An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election
Table C—Minor and Technical Recommendations
|No.||Subject||Provision(s) in the Act||Recommendation|
|C1.||Power to enter into contracts||18.2(1)||Subsection 18.2(1) does not expressly state that the CEO may exercise his contracting authority with respect to statutes under which he acts other than the Canada Elections Act, such as the Electoral Boundaries Readjustment Act. The CEO is authorized, for example, to provide administrative support services to commissions under the latter Act. Subsection 18.2(1) should therefore be amended to specify that the CEO may enter into contracts in the exercise or performance of his powers, duties and functions under the Canada Elections Act or any other Act of Parliament.|
|C2.||AAROs||30(4)||Subsection 30(4) specifies that an AARO may not perform the functions of an ARO described in subsections 28(1), 60(2), 70(1) and 293(1). However, there are no ARO functions described in subsection 60(2), which states that the CEO may fix the minimum hours that an ARO and the RO have to be present at the RO office. What is intended by subsection 30(4) is to distinguish those sections of the Act where "assistant returning officer" means only an ARO from those sections where "assistant returning officer" can mean both an ARO and an AARO. Subsection 30(4) should be amended. Instead of specifying that an AARO may not perform the duties described in subsections 28(1), 60(2), 70(1) and 293(1), it should provide that when reference is made to an ARO in those subsections, it does not include an AARO.|
|C3.||Ineligible candidates||65(d)||Under paragraph 65(d), among those currently ineligible to become candidates under the Act are "a sheriff, clerk of the peace or county Crown Attorney". These are anachronistic terms, the meaning and scope of which are unclear. In addition, the English and French versions of the provision are not consistent. The prohibition on sheriffs, clerks of the peace or county Crown Attorneys running as candidates should be repealed or at least reconsidered.|
|C4.||Campaigning in public places||81.1(1)||The lists of places open to the public in the English and French versions of subsection 81.1(1) are not consistent. The English version uses "governmental ... place" while the French version uses "lieu à usage ... officiel", which does not have the same meaning. Subsection 81.1(1) should be amended so that the two versions correspond.|
|C5.||Distribution of lists||94
|The Act requires ROs to provide a specified number of paper lists of electors to candidates, and the CEO to provide printed copies of the final lists of electors to parties and candidates who are elected, in addition to electronic copies. This rule does not reflect the current preference of many parties and candidates for electronic lists. The Act should be amended so that ROs and the CEO are required to provide printed copies only on request.|
|C6.||Objection by an elector||103
|The objection procedure set out in sections 103 and 104 is a complicated and administratively burdensome process by which an elector can object to the inclusion of another person's name on a preliminary list of electors. The process is anachronistic—it predates the establishment of the NROE—and is not necessary to ensure the integrity of the preliminary lists. Electors remain free to contact Elections Canada at any time if they have concerns about the integrity of a list. The provisions allowing electors to make objections before an RO respecting the inclusion of another person's name on a list should be repealed.|
|C7.||Publication of addresses||112(1)||ROs are currently required to post in their offices and provide to candidates the names and addresses of all DROs and poll clerks. The purpose is to inform candidates of who will be working at the polls; however, providing a person's home address is an unnecessary invasion of privacy. The requirement to disclose home addresses of DROs and poll clerks should be repealed, as the CEO recommended in 2001.|
|C8.||Information on the ballot||2
|Where a candidate has requested in his or her nomination paper to be designated as an independent on the ballot, the French version of subsection 117(3) makes it mandatory for the word "indépendant" to be used, whether the candidate is male or female. It does not allow a female candidate to choose to be designated as "indépendante". This subsection should be modernized to reflect current French usage in Canada. The French versions of subsections 117(3) and 117(5), subparagraph 66(1)(a)(v) and the definition of "appartenance politique" in section 2 should be amended to use the word "indépendant(e)" instead of "indépendant".|
|C9.||Information—location of polling stations||125.1||Section 125.1 requires ROs to send information on polling locations directly to all candidates in the electoral district and also to the political parties that have endorsed them. As a result, political parties that run a candidate in each electoral district receive as many as 338 separate communications and data files. Section 125.1 should be amended so that the polling location information for parties can be consolidated at Elections Canada headquarters and then sent directly to the national party offices. ROs would continue to send the information directly to each candidate in the electoral district.|
|C10.||Representative's authorization||135(2)||Under subsection 135(2), candidates' representatives must present their authorization forms to the DRO. This is not practical or efficient in a central polling place. This subsection should be amended so that candidates' representatives may deliver their authorization forms to either the central poll supervisor or the DRO.|
|C11.||Elector not on the list||149(b) 173(2)(a)||Under paragraphs 149(b) and 173(2)(a), an elector whose name is not on the list of electors can vote if the DRO "ascertains" with the RO that the elector should be on the list. These are anachronistic provisions from a time when electors could not register at the polls. Anyone not on the list today can fill out a registration certificate, without the need for an alternative process. The provisions allowing electors to vote if the DRO ascertains that they ought to be on the list should be repealed.|
|C12.||Custody of election materials||175(7)||As a general rule, DROs are entrusted with the safekeeping of election documents, including ballot boxes and their contents. With the CEO's prior approval, an RO may recover a ballot box from a DRO if that action is deemed necessary to ensure the integrity of the vote. The need for the CEO's approval in each individual situation is an administrative hurdle that delays ROs from acting promptly to protect ballot boxes. As the CEO recommended in 2010, ROs should be entitled to recover a ballot box when they believe the integrity of the vote is at risk, without seeking the CEO's prior approval. The CEO will retain the authority to issue binding instructions regarding the custody of election materials where warranted.|
|C13.||Location of SVRA and CEO||180, 214, 221, 229, 239, 261, 267||Sections 180, 214, 221, 229, 239, 261 and 267 of the Act refer to the SVRA and the CEO as being located in Ottawa, but in reality their offices are now in Gatineau. The Act was not amended accordingly after Elections Canada moved its headquarters in 2013. The word "Ottawa" in these provisions should be replaced with the term "National Capital Region", which is defined in the National Capital Act.|
|C14.||Requiring service numbers on statements of ordinary residence||194
|Under the Act, CF electors must complete a statement of ordinary residence, which is the basis of the voting process for these electors. The Act does not require CF electors to supply their service number on their statement, but doing so would allow the Canadian Armed Forces and Elections Canada to more accurately track these electors. (Note that not all electors who fall within the definition of a CF elector have a service number.) Sections 194 and 195 should therefore be amended to require CF electors who have a service number to provide it on their statement of ordinary residence. The Canadian Armed Forces agrees with this recommendation.|
|C15.||CF elector lists and data||194—199
|The Act sets out an approach to producing and managing CF elector data and lists that is outdated and paper-based. As well, it prescribes different processes for managing data on members of the Regular Force and of the Reserve Force. Finally, when CF electors wish to amend their statement of ordinary residence, the Act sets a delay of 60 days before the amendment takes effect if the request is made outside an election period, and no amendments requested inside an election period may become effective during that period. These are unreasonable limits on a CF elector's ability to update his or her information. The provisions about collecting, validating and maintaining CF elector data should be rewritten to remove references that suggest a paper-based process, and to authorize the CEO to prescribe the process and the forms necessary for maintaining a register of CF electors. The Canadian Armed Forces agrees with this recommendation.|
CF ballots to the SVRA
|214||The Canadian Armed Forces provides its members with a delivery service for sending their ballots to the SVRA, but electors are not required to use it. In addition to advising CF electors of the delivery service, the Act requires the DRO to inform them of the nearest post office or mailbox and to ensure that sufficient postage is applied to the mailing envelope containing the elector's outer envelope. In practice, the DRO already supplies the postage for mailing envelopes. These requirements are unnecessary additional duties and should be deleted from the Act. Section 214 should be amended so that the DRO only has a duty to advise a CF elector of the delivery service and of the deadline for the ballot to be received by the SVRA in order to be counted. The Canadian Armed Forces agrees with this recommendation.|
|C17.||Time for sending
|219||The Act currently requires that outer envelopes containing the marked ballots of CF electors be delivered to Elections Canada at the end of the voting period; however, sending all the ballots at once creates a bottleneck at Elections Canada. Section 219 should be amended to require that the marked ballots be delivered to Elections Canada at the end of each voting day, where practicable, but in any event by the end of the voting period. The Canadian Armed Forces agrees with this recommendation.|
|C18.||Electors in danger||233(1.1)||Subsection 233(1) provides that electors applying to vote by special ballot must indicate their residential and mailing addresses on the application. Subsection 233(1.1) is intended to allow electors who are under reasonable apprehension of bodily harm, such as persons in witness protection programs, undercover enforcement officers and victims of violence, to use another address to replace both their residential and mailing addresses on the application. However, the wording in subsection 233(1.1) does not accomplish Parliament's intent. Subsection 233(1.1) should be clarified so that it uses the same terminology as subsection 233(1) (that is, the elector's "place of ordinary residence" and "mailing address") and specifies that the elector may use an alternative address for both these addresses.|
|C19.||Updating lists of electors||233(3)||When electors who reside in Canada apply for a special ballot, they are required by subsection 233(3) to indicate whether they are already on a list of electors. Electors may not know the answer to this question. The goal of removing these electors from the list at their former address, where applicable, can be achieved administratively by asking them for that address. Subsection 233(3) should therefore be repealed.|
|C20.||Informing elector's RO of special ballot application||234||Under section 234, when electors apply for a special ballot in an RO office outside their own electoral district (the "host RO" office), the host RO informs the SVRA that the elector has received a special ballot. In turn, the SVRA provides this information to the elector's RO. This provision is overly prescriptive, and it may be more efficient for the information to flow in other ways—for example, from the host RO directly to the elector's RO. The way the information is shared could be managed by means of instructions from the CEO. This is especially relevant as Elections Canada moves away from paper lists to electronic lists, which could allow the information to be shared instantaneously. Section 234 should therefore be repealed, and the information flow should be dictated instead by instructions from the CEO.|
|C21.||Giving the SVRA discretion to cancel an application for registration and special ballot||235
Section 235 provides that electors residing in Canada who have applied for a special ballot may only vote under Division 4. Once their application is accepted, they cannot vote at the advance or ordinary polls, even if the ballot delivery is delayed or their plans change and they become able to vote at the polls.
Section 242 permits electors to receive a new special ballot if they inadvertently handled the ballot in such a manner that it cannot be used. This provision seems to apply only when electors receive their special ballot at an RO office, and not when they request it from the SVRA. The provision also does not address situations where an elector never receives the special ballot by mail, or where the special ballot is damaged in transit rather than spoiled by the elector.
Division 4 should include a new provision to address situations where electors decide to vote at an advance or ordinary polling station after applying for a special ballot, or where they apply a second time because their first special ballot did not arrive or arrived spoiled. The provision should give the SVRA discretion to cancel an elector's application to vote by special ballot in circumstances where not doing so would disenfranchise the elector or permit the elector to cast two ballots. This would both prevent double voting and ensure that the elector is not disenfranchised. The new provision should provide that, when an application is cancelled, it will be deemed to have not been made and the special ballot will be deemed to have not been issued. Such a deeming will mean that the elector is not liable to prosecution for applying for a ballot to which the elector was not entitled.
|C22.||Where to send special ballots||239||Under section 239, electors must send their special ballot to the RO office if they cast the ballot in their own electoral district or to the SVRA if they cast it outside their electoral district. This strict rule could disenfranchise some electors for no reason. There may be circumstances where it is more efficient for electors to send their special ballot to the SVRA rather than to the RO office in their electoral district. There may also be situations where electors send the ballot to the wrong office by mistake. Section 239 should be amended to authorize the SVRA to determine where to send the ballot.|
|C23.||Voting day for incarcerated electors||245
|The Act provides that voting in correctional institutions shall take place on the 10th day before polling day. With general elections fixed to occur on the third Monday in October, the 10th day before polling day is almost inevitably the Friday of the Thanksgiving weekend. This puts pressure on the people and processes necessary to conduct the vote because the institution's support personnel are less likely to be at work that day. As well, the couriers used to deliver the outer envelopes to the SVRA do not operate over the long weekend, delaying the return of the ballots by three days. The Act should be amended either to grant the liaison officer responsible for an institution discretion in deciding when to hold the election (always subject to instructions from the CEO) or to set voting day for the 12th day before polling day.|
|C24.||Setting aside outer envelopes at count of special ballots||267||Special ballots are counted at Elections Canada headquarters by special ballot officers. First, these officers determine which outer envelopes must be set aside (section 267). Then, among the outer envelopes that are retained, the officers determine if any ballots must be rejected (section 269). The Act provides that the SVRA resolves any dispute related to rejecting ballots (subsection 269(3)), but there is no equivalent mechanism for setting aside outer envelopes. To make the provisions consistent, the Act should give the SVRA the authority to resolve disputes related to setting aside outer envelopes.|
|C25.||Counting special ballots||267
|Special ballots are counted at Elections Canada headquarters and in RO offices. The two counting procedures specify somewhat different reasons for setting aside outer envelopes. At the office of the CEO, under subsection 267(2), envelopes are to be set aside if the elector has voted more than once. At the office of the RO, under paragraph 277(1)(c), an outer envelope must be set aside if more than one ballot has been issued to the elector. Since it is possible for more than one ballot to be issued to an elector in innocent circumstances (notably, where the first ballot was "spoiled" before reaching the elector or was never received), outer envelopes should only be set aside at the RO office when the elector has actually voted twice. Paragraph 277(1)(c) should therefore be amended to align with subsection 267(2).|
|Electors who file an application before a judge for a judicial recount under subsection 301(1) are not obligated to notify each candidate. A new provision should require an elector to give notice to all candidates in the electoral district when applying for a recount, since they all have a stake in the judge's decision of whether or not to grant the application. In addition, the language used in sections 311 and 312, regarding the failure of a judge to conduct a recount, is unclear. Questions have been raised about the scope of the provisions and whether they may, in fact, allow for a review or appeal of a judicial recount. Sections 311 and 312 should be amended to clarify their intent. Finally, the new Schedule 4 to the Act fails to require the judge to certify the recount results by signature. Schedule 4 should be amended to oblige the judge to sign the Recount Ballot Box Reports and no longer require the judge to initial the number of votes allocated to each candidate.|
|C27.||Election survey||319||There is a discrepancy between the English and French versions of the definition of "election survey" ("sondage électoral") in section 319 of the Act. "Election survey" is defined as an "opinion survey" in the English version; it is defined only as a "sondage" in the French version, without the "opinion" qualifier. The two versions should be reconciled. The word "opinion" should be deleted from the English version so that the definitions clearly include not only opinion surveys, but also surveys such as exit polls that set out how people did vote.|
|C28.||Obligations to file registration notices||348.06
|Under subsections 348.06(2) and 348.07(2), the registration notices that the calling service provider and the person who enters into an agreement with the provider must file with the CRTC shall include, inter alia, the name of the person or group with which the provider has entered into the agreement. From registrations filed during the 2015 election, it is evident that the person who signed or executed the agreement is not necessarily the same person or group with which the calling service provider has entered into the agreement. The English version makes no distinction between the person who executed the agreement and the person or group with whom the provider has entered into the agreement. This difference leads to inconsistencies in the registration process. The French version seems to appropriately distinguish between the person who executed the agreement ("la personne qui conclut") in subsection 348.07(1) and the person or group with which the provider has entered into the agreement ("la personne ou [le] groupe partie à l'accord") in subsection 348.07(2). Moreover, while agreements can be entered into by a number of persons and groups identified in the Act, the provisions do not specifically require that registrants identify on whose behalf the calls are being made. As the CRTC has recommended, the English version of section 348.06 and subsections 348.07(1) and (2) should be amended to more closely align with the French version of these provisions. The registration notice provisions should include a requirement to identify on whose behalf the calls are being made.|
|C29.||Uncancellable spending||350(4.1) 450(2)||Subsections 350(4.1) and 450(2) provide that third parties and EDAs do not incur election advertising expenses if they are unable to cancel the transmission of the advertising once the writ is issued. The introductory words of the subsections state that this applies only for by-elections and for general elections "held on a date other than" the fixed date prescribed by subsection 56.1(2) or section 56.2. However, since the start date of a fixed-date election is currently not prescribed by law, these provisions should apply for all elections. The introductory wording of these subsections should be adjusted accordingly.|
|C30.||Contribution to third parties||359(4)(a)||Under paragraph 359(4)(a), third parties must report contributions received "for election advertising purposes", but only those received in the period beginning six months before the issue of the writ and ending on polling day. Restricting the period in which such contributions must be reported is not warranted and is not well suited to fixed-date elections. The timing restriction in paragraph 359(4)(a) should be removed so that all relevant contributions must be reported, regardless of when they are received. The Commissioner agrees with this recommendation.|
|C31.||Delivery to ROs||383||Due to an error in section 3 of the Reform Act, 2014 (S.C. 2015, c. 37), subsection 383(2) of the Canada Elections Act was accidentally replaced with text that was also rightly inserted elsewhere. Before it was replaced, the original provision allowed public inspection of a candidate's electoral campaign return and associated documents at the RO office. A review has suggested that the original provision, and in fact the whole section, is no longer needed, as candidates' electoral campaign returns and most associated documents are now posted on Elections Canada's website. As a result, the public inspection afforded previously by section 383 can now be done online. Section 383 should therefore be repealed.|
|C32.||Quarterly returns||433||Under section 433 of the Act, parties whose candidates received at least 2% of the vote (or 5% of the vote in electoral districts where they endorsed a candidate) in the most recent general election must file quarterly returns that contain certain financial information. As the section is currently drafted, a party that met the vote threshold in the last general election of October 2015 could be required to file a quarterly return for the three-month period prior to it (for example, from July 2015 to September 2015). In all likelihood, this is not the result intended by Parliament. Prior to 2014, sections 424.1 and 435.01 of the Act provided that parties had to produce such returns if they met the vote threshold in the most recent general election preceding that quarter. Subsection 433(1) should be amended so that parties meeting the vote threshold have to produce returns only for quarters that follow the most recent general election, as is the current practice.|
|Sections 445 and 446 deal with the quarterly allowances that were phased out on April 1, 2015, pursuant to amendments to the Act. Section 445 and subsections 446(1) to (3) should be repealed because they are spent. However, subsections 446(4) and (5) should not be repealed because they define the term "provincial division" of a registered party (a term that is used elsewhere in the Act) and require the chief executive officer of a provincial division to report changes in specified information to the registered party's chief agent within 15 days.|
|C34.||Filing date for EDA's annual update||464||The Act requires registered EDAs to file an annual financial transactions return (section 475.4) and an annual registry update (section 464). Both reports are due on or before May 31 of each year. If an election campaign is in progress in that electoral district on that date, the financial return is still due on May 31, but the annual update is due July 31. Granting two extra months for the less complex annual registry update provides little benefit to associations, while the fact that the two reports may be due on different days creates administrative complexities for associations and Elections Canada. In all cases, the annual registry update should be due on the same date as the financial transactions return. Section 464 should be amended accordingly to preclude the rare possibility of a July 31 deadline.|
|C35.||Electoral Boundaries Readjustment Act||469(4)||Subsection 469(4) of the Canada Elections Act provides that the registration of an EDA for an electoral district that is created or revised by a representation order made under section 24 of the Electoral Boundaries Readjustment Act may not take effect before the order comes into force. Yet subsection 25(3) of the latter Act overrides this rule by stipulating that, for the purpose of registering associations under subsection 469(4) of the Canada Elections Act, the representation order is deemed to be effective on the day on which the proclamation of the draft representation order is issued. Subsection 469(4) should be amended to align with subsection 25(3) of the Electoral Boundaries Readjustment Act. It should clearly state that the registration is effective on the day on which the proclamation is issued under subsection 25(1) of that Act.|
|C36.||Reporting non-monetary transfers||476.75(2)(h)
|Under paragraphs 476.75(2)(h) and 478.8(2)(i), nomination contestants and leadership contestants must include in their financial returns a statement of goods, services and funds transferred by the contestant to the registered party, registered association or (in the case of a nomination contestant) the candidate. While contestants may transfer funds to these other entities under paragraphs 364(5)(a) and (b), there is no equivalent provision allowing them to transfer goods or services. Paragraphs 476.75(2)(h) and 478.8(2)(i) should therefore be amended to remove the reference to goods and services.|
|C37.||Leadership and nomination surplus||476.91 478.94||In 2014, the Act was amended to require that candidates dispose of their capital assets before disposing of their surplus of electoral funds (subsection 477.8(2)). This is currently not the case for leadership and nomination contestants. The surplus provisions for contestants should therefore be updated to align with the rules for candidates.|
|C38.||Expense limit for notices of nomination meetings||477.48||Section 477.48 sets a limit on expenses that may be incurred to provide notice of meetings held for the purpose of nominating a candidate for an election. The limit is 1% of the maximum election expenses for the electoral district. It is not clear who the provision applies to, and the rule would be difficult to enforce. In fact, the provision predates the regulation of nomination contests, including expenses. It served as an exception to an advertising blackout at the start of the election period, which no longer exists. Section 477.48 should therefore be repealed.|
|C39.||Payment of candidate expenses||477.54
|Subsection 477.54(2) prohibits an official agent and a candidate from paying a campaign expense more than three years after polling day without an authorization or order to do so. However, the related offence provision at paragraph 497.4(1)(f) refers only to the official agent. Nevertheless, it is possible that both a candidate and an official agent could contravene the provision, since candidates are authorized to pay their personal expenses. As the Commissioner has recommended to the CEO, candidates should be added to the offence provision at paragraph 497.4(1)(f) to be consistent with the prohibition at section 477.54.|
There are two difficulties with paragraph 477.74(1)(c).
First, the paragraph should clearly indicate that the candidate must have paid personal and election expenses in an amount that is more than the specified percentage of the election expenses limit, to reflect the intention to reimburse both types of expenses.
Second, the paragraph currently provides that candidates are eligible for the final instalment of their reimbursement if they have incurred expenses of more than 30% of their election expenses limit. This number appears to be a drafting error; it should have been adjusted when candidate reimbursement levels increased to 60% in 2004.The number in paragraph 477.74(1)(c) should be 25% to reflect Parliament's intent and current practice. The provision aims to ensure that a final instalment is paid only to candidates who are entitled to a total reimbursement that is more than their first instalment. That first instalment is 15% of the election expenses limit, irrespective of the actual paid expenses. As candidates receive a total reimbursement of only 60% of what they actually paid, in order to be entitled to the full first instalment, candidates need to have paid expenses amounting to at least 25% of their expenses limit. This is because the first instalment is equal to 60% of 25% of the election expenses limit. As a result, the only candidates who would be entitled to a final instalment are those whose paid expenses amount to more than 25% of their expenses limit. Any candidate whose expenses were less than 25% will not only receive no final instalment, but will be required to pay back part of the first instalment. Paragraph 477.74(1)(c) should therefore be amended as described above.
|C41.||Withdrawal of writ||477.79(a) 477.9(5)||The definition in subsection 2(6) of "polling day" in cases where a writ is withdrawn or deemed withdrawn was enacted in 2014 and applies, among other parts, to Division 5 of Part 18 of the Act. However, it conflicts with other provisions in that division, namely, paragraph 477.79(a) and subsection 477.9(5).
The English versions of subsection 2(6) and paragraph 477.79(a) define polling day in two different ways: in paragraph 477.79(a), it means the day of publication in the Canada Gazette of the notice of withdrawal or deemed withdrawal of the writ; and in subsection 2(6), it means the day that the writ is withdrawn or deemed to be withdrawn. These two days may not necessarily be the same. Paragraph 477.79(a) should be amended to provide that, in respect of electoral campaign expenses of candidates, the election is deemed to have been held on polling day as defined in subsection 2(6)—that is, the day that the writ is withdrawn or deemed to be withdrawn.
The new definition of polling day in subsection 2(6) has also unintentionally given candidates two different deadlines, under subsection 477.9(5), by which to provide the CEO with their statement of gifts or other advantages when a writ is withdrawn or deemed to be withdrawn. Under paragraph 477.9(5)(b), it is four months after the day of publication in the Canada Gazette of the notice of withdrawal or deemed withdrawal of the writ; under paragraph 477.9(5)(a) and subsection 2(6), it is four months after the day that the writ is withdrawn or deemed to be withdrawn. Parliament could not have intended for two different deadlines. Paragraph 477.9(5)(b) should therefore be repealed so that only one deadline applies when a writ is withdrawn or deemed to be withdrawn.
|C42.||Exclusion from surplus of assets transferred by candidates to themselves when a by-election is cancelled||477.8||Paragraphs 364(2)(f) and 364(3)(e) of the Act address certain transfers that occur when a by-election is superseded by a general election. Added in 2014, these new paragraphs remove from the definition of "contribution", and expressly permit, the provision of goods and services (paragraph 364(2)(f)) and the transfer of funds (paragraph 364(3)(e)) from candidates in a cancelled by-election to themselves as candidates in the general election. However, these permitted activities are not contemplated in section 477.8, which deals with the calculation of a candidate's surplus. A strict reading of this provision could require a by-election candidate who has made transfers under paragraphs 364(2)(f) or 364(3)(e) to dispose of a "surplus" that does not exist. This can be resolved with two amendments. Subsection 477.8(2), which requires the transfer or sale of certain capital assets before the surplus is calculated, could take into account the transfer of goods and services under paragraph 364(2)(f). This could be done, for example, by removing the reference to transfers to parties and associations and using more general wording. In subsection 477.8(4), which defines transfers made by a candidate, paragraph 477.8(4)(c) could be amended to also refer to funds transferred under paragraph 364(3)(e).|
|C43.||Partnership appointed as auditor||478.61(3)||In the French version of subsection 478.61(3), the first use of the word "nommé" should relate to the word "société" and not the word "membre" in order to align with the English version. This is because a person may not, under paragraph 478.6(c) and subsection 478.61(2), be an auditor of a registered party and a financial agent for a leadership contestant at the same time. The French version of subsection 478.61(3) should therefore be amended to add an "e" at the end of the first use of "nommé".|
|C44.||Obstruction, etc., of electoral process||480(1)||Subsection 480(1) makes it an offence to contravene the Act with the intention of delaying or obstructing the electoral process, otherwise than by committing an offence under subsection 480(2) or sections 481, 482 and 483 to 499. Two new offence-making provisions (sections 480.1 and 482.1) were added to the Act in 2014. However, they were not added to the list of offences referred to in subsection 480(1), which are offences not caught by the general offence of delaying or obstructing the electoral process. This is likely an oversight, and a reference to sections 480.1 and 482.1 should therefore be added to subsection 480(1).|
|C45.||Search and seizure||511(3)||Subsection 511(3) of the Act deems investigators engaged by the Commissioner to be "public officers" for the purposes of section 487 of the Criminal Code, which is the basic search warrant provision. After subsection 511(3) was enacted, the Criminal Code was amended to allow judicial authorization for production orders and other investigative tools. These new tools are available to permanent employees of the Commissioner, who by virtue of their employment are public officers for the purposes of the Criminal Code. But they are not available to investigators on contract with the Commissioner, who are public officers only by virtue of subsection 511(3) of the Act and only with respect to section 487 of the Criminal Code. As the Commissioner recommended to the CEO, subsection 511(3) of the Act should be updated to ensure that all the Commissioner's investigators, including contractors, are able to apply for judicial authorizations as provided for in the following sections of the Criminal Code: 487 (search warrants); 487.012 (preservation demands); 487.013 (preservation orders for computer data); 487.014 (general production orders); 487.015 (production orders to trace specified communications); 487.016 (production orders for transmission data); 487.017 (production orders for tracking data); 487.018 (production orders for financial data); 487.019(3) (revocations or variations of a production order); 487.0191 (orders prohibiting disclosure of information related to or the existence of a preservation demand, preservation order or production order); and 487.0192 (particulars of production orders).|
|C46.||Oaths and affidavits||549||Subsection 549(1) sets out the persons who may administer oaths or affidavits under the Act. The English version gives this authority to, among other persons, "the returning officer, an assistant returning officer, a deputy returning officer". The French version, on the other hand, gives this authority to "le directeur du scrutin, le directeur adjoint du scrutin, un scrutateur". The English version seems to reflect the proper interpretation of the Act, as it would include AAROs appointed under section 30. The French version of subsection 549(1) should therefore be amended to align with the English by replacing "le" with "un" before "directeur adjoint du scrutin".|
|C47.||Publication in Canada Gazette||554(2)||The CEO is required by subsection 554(2) to publish a notice in the Canada Gazette once amendments to the Act have been consolidated and all forms and instructions have been accordingly corrected and reprinted. Now that the Act is available in a consolidated version online, the public can see that it has been amended. Updated forms and instructions are also available on Elections Canada's website. There is no need for additional notice to be published in the Canada Gazette. This anachronistic requirement should be repealed.|
|C48.||Northwest Territories||Schedule 3||The name of the federal electoral district for the Northwest Territories was changed from "Western Arctic" to "Northwest Territories" by the Riding Name Change Act, 2014 (S.C. 2014, c. 19). However, that statute did not include a consequential amendment to change the name in Schedule 3 of the Canada Elections Act. Accordingly, Schedule 3 should now be amended to reflect the change.|
|C49.||Inducing or influencing others to act||Various provisions||
The Act has many prohibitions on a person "inducing", "influencing", "attempting to induce" or "attempting to influence" someone else to act in a certain way—for example, to make a false or misleading statement regarding a person's qualification as an elector, in paragraph 111(d.1), or to vote or refrain from voting for a certain candidate, in subsection 166(1). The use of the word "induce" or "influence" in English could imply that, for the offence to be committed, the desired outcome of the inducing or influencing must occur—that is, the other person must actually do what the first person wanted him or her to do. In contrast, where the phrases "attempting to influence" or "attempting to induce" are used, it is clearer that, for an offence to be committed, it is sufficient that the first person acts for the purpose of influencing someone else—it is immaterial whether or not the first person's actions have the desired impact on the other person's behaviour. The French equivalent primarily used in the Act for all of these words and phrases is "inciter". The use of this word generally does not imply the need to prove a successful outcome and is likely a better reflection of Parliament's intent. However, the occasional use of "tenter d'inciter" in the Act creates some uncertainty on this point (for example, in subsection 161(5.1)).
For greater clarity, and to enable more effective prosecution of wrongful behaviour that seeks to influence the outcome of an election, all prohibitions and offences in the Act that use the words "induce" or "influence" in English and "inciter" in French should be reviewed and amended for consistency. In most cases, the phrases "attempt to influence" and "attempt to induce" more appropriately describe the conduct that the Act seeks to punish than the words "induce" or "influence". The Commissioner agrees with this recommendation.