
Canada Yes Yes Yes
Newfoundland and Labrador
Prince Edward Island Yes Yes Yes Yes
Nova Scotia Yes Yes Yes
New Brunswick Yes Yes Yes Yes
Quebec Yes Yes Yes
Ontario Yes Yes Yes
Manitoba
Saskatchewan Yes Yes Yes
Alberta Yes Yes Yes Yes
British Columbia
Northwest Territories Yes Yes Yes Yes
Yukon
Nunavut Yes Yes Yes Yes

(Adapted from: Compendium of Election Administration in Canada: A Comparative Overview, 2002 Edition; Table H.2 General Offences and Penalties)

Aside from British Columbia, Yukon, Manitoba and Newfoundland and Labrador, all other Canadian jurisdictions have identified specific offences under their electoral legislation that they consider to be either illegal or corrupt practices. In addition to the other punishments provided for these offences (i.e. fines and prison terms), the legislator has added special automatic consequences in terms of ineligibilities that apply for a specified period of time.

In the federal context, all illegal practices involve offences committed by either a candidate for election or an official agent, and the automatic ineligibilities that result from the conviction are in effect for a period of five years following the conviction. Offences identified as constituting corrupt practices mostly involve actions or omissions by candidates or their official agents, except for three distinct situations: where anyone is convicted of signing a nomination paper when ineligible; performs a forbidden act with a list of electors; or applies for a ballot under a false name. In the case of a corrupt practice at the federal level, the ineligibilities that automatically apply are in effect for a period of seven years from the day of the conviction. Footnote 16

The longest periods of ineligibility are found in Ontario and Alberta, where they are in effect in the case of Ontario until the eighth anniversary of the date of the official return, Footnote 17 and in Alberta, for the eight years following the date on which the Chief Electoral Officer receives the report of the court stating that the candidate was found guilty of a corrupt practice. Footnote 18 The period of ineligibility following a conviction for an offence listed as an illegal practice in the Northwest Territories and Nunavut is for five years, and for a corrupt practice, seven years from the date of the conviction. All other jurisdictions that have identified offences as being either illegal or corrupt practices have special automatic consequences that apply for a period of five years.

In addition to the additional consequences noted in the above table, New Brunswick, Saskatchewan and Alberta prohibit anyone convicted of a corrupt or illegal practice of being entered on a list of electors or of being registered as an elector for the period of the ineligibility. Further, Quebec prohibits such a person from engaging in partisan work during the five years following the date of the judgment. Footnote 19

Additional penalties

Further to the automatic consequences upon conviction that apply to offences identified as illegal or corrupt practices, a few jurisdictions have adopted additional penalties that may be imposed at the court's discretion.

Among these, two jurisdictions allow the sentencing judge to impose a type of "surcharge" in addition to any other fine or term of imprisonment, in specific circumstances. The Canada Elections Act provides that, in addition to any other punishments that may be imposed under the Act, a third party that spent in excess of the limit on advertising expenses to which it was subject is liable to a fine of up to five times the amount by which it exceeded the limit. Footnote 20 A third party is an individual or group, other than a candidate, a registered party or a local association of a registered party, that spends money on election advertising during an election period. A type of "surcharge" is also available in Manitoba as a sentencing option, where any person convicted of an offence related to bribery or inducement is liable to a further fine equal to double the amount or value of the benefit involved. Footnote 21 The adoption of this sentencing option may be recognition that money spent (or overspent) in a manner contrary to the provisions of election legislation can have especially negative consequences on the integrity of the electoral process.

Moreover, other forms of additional punishments are provided for at the federal level in section 501 of the Canada Elections Act. They include the performance of community service, compensation to persons who may have suffered damages as a result of the commission of the offence, specific performance of any obligation, or the imposition of any other measure the court considers appropriate to ensure compliance with the Act. No other jurisdiction provides for comparable punishments or remedial measures.

Conclusion

This article has reviewed the possible punishments that can be imposed by the criminal courts upon conviction of an individual for an offence under electoral law.

Some move towards decriminalization of regulatory offences in Canada has also been evidenced, to a certain degree, in election law. This has tended to increase the diversity of remedial and punitive measures available for enforcement. At the federal level, for example, a review of the notices of agreements published by the Commissioner of Canada Elections in cases where compliance agreements were entered into for cases of nonconformity, indicates that, on a voluntary basis, some offenders have made a charitable donation or performed community service. Footnote 22

Another example of alternative means of dealing with nonconformity can be found in New Brunswick, where payment of a sum equal to $50 for each day an individual is late in filing a financial return can remedy what would otherwise be an offence. Footnote 23 This represents a rare case in Canadian electoral law where civil fines exist as an enforcement tool, and other jurisdictions may one day decide to contemplate such a regime in the interest of further decriminalization.

It is apparent that the various jurisdictions in Canada continue to have diverging penalty schemes for punishment of individuals who commit offences under their respective election acts. In a federal system, this is not necessarily surprising. Indeed, a certain degree of diversity can be instructive as jurisdictions learn from each other about what works best to ensure compliance with electoral law.


Endnotes

Footnote 1 At the federal level, only members of the House of Commons are elected. The Prime Minister appoints senators to the second chamber of Parliament, the Senate.

Footnote 2 This is not to say that the rules are identical. For instance, while the sale of alcohol continues to be prohibited on election day in Prince Edward Island, Saskatchewan and all three territories, there is no longer such a prohibition at the national level or in the other provinces.

Footnote 3 C. Boucher, "Administration and Enforcement of Electoral Legislation in Canada" in M. Cassidy, ed., Democratic Rights and Electoral Reform in Canada, Volume 10 of the Research Studies, Royal Commission on Electoral Reform and Party Financing, Dundurn Press, Toronto, 1991, p. 479.

Footnote 4 Constitution Act, 1867, s. 91.

Footnote 5 Where a dual procedure is provided for (i.e. the statute provides that the prosecution can be by way of summary conviction or by indictment), the prosecutor has the discretion to choose to proceed by either way. The offence is considered to have been a criminal act only where the decision is made to proceed by indictment.

Footnote 6 Elections Act, R.S.N.B. 1973, c. E-3, s. 109; and Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1, s. 56(3).

Footnote 7 The Elections Act, R.S.M. 1987, c. E30, s. 164.

Footnote 8 Canada Elections Act, S.C. 2000, c. 9, s. 500(5).

Footnote 9 Compendium of Election Administration in Canada: A Comparative Overview, 2002 Edition, available at www.elections.ca.

Footnote 10 Canada Elections Act, S.C. 2000, c. 9, s. 500(4).

Footnote 11 For a complete list of offences where the maximum fine of $25 000 can be imposed upon conviction, please see s. 495(4) of the Canada Elections Act.

Footnote 12 Election Act, R.S.Q., c. E-3.3.

Footnote 13 Political Process Financing Act, S.N.B. 1978, c. P-9.3.

Footnote 14 The Election Act, 1996, S.S. 1996, c. E-6.01, s. 191.

Footnote 15 Compendium of Election Administration in Canada.

Footnote 16 A complete list of offences constituting illegal or corrupt practices in the federal regime can be found in section 502 of the Canada Elections Act, S.C. 2000, c. 9.

Footnote 17 Election Act, R.S.O. 1990, c. E.6, s. 98(1).

Footnote 18 Election Act, R.S.A. 2000, c. E-1, s. 173(2).

Footnote 19 Compendium of Election Administration in Canada: A Comparative Overview, 2002 Edition.

Footnote 20 Canada Elections Act, S.C. 2000, c. 9, s. 500(6).

Footnote 21 The Elections Act, R.S.M. 1987, c. E30, s. 145(4).

Footnote 22 Notices of compliance agreements can be viewed by clicking "Compliance Agreements" on the Electoral Law and Policy menu of the Elections Canada Web site (www.elections.ca).

Footnote 23 Political Process Financing Act, S.N.B. 1978, c. P-9.3, s. 88(2).


Note:  The opinions expressed are those of the authors; they do not necessarily reflect those of the Chief Electoral Officer of Canada.