An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election
Table A—Recommendations Discussed in Chapters 1 and 2
in the Act
|A1.||Appointment and duties of election officers||22
Multiple sections specifying duties of election officers
The current highly prescriptive polling place model was created in the 19th century and is increasingly unable to meet the needs of the 21st. What may work at a small polling place with a single polling station serving 200 electors may not work in a large central polling place serving 4,000 electors.
To modernize services and improve efficiency, while preserving the secrecy and integrity of the vote, there needs to be more flexibility in the organization of functions at polling places.
Elections Canada is unable to streamline the voting process or adapt it to modern circumstances, in part because of restrictions in the Act on who may perform certain tasks in the process. For example, dozens of tasks must be performed by the DRO, and others by the poll clerk, with respect to each elector at a particular polling station. This creates unnecessary bottlenecks at some polling places because there is a limit to how much a single person can do.
In order to design polling places in a way that meets the needs of the elector, it is necessary to break the link in the Act between tasks and specific election officers.
The specific provisions respecting the appointment of DROs, poll clerks, registration officers, information officers, central poll supervisors, revising agents and persons responsible for maintaining order (see sections 32, 33–39 and 124) should be deleted. The Act should instead provide that the RO shall, in accordance with the CEO's instructions, appoint sufficient election officers to carry out the tasks prescribed by the Act.
Wherever the Act specifies that one of the above-listed election officers is to carry out a task, reference should be made instead to "an election officer" or "two election officers", as the case may be (see sections 43, 64, 97, 100, 101, 107, 119, 120, 135, 138, 140–144, 148.1–152, 154, 156, 157, 160–162, 164, 167, 169, 173–176, 276, 283–285, 287–290, 296, 301, 304, 479, 484, 502 and 549).
It should be clear that, in certain circumstances and with CEO approval, ROs would be authorized to hire election officers prior to the issue of the writ, to facilitate their training and preparation.
These changes will give the CEO the flexibility to organize tasks at the polls and during revision in a way that accounts for local factors, while ensuring the secrecy and integrity of the vote.
Schedule 1, Form 3
The definition of "polling station" in the Act prevents Elections Canada from making the voting process more efficient, while maintaining the secrecy and integrity of the vote.
Electors from a particular polling division must cast their ballot at a specific table (polling station) in a polling place. An elector may cast his or her ballot only at that table, even if it has a long lineup and no other polling station in the polling place is busy. This causes understandable frustration for electors and stress for election workers. The ability to use electronic lists makes the assignment of an elector to a particular table unnecessary, as poll workers at any table would be able to look up and cross off the name of an elector in any polling division.
To make the voting process more efficient while preserving the secrecy and integrity of the vote, the requirement that electors vote at a specific table in a polling place should be ended. The Act should still provide that all electors in a polling division are assigned to a specific polling station; however, that polling station would not be the particular table where the electors must vote, but rather the entire polling place. For example, where currently multiple polling stations are grouped together in one large room, such as a school gym, the entire room would be the polling station under the recommended process.
In the text of the law, this result could be achieved by amending section 120 so that instead of establishing one polling station per polling division, an RO would be required to assign the electors from polling divisions to a polling station.
This recommendation leaves open the possibility of reporting results at a more detailed level, as with the current poll-by-poll results. However, to fully achieve this result, the form of the ballot in Form 3 of Schedule 1 should be modified to require that the polling division be indicated on the ballot.
Consequential amendments would also need to be made to sections 106 and 108 so that the lists of electors would include all electors for the polling station, not just a single polling division. Provisions related to splitting polling stations and establishing central polling places (subsections 120(2) to (4) and 122(1), and sections 123 and 124) could be repealed as they would no longer be relevant.
|A3.||Counting procedures||283(3)||Section 283 prescribes the ballot-counting process in great detail, including the requirement for ballots to be unfolded and shown to each election officer and candidate's representative present. The level of detail hinders the use of technology in the counting process. The vote count must always be performed in a way that preserves secrecy and integrity, but permitting the count to be done according to the CEO's instructions could allow for the introduction of electronic counting devices or other technology to enhance efficiency.||Subsection 283(3) should be replaced with a general provision that allows the ballot-counting process to proceed according to the CEO's instructions.|
The voting process currently has seven different possible oaths for electors to take, both oral and written, with warnings about the penalties for associated offences under the Act. These oaths deal with somewhat different situations, but essentially all aim to provide an additional piece of evidence that a person is in fact qualified as an elector and entitled to cast a ballot. Having so many different oaths causes confusion for election officers, may lead to unintentional non-compliance and slows the process for all electors.
Elections Canada wishes to reduce the number of different oaths to simplify the work of election officers while maintaining the integrity of the process. To this end, the CEO needs the flexibility to determine the content of oaths.
|To allow Elections Canada to prescribe fewer and clearer oaths, specific wording for the oaths should be deleted from provisions 143(3), 143(3)(b), 147, 161(1)(b), 161(1)(b)(ii), 169(2)(b) and 169(2)(b)(ii). These sections should simply provide, like other sections in the Act, that the oath required to demonstrate an elector's qualification is to be prescribed by the CEO.|
|A5.||CEO's public education and information mandate||17.1
|In 2014, the CEO's mandate to conduct public education and information programs was restricted to programs aimed only at primary and secondary school students. To better inform all electors, including those most likely to experience difficulties in exercising their democratic rights, Elections Canada should be able to implement public education and information programs for all Canadians, and to include content on the electoral process, the democratic right to vote and how to be a candidate.||The CEO should again be given the mandate to implement public education and information programs to make the electoral process better known to the general public, particularly to those persons and groups most likely to experience difficulties in exercising their democratic rights. This mandate should specifically include outreach activities to groups of electors that have a lower registration rate than the general population.|
|A6.||Pre-registration of 16- and 17-year-olds||46
|Elections Canada has the ability to obtain information about citizens under the age of 18 from various sources (for example, driver's licence bureaus and the Canada Revenue Agency). However, the agency may only retain information about individuals who are of voting age. If authorized to retain information on 16- and 17-year-olds, Elections Canada would be able to contact these individuals at an early stage with a view to adding them to the NROE when they turn 18. The agency could also conduct registration drives in schools to pre-register students in anticipation of their turning 18.||The CEO should be authorized to retain information about individuals aged 16 and 17 with a view to eventually including them in the NROE.|
|A7.||Sharing information on non-citizens||46||To be qualified as an elector and be included in the NROE, an individual must be a Canadian citizen. However, there are few sources of information available to help Elections Canada ensure that only Canadian citizens are included in the NROE. One source is the information held by Immigration, Refugees and Citizenship Canada respecting people who have acquired citizenship and those who have not. Having access to this information would allow Elections Canada to more quickly and accurately update and verify the information in the NROE. To allow the sharing of this data, Immigration, Refugees and Citizenship Canada has requested that the Act be amended to authorize its minister to disclose information to the CEO about non-citizens.||Section 46 should be amended to authorize the Minister of Immigration, Refugees and Citizenship Canada to share information, including information about non-citizens, with Elections Canada. A similar provision was included in the Citizen Voting Act (Bill C-50) during the last Parliament, but that bill was not enacted.|
|A8.||Voter identification—use of voter information card||143(2.1)||Most electors do not have difficulty proving their identity; some have difficulty proving their address. Allowing electors to use their voter information card as proof of address at the polls, together with another document proving identity, would help those who are on the list of electors meet the identification requirements. The CEO successfully tested the card's use as proof of address in various pilot projects at specific locations in 2010 and 2011.||The prohibition on the CEO authorizing the voter information card (the "notice of confirmation of registration") as a type of identification at the polls should be repealed. The card would need to be used with another document proving identity.|
|A9.||Voter identification—attestation process||143
Some electors continue to have difficulty proving their address at the polls using the documents permitted by the Act. Such electors may still vote, but only if they show two pieces of authorized identification bearing their name, and have their name and address attested to by another elector who lives in the same polling division. A person may attest for only one other elector.
These requirements for qualified electors who lack documentary proof of address are onerous and may leave them unable to vote. Although the number of such electors is small, any time an elector is disenfranchised, it is a concern. Allowing a person to attest to the address of more than one elector—at least in some circumstances—would increase certain electors' access to voting and presents little risk.
The CEO currently authorizes pieces of identification for registration and voting purposes. The CEO could also be given the power to authorize electors to attest for more than one other elector in certain defined circumstances.
|To meet the special needs of certain categories of electors, the CEO should be authorized to identify circumstances where a person may attest for more than one person (subsections 143(5), 161(6) and 169(5)). Examples could be attestations for:
Electors should be able to attest for someone living in another electoral district (subsection 143(3) and paragraphs 161(1)(b) and 169(2)(b)). This would permit a facility's workers to attest for its residents when they may not live in the same electoral district.
|A10.||Assistance for electors with disabilities||154
Assistance with voting at the polls or in an RO office may currently only be provided to electors who are unable to read or, because of a physical disability, are unable to vote in the manner prescribed in the Act. The provisions do not make assistance available to all electors with physical disabilities or to those with intellectual or psychosocial disabilities that might limit their ability to vote independently. Assistance at the polls should be available to all electors with disabilities, regardless of the nature of their disability.
For special ballot voting in an RO office, while electors can rely on an election officer for assistance, they currently cannot rely on a friend, spouse or other person known to them, as is possible at a polling station. The latter option should be permitted.
The Act should allow assistance to be given at the polls or in an RO office to any electors who indicate that, because of a disability, they require assistance to vote.
Electors voting by special ballot in an RO office should be able to rely on the same people for assistance as at a polling station.
|A11.||Transfer certificates for electors with a disability||159||
Transfer certificates are available to electors with a physical disability whose polling station does not have level access. By restricting transfer certificates to electors with physical disabilities, and only in cases where the elector's polling station lacks level access, the provision fails to capture all instances where an elector may wish to vote at a different polling station because of a disability.
In addition, the application for a transfer certificate must be hand-delivered to the RO or ARO. This is a burdensome process and an unnecessary impediment to electors who are seeking accommodation.
|Transfer certificates should be available to any elector with a disability who, because of his or her disability, wishes to vote at an alternative polling location. The Act should allow the CEO to determine the form of the application process, rather than requiring in-person delivery to the RO or ARO.|
|A12.||Voting at home||243.1||The current provision in the Act for voting at home is very specific. Electors may only use this option if they are unable to get to an RO office or polling station and are unable to mark a ballot independently. The election officer who assists them must mark the ballot on their behalf. Voting at home could be beneficial to a greater number of electors, particularly to those whose polling station is not accessible.||A new provision should be added to permit electors with a disability whose polling station is not accessible, as indicated on their voter information card, to be visited by an election officer in order to vote at home. In these situations, electors would mark their own ballot.|
|A13.||Curbside voting||n/a||Based on feedback from ROs, there is a need to allow some electors with disabilities to vote, on request, at the location but outside the building that contains their polling station. For instance, an elector with a sensitivity to scent may not be able to enter the polling place. Called "curbside voting", this option is available in several US states to individuals who are unable to enter a polling place because of a mental or physical disability.||
The Act should be amended to permit curbside voting by electors with any type of disability. The procedure specified in the Act should provide for the same rigour (secrecy of the vote, etc.) that applies to regular voting at polling stations.
The provision should set limits on how far away from the building the voting may take place. Also, a record of curbside voting should be made in the poll book beside the name of each elector who uses this option. At least two election officers should be present for curbside voting, and candidates' representatives should be invited to attend.
|A14.||Level access for polling places||60
|The Act requires RO offices and polling places to be located in facilities with level access. This is an outdated concept when dealing with accessibility, and considers only persons with a mobility impairment. Elections Canada has imposed a much higher threshold for choosing polling places, which includes 35 accessibility criteria (lighting, available parking, etc.). At the 42nd general election, ROs were required to seek CEO approval for all polling locations that did not meet a mandatory subset of these accessibility criteria, not simply locations that did not provide level access.||All references to level access for physical premises in the Act should be replaced with references to the need for those premises to be accessible.|
|A15.||Pilot projects conducted by the CEO||18.1||Section 18.1 authorizes the CEO to test alternative voting processes. Such processes may not be used for an official vote without the prior approval of the House and Senate committees responsible for electoral matters. In the case of an alternative electronic voting process, prior approval from the House of Commons and Senate themselves is required. This imposes a significant procedural limitation on the ability of Elections Canada to test new voting mechanisms, including those involving technology, at the polls. While pilot projects conducted by Elections Canada can benefit all electors, they are especially important for electors with disabilities who seek to vote independently and in secret through the use of technology.||The distinction between the approval requirement for testing an electronic voting process and any other alternative voting process should be removed, as should the requirement to seek the approval of the Senate committee responsible for electoral matters. A single approval requirement consisting of prior approval by the House of Commons committee responsible for electoral matters should apply to tests of any alternative voting process at an official vote. In addition, Parliament should require Elections Canada to conduct pilot projects on the use of technology in the voting process to benefit electors with disabilities.|
|A16.||Opening of advance polls||171(2)||Currently, advance polling stations must be open from noon until 8 p.m. Many electors do not distinguish between ordinary and advance polls, and they expect advance polls to be open as early as ordinary ones. As a result, long lineups may form before the doors open at noon.||Advance polling stations should open at 9 a.m. rather than noon. If they are to open earlier, Parliament could also consider having them close earlier than the current time of 8 p.m.|
|A17.||Advance poll procedures—signature requirement||174(2)(b)||During the 42nd general election, there were long lineups at some advance polls, creating frustration among electors. The lineups were partly caused by the unduly onerous procedures that the poll clerk must follow at an advance poll. Specifically, the poll clerk must write the name and address of each elector on the record of votes cast, and have the elector sign beside his or her name. Although seemingly a minor process, many electors and election officers complained that it added significantly to the time it took to process each voter. Recording the names of those who vote at the advance polls is important for updating the lists of electors before polling day. However, the signature requirement adds little if anything to the integrity of the process, yet slows it down significantly.||Paragraph 174(2)(b), which requires every voter at an advance poll to sign the record of votes cast, should be repealed.|
|A18.||Mobile polls||125||Mobile polling stations can currently be established only in institutions where seniors or persons with a physical disability reside. Some ROs have suggested that mobile polling stations could be usefully deployed in low-density areas with remote and isolated communities. In these places, a full four-day advance polling period is not necessary and leads to staffing challenges. A mobile poll could travel the region, giving electors the opportunity to vote closer to home at a specific time during the advance polling period, rather than having one poll set up in a central location for four days.||To better serve isolated and low-density communities, ROs should be permitted to establish mobile advance polls at two or more locations, in accordance with the CEO's instructions.|
|A19.||Making special ballot kits available electronically||182(f)
Schedule 1, Form 4
When an election is called, Elections Canada sends "ballot kits" to international electors. Ballot kits consist of a ballot, an inner envelope and an outer envelope. The kits are also provided to local and national electors who apply to vote by mail during the election.
A 36-day election campaign is a short period for electors to apply for a kit, be sent their kit and return their ballot. This is especially so when the elector lives in a remote country or one with less efficient mail service. In every election, many special ballots cannot be counted because they arrive at Elections Canada after polling day. In the 41st and 42nd general elections, the number of special ballots not received on time was 1,825 and 3,229, respectively. The number of ballots that were not returned was 7,636 and 12,909, respectively. It is likely that at least some of these ballots were not returned because electors knew their ballot would not arrive by polling day.
To quicken the vote-by-mail process, the Act should be amended to remove barriers to having electors receive or download their own special ballot electronically. Electors who choose this option would have to return their ballot and a completed declaration using their own inner and outer envelopes, according to instructions that would preserve the secrecy and integrity of the vote.
The necessary amendments are as follows: Form 4 of Schedule 1 would need to be modified to remove the form of the back of the ballot, as ballots printed by electors would be one-sided. Furthermore, sections 227, 228, 237 and 239 would need to allow for the possibility of declarations and ballots being sent to electors electronically, and of the declarations and ballots being returned by electors in inner and outer envelopes supplied by the elector. Lastly, sections 267 and 274 to 278 would need to reflect that not all special ballots being counted would be contained in outer envelopes as defined in section 2. Some would be in envelopes supplied by electors.
Electors should continue to have the option to apply for a traditional mail-in ballot kit.
|A20.||Prohibitions relating to requesting a ballot and voting||5
Voting prohibitions and prohibitions related to improperly requesting and handling a ballot are scattered throughout the Act. There is a need to better organize these provisions and make them consistent. In some cases, it is not clear that a prohibition applies to all methods of voting. There is also duplication of prohibitions and partial overlap.
The Commissioner has raised some additional difficulties with respect to enforcing these prohibitions. First, the prohibitions in section 5 on voting when not qualified require that a person know the state of the law—that is, what makes someone a qualified elector—and this is generally contrary to the criminal law principle that ignorance of the law is no excuse.
Second, having the words "knowing", "knowingly" or "wilfully" in a prohibition provision, as opposed to the provision that creates the offence (sections 480 to 499), may require a prosecutor to prove that an offender knew about or was wilfully blind to the elements of the offence for which knowledge is required.
Third, the current provisions of the Act do not adequately address the sharing of photos of ballots. The Commissioner noted this deficiency in his 2016 annual report. These provisions need to be amended to protect ballot secrecy and reduce opportunities for bribery and intimidation.
The various sections in the Act that protect the secrecy of the vote and prohibit improper acts related to requesting and handling ballots should be grouped together in their own part of the Act so that they can apply to voting by any method, based on the facts of a particular situation. Duplication and overlap should be removed.
Section 5 should be rewritten to prohibit a person from voting when he or she is not qualified as an elector or is disentitled from voting. In addition, it should be amended to prohibit a person from influencing another person to vote when he or she knows that the other person is not a Canadian citizen or at least 18 years of age on polling day. This would remove the need to prove that the person knew the requirements of the law.
The provisions protecting the secrecy of the ballot should include a prohibition on taking, disclosing or sharing a photograph or digital image of a marked ballot, including on social media. They should indicate that the prohibition applies during voting or after voting has occurred. It should be clear that the prohibition applies to individuals sharing an image of their own marked ballot or of another person's marked ballot. There should, however, be an exception to allow electors with a visual impairment to take and use a photo of their marked ballot, but only for the purpose of verifying their vote. The aim is to help these electors vote independently.
The associated offence provisions in Part 19 of the Act should also be amended to reflect the changes made to the prohibition provisions.
The Commissioner agrees with these recommendations.
|A21.||Fixed election date||57||Although the Act provides for a fixed election date, the length of the election period varies depending on when the election is called. This creates uncertainty for all electoral participants except the governing party, and diminishes the benefit afforded by the fixed date in terms of Elections Canada's election preparedness. Finally, the absence of a maximum period for the election, combined with the fact that spending limits for parties and candidates are prorated to the length of the campaign, can compromise the level playing field by favouring campaigns that have access to more resources.||This provision should be amended to provide a maximum length for election periods (for example, 45 or 50 days).
In the case of a fixed-date election, Parliament may wish to consider providing that the writ be issued on September 1. This is a natural starting point for the election period from the perspective of leasing RO offices.
|Currently, the Act provides that polling day is a weekday (generally a Monday). There are a number of consequences to polling day being a regular workday, including difficulty in recruiting qualified election workers and finding suitable polling places. It also results in long lineups before and after regular working hours. Moving polling day to a weekend day would reduce or eliminate some of these difficulties. Para-transportation services for electors with disabilities would need to be made as widely available on a weekend polling day as they currently are on weekdays.||Parliament should consider moving polling day to a Saturday or Sunday, as is the case in Australia, New Zealand and a number of European countries.|
|A23.||Residency requirement for field liaison officers, ROs, AROs and AAROs||22(4)||The requirement that ROs, AROs and AAROs reside within the boundaries of their electoral district restricts the pool of potential candidates for these positions, and is not as important a requirement as that these election officers have a sophisticated understanding of their electoral district. In urban centres, someone can live across the street from an electoral district and be extremely familiar with it.||
The residency requirement for ROs, AROs and AAROs should be replaced with a requirement that they reside in the electoral district where appointed or in an adjacent electoral district.
In addition, a technical error in this provision should be corrected. As a result of a 2014 amendment that renumbered the election officer positions listed in subsection 22(1), field liaison officers are now unintentionally covered by the electoral district residency requirement. This is not possible given that their function is to coordinate between a number of electoral districts. Field liaison officers should not be subject to any residency requirement.
|A24.||Appointment of election officers who live outside the district or are under the age of 18||22(5)||ROs have difficulty recruiting a sufficient number of skilled workers, in part because the Act places restrictions on who can be appointed. In recent elections, the CEO has systematically approved the hiring of 16- and 17-year-olds, and they have proven to be an excellent pool of workers. Being able to recruit 16- and 17-year-olds as well as workers who reside outside an RO's electoral district, without restriction, would increase an RO's ability to appoint the number of capable staff required.||The limitations on the ability of ROs to appoint election officers who reside outside the electoral district or who are 16 or 17 years of age should be eliminated.|
|A25.||Partisan nominees for election officer positions||32–39||During an election, some 285,000 election workers must be hired across the country. ROs are currently required to consider partisan nominees for the positions of DRO, poll clerk and registration officer until the 24th day before polling day, and for revising agents until three days after the parties receive the request for names from the RO. This means that ROs cannot staff the key DRO and poll clerk positions until late in the election period. This is a significant limit on the staffing flexibility of ROs and can create delays in training. In most cases, parties and candidates provide no names or a largely insufficient number of names to ROs.||While candidates and parties should remain free to recommend qualified persons for election officer positions, the prohibition on recruitment pending the receipt of these names should be deleted.|
|A26.||Candidate nomination process||27(1)
The current system for filing candidate nomination papers is cumbersome, with unnecessary requirements that create an administrative burden for both the prospective candidate and the RO charged with verifying that all requirements have been met.
To present their nomination, candidates must obtain the signatures of 100 (or, in some cases, 50) electors in their electoral district and must swear an oath consenting to the nomination in the presence of a witness. Nomination papers must be filed by the witness, who must verify the addresses of the electors and swear an oath before the RO. Candidates may not file their own nomination paper.
These requirements reflect an outdated approach to candidacy, in which candidates are nominated by others instead of registering themselves. Although the requirement for signatures is aimed at discouraging frivolous candidacies, it is not clear that it does so. The signers do not need to state that they support the candidate, and many candidates receive fewer than 100 votes, suggesting that those who signed did not in fact support the candidate. The signature requirement is an administrative burden for candidates and election workers, whose time would be better spent focusing on other tasks. It also creates an obstacle to an efficient electronic nomination process.
The nomination process is further muddled by the Act prescribing a process for faxed nominations that has somewhat different requirements (for example, the witness does not have to swear an oath before the RO). This leads to confusion for prospective candidates and election workers.
|The requirements for the prospective candidate to swear an oath consenting to the nomination in the presence of a witness and for the witness's signature should be repealed (paragraphs 66(1)(b) and (c)). Because a witness is no longer needed, the requirement for the witness to swear an oath before the RO should also be repealed (subsection 67(3)).
The requirement for the witnessed signatures of 100 or 50 electors should be repealed (paragraphs 66(1)(e)–(g)), together with the requirement that the witness to those signatures exercise due diligence regarding the residence of those electors (subsection 67(2)). All the text in subsection 71(2) relating to elector signatures should be deleted.
Subsections 67(1) and (4) should be amended so that it is the prospective candidate, and not the witness, who files the nomination paper, the deposit, the auditor's consent to act and the party endorsement.
Subsection 72(1) requires the RO to issue a receipt to the witness who files the deposit. The provision should be amended so that either the RO or a delegate may issue the receipt, and so the receipt is issued to the prospective candidate. In subsection 27(1), which lists sections of the Act containing RO functions that may not be delegated, the reference to subsection 72(1) should be deleted.
If the requirement for 100 or 50 elector signatures is repealed, the nomination period (section 69) could be shortened, as could the timeline for the RO to approve a nomination.
As section 539 and Schedule 3 of the Act are only relevant for the purposes of determining whether 100 or 50 elector signatures are required, section 539 and Schedule 3 should be repealed if the signature requirement is repealed. If the signature requirement is not repealed, an alternative to the current process for amending the list in Schedule 3 should be devised. The process is very cumbersome and, among other problems, relies on information from 1971 that is no longer relevant.
|A27.||Candidate identification||66–67||The current rules do not require prospective candidates to provide proof of identity with their nomination paper. This means that an RO cannot validate a prospective candidate's identity or confirm the name to be used on the ballot. As well, the Act provides that prospective candidates can replace one or more of their given names by a nickname in their nomination paper. There have been instances where candidates have used frivolous names. These situations can undermine electors' confidence in the seriousness of the electoral process.||Section 67 should be amended to require that prospective candidates provide proof of identity with their nomination paper. What constitutes satisfactory proof of identity should be determined by the CEO.
The current nickname provisions should be replaced by a general requirement that, if candidates wish to use a name other than what is on their identification, they must provide evidence that they are "commonly known" by that name (including a nickname).
At a minimum, if no substantial changes are made to the nickname provisions, the French version of paragraph 66(2)(c) should be corrected to accord with the English version.
|A28.||AMPs||Parts 16, 17 and 18||
The Act uses criminal sanctions, almost exclusively, to enforce compliance with its provisions. This is not an appropriate approach in many situations, especially in the complex regulatory regime that applies to political financing. In many cases of non-compliance, neither the degree of harm caused nor the level of wrongdoing merits the stigma of a criminal prosecution. As a result, non-compliance is often not effectively addressed. When it is, the criminal process does not provide for a timely resolution. A lack of action in some cases of possible wrongdoing and a delayed response in others reduces the deterrent effect and creates a perception of unfairness among those who "played by the rules".
Canadian regulatory regimes are increasingly using AMPs as a way of promoting compliance. Under an AMPs regime, whether or not a prescribed prohibition or requirement has been contravened is established through an administrative, as opposed to a judicial, process. The purpose of AMPs is to increase compliance with a regulatory regime by creating an incentive to comply: namely, to avoid incurring a monetary penalty. The use of AMPs is a more efficient, immediate and, in many cases, effective approach to achieving compliance than the possibility of a criminal prosecution. It is also less stigmatizing and punitive than a prosecution in the criminal courts, as individuals or entities subject to an AMP will not be imprisoned or have a criminal record. AMPs help to provide a broader range of appropriate enforcement responses to unlawful conduct.
Adding AMPs to the Act would provide an efficient and effective administrative tool to deter unlawful activity; it would assist in efficiently regulating the political financing and communications regimes. AMPs would be available as an alternative to criminal prosecution for an offence.
An AMPs regime should be developed for Parts 16, 17 and 18 of the Act, which regulate political financing and communications, as described in the body of this report.
The Commissioner agrees with this recommendation.
|A29.||Failure of EDAs to file financial transactions returns within deadlines||448
|Elections Canada has in the past had difficulty obtaining financial transactions returns from both registered and deregistered EDAs. In some cases, returns are filed after the deadline; in other cases, they are never filed. In both situations, the goal of transparency in political financing is not met. When an EDA is deregistered for failure to meet its reporting obligations, nothing prevents members of the party in the electoral district from re-registering a new association the following day. In 2010, the CEO recommended a four-year ban on the registration of a new EDA in an electoral district if the previous EDA in the electoral district for the same party did not comply with its financial reporting obligations.||
If a registered EDA fails to comply with its financial reporting obligations by filing its financial return after the applicable deadline, its ability to issue tax receipts should be suspended until all its returns are received. The Act should also be amended to prevent a newly registered EDA from issuing tax receipts for four years (one electoral cycle) if the previous EDA for the same party in the same electoral district did not comply with its financial reporting obligations. The ban could be lifted if the outstanding returns are received. As well, the Act should be amended to make it an offence for EDAs to issue tax receipts after having received a notice of non-compliance with filing obligations.
The registration of a new EDA should be prohibited if it has assets that cannot be traced back to contributions or transfers made in compliance with the Act. This would prevent a deregistered EDA that failed to file its financial return from re-registering with all the assets of the previous EDA (as well as new, unreported assets).
The Commissioner agrees with these recommendations.
Candidates are required to appoint an auditor at the outset of their campaign, prior to receiving contributions or incurring expenses. The reports of external auditors are increasingly expensive for candidates and, in the case of candidates with few financial transactions, they do not add a great deal in terms of transparency. At the same time, Elections Canada is frequently informed that the production of a return is delayed because of the length of time needed for the auditor to review the documents.
In 2010, the CEO recommended that the requirement of producing an audit report be eliminated for all candidates who incurred expenses or received contributions of less than $10,000. Nomination contestants are exempt from the requirement to appoint an auditor and produce an audited campaign return if they accepted contributions and incurred expenses under $10,000. For EDAs and leadership contestants, the threshold is $5,000.
As well, the subsidy provided to auditors of candidates and EDAs has not been adjusted for inflation since 2003, while there is currently no subsidy for auditors of nomination contestants.
|The Act should provide that candidates are only required to submit an audit report if they incur expenses or accept contributions of $10,000 or more. The subsidy provided to auditors of candidates and EDAs should be subject to an inflation adjustment, and the same subsidy should be extended to the auditors of nomination contestants. The inflation adjustment factor in subsection 384 of the Act should be used for this calculation.|
|A31.||Subsidy for official agents||n/a||Official agents play a fundamental role in supporting the integrity of the political financing system, and their role is increasingly complex. They are not reimbursed for the important work they do.||A subsidy should be payable by Elections Canada to official agents of candidates. The subsidy should be available to official agents who meet certain conditions established by Elections Canada, such as completing training, filing complete returns and filing required documents on time. The amount of the subsidy should reflect the volume of transactions in (and therefore complexity of) the campaign return, using either a sliding scale or a set of thresholds. Campaigns with no or little financial activity should not be entitled to the subsidy. The subsidy should also be capped at a maximum amount (for example, $3,000).|
|A32.||Requiring some court procedures to take place in the Federal Court||2
|Many judicial procedures under the Act are required to take place in provincial superior courts rather than the Federal Court, which creates an inconsistent jurisprudence in electoral matters and limits the development of judicial expertise in the subject area.||The adjudication of political financing matters, including applications for extensions of financial return filing deadlines or for authorizations to correct or revise documents related to financial reporting obligations, should be transferred to the Federal Court. This would require a change to the definition of "judge" in section 2, as well as possible amendments to the applicable political financing provisions (sections 443, 475.93, 476.73, 476.86, 476.88, 477.57, 477.68, 477.7, 477.71, 477.93, 478.78, 478.89, 478.91 and 478.92).|
|A33.||Power of Commissioner to compel testimony||510||Both the Commissioner and the CEO recommended in 2013 that the Commissioner be given the power to seek judicial authorization to compel testimony, which would greatly aid in investigating and successfully prosecuting offences under the Act. This recommendation continues to be relevant.||As recommended in 2013, the Commissioner should be given the power to seek a court order to compel witnesses to provide evidence, with all necessary safeguards for ensuring compliance with the Canadian Charter of Rights and Freedoms. The Commissioner continues to support this recommendation.|
|A34.||Authority of Commissioner to lay charges||511
Under section 511, in order to lay a charge for prosecution, the Commissioner is required to obtain the approval of the Director of Public Prosecutions. This is an unusual requirement for a federal investigator, and means that the Crown must undertake a separate and at times lengthy review of all the evidence in the case. It adds an undue delay in processing cases and is not operationally efficient. Normally, charges are laid in advance of the Crown review and are later stayed if the Crown concludes that it is not in the public interest to proceed with a prosecution or that there is no reasonable prospect of conviction.
It is important to ensure that charges are not laid under the Act for partisan reasons, and there is a separate provision (subsection 512(1)) that prohibits a person from laying a charge without the prior written consent of the Director of Public Prosecutions. In the execution of his independent, non-partisan functions under the Act, the Commissioner should be exempt from this requirement.
|As the Commissioner has recommended to the CEO, section 511 should be amended to authorize the Commissioner to lay a charge ("initiate a prosecution") under the Act without prior authorization from the Director of Public Prosecutions. In tandem, the Commissioner should be expressly exempted from the prohibition in subsection 512(1) against anyone but the Director of Public Prosecutions laying a charge without the latter's prior written consent.|
|A35.||Compliance agreements||517||The Act permits the Commissioner to enter into a compliance agreement with a "person". It should be clarified that this includes an entity such as a political party or municipality.
Furthermore, in a compliance agreement, the Commissioner may presently only include terms or conditions that he considers necessary to ensure compliance with the Act. The Commissioner suggests that these agreements would be far more useful if the Act allowed him to negotiate broader terms and sanctions, such as the payment of a fine to the Receiver General. This would allow for contracting parties to take substantive action that recognizes the impact of their wrongdoing, would be a form of punishment and could act as a general deterrent.
|As the Commissioner recommended to the CEO, the Act should expressly authorize the Commissioner to enter into a compliance agreement with an entity as well as a person. In addition, the terms and conditions that may be included in a compliance agreement should be broadened to allow for any measures or sanctions that are negotiated with the contracting party. These may be included to ensure compliance, to provide restitution, to act as a deterrent or for any other purpose.|
|A36.||Definition of leadership and nomination campaign expenses||2
Compared to the definition of "election expense" that applies to candidates, the definitions of "leadership campaign expense" and "nomination campaign expense" are problematic in that they do not include expenses incurred outside the contest period, even if the goods or services are used during the contest. Nor do these expenses include non-monetary contributions or transfers. This has consequences for the coherence of the political financing regime applicable to leadership and nomination contestants. Contestants are able to use unregulated money to fund much of their campaigns and to avoid reporting campaign-related expenses. Moreover, contestants are prevented from using campaign funds to pay for expenses directly related to the campaign if these expenses were incurred prior to or after the contest period (for example, audit fees or office rent). In his 2016 annual report, the Commissioner noted that he received complaints from members of the public about nomination contestants underreporting their expenses. On being informed of the Act's lack of regulation for significant expenses incurred by campaigns, the complainants questioned the integrity of the political financing system applicable to contestants.
For more on this issue, see Interpretation Note 2014-01, Definition of Leadership Campaign Expenses and Nomination Campaign Expenses from August 2015.
|The definitions of "leadership campaign expense" and "nomination campaign expense" (section 2) should be amended to include expenses incurred as an incidence of the campaign, not just expenses incurred "during the contest". Non-monetary contributions and transfers provided to contestants that are received as an incidence of the contest also should be captured by the definition. These changes will make leadership and nomination financial transactions fully transparent and the political financing regime applicable to contestants more coherent. In addition, the limit on nomination campaign expenses (section 476.67) should be amended to apply only to expenses in relation to goods or services used during the nomination contest period, regardless of when they were incurred. The CEO made similar recommendations in 2010. The Commissioner agrees with these recommendations.|
|A37.||Treatment of certain expenses (childcare, disability, litigation, travel)||376
The introduction of contribution limits has led to unintended and undesirable impacts respecting some kinds of expenses. This is particularly the case with certain expenses that are currently classified as "personal expenses"—specifically, childcare expenses and expenses to care for a person with a disability that candidates incur as an incidence of their candidacy.
Parliament has categorized these expenses as personal expenses. This means the expenses are not subject to the spending limit, but may still be reimbursed, whether incurred inside or outside the election period. The aim is to reduce barriers to participation for persons who need to incur such expenses. However, contribution limits now prevent this objective from being attained. Because these expenses are regulated, they have to be paid using contributions that the candidate receives; however, the source and amount of contributions are restricted. This reduces the ability of candidates to pay for these expenses, including from their own resources.
Candidates who incur litigation expenses in relation to an election face a similar difficulty. Litigation expenses may arise from a contested election, a judicial recount, or an application to correct a political financing document or to extend a filing deadline. As with childcare or disability expenses, litigation expenses must be paid using regulated funds. This means that a person may be denied legal representation in such a matter even if he or she is able to pay for it personally.
A separate matter, but one that is related to personal expenses, concerns the treatment of travel expenses. Currently, because travel expenses are a subcategory of personal expenses, even expenses for travel occurring outside the election period are reimbursed. Only expenses for travel that occurs during the election period should be reimbursed.
Expenses related to childcare and care for a person with a disability (whether candidates themselves or another person for whom the candidate provides care) should be regulated in a way that achieves Parliament's objective. The Act should be amended to clearly indicate that candidates may opt to pay childcare and disability expenses, which would normally constitute electoral campaign expenses, using their personal funds. If the campaign chooses to use regulated funds, the expenses (and related contributions) must be reported and should be eligible for reimbursement as personal expenses, as they are now. In addition, Parliament should consider increasing the level of reimbursement available for these expenses, given their importance in enabling certain individuals to run as candidates. A reimbursement of up to 90% of these expenses should be considered.
A similar amendment, without reference to a reimbursement, should be made for candidates' litigation expenses to ensure that contribution limits are not a barrier to the right to counsel. Candidates should be able to choose whether or not to use regulated funds for the legal process. This includes litigation expenses for recounts, contested elections and proceedings related to the CEO's application of political financing provisions, including extension requests. As is the case now, such expenses would not be reimbursable, nor subject to the spending limit.
Because legal fees can be quite significant, the Act should require campaigns to file a separate report in this area along with the candidate's return. The report would set out any litigation expenses and, where the fees are not paid from the campaign bank account, the payment sources. This would ensure transparency with respect to the fee amounts and how they are paid.
Finally, while all travel expenses should continue to be treated as campaign expenses so they must be paid using campaign funds, only expenses for the portion of travel that occurs during the election period should be reimbursed.
|A38.||Costs to accommodate electors with disabilities||n/a||Political parties and individual campaigns do not always make accommodations for people with disabilities. Specific examples of a failure to provide accommodation include video products without captioning, paper and electronic products created in inaccessible formats, and a lack of sign language interpretation at events. Encouraging parties and candidates to take steps to provide accommodation for persons with disabilities, by amending the Act to reduce the burden of expenses related to providing accommodation, would benefit electors with disabilities and increase their access to and participation in the democratic process.||The reimbursement of expenses related to the accommodation of electors with disabilities should be increased to 90% to encourage candidates and parties to incur such expenses. Parliament may wish to prescribe categories of expenses that could qualify for such a reimbursement, and may also wish to consider whether these expenses should be exempt from the spending limit.|
The provisions of the Act dealing with broadcasting need to be updated to make them fairer and more coherent. The regime is complex; it no longer covers an adequate range of players, since the free time rules are limited to "networks" only; and it continues to unduly favour larger parties over smaller ones, which is a chronic irritant for smaller parties.
When the system was originally enacted, there was a small number of registered parties. Currently, there are 19. The Broadcasting Arbitrator is required to allocate paid time among all of these participants, even though many of them do not have the resources to buy broadcast advertising. The free time allocation is linked to the paid time allocation, however, so all parties must participate in the latter. In addition, the statutory formula for paid time allocation relies heavily on past electoral performance. The Broadcasting Arbitrator is permitted to modify this allocation if, in his view, it would otherwise be "unfair to a registered party or contrary to the public interest". He has used this authority consistently since his appointment in 1992. Most recently, he modified the allocation so that 50% of the paid time would be available to all parties equally, with the other 50% being allocated using the statutory formula (that is, on the basis of success at the past election).
Broadcasters are required to make paid time available to parties during prime time. They must also make the paid time available at the lowest applicable rate, but in practice, broadcasters interpret this rule as permitting rates that are significantly higher than those applied to commercial advertisers who are able to buy advertising months in advance.
The CEO and Broadcasting Arbitrator made detailed recommendations on this subject in 2001 and 2005. Elections Canada recently sought input from the CRTC, the Canadian Association of Broadcasters and CBC/Radio-Canada on the earlier recommendations. The responses received from the Canadian Association of Broadcasters and CBC/Radio-Canada were also shared with the Broadcasting Arbitrator, who provided his own response to their suggestions.
The CEO and the Broadcasting Arbitrator continue to support the majority of recommendations previously made in this area.
First, the paid and free time allocation processes should be uncoupled.
Second, the allocation regime for paid time should be modified. Instead of 390 minutes of paid time being allocated among political parties in accordance with a complex statutory formula, each party should be given the same entitlement to 100 minutes of paid time. A cap of 300 minutes should be set on the total amount of paid broadcasting time that any station must sell to political parties. Where the requests from all parties to one station amount to more than 300 minutes, the time should be pro-rated, with any disputes to be resolved by the Broadcasting Arbitrator. Parties should also have the right to purchase additional time, subject to availability, as is currently the case.
Third, paid time should be provided at the "lowest unit charge", which should be clearly defined to mean the lowest rate charged to non-political advertisers who receive volume discounts for advertising purchased months in advance. The Canadian Association of Broadcasters suggests that paid time be provided "at the same unit rate" to all parties, without any comparison to other potential purchasers. Neither the CEO nor the Broadcasting Arbitrator supports this suggestion.
Fourth, the obligation to provide free broadcasting time should no longer apply only to "networks". Instead, it should apply, through conditions of licence under the Broadcasting Act, to all conventional television stations that broadcast news or public affairs programs, all news/talk radio stations, and all specialty television stations that focus on news or public affairs. Each station should be required to provide a total of 60 minutes of free time, to be allocated among the parties. The Canadian Association of Broadcasters objects to this proposal, suggesting that it would be financially onerous for broadcasters. The CEO and the Broadcasting Arbitrator maintain this recommendation, however, as greater access to free broadcasting time for all political parties is in the public interest.
Fifth, on the issue of free broadcasting time, although the Broadcasting Arbitrator believes that it should be allocated according to his 50/50 modified approach (currently used for the paid time allocation), the CEO recommends an equal allocation of free time among all registered parties.
CBC/Radio-Canada has also recommended that the free time allocation be published by the Broadcasting Arbitrator within two days of the issue of the writs; that parties be given a 10-day deadline to express their intention to use their free time allocation; that a station, if it is part of a network or broadcaster group, be able to schedule free time similarly on all stations of the network or group; that it not be necessary to schedule the free time evenly over the election period, as long as parties are treated in an equitable manner; and that no reallocation be permitted less than 21 days before polling day. The CEO and the Broadcasting Arbitrator agree with these recommendations, which essentially mirror the current allocation regime for paid time.