Briefing Book for the President of the Queen's Privy Council for Canada (December 2019)
Regulating the Election
Regulating the election involves five key components: the voting process, political financing, electoral communications, enforcement and electoral security.
Regulating the Voting Process
Instructions, adaptations and training
The recent amendments to the CEA relaxed certain elements of the highly prescriptive electoral administration model previously in place. The CEA now gives the CEO greater flexibility in administering the voting process, particularly in where and how electors are served.
The CEA's provisions regarding the administration of the voting process are supplemented or implemented, where necessary, through instructions issued by the CEO to returning officers and other election officers. These instructions provide detailed and comprehensive steps that must be followed, for example, with respect to updating the lists of electors (the revision process) and administering the vote by special ballot, both at advance polls and on election day.
In addition to their instruction power, the CEO has the ability to adapt aspects of the CEA during an election period or for 30 days afterwards. This ability enables electors to exercise their right to vote or enables the counting of votes if an emergency, unusual or unforeseen circumstance or error makes such an adaptation necessary.
Between election periods, Elections Canada implements training and infrastructure to ensure that returning officers are prepared when an election is called. The task is challenging and has become more so in recent years as new legislative provisions have added responsibilities and complexity to the jobs of election officers (notably, the voter identification requirements added in 2007).
In order to vote at an advance polling station, on election day or at an Elections Canada office in federal elections and by-elections, electors must prove their identity and address in one of three ways. Under the first option, electors can show one piece of identification issued by a Canadian government (federal, provincial, or municipal) or one of its agencies bearing their photo, name and address. Under the second option, electors can show two pieces of ID from the list of identification authorized by the CEO; both pieces must include their name, and at least one must include their current address. Lastly, if the elector is unable to establish their identity and address using one of the first two options, they may do so by making a solemn declaration and being accompanied by another elector whose name is on the list of electors at the same polling station. The accompanying elector, called a voucher, must provide proof of identity and address and also make a solemn declaration.
The integrity of an election bolsters Canadians' confidence in the electoral system and reinforces its reputation as a fair process with reliable results. There are three components of election integrity:
- respect for the principles of electoral democracy;
- compliance with the law and established procedures; and
- protection provided by a regulatory framework that ensures transparency and fairness.
The Electoral Integrity Program helps Elections Canada detect and respond to incidents that may compromise the integrity of the electoral process and Canadians' ability to register and vote. It is based on best practices of integrated risk management.
The program consists in monitoring the external environment and conducting research and analysis to identify threats to the integrity of the electoral process, such as:
- irregularities observed in the work of poll workers;
- incorrect instructions given to electors;
- misinformation and disinformation about the electoral process; and
- events disrupting the operation of polling stations.
Staff monitor operational systems and the external environment to detect any anomalies and incidents that occur during a general election. If a potential problem is detected, they plan and organize
Elections Canada's intervention. Program staff are also in charge of referring potential offences to the Commissioner of Canada Elections.
The political financing regime in the CEA is built around three core values: fairness, transparency and preventing the undue influence of money. These core values are primarily supported by the following measures:
- annual limits on contributions from eligible individuals ($1,600 for 2019) and a complete ban on corporate and union contributions (registered third parties are not subject to contribution limits and ban).
- public funding in the form of tax credits for contributions and partial reimbursement of election expenses; and
- financial reporting requirements, which include the annual reports of political parties and electoral district associations; the event-based reports that must be submitted by political parties, candidates, third parties (i.e. individuals or groups other than registered parties, candidates and registered electoral district associations), nomination contestants and leadership contestants, including an audit by an external auditor if the entity meets the statutory threshold.
The Elections Modernization Act modified several aspects of the CEA's political financing regime. Among the most significant changes is a pre-election period beginning on June 30 in the year of a fixed-date general election and finishing on the day before the start of the election period. Spending limits apply to partisan advertising conducted during this period by political parties as well as all partisan activities, partisan advertising and election surveys ("regulated activities") conducted during this period. Third parties that meet the thresholds will be subject to interim reporting requirements. The Act also introduced a complete ban on the use of foreign funds by third parties and a prohibition for foreign third parties to incur expenses for regulated activities during the pre-election and election periods.
Spending limits and reimbursement of expenses
In order to facilitate the level playing field, the CEA imposes limits on election expenses for parties and candidates. The limits apply to the total of all election expenses, whether paid, unpaid or accepted as non-monetary contributions or transfers. The limits, which are calculated differently for political parties and candidates, are based on the number of names on the lists of electors for each electoral district. Prior to the coming into force of the Elections Modernization Act, these spending limits varied depending on the length of the election period. This is no longer the case. Third parties are also subject to spending limits on expenses related to regulated activities during the pre-election and election periods: $1,023,400 and $511,700 respectively.
Registered political parties that receive 2 percent of the overall vote, or 5 percent of the vote in electoral districts where they endorsed candidates, are eligible for partial reimbursement of their paid election expenses. Candidates must be elected or receive 10 percent of the vote to be eligible for reimbursement. In both cases, reimbursement is conditional on having met reporting obligations. Third parties are not entitled to any reimbursement.
The current regime is largely the result of successive reforms in 1974, 2000, 2003, 2006, 2014 and 2018. While these reforms have established a comprehensive political financing regime, the complexity of the rules presents a significant challenge for participants in the process and for the consistency of their application. For example:
- Because annual contribution limits are set for contributions and loans to various entities, political participants may be forced to reimburse contributions that they believed to be legal because there is no realistic way of knowing whether their contributors have already given to others.
- Distinctions between various categories of expenses (electoral campaign expenses, election expenses, personal expenses) are difficult to understand, yet are critical to the regime. For example, during an election period, only election expenses are subject to spending limits applied to parties and candidates.
- New requirements for political parties and third parties during the pre-election period are distinct from the requirements that apply during the election period. This may cause some confusion for those regulated by the regime. For example, the respective spending limits for each of these periods do not apply to precisely the same types of expenses.
Role of the official agent
The political financing regime for candidates is built around the role and responsibilities of the official agent, who is responsible for managing a candidate's financial transactions during an election campaign. Because official agents are largely unknown to Elections Canada before the election, it is difficult to train them in advance. While the agency produces manuals and web tutorials, the official agents learn the rules as they go along. They have access to the Political Entities Support Network to ask questions directly to Elections Canada's auditors. Many will only act once as an official agent.
Supporting financial compliance
Elections Canada strives to help political entities comply with the rules. This includes producing and updating training material, answering questions from political entities during and after the election and helping ensure that their financial reports are complete and accurate. Elections Canada has planned to complete the review of candidate's returns within a 12-month period following the filing deadline (by February 2021).
Written opinions, guidelines and interpretation notes
Since 2014, the CEA has included the requirement to issue written opinions, guidelines and interpretation notes (OGIs) on the application of the Act to registered parties, electoral district associations, candidates, nomination contestants and leadership contestants. OGIs may be issued following consultations with all registered parties and the Commissioner of Canada Elections (CCE). Elections Canada must respond to all OGI requests from political parties.
OGIs fall into two categories: (1) written opinions and (2) guidelines and interpretation notes. Written opinions are issued only at the request of a political party (through its chief agent) and concern the application of a provision of the CEA to a specific activity or practice that a political entity proposes to engage in. Written opinions are binding on the CEO and the CCE and have precedential value.
Guidelines and interpretation notes are for information only and can be issued either on Elections Canada's initiative or at the request of a political party. Guidelines and interpretation notes address the application of the CEA (often of specific provisions) and are developed to provide a general explanation of Elections Canada's treatment of a certain type of activity under the CEA. Guidelines and interpretation notes are not binding.
For the 43rd general election, Elections Canada also issued manuals on political financing rules for political parties, electoral district associations and candidates, as well as a number of interpretation notes on specific topics related to political financing, such as cryptocurrencies and volunteer labour.
Certain components of electoral communications are regulated under the CEA, such as broadcasting time for political parties, online advertisement by digital platforms, the use and provision of voter contact calling services and the use of voter information by political parties and candidates.
Canadian broadcasters, licensed by the CRTC, have a legal obligation to make broadcasting time available for purchase by registered and eligible political parties during a general election. The CEA provides for the appointment of a Broadcasting Arbitrator who allocates broadcasting time to parties under the Act, issues guidelines concerning the obligations of broadcasters during a general election, and arbitrates disputes between political parties and broadcasters concerning the application of the Act. Peter S. Grant, a lawyer specializing in broadcasting matters, has been the Broadcasting Arbitrator since 1992.
Social media advertisement registry
Under new rules introduced by the Elections Modernization Act, digital platforms are required to maintain a registry of partisan and election advertising published during the pre-election and election periods. The registry must include a copy of the advertising message and the name of the person who authorized it. This complements the obligation on political parties and third parties to identify themselves on their partisan and election advertising during these periods (tagline).
Voter contact calling services
During the election period, political parties, candidates and third parties must follow certain rules if they use voter contact calling services. These are services involving the making of calls during an election period for any purpose related to an election, including:
- promoting or opposing a registered party, its leader, a candidate or a nomination contestant or any position on an issue with which such a party or person is associated;
- encouraging electors to vote or to refrain from voting;
- providing information about the election, including information about voting hours and the location of polling stations;
- gathering information about how electors voted in past elections or will vote in the election or their views on a registered party, its leader, a candidate or a nomination contestant or any issue with which such a party or person is associated; and
- raising funds for a registered party, a registered association, a candidate or a nomination contestant.
If a script is used for the telephone calls, the political party, candidate or third party must keep, for one year after the end of the election period:
- a copy of each unique script used;
- a record of every date on which the script was used; and
- a list of every telephone number called.
The rules are administered and enforced by the CRTC. The Commissioner of Canada Elections is responsible for enforcing the requirement to keep a copy of the scripts and recorded messages.
Elector information and privacy
The CEA states that Elections Canada must provide lists of electors to members of Parliament, registered and eligible political parties, and candidates. These lists of electors contain the names, addresses and unique identifier numbers of electors. Political parties often supplement the basic information they get from the lists with information about electors from other sources.
Elections Canada provides political parties, members of Parliament and candidates with the Guidelines for Use of the Lists of Electors. The guidelines explain how recipients are allowed to use the lists and remind them of the importance of safeguarding confidential information at all times.
Recent changes introduced by the Elections Modernization Act required that all parties applying to register with Elections Canada must publish a policy on the protection of personal information on the party's website and provide a copy to Elections Canada as part of their application. Within three months of the coming into force of these new provisions, parties already registered and those in the process of registration were required to publish a policy on their website.
The federal Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA) do not apply to political parties. British Columbia is the only Canadian jurisdiction that has legislation that covers political parties in the province through the Personal Information Protection Act. Elections Canada as a federal institution is subject to the Privacy Act.
The federal election process is protected by many legal, procedural and technological safeguards that are designed to ensure its security and integrity.
On the legislative front, the Elections Modernization Act includes measures to confront new threats to the federal election process posed by foreign influence and disinformation. The owners or operators of certain frequently visited online platforms that sell advertising space to political entities or third parties subject to the CEA must now maintain a register of partisan advertising and election advertising messages published on the platform. The law also clarifies offences related to impersonation through the publication of material by a party falsely claiming to be a candidate, a political party, the CEO or a returning officer with the intent of deceiving the public. In addition, the law stipulates an offence related to the unauthorized use of a computer with the intent of influencing the results of an election, forbids third parties from using funds originating from foreign entities to finance regulated activities, and forbids any person or entity from selling advertising space to foreign entities for the purposes of publishing election advertising messages.
There is no one simple solution that eliminates cyber and information threats to democracy while maintaining freedom of expression. These threats are complex, reaching beyond our borders and the realm of election management.
In the current environment, delivering a secure election requires collaboration among many players. Federal agencies, political actors, media, digital platforms, civil society and individual Canadians must all play a role.
As it prepares for the next election, Elections Canada is coordinating with other federal organizations that contribute to election security, including:
- the Commissioner of Canada Elections, whose office is charged with enforcing the Canada Elections Act and investigating complaints about possible offences under the Act;
- the Communications Security Establishment (CSE);
- the Canadian Centre for Cyber Security (CCCS);
- the Canadian Security Intelligence Service (CSIS);
- the Royal Canadian Mounted Police (RCMP);
- Public Safety Canada;
- Global Affairs Canada; and
- Canada's National Security and Intelligence Advisor.
Elections Canada meets regularly with these agencies to share information; discuss roles, responsibilities and protocols under potential scenarios; and plan communications.
With the support of national security agencies, Elections Canada can focus on its top priority: administering the election and making sure Canadians can exercise their democratic right to register, vote and be a candidate.
The Commissioner of Canada Elections (CCE) is appointed for a term of 10 years by the CEO after consulting with the Director of Public Prosecutions (DPP), and is responsible for ensuring that the CEA and the Referendum Act are complied with and enforced. The office of the CCE is part of Elections Canada, but in practice, acts independently from the agency. Prior to the coming into force of the Elections Modernization Act, the CCE was appointed by the DPP for a term of seven years and reported to the office of the DPP. The current CCE, Yves Côté, assumed his responsibilities on July 3, 2012.
The CCE conducts investigations of alleged offences that may lead to criminal prosecutions and has the power to enter into compliance agreements with contravening persons. Since the coming into force of the Elections Modernization Act, the CCE may also impose administrative monetary penalties for political financing offences and specific voting offences, and may independently bring criminal charges, though the final decision to prosecute still rests with the DPP.
The CCE receives complaints from the public and from within Elections Canada. For example, Elections Canada's Political Financing sector may report potential offences under the CEA that are identified during audits of the parties' or candidates' financial returns.
The CCE position was created in 1974, and its responsibilities were originally restricted to ensuring that the rules concerning election financing and expenses were enforced. In 1977, the CCE's mandate was extended to cover all provisions of the CEA. In 2006, the Federal Accountability Act transferred the authority for prosecution of offences under the CEA to the DPP.