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Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election

IV Technical or Minor Amendments

IV.1 Use of Nicknames by Candidates


The wording of paragraph 66(2)(b) and subsection 66(3) should be reviewed to ensure better consistency between the English and French provisions. In both cases, the English version should be amended to correspond to the French.

There is a discrepancy between the English and French versions of paragraph 66(2)(b) of the Canada Elections Act as to whether a prospective candidate's nickname replaces only one or all of that person's given names. As well, the English version of subsection 66(3) of the Act is more limited in scope than the French version. The discrepancies between the English and French wording of these provisions cause difficulties in interpretation and sometimes lead to different applications of the rules, depending on which version is used by the returning officer. As subsection 117(1) of the Act stipulates that the name of a candidate that appears on the ballot shall be the same name as that written on the candidate's nomination paper, it is important that the rules governing the name that candidates can use on their nomination papers be clear and consistent.

Discrepancy between the English and the French versions of paragraph 66(2)(b)

Under paragraph 66(2)(b) of the Act, prospective candidates may use a nickname on their nomination papers. The wording of that provision reads as follows:

66.(2) For the purpose of subparagraph (1)(a)(i),
[...]
(b) one or more of the given names may be replaced by a nickname by which the prospective candidate is publicly known, other than a nickname that could be confused with the name of a political party, and the nickname may be accompanied by the initial or initials of their given name;

 

66.(2) Les règles suivantes s'appliquent dans le cadre du sous-alinéa (1)a)(i) :
[...]
b) le ou les prénoms peuvent être remplacés par un surnom sauf un surnom susceptible d'être confondu avec le nom d'un parti politique sous lequel la personne qui désire se porter candidat est publiquement connue et, dans ce cas, le surnom peut être accompagné des initiales du ou des prénoms;

The English version of paragraph 66(2)(b) states that a prospective candidate's nickname may replace one or more given names, so that the name appearing on the nomination paper and ballot could include one given name as well as one nickname in place of another given name.

Accordingly, if John Paul Doe wants to use the nickname "Buddy" instead of one of his given names, the name on his nomination paper and the ballot could be "John Buddy Doe" or "Buddy Paul Doe." Mr. Doe could also replace both his given names by the nickname, resulting in "Buddy Doe." When using a nickname, he could also include the initials of his given name.

The French version, however, reads: "le ou les prénoms peuvent être remplacés par un surnom." According to this wording, the nickname taken from the nomination paper replaces all of the prospective candidate's given names.

As a result, if John Paul Doe wants to use the nickname "Buddy" on his nomination paper, that nickname will replace both given names, so that the name "Buddy Doe" will appear on the nomination paper and the ballot, perhaps with initials as well.

Discrepancy between the English and the French versions of subsection 66(3)

Subsection 66(3) of the Act requires that a prospective candidate submit documents, upon request of the returning officer, as evidence of the common public knowledge and acceptance of the nickname used. The provision reads as follows:

66.
[...]
(3) A prospective candidate who uses a nickname described in paragraph (2)(b) in his or her nomination paper shall, if the returning officer requests, provide the returning officer with documents that are determined by the Chief Electoral Officer to be evidence of the common public knowledge and acceptance of the nickname.

66.
[...]
(3) Dans le cas où elle a remplacé son prénom par un surnom dans l'acte de candidature, la personne qui désire se porter candidat doit aussi fournir au directeur du scrutin, sur demande, les documents requis par le directeur général des élections à titre de preuve qu'elle est publiquement connue sous ce surnom.

The English version specifies that a prospective candidate who uses a nickname in the place of his or her given name must, if the returning officer requests, provide the returning officer with documents as evidence of the common public knowledge and acceptance of the nickname. It is difficult to see how one could provide evidence of the acceptance of a nickname.

The French version of subsection 66(3), however, only requires evidence to be provided of the common public knowledge of the nickname. The French version thus makes no mention of the common public acceptance of a prospective candidate's nickname. This appears to be a better approach.

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IV.2 Cancellation of a Nomination French Version of Section 73


The French version of section 73 should be amended by replacing the word "rejetée" with the word "annulée" in order to better reflect the procedure used under that section as compared to the procedure under section 71.

Most nomination papers are filed in person at the office of the returning officer. A returning officer must accept or refuse to accept the nomination within 48 hours of receiving it (see section 71).

Section 73 of the Canada Elections Act provides that individuals can also file their nomination papers electronically (for example, by fax or by e-mail, with the nomination paper attached in PDF format). The electronic version of the nomination paper and the deposit must be received by the close of nominations, and the original documents must be received no later than 48 hours after the close of nominations. If the original documents are not received by the returning officer within this time, the returning officer must "cancel" the nomination, unless the prospective candidate can satisfy the returning officer that all reasonable efforts were made to ensure that the documents were received on time. This decision may be made several days or even weeks after the electronic submission of the documents.

The concept of "cancelling" the nomination reflects the intention of Parliament to allow a candidate who files electronically to be accepted as a nominated candidate upon review of his or her electronically submitted documents. The logic behind this measure is to allow candidates who live in remote regions of the electoral district to begin campaigning once they have submitted their documents electronically; this is one of the main purposes of this provision. If the candidate fails to comply with the conditions relating to the subsequent filing of the original documents, the candidate may have his or her nomination cancelled.

This procedure is different from the filing of nomination papers in person under section 71, which requires only one decision by the returning officer that is, to accept or refuse to accept the nomination paper within 48 hours of its submission.

The difference between the two procedures is reflected in the use of the word "cancelled" in the English version of section 73, as distinguished from "refusal to accept" in section 71. The French versions of the two provisions both use the word "rejetée".

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IV.3 Information Provided on the Application for Registration to Vote by Special Ballot


The Act should no longer require electors to provide the name of their electoral district on the application for registration to vote by special ballot. This provision no longer has a purpose, and it sometimes causes errors.

Under subsection 233(3) of the Canada Elections Act, electors who submit an application for registration and special ballot must indicate whether their name is already on a list of electors and, if it is, in which electoral district.

This information must be provided in addition to the other information to be disclosed under subsection 233(1), which includes the elector's name and his or her place of ordinary residence (indicating in which electoral district the elector's vote will be counted).

The collection of the information provided under subsection 233(3) of the Act is designed to prevent repetitions in the lists of electors. The revising agent or the special ballot officer will verify whether the elector's place of ordinary residence is in the same electoral district as the one indicated on the list of electors on which the elector is already registered. This is to ensure that the elector's name will not appear on the lists of electors of two different electoral districts.

Since the creation of the different national databases (in 2000 for the REVISE system and in 1993 for the national system for the Special Voting Rules), revising agents and special ballot officers can verify for themselves in which electoral district the elector is already registered.

Consequently, the information provided by electors under subsection 233(3) has been less useful since those databases were created. This information, which is based on the elector's memory, is more likely to contain inaccuracies.

In recent general elections, it was noted that this information created some confusion for revising agents. Revising agents relied on the information provided by electors rather than verifying the information in the national REVISE database. This resulted in some mistakes being made because electors provided inaccurate information.

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IV.4 Registration Certificate Outgoing Member of Parliament


The words "au bureau de scrutin établi dans la section de vote où il réside habituellement" should be deleted from the French version of subsection 161(4) to ensure consistency between the French and English versions and to account for the situation of a candidate who was an outgoing Member of Parliament.

While section 6 of the Canada Elections Act stipulates that every person who is qualified as an elector is entitled to have his or her name included on the list of electors for the polling division in which he or she is ordinarily resident, section 10 provides an exception for a candidate at a general election who, on the day before the dissolution of Parliament, was a member.

This candidate and electors living with the candidate are entitled to have their names entered on the list of electors for, and to vote at the polling station that is established for, the polling division in which is located:

An affected elector wishing to have his or her name entered on the list of electors on polling day could be prevented by the restrictive wording of the French version of subsection 161(4). Indeed, the French version of that subsection provides that the registration certificate authorizes the elector to vote only in the polling division in which he or she is ordinarily resident, thus preventing the elector referred to in section 10 from making the choice provided for under that section.

In order to resolve that apparent contradiction and ensure consistency between the French and the English versions, the words "au bureau de scrutin établi dans la section de vote où il réside habituellement" should be deleted from the French version of subsection 161(4).

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IV.5 Returning Officers Prohibited from Participating in Activities of Electoral District Associations


The expression "a registered association" should be replaced by "an electoral district association" in subsection 24(6) to better define the legislative framework to which the prohibition on politically partisan conduct applies.

Subsection 24(6) of the Canada Elections Act prohibits returning officers from engaging in politically partisan conduct while in office. It reads as follows:

24. (6) No returning officer shall, while in office, knowingly engage in politically partisan conduct and in particular shall not make a contribution to a candidate, a leadership contestant or a nomination contestant or belong to or make a contribution to, be an employee of or hold a position in, a registered party, an eligible party or a registered association.

24. (6) Il est interdit au directeur du scrutin, pendant son mandat, de faire sciemment preuve de partialité politique, notamment d'appartenir ou de faire une contribution à un parti enregistré ou admissible ou à une association enregistrée, d'y exercer une fonction ou d'occuper un emploi à son service ou de faire une contribution à un candidat, à un candidat à la direction ou à un candidat à l'investiture.

The prohibition on politically partisan conduct (making a contribution to, being an employee of or holding a position in a political entity) applies to registered associations, among others.

This subsection does not apply to unregistered electoral district associations. However, those associations are defined in the Act as an association of members of a political party:

2. (1) The definitions in this subsection apply in this Act.
[...]
"electoral district association" means an association of members of a political party in an electoral district.

2. (1) Les définitions qui suivent s'appliquent à la présente loi.
[...]
 association de circonscription  Regroupement des membres d'un parti politique dans une circonscription.

Those associations are also partially governed by the Act, including in sections 403.01 (various prohibitions applying to unregistered associations) and 403.04 (prohibition on incurring expenses for election advertising during an election period). The prohibition set out in subsection 24(6) of the Act should include all electoral district associations, whether they are registered or not.

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IV.6 Updating the Rules Respecting the Tariff of Fees


The provisions authorizing a tariff of fees for election workers require a few technical amendments to clarify their scope and respond to certain concerns of the Standing Joint Committee for the Scrutiny of Regulations. This recommendation would not change the current application of the tariff's provisions but would strengthen their legal foundation.

The provisions of the Canada Elections Act governing the Federal Elections Fees Tariff (the tariff), under which election officers and other election workers are paid, must be updated to allow for greater flexibility and a more efficient approach to making certain payments.

The tariff regulates payments to election officers and the reimbursement of costs they incur in the context of an election. The tariff is made under the authority of the following provisions of the Act:

542. (1) On the recommendation of the Chief Electoral Officer, the Governor in Council may make a tariff fixing or providing for the determination of fees, costs, allowances and expenses to be paid and allowed to returning officers and other persons employed at or in relation to elections under this Act.

542. (1) Sur l'avis du directeur général des élections, le gouverneur en conseil peut établir un tarif fixant les honoraires, frais et indemnités à verser aux directeurs du scrutin et autres personnes employées pour les élections en vertu de la présente loi, ou prévoyant leur mode de calcul.

545. (1) If it appears to the Governor in Council that the fees and allowances provided for by a tariff made under subsection 542(1) are not sufficient remuneration for the services required to be performed at an election, or that a claim for any necessary service performed or for materials supplied for or at an election is not covered by the tariff, the Governor in Council may authorize the payment of any sum or additional sum for the services or materials supplied that the Governor in Council considers just and reasonable.

545. (1) Lorsqu'il constate que les honoraires et indemnités prévus par un tarif établi en conformité avec le paragraphe 542(1) ne constituent pas une rémunération suffisante pour les services à rendre à une élection, ou qu'une réclamation présentée par une personne qui a rendu un service indispensable ou fourni du matériel pour une élection n'est pas prévue par le tarif, le gouverneur en conseil peut autoriser le paiement de toute somme ou somme supplémentaire qu'il croit juste et raisonnable en l'occurrence.

545. (2) The Chief Electoral Officer may, in accordance with regulations made by the Governor in Council, in any case in which the fees and allowances provided for by a tariff made under subsection 542(1) are not sufficient remuneration for the services required to be performed at an election, or for any necessary service performed, authorize the payment of such additional sum for the services as he or she considers just and reasonable.

545. (2) Le directeur général des élections peut, en conformité avec les règlements pris par le gouverneur en conseil, dans tous les cas où les honoraires et indemnités prévus par le tarif des honoraires établi en conformité avec le paragraphe 542(1) ne constituent pas une rémunération suffisante des services à rendre à une élection, ou relativement à tout service nécessaire rendu, autoriser le paiement de la somme supplémentaire qu'il croit juste et raisonnable pour ces services.

 


Proposal 1: Allow for efficient payment of additional sums when necessary

Not all expenses that arise in the course of an election can be foreseen. The nature of an election, with the opening of tens of thousands of polling stations, as well as the hiring of hundreds of thousands of workers in the short time frame prescribed by the Act, makes unexpected costs almost inevitable. Furthermore, the varied conditions in a country as vast and diverse as Canada make a "one size fits all" approach nearly impossible to implement.

To account for the possibility of unforeseen circumstances, the Act contains provisions that anticipate the adjustment of amounts in the tariff in certain circumstances. Section 545 creates two such powers.

Subsection 545(1) authorizes additional payments when the fees or sums covered by the tariff do not constitute sufficient compensation for the services to be provided or when a claim is made for essential services or goods not covered by the tariff. However, the ways in which this power can be exercised are not clear. This power rests with the Governor in Council, and subsection 545(1) does not contain an authority to delegate that power. Subsection 545(2) does allow the Governor in Council to make a regulation permitting the Chief Electoral Officer to increase payments in specific circumstances, but only with respect to fees for services already provided for in the tariff. It does not cover unforeseen expenses for goods.

There are two difficulties with subsection 545(1). First, by leaving to the Governor in Council the ultimate decision of what sums to pay in certain circumstances, subsection 545(1) is out of step with the rest of the Act. In general, the costs of elections are paid directly from the Consolidated Revenue Fund (see section 553). This approach to funding elections works to insulate the conduct of the election from political interference. In 1934, the law was changed to provide that payments made under the tariff would come directly from the Consolidated Revenue Fund, rather than by warrant of the Governor in Council.146 However, amounts additional to those set out in the tariff continued to be the responsibility of the Governor in Council. This historic exception to the general rule continues today as subsection 545(1).

Second, because the power cannot be delegated, it is not clear how it can be exercised in an efficient manner. Many of the additional payments required as a result of unforeseen situations are quite small. There may be the need for a few hundred dollars to be paid here and there in excess of the amounts provided for in the tariff or for matters not expressly contemplated by the tariff. Given the small amounts at issue, the involvement of the Governor in Council in each such decision appears unnecessary.

Past tariffs have, from time to time, sought to alleviate this difficulty by providing that the Chief Electoral Officer can authorize the payment of certain amounts not covered by the tariff. The Standing Joint Committee for the Scrutiny of Regulations has objected to this practice, asserting that it represents an improper delegation of the Governor in Council's power under subsection 545(1).

The Committee nevertheless acknowledged the difficulty for the Governor in Council to specify or prescribe a method of calculation for every fee, cost, allowance or expense related to the conduct of an election. The Committee, therefore, recommended that the Act be amended to authorize the Governor in Council to designate a person, such as the Chief Electoral Officer, to determine the additional amounts to be paid.147

It is, therefore, recommended that section 545 be repealed and a new subsection added to section 542, authorizing the Chief Electoral Officer to set the amount that may be paid for any good or service not covered by the tariff and required for the election, and to authorize payment of any additional sums he deems to be fair and reasonable when he notes that the fees and allowances provided for in the tariff, established in accordance with subsection 542(1), do not constitute sufficient remuneration for the services to be rendered during an election.

As a corollary, paragraph 553(d) should also be amended to include a reference to the subsection added to section 542.

Proposal 2: Incorporate the Travel Directive directly rather than by reference

Many people employed for elections receive a reimbursement for their travel expenses. For example, special ballot coordinators may need to travel to different communities to assist persons with functional limitations to vote at home (section 243.1). Furthermore, election officers are required to attend training sessions during the election period, and this frequently requires their travelling to another region. Similarly, returning officers and assistant returning officers must sometimes travel to Ottawa or a regional centre for information sessions outside the election period. In such cases, all travel costs are reimbursed.

Rather than creating a separate regime to determine in what amount travel costs will be reimbursed, the tariff has incorporated, by reference, the Treasury Board's Travel Directive. As a result, the eligible costs paid to election workers are the same as those for all federal government employees.

In the past, the Standing Joint Committee for the Scrutiny of Regulations has objected to incorporating by reference into the tariff an outside document that is amended from time to time.148 The Committee has argued that doing so can be seen as an unauthorized delegation of the power of the regulation maker (the Governor in Council) to another body (the Treasury Board). The Committee, therefore, recommended that, to remove any doubt as to the authority of the Governor in Council, the wording of section 542 be amended to allow the direct incorporation of the Travel Directive into the tariff.

It is, therefore, recommended that section 542 be amended to permit the incorporation into the tariff of the Treasury Board's Travel Directive, as amended from time to time.149

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IV.7 Payment of Claims


Payment by electronic means or by cheque of claims that relate to the conduct of an election should be authorized to reflect current practices.

Under section 543 of the Canada Elections Act, "All claims that relate to the conduct of an election shall be paid by separate cheques issued from the office of the Receiver General at Ottawa and sent directly to each person who is entitled to payment."

For many years, however, the majority of election workers (76 percent in the last general election) have been paid by electronic means, in accordance with the terms of the Electronic Payments Regulations, rather than by cheque.

Election workers who prefer to be paid by cheque, as well as suppliers with whom returning officers have done business, receive a cheque directly from the Receiver General for Canada. These cheques are generally issued by the office of the Receiver General nearest to the electoral district for which the payment is claimed.

Accordingly, section 543 of the Act should be updated as follows:

543. All claims that relate to the conduct of an election shall be paid by electronic payment credited to the account of the person who is entitled to payment or by cheque issued from the office of the Receiver General, and sent directly to that person.

543. Les réclamations relatives à la conduite d'une élection sont acquittées par paiements électroniques portés au crédit de la personne qui a droit à un paiement ou par chèques émis par le bureau du receveur général, et expédiés directement à cette personne.

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IV.8 Use of the Preliminary Lists of Electors by a Registered or Eligible Party


The Act should regulate the uses that may be made by a registered party or eligible party of a preliminary list of electors received in electronic form, as is the case for all other lists distributed to the parties.

Section 93 of the Canada Elections Act was amended in 2007150 by the addition of a subsection (1.1). Under that subsection, the Chief Electoral Officer distributes, to each registered party or eligible party that requests it, one copy in electronic form of the preliminary lists of electors for an electoral district in respect of which a writ has been issued.

However, no consequential amendment was made to section 110, which sets out, among other things, how registered parties may use the lists of electors.

Subsection 110(1) should, therefore, be amended by the addition, after the listing of sections, of the words "or subsection 93(1.1)."

A new subsection should also be added, which would become subsection 110(1.1), to restrict, in the same manner as is already done for registered parties, how these lists may be used by eligible parties. That subsection would stipulate that "an eligible party that, under subsection 93(1.1), receives a copy of preliminary lists of electors may use the lists for communicating with electors, including using them for recruiting party members."

In subparagraph 111(f)(i), the words "or eligible parties" should also be added after the words "registered parties."

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IV.9 Registry of Parties


In section 374 of the Act, the reference to the repealed subsection 390(3) should be removed.

Section 374 of the Canada Elections Act refers to provisions that set out the information that must be contained in the registry of parties. Subsection 390(3) of the Act, which is one of those provisions, was repealed in 2003.

IV.10 Judicial Recount Notice to the Returning Officer


Electors who wish to apply for a judicial recount should be required to provide written notice of the application to the returning officer before submitting it to the judge. This recommendation would facilitate the returning officer's work and would enable the returning officer to ensure better support for the judge and the candidates involved in a judicial recount.

In the 40th general election, judicial recounts were held in six electoral districts. Four of them were ordered following an application by an elector, as provided by section 301 of the Canada Elections Act.

That section should be amended to require the applicant to provide written notice of the application for a judicial recount to the returning officer before submitting it to the judge.

Currently, the applicant and the judge are not required to notify the returning officer that an application for a recount is about to be or has been submitted. In some cases, returning officers are notified of the application only once a summons required under subsection 301(4) is served on them that is, after the judge has accepted the application and fixed the date for the recount.

In most cases, applicants already take the initiative of informing the returning officer before applying for a recount. However, in the 40th general election, at least one application was heard without the returning officer being notified. The returning officer received only the summons to appear, issued by the court in accordance with subsection 301(4).

It is essential that the returning officer be notified as soon as possible that a judicial recount may be held. Such an exercise requires substantial organization on the part of the returning officer in a short period of time. Additional materials and the ballots collected in accordance with the Special Voting Rules must be shipped to the electoral district by the Office of the Chief Electoral Officer in Ottawa . Staff must also be recruited to assist the judge with the recount.

Providing notice at the time that the application is submitted gives the returning officer the opportunity to be represented during the hearing of the application. The returning officer or his or her representative may, on that occasion, notify the judge of the number of ballots and ballot boxes to be counted, of the technical assistance that may be provided to the judge, as well as of requirements with regard to security, furnishings, equipment and so on. The returning officer may also suggest that the judge hold a preparatory meeting with the candidates or their representatives, before the recount begins, to discuss the logistical aspects of the recount and to reach an agreement on the procedure to be followed.

This new requirement would constitute only a minor additional responsibility for the elector submitting the application. Returning officers can be readily reached over the period during which an application for a judicial recount may be made. The notice of application can easily be served in person or by fax.

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IV.11 Removal from the National Register of Electors by an Authorized Representative


The duly authorized representative of a person under guardianship or curatorship should be able to request that that person's name be deleted from the National Register of Electors.

This recommendation would make the registration system more efficient while preserving electors' confidence in its integrity.

Under paragraph 52(1)(c) of the Canada Elections Act, the Chief Electoral Officer may delete from the National Register of Electors the name of any person who requests in writing to have his or her name deleted.

Elections Canada's current practice is to take into consideration the authority established by a curatorship or guardianship and to allow, where a curator or guardian makes such a request, the deletion of the name of a person under protective supervision.151

Two conditions must be met: first, the person in question must be under a court-ordered curatorship or guardianship;152 second, the curator or guardian must provide the Chief Electoral Officer with a copy of the court decision establishing the curatorship or guardianship and a piece of identification establishing the curator's or guardian's identity.

The Act should be clarified to remove any doubt regarding this practice, and the term used to designate the representative should be broad enough to cover the different provincial protective supervision regimes.

It should be noted that deleting the person's name from the National Register of Electors in no way removes that person's right to vote. The individual will still be able to vote provided that he or she registers again on the list of electors.

Under paragraph 101(1)(c) of the Act, the guardian or curator may register the person under protective supervision on the preliminary list of electors during an election period.

Furthermore, this practice takes into account the fact that, under the applicable provincial law, the curator or guardian has the obligation to act in the represented person's interest and that the court has determined the appointed representative to be in the best position to fulfill the obligation.

This recommendation deals only with the case of a curatorship or guardianship established by a court. Parliament will perhaps wish to take into account other situations where a representative might want to act for a person who is unfit to do so.

In Quebec, the power of attorney for personal care is a contract that itself sets out the roles and responsibilities of the mandatary, who is also appointed therein. The power of attorney comes into effect once it is sanctioned by the court. The mandatary can use the conferred powers only once the judgment has been rendered. It would also be appropriate to take into consideration this court-sanctioned power of attorney for personal care.

In the other Canadian provinces that provide for a power of attorney for personal care, the mandatary is not required to have the power of attorney sanctioned by a court in order for it to come into effect. As a general rule, the power of attorney itself sets out the conditions for its coming into effect. Otherwise, a procedure is put in place for the court to set out the terms and conditions for protective supervision. In revisiting section 52, Parliament may also wish to consider the situation in which the power of attorney for personal care comes into effect without the court's involvement.

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IV.12 Commercial Value Deemed to Be Nil


The circumstances under which a non-monetary transaction is deemed to have a nil commercial value should be amended to better ensure the consistency of the current system. Consequently, the following is recommended:

  • The provision should apply only in cases where the property or service was provided by a Canadian citizen or a permanent resident of Canada since only a citizen or a permanent resident is entitled to make a contribution under the Act.
  • It should apply only in cases where the commercial value of goods or services provided was $200 or less.
  • The total value of all goods and services that are provided to a distinct political entity during the relevant period set out in subsection 405(1), and treated as having a nil commercial value, should not exceed $200.

Subsection 2(2) of the Canada Elections Act deals with situations where a monetary transaction of little value is deemed as having no value for the purposes of the Act. Although this provision is useful, its current wording is problematic.

Subsection 2(2) reads as follows:

2. (2) For the purposes of this Act, other than section 92.2, the commercial value of property or a service is deemed to be nil if

(a) it is provided by a person who is not in the business of providing that property or those services; and

(b) the amount charged for it is $200 or less.

2. (2) Pour l'application de la présente loi, à l'exclusion de l'article 92.2, la valeur commerciale d'un bien ou service est réputée nulle si, à la fois :

a) la personne qui le fournit n'exploite pas une entreprise qui les fournit;

b) le prix exigé est de 200 $ ou moins.

The rationale for this provision is to exclude from the obligation to report as a contribution and an election expense any service or good of minimal value that a person provides to a political entity in certain circumstances that do not warrant such reporting. For instance, were it not for subsection 2(2), a door-to-door canvasser using his or her vehicle while campaigning for a candidate in a rural electoral district would be considered as making a non-monetary contribution to the campaign consisting of the value of the use of the vehicle and of the gasoline consumption. Similarly, a campaign volunteer who brought a plate of homemade cookies to the campaign office for fellow volunteers would be considered as having made a contribution to the campaign, were the exemption not provided. Since accounting for such minor transactions would impose a heavy burden on campaigns, Parliament decided to deem them to be of no commercial value.

It would be unmanageable for campaigns to account for every such transaction as a non-monetary contribution and an election expense; to this extent, the provision in question is logical in its intent. However, the wording of subsection 2(2) does not accomplish the intended goal. Indeed, as currently drafted, the provision would allow an individual to offer a good or a service of substantial value, but to have it deemed to be of no value under this provision, simply because the amount charged by the individual was $200 or less. For example, an individual who is not in the business of selling furniture could provide the campaign with all of its required furniture, but the transaction would be deemed as having no commercial value because the price asked was $200 or less even if the real value was well in excess of that individual's contribution limit. Clearly, a literal application of the provision would be problematic and not in keeping with the intent of Parliament as it could allow the circumvention of the rules on disclosure and on contribution limits, as well as spending limits.

Furthermore, the text does not take into account changes in the political financing rules since this provision of the Act was adopted. Taken literally, the provision could be interpreted as permitting corporations (in their capacity as legal persons) to make contributions that would be deemed to be of no commercial value. Nevertheless, such a transaction would clearly be contrary to the spirit of the political financing rules recently adopted in the Act.

Finally, subsection 2(2) is written in a manner that suggests that it applies on a transaction-by-transaction basis and is non-cumulative. However, in the context of the new contribution limits, deeming certain transactions to have no commercial value opens the door for contributions that, together, amount to a value that exceeds the contribution limits. Take, for example, an individual who makes 10 non-monetary contributions, each valued at $200 or less, to a candidate's campaign and has each transaction deemed to be of no commercial value. The real commercial value of such a contribution of goods and services would total $2,000. The $1,000 limit on contributions that individuals can make in total to all local entities of a registered party in a given year loses much of its meaning in such a context.

It is, therefore, recommended that subsection 2(2) of the Act be amended to replace the word "person" with the expression "Canadian citizen or permanent resident of Canada," as only citizens and permanent residents are entitled to make contributions under the Act.

Further, it is recommended that paragraph 2(2)(b) of the Act be amended to replace the words "the amount charged for it" with "its commercial value." Thus, the provision deeming the commercial value to be nil would apply only in cases where the actual commercial value is $200 or less. This would prevent the literal interpretation of the provision, which appears to allow any transaction to be deemed to have no commercial value, regardless of its true value, as long as the price charged by the person providing the good or service is $200 or less.

Finally, it is recommended that the exception attributing a nil commercial value to the provision of certain goods and services be applied on a cumulative basis with respect to each individual making the non-monetary contributions. The rule would apply, therefore, only when the total commercial value of all transactions for which the exception is being claimed is $200 or less.

The period for computing these transactions should correspond to the periods set out in subsection 405(1) of the Act (that is, a calendar year, for qualifying non-monetary contributions made by an individual to a local entity of a registered party and to the registered party itself; the election period, for contributions to an independent candidate; and the duration of a leadership contest, for contributions made to leadership contestants). Although the contribution limits in subsection 405(1) apply to the total amount of contributions made by an individual to all local entities of a particular registered party (paragraph 405(1)(a.1)) and to all leadership contestants in a particular contest (paragraph 405(1)(c)), in practice, it would be impossible for distinct campaigns or registered associations to apply the provision if the $200 limit applied to contributions made also to other campaigns or registered associations. For this reason, a separate calculation on a cumulative basis should apply to transactions made by an individual to each distinct political entity recognized under the Act.

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IV.13 Connection of Third Parties to Canada


The criteria for registering third parties should be amended to ensure the consistency of the Act regarding participation in the electoral debate of persons or groups without a connection to Canada.

Parliament has already limited participation in the issues being debated during an election by persons or groups with no connection to Canada. For example, section 358 of the Canada Elections Act prohibits third parties from using contributions from non-Canadian sources for election advertising purposes, specifically contributions from a "person who is not a Canadian citizen or a permanent resident" and those from a "corporation or an association that does not carry on business in Canada." As well, paragraph 354(2)(d) provides that third parties that are required to register must appoint a financial agent who is a Canadian citizen or a permanent resident.

Moreover, under section 331, "No person who does not reside in Canada shall, during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate unless the person is (a) a Canadian citizen; or (b) a permanent resident [...]".

It is reasonable to believe that third-party election advertising may constitute such an inducement. However, under the third-party registration requirements set out in subsections 353(1) to (3) and (5), it is not necessary for third parties themselves to have a connection to Canada.

The Chief Electoral Officer is required to register a third party under subsection 353(6) if the third party meets the registration requirements. However, the legality of election advertising done by a third party with no connection to Canada could be challenged, even if the third party has registered in accordance with the Act.

Therefore, to ensure consistency in the Act regarding participation in the issues being debated during an election by persons with no connection to Canada, the third-party registration requirements should include the following:

IV.14 Amendment to Section 435.27 Late Payments


The words "four-month" should be deleted from paragraph 435.27(a) to correct an inconsistency in the Canada Elections Act.

Subsection 435.24(1) prescribes the period for the payment of certain claims relative to leadership campaign expenses. That period is 18 months. However, when it refers to that subsection, paragraph 435.27(a) erroneously specifies a four-month period.

The proposed change would correct an apparent contradiction and would maintain consistency between those provisions.

IV.15 Repeal of Paragraph 501(3)(j) Additional Penalties


Paragraph 501(3)(j) should be repealed to correct an internal inconsistency.

If a registered party, its chief agent, one of its registered agents or one of its officers has been convicted of an offence referred to in subsection 501(3), subsection 501(2) allows the judge, under certain circumstances, to direct deregistration of the party as well as liquidation of the party's assets and those of its registered associations.

The offence referred to in paragraph 501(3)(j) pertains to the candidate or the candidate's official agent. It cannot be committed by the registered party, its chief agent, one of its registered agents or one of its officers. That paragraph should, therefore, be repealed.


146 Dominion Elections Act, S.C. 1934, c. 50, ss. 60(3).

147 Correspondence of the Standing Joint Committee for the Scrutiny of Regulations to the Chief Electoral Officer of Canada dated February 11, 1994, and July 6, 1995.

148 Letter of February 11, 1994, from the Committee to Jean-Pierre Kingsley.

149 A similar recommendation was made in Modernizing the Electoral Process (2001), rec. 7.12.

150 S.C. 2007, c. 21, s. 13 (Bill C-31).

151 "Tutorship to the person" and "curatorship to the person" are civil law concepts. According to the provisions of the Civil Code of Québec, the court appoints a tutor for the person whose incapacity is partial or temporary and who requires to be represented in the exercise of his or her civil rights (article 285), whereas a curator is appointed for the person whose incapacity is total and permanent (article 281). In Ontario, the court appoints a "guardian of the person" for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so (section 55 of the Substitute Decisions Act, 1992).

152 Currently, this does not cover powers of attorney for personal care authorized by a court. Only court-ordered protective supervision regimes are covered.

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