Relationship between the Chief Electoral Officer and the Commissioner of Canada Elections: Key Guiding Principles
In June 2014 and December 2018, Parliament adopted significant amendments to the Canada Elections Act (the CEA) that affect the mandates of the Chief Electoral Officer (CEO) and of the Commissioner of Canada Elections (the Commissioner). Notably, the position of Commissioner was most recently relocated from the Office of the Director of Public Prosecutions (DPP) to the Office of the CEO (OCEO). As a result, it has become necessary to update the key principles that guide the relationship between the CEO and the Commissioner in the exercise and performance of their respective powers, duties and functions. Such an update is the purpose of this document.
1. Appointment and mandate of the CEO and of the Commissioner
Under the CEA, the CEO and the Commissioner each have a specific statutory mandate that provides expressly for their appointment and the exercise or performance of particular powers, duties and functions in relation to federal elections. The CEA also governs the relationship between the CEO and the Commissioner.
(a) The CEO
The CEO is an officer of Parliament. He is appointed by resolution of the House of Commons and can only be removed from office for cause by the Governor General after a joint request by the House of Commons and Senate following a majority vote.
The CEO is responsible for the conduct of elections, the administration of the third-party and political financing regimes, and the overall administration of the CEA. This mandate requires the exercise of certain compliance functions, such as:
- Issuing guidance and providing training to political entities, including formal guidelines (e.g. manuals for candidates), interpretations and written opinions;
- Conducting audits of the financial returns produced by the various political entities and by third parties to ensure that financial rules have been complied with and that necessary corrections are made to the returns, where appropriate;
- Conducting electoral integrity initiatives; and,
- Referring cases of potential contravention to the Commissioner.
The CEO appoints and oversees permanent and temporary staff and a group of returning officers and field liaison officers, who assist him in delivering the election across the country.
(b) The Commissioner
The CEO appoints the Commissioner after consultation with the DPP and may remove the Commissioner for cause.
The Commissioner is responsible for ensuring that the CEA is complied with and enforced. He may launch an investigation of his own initiative or following a complaint or a referral made by the CEO. In delivering his mandate, the Commissioner carries out various activities, some of which are complementary and similar in purpose to those of the CEO. These activities include:
- Providing information and education on the requirements of the CEA by sending caution letters or information letters;
- Ensuring compliance with the CEA by quickly intervening to have issues resolved (e.g. missing taglines on election or partisan advertising);
- Ensuring compliance with the CEA by concluding compliance agreements, issuing notices of violation that impose an administrative monetary penalty, or accepting undertakings; and,
- Carrying out investigations that may lead the Commissioner to lay charges for a prosecution to be carried out by the Office of the DPP.
The Commissioner appoints and oversees permanent and temporary staff to assist him in delivering on his compliance and enforcement mandate. He has the status of deputy head of a department for these limited human resources purposes.
Although the Commissioner is located within the OCEO, the CEA expressly states that, in the performance of his compliance and enforcement mandate, the Commissioner is to act independently of the CEO. Consequently, the CEO may not interfere with the conduct of any investigation or with the decisions of the Commissioner as they relate to the exercise of the Commissioner’s mandate. The Act specifies, however, that this does not preclude the Commissioner from consulting with the CEO in respect of any matter, if the Commissioner considers it appropriate.
Ultimately, the CEO is accountable to Parliament for the operations of the OCEO, which include, on the one hand, Elections Canada (the name under which electoral activities and political financing operations of his Office are carried out), and, on the other hand, the Commissioner and his staff.
2. The Need for Effective, Predictable and Coherent Compliance: Guiding Principles for the Relationship between the CEO and the Commissioner
Notwithstanding these distinct but complementary roles with respect to ensuring regulatory compliance, regulated political entities and Canadians in general must be able to rely on an approach to compliance with the CEA rules that is as coherent, predictable and effective as possible on the part of the CEO and the Commissioner. In this regard, the following considerations are key:
(a) Consultation and cooperation
The CEO and the Commissioner must cooperate to ensure that the CEA is interpreted consistently, that all participants operate under the same assumptions, and that compliance issues are promptly identified and addressed.
With respect to the need for consistent interpretation of the CEA by the two offices, Parliament has recognized this need as a key principle by requiring that the CEO formally consult with the Commissioner in addition to the Advisory Committee of Political Parties (ACPP) before issuing any formal guideline, interpretation note, or written opinion on the application of the CEA.
At the same time, beyond the requirements of the CEA regarding this formal statutory consultation framework, there is a need for the CEO and the Commissioner to cooperate to ensure that regulated entities are properly informed of these requirements and that their needs and legitimate expectations are taken into account.
The ACPP—which is recognized in statute as consisting of the CEO and two representatives of every registered party—provides a forum for all members to share their views and participate in the development of new systems and programs. While the Commissioner is not a member of the ACPP, he has received an open invitation to attend the ACPP annual meeting, and the CEO may invite him to attend other ACPP meetings in order to engage directly with political parties on enforcement-related matters.
Similarly, since ensuring compliance with the CEA involves actions that are performed by both the CEO and the Commissioner, there is a need for the two office-holders and their officials to meet and exchange information regularly.
It is in this vein that a practice has evolved whereby the CEO and the Deputy CEO for Regulatory Affairs meet the Commissioner and his Deputy on a quarterly basis. At these meetings, statistical information about complaints or potential referrals is shared, general information is exchanged to ensure a common understanding of issues, and approaches to systemic issues are discussed to identify potential solutions.
(b) Information sharing
Since the Commissioner is now part of the same government institution for the purposes of the Access to Information Act and the Privacy Act (ATIP legislation), Elections Canada may disclose personal information that it has obtained, where such disclosure may be useful to the Commissioner as he carries out his mandate. In addition, the CEA requires that the CEO provide information and documents to the Commissioner, when the latter believes that such disclosure is necessary for him to perform his work.
Conversely, for a number of reasons, the Commissioner provides some information to the CEO to favour a consistent and effective compliance environment. The information provided to the CEO may concern areas of non-compliance that appear to be particularly problematic. The CEO can thus better target his office’s efforts at educating regulated entities about their obligations under the CEA.
(c) Confidentiality of investigations
The CEA requires that the Commissioner and his staff not disclose information obtained in the course of an investigation. The Commissioner will thus not provide information on investigations to the CEO and his staff, unless such disclosure is permitted by one of the limited exceptions to the confidentiality provisions at section 510.1 of the CEA.
There is sometimes a need for the Commissioner and his office to consult with Elections Canada to verify whether a course of action being considered by the Commissioner as part of a compliance or an enforcement activity is coherent and consistent with the manner in which the CEO usually administers the legislation in similar circumstances. Such disclosure is authorized under the CEA as an exception to the confidentiality requirement, since it is required in order to carry out an investigation, to enter into a compliance agreement, to issue a notice of violation, or to accept an undertaking.
The CEO—as the head of the government institution under ATIP legislation—has fully delegated his powers under this legislation to the Commissioner regarding information under the Commissioner’s control. This delegation allows the Commissioner to respond to ATIP requests without having to involve the CEO in the review of documents that relate to the Commissioner’s enforcement activities.
(d) Communications to the public
The CEO and the Commissioner benefit from each having their own communications advisors to develop their respective media responses to events and to communicate with the public effectively and professionally. Nevertheless, in certain circumstances, some coordination of public response will be necessary to ensure consistency of messages and to avoid confusion. Ultimately, the decision to proceed with a particular message is reached individually by the CEO and the Commissioner.
As the CEO is responsible for administering the CEA, public enquiries concerning interpretation of the CEA will normally be handled by Elections Canada. That said, where the enquiry has to do with a compliance or enforcement function of the Commissioner or with the legal standard to make out a contravention of the CEA, the Commissioner’s office will be the appropriate source of information.
(e) Accountability and reporting
The CEO is accountable to Parliament for the general administration of the CEA. As the accounting officer for the OCEO, he is also accountable under the Financial Administration Act for all expenses incurred by his Office, including the Commissioner’s expenses. He reports annually to Parliament by tabling a Departmental Plan and Departmental Results Report. Since the position of Commissioner is within the OCEO, the CEO will include a section on the Commissioner’s activities and associated expenses in each of these reports. The Commissioner renders accounts to the CEO on his use of human and financial resources to fulfill his mandate to enable the CEO to report to Parliament for the whole of his Office.
The CEO is also required to prepare a number of other reports under the CEA, including the recommendations report that is issued following a general election. This report sets out amendments that, in his opinion, are desirable for the better administration of the CEA. With the 2018 amendments to the CEA, the Commissioner must now make a report to the CEO after each general election setting out amendments that, in his opinion, are desirable for better compliance with, and enforcement of, the CEA. These recommendations are set out separately in the CEO’s own report to Parliament.
The Commissioner must also prepare an annual report that provides an overview of his activities and operations during a year, without providing details of any investigation.
The CEO has established a Departmental Audit Committee (DAC) to provide him with objective and strategic advice on risk management, control and governance frameworks and processes. The DAC assists both the CEO and the Commissioner in ensuring that the CEO’s financial accountability is maintained, while respecting the independence of the Commissioner in the exercise of his mandate.