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The Chief Electoral Officer and the Commissioner of Canada Elections: Ensuring effective and coherent compliance and enforcement of the Canada Elections Act

Background

In June 2014, Parliament adopted a number of significant amendments to the Canada Elections Act that affect the mandates of both the Chief Electoral Officer (CEO) and the Commissioner of Canada Elections (CCE).

Effective October 1, 2014, the CCE is now part of the Public Prosecution Service of Canada (PPSC) and is institutionally separate from Elections Canada. The CCE is no longer appointed by the CEO or housed within the agency's offices, and human resources are no longer shared. Going forward, the CCE will be named by the Director of Public Prosecutions, be housed within the PPSC, and hold the position of deputy head for the purposes of employing and managing staff.

For his part, the CEO continues to be appointed by the House of Commons, but the mandate of future CEOs will be for a non-renewable term of 10 years.

In light of these changes, this document sets out the key principles that guide the relationship between the CEO and CCE, in the exercise and performance of their respective powers, duties and functions.

Compliance and Enforcement: Legal Context, Roles and Responsibilities

The Canada Elections Act sets out the legal framework for federal elections in Canada. It provides rules aimed at ensuring the integrity and fairness of federal elections, in particular by establishing a level playing field between electoral participants. These objectives of fairness and integrity are pursued through a detailed and complex set of rules, such as the regulation of political financing, which includes spending limits, restrictions on contributions, and financial reporting for regulated political entities and third parties carrying out election advertising. They are also pursued through the regulation of voting operations, which includes voter registration and identification rules as well as voting procedures and vote counting.

The CEO and CCE each have a specific mandate under the Canada Elections Act to exercise or perform particular powers, duties and functions. The CEO is responsible for the overall conduct of elections and administration of the Act, while the CCE is responsible for ensuring that the Act is complied with and enforced. In exercising and performing these powers, duties and functions, the CEO and the CCE act with full independence from each other, as well as from any other official, the various electoral competitors or other stakeholders and participants.

While the CEO and the CCE are institutionally and functionally independent from one another, it is in the interest of all participants in the electoral process that the rules governing elections are understood, applied and enforced in as coherent and effective manner as possible.

In this context, it is important to clarify the roles and responsibilities of the CEO and the CCE for ensuring compliance with the CEA, as well the relationship between the two, especially in light of the legislative changes made in 2014.

Regulatory Compliance – Roles and Responsibilities of the CEO and CCE

The Chief Electoral Officer

The CEO is responsible for the overall administration of the CEA.

In this regard, his primary role is to provide general direction and supervision over the conduct of elections and to ensure that election officers act with fairness, impartiality and in compliance with the Act.Footnote 1

Importantly, the CEO is also responsible for administering parts 17 and 18 of the Act, which govern:

  • the registration and deregistration of political parties and electoral district associations;
  • the financial administration of political parties, electoral district associations, candidates, nomination contestants and leadership contestants (herein after referred to as “political entities”), including the reimbursement of eligible expenses and payment of allowances authorized under the Act; and
  • the registration and financial administration of third parties who carry out election advertising during an election period.

In fulfilling his responsibilities, the CEO promotes and monitors compliance using a range of activities, including:

  • developing information strategies to increase awareness of the rules;
  • issuing guidance and training material to political entities, including formal guidelines (e.g. manuals for candidates), interpretation notes and written opinions;
  • auditing financial returns of political entities to ensure that financial rules have been complied with and that any necessary corrections are made to the returns;
  • publishing financial returns;
  • sending education letters to political entities and, in some cases, electors for minor or inadvertent non-compliance in order to guide their actions in the future;
  • referring potential contraventions of the Act to the CCE for investigation; and
  • reporting to Parliament on the conduct of elections and making recommendations for legislative change.

The Commissioner of Canada Elections

The CCE is responsible for ensuring that the Canada Elections Act is complied with and enforced. The CCE may initiate an investigation on his or her own initiative or following a complaint,Footnote 2 including following a referral from the CEO. In practice, the vast majority of matters dealt with by the CCE are referred by the CEO.Footnote 3 The CCE has sole discretion in deciding how to deal with a referral or complaint.

Where the CCE finds that the Act has been contravened, the CCE may decide to issue an informal warning letter, enter into a compliance agreement with the contravening person or entity,Footnote 4 or refer the matter to the Director of Public Prosecutions, who has sole authority to decide whether to initiate a prosecution.Footnote 5

Some of the CCE's activities are complementary or similar in purpose to those of the CEO, including:

  • educating individuals or political entities on the requirements of the Act through warning letters or information letters;
  • contacting individuals or political entities to bring an end to  conduct or activities that contravene the CEA
  • concluding compliance agreements to ensure compliance with the Act;
  • carrying out investigations that may lead to a prosecution by the Director of Public Prosecutions; and
  • informing the CEO when an interpretation note or guideline may be needed to clarify the Act's requirements, in light of complaints received and investigations carried out.

The Need for Effective and Coherent Compliance and Enforcement

While the CEO and CCE are institutionally and functionally independent from one another, it is in the interest of all regulated entities and citizens that the rules governing elections are understood, applied and enforced in as effective and coherent a manner as possible.

The need for the CEO and CCE to develop a coherent and coordinated approach to compliance and enforcement, while being careful to preserve the independent exercise of their respective mandates, is particularly important in three areas.

Information and interpretation

Information that the CEO and CCE provide on the requirements of the Canada Elections Act and its interpretation should be coherent in order to ensure a common understanding of the rules, predictability and fairness.

Approaches and controls

Where possible, compliance and enforcement mechanisms – such as guidelines and interpretations of the Act, decisions to refer a matter to the CCE, and the CCE's decisions to rely on formal or informal compliance and enforcement tools – should be grounded on a shared understanding of the compliance challenges and the realities of regulated entities. Emerging trends or practices, as well as evolving technologies, may require adjustments to approaches or controls relied upon by the CCE and the CEO.

Outcomes

The CEO's actions to uncover or resolve instances of non-compliance (e.g. requiring corrections to a financial return) may very well have an impact on the activities and decisions of the CCE, and vice versa. Coordination can help prevent unintended consequences. For example, it would be normal practice for the CCE to consult the CEO and Elections Canada before asking a regulated entity to make changes to a return as a condition of a compliance agreement.

Particularly when new issues arise, a lack of coordination on appropriate remedial action could make the regulatory system less effective and coherent. From the perspective of regulated entities, it could breed uncertainty and give rise to a sense of unfair treatment. The CEO and CCE recognize that it may not be possible for them, in all cases, to reach an agreement at the outset. However, both acknowledge the need for mechanisms to ensure that, ultimately, there is a resolution that provides a predictable outcome for regulated entities.

Guiding Principles for the Relationship Between the Chief Electoral Officer and Commissioner of Canada Elections

To ensure that the above-noted objectives of effective and coherent enforcement are met in the context of the institutional separation of their respective offices, the CEO and the CCE must maintain an effective working relationship. This relationship is guided by the following five principles.

1. Information sharing

When the Canada Elections Act was amended to institutionally separate the CCE from Elections Canada, the new legislation also authorized certain information sharing. The CEO (under section 16.5) may disclose to the CCE information and documents obtained under the Act that the CEO considers useful to the CCE in carrying out his or her mandate. Similarly, section 16.5 requires the CEO to provide information and documents to the CCE, on request, where the CCE believes it is necessary for performing his or her work. As such, when Elections Canada uncovers an incidence of non-compliance in its audits, its Administrative Compliance Policy for Political Financing Footnote 6 is applied and may ultimately result in the matter being referred to the CCE.

Conversely, there are a number of reasons why some information should be provided to the CEO by the CCE in favour of an effective and coherent compliance environment. For example, it is important that regulated entities be informed of the Act's requirements so they can take the necessary measures to remain in compliance. Often, the CCE is in the best position to identify areas where there appears to be a recurring problem with compliance. With this essential information, the CEO is able to target the agency's efforts at educating regulated entities about their obligations under the Act.

In these ways, effective information-sharing protocols and practices between the CEO and CCE are critical to promoting compliance and ensuring effective enforcement.

2. Consultation and co-operation

The CEO and CCE must co-operate closely to ensure that the Canada Elections Act is interpreted in as consistent a manner as possible, that all participants operate under the same assumptions and, as noted above, that compliance issues are promptly identified and addressed.

With respect to the need for consistent interpretation of the Act by the two offices, Parliament has recognized this as a key principle by requiring that the CEO consult with the CCE before issuing any guideline, interpretation note or written opinion on the application of the Act. In the case of written opinions, the Act stipulates that the final opinion issued by the CEO – after consultation with the registered parties and the CCE – is binding on the CEO and CCE with respect to the party that requested the opinion, and has precedential value in all other cases.

Beyond the requirements of the CEA regarding the new statutory interpretation framework, however, the CEO and CCE must co‑operate to ensure that regulated entities are properly informed of the Act's requirements and that their needs are considered in the process of developing programs and systems. The Advisory Committee of Political Parties, recognized in the Act with a membership consisting of the CEO and two representatives of every registered party, is a forum for participants to share their views and contribute to developing new systems and programs. While the CCE is not a member of the committee, its members have requested that the CCE be offered a standing invitation to attend its meetings so they can benefit from his or her particular point of view.

Similarly, since both offices are involved in activities related to ensuring compliance with the Act, there is a need for the CEO, the CCE and their officials to meet regularly. While some of these consultations can occur on an informal “as-needed” basis, it may also be advantageous to provide for the participation of both offices in formal committees or working groups. It is often through such consultation that crucial information is shared that allows the CEO to address particular compliance challenges by modifying information tools for regulated entities. Such exchanges also allow the CCE's office to better plan its work in the short and medium term, with the receipt, for example, of statistical information on the status of the audit files at Elections Canada.

Consultation and co-operation may also be required in terms of the CEO's administrative dealings with the subject matter of a referral or complaint to the CCE. Despite the fact that a matter may have been referred to the CCE, the CEO continues to have an ongoing obligation to administer the Act's provisions. A political entity may, for example, file a request with the CEO to amend a financial return or provide new information regarding transactions that are part of an investigation by the CCE for non-compliance with reporting requirements. In such a case, consultations between the two offices may be important to ensure a common understanding of whether the proposed change or additional information is sufficient to resolve the non-compliance.

Likewise, it is important that remedial actions proposed by the CCE be informed by, and as much as possible consistent with, how the Act is normally interpreted and applied. This would be the case, for example, where the return of a contribution or a correction to a financial return is imposed as a condition of a compliance agreement between the CCE and a political entity. For this reason, before entering into a compliance agreement, the CCE will often consult the CEO regarding the proposed terms and conditions.

3. Coordination of activities during elections

During an election period, the need for coordination between the two offices is particularly important. Elections are marked by a relatively short period of intense activity, carried out in an adversarial context created by political competition. Information about activities that may contravene the Canada Elections Act comes through various sources, such as observations from poll workers or candidates' representatives, or complaints received by the returning officer or by the CEO's office. In some cases, this information must be quickly pulled together to properly assess the nature and degree of risk to electoral integrity, as well as the appropriate response.

The occasional need for a prompt response and the potential effects of any intervention make coordination between the CEO and CCE important. It would not serve the interests of democracy for the two offices to give electors and political participants inconsistent or contradictory messages, or for action to be taken by one that impedes the efforts of the other.

Similarly, it is important for both offices to establish clear procedures on how to redirect complaints that may have been made to the wrong office. This will help both offices address issues without delay, which is a crucial requirement during an election period.

The CEO and CCE recognize that, to maintain public confidence in federal elections, the proper office must promptly address non-compliance situations. Such prompt action often depends on the two offices coordinating their efforts to ensure that each possesses the information required to carry out its respective mandate.

4. Confidentiality of investigations

The Canada Elections Act contains a clear rule that the office of the CCE must not disclose information relating to or obtained in the course of an investigation. This includes the fact that an investigation has been initiated. In section 510.1 of the Act, Parliament identifies limited exceptions where disclosure is possible, including where the CCE considers the disclosure to be in the public interest. The Act provides that, in assessing what to take into account to determine the public interest, the CCE must consider the right to privacy of the individuals involved, the presumption of innocence, and the importance of maintaining public confidence in the fairness of elections.

In carrying out an investigation or considering compliance and enforcement action, the CCE and his or her staff sometimes need to consult with subject matter experts at Elections Canada. This ensures that a course of action being considered is consistent with how the legislation is usually administered in similar circumstances. Disclosure, in this context, is authorized under section 510.1 of the Act as an exception to the confidentiality requirement, since it constitutes the disclosure of information required to carry out an investigation or to enter into or renegotiate a compliance agreement.

Consequently, the relationship between the CEO and the CCE is guided by the obligation imposed on the CCE and his staff to maintain the confidentiality of information gathered during their work. The CCE will not provide information to the CEO and his staff on ongoing investigations, unless such disclosure is permitted by one of the exceptions in section 510.1.

5. Communication with the public

The CEO and CCE benefit from each having their own communications advisors to develop their office's respective media responses to events, and to ensure that communications with the public are done in an effective and professional manner. Nevertheless, in certain circumstances, the offices will need to develop a coordinated public response to ensure consistent messages and avoid confusion. Despite this coordination of efforts, the ultimate decision to proceed with a particular message will be reached individually by the CEO and CCE, in keeping with the independence of these office holders.

Footnote 1 Section 16.

Footnote 2 Section 510.

Footnote 3 Commissioner of Canada Elections, Annual Report 2012–2013, pp. 7–8, at
www.cef-cce.gc.ca/content.asp?section=rep&dir=rep1&document=index&lang=e

Footnote 4 Section 517.

Footnote 5 Section 511. For more information, see the Information Bulletin on Enforcement of the
Canada Elections Act at www.cef-cce.gc.ca/content.asp?section=abo&dir=bul&document=index&lang=e.

Footnote 6 See www.elections.ca/content.aspx?section=pol&dir=acp&document=index&lang=e