Electoral Insight - Election Legislation Enforcement
Enforcement of the Canada Elections Act
Commissioner of Canada Elections
The contemporary electoral process in Canada is characterized by a number of checks and balances that dramatically reduce the likelihood of widespread abuses, and by means for enforcement that act as a deterrent. At the federal level, the Commissioner of Canada Elections, an impartial and independent official appointed by the Chief Electoral Officer, has the duty to ensure that the Act is complied with and enforced.
This article presents an overview of the role and responsibilities of the Commissioner of Canada Elections in the federal election law enforcement scheme, and describes the multi-faceted approach used to enforce the Act.
Role and responsibilities of the Office of the Commissioner of Canada Elections
The adoption of the Election Expenses Act in 1974 led to the creation of the Office of the Commissioner of Election Expenses, with statutory powers over the application of the extensive new financial provisions of the Canada Elections Act. Footnote 1 In 1977, the Commissioner was assigned responsibility for enforcement of all provisions of the Act, and the holder of the office was renamed the Commissioner of Canada Elections. Footnote 2
The Commissioner of Canada Elections is an impartial official selected and appointed by the Chief Electoral Officer (who is appointed by a resolution of the House of Commons and reports directly to Parliament). In deciding on the proper course of action to deal with a complaint of an alleged infraction, the Commissioner is thus independent from politicians, political parties and the government.
Section 509 of the Canada Elections Act provides that the duty of the Commissioner of Canada Elections is to ensure that the Act is complied with and enforced. Footnote 3 In carrying out his responsibilities, the Commissioner investigates possible breaches of the provisions of the Act and decides on the appropriate course of action to remedy the infraction.
Prior to the adoption of a new Canada Elections Act in 2000, the only enforcement tool, aside from automatic administrative consequences for some acts or omissions, was prosecution before a court of justice. The Commissioner of Canada Elections had and still has exclusive responsibility for all prosecutions under the Canada Elections Act and prosecutions for electoral offences under s. 126 of the Criminal Code. However, the Canada Elections Act adopted in 2000 enhanced the compliance role of the Commissioner by providing him with two new tools: compliance agreements and injunctions, about which further details are provided below.
Until 1993, the Royal Canadian Mounted Police, at the Commissioner's request, carried out investigations of alleged offences under the Act. A major change occurred in 1993 when a national network of special investigators was set up by the Commissioner to carry out investigations in the field, on his behalf and at his request. Currently, 26 special investigators are retained across the country. They carry out their investigations in accordance with the procedures and policies in the Special Investigator's Manual. This manual is published on-line to make public the rules under which investigations are performed, bringing fairness and consistency to the process. Footnote 4
In addition, the Commissioner is assisted in the performance of his duties by legal counsel and chief investigators. When a decision to initiate a prosecution has been reached by the Commissioner based on his review of the evidence uncovered during an investigation, a lawyer in private practice, whose independence from political activities has been determined, is retained in the applicable region of the country to carry out the prosecution.
The setting up of a network of special investigators as a substitute to requesting investigations by the RCMP, and the use of lawyers in private practice to carry out the prosecution instead of relying on Crown attorneys, are two elements that have enhanced the independence of the Office of the Commissioner of Canada Elections. These measures further remove any possible political interference in the discharge of his duties.
Finally, it is worth mentioning that the Commissioner of Canada Elections normally defends the constitutionality of the offence provisions of the Canada Elections Act where a prosecution on his behalf is filed in court, and defence counsel initiates a constitutional challenge of those provisions. Notice of constitutional questions must still be served, however, on the Attorney General of Canada and the attorney general of each province.
Enforcement of the Canada Elections Act: A multi-faceted approach
The enforcement scheme under the Act is multi-pronged, ranging from the application of administrative incentives, to the initiation of criminal prosecution. Although prosecution remains the ultimate enforcement tool, the Canada Elections Act adopted in 2000 gave the Commissioner two new tools to effect compliance: first, the power to enter into compliance agreements; and, second, the ability to seek an injunction during an election period. These new tools can act as much to prevent breaches of the Act as to stop those breaches after the fact.
The mere act of intervening in an election period, whether to seek an injunction or to enter into a compliance agreement in the hopes of avoiding a breach of the Act or the commission of an offence, has itself the potential of causing political controversy. Resources may be diverted from a campaign and reputations called into question. In the consideration of the exercise of his powers, the Commissioner must therefore be careful not to allow the complaint process to become a political tactic.
A closer look at each of the elements of the enforcement scheme is provided below.
The Act contains a number of provisions that provide for automatic statutory consequences to some acts or omissions. These incentives (or disincentives) exist to encourage political parties and candidates to act in conformity with their legal responsibilities. It is important to note that the Chief Electoral Officer is responsible for the administration of these measures, which include:
- the statutory loss of a candidate's nomination deposit where the reporting requirements are not met after the election (s. 468)
- the loss of the second instalment of a candidate's reimbursement of election expenses where the reporting requirements are not met (s. 465)
- the suspension of a registered political party that failed to provide its annual fiscal report (ss. 386 and 387)
The existence of these statutory measures may have an impact on the course of action chosen by the Commissioner to deal with a complaint. In essence, the Commissioner's responsibility is to choose the most appropriate tool at his disposal to deal effectively with a case of non-compliance.
The power to seek an injunction
Supreme Court of Canada
Section 516 provides the Commissioner with the authority to apply to a court for an injunction ordering any person named in the application to refrain from committing any act that is prohibited, or to do any act that is required by the legislation. These new measures have been specially tailored to the electoral process.
The Commissioner cannot himself issue an injunction. He is authorized only to apply to a court for such an order. Further, he can do so only during the election period, which can be as short as 36 days from the issue of the writ to election day.
Before the Commissioner can apply for an injunction, and before a court can grant that request, there must be reasonable grounds to believe that a person has committed, is about to commit or is likely to commit an act or omission that is contrary to the Act. Accordingly, while neither the Commissioner nor the court need be satisfied beyond a reasonable doubt of the breach or potential breach, neither can act on mere speculation or whim. There must be sufficient objective evidence to indicate that a breach has been or will likely be committed.
Before an injunction can be issued, it must be justifiable in light of three basic considerations:
- the nature and seriousness of the breach
- the need to ensure the fairness of the electoral process
- the public interest
These factors must all be considered and balanced in light of the particular circumstances.
The short period during which an injunction can be sought, namely the election period, imposes some very real limitations on the practical exercise of the power. Complainants are therefore encouraged to provide all relevant and verifiable information available, as soon as possible. Any delay in providing such information can adversely affect the likelihood or ability of the Commissioner to seek an injunction within the statutory deadlines.
Since the adoption of this new measure, the required elements to justify the seeking of an injunction have not been found to exist in any occurrence.
The power to enter into compliance agreements
Another tool provided to the Commissioner in the 2000 legislation is the authority to enter into a compliance agreement, found in section 517 of the Act.
A compliance agreement is a formal agreement between the Commissioner of Canada Elections and another person known as a contracting party. It is completely voluntary and contains terms and conditions that are mutually acceptable to ensure compliance with the Act. The Commissioner may enter into such an agreement with any person who he has reasonable grounds to believe has committed, is about to commit or is likely to commit an offence.
As long as the contracting party acts in conformity with the terms and conditions of the agreement, no prosecution can be instituted or continued against that person for the act or omission constituting the offence. An acknowledgement of responsibility in a compliance agreement, unlike a guilty plea in a court of justice, does not result in a criminal record.
To further the public interest, compliance agreements can be used to prevent the probable commission of offences, thereby avoiding harm before it happens. Moreover, it also provides an alternative mechanism for resolving a complaint where there is no overriding public interest to be served by a prosecution, or where prosecution may have been possible but not justifiable in the public interest. Finally, a compliance agreement, as an alternative to judicial intervention, serves to lighten the court system's caseload.
In order to maintain transparency, notice of all compliance agreements entered into must be published. For this reason, a person who enters into a compliance agreement with the Commissioner must consent to its publication. Since the adoption of this new power, the Commissioner has signed compliance agreements with more than 50 individuals and groups to resolve cases of offences under the Canada Elections Act.A public notice for each of these agreements appears in the Canada Gazette and can be viewed on the Elections Canada Web site at www.elections.ca.
The ultimate enforcement tool: the initiation of a prosecution
Although compliance agreements and the authority to apply for an injunction provide the Commissioner with greater flexibility to enforce the Act, there remain instances where prosecution is warranted. By virtue of section 511, this avenue of redress is still open to the Commissioner where he believes on reasonable grounds that an offence under the Act has been committed and is justified by the public interest.
Considerations that may come into play during an assessment of the public interest include the necessity of maintaining public confidence in the fairness and effectiveness of the electoral system, the need for general deterrence, and the need for decisive action where the offence is of considerable public concern. Other factors may include the suitability of alternative modes of enforcement and the presence of significant mitigating or aggravating circumstances.
The Commissioner's written consent is required before a prosecution for an offence under the Canada Elections Act can be initiated, pursuant to section 512. In determining that reasonable grounds exist to believe that an offence has been committed, the Commissioner satisfies himself that there is reliable, admissible and sufficient evidence to prove that an offence was committed by a person or group and that there is a reasonable prospect of conviction; as with all other prosecutions under a penal statute, proof means proof beyond a reasonable doubt.
Under section 510 of the Act, the Chief Electoral Officer can direct the Commissioner, in specific circumstances, to make any inquiry that appears to be required. This can occur when he believes on reasonable grounds that an election officer may have committed an offence against the Act or that any person has committed an offence under the provisions listed in that section. However, the power to initiate the prosecution remains with the Commissioner.
Since the electoral reform of 2000, there is normally no longer a need to rely on section 126 of the Criminal Code to prosecute for an act or omission contrary to the Canada Elections Act. The Act includes a complete code for the conduct of federal elections: there are some 175 distinct offences in Part 19 covering acts or omissions committed by candidates, electors, voters, registered parties, third parties, employers, official agents and election officers.
The Act also sets out the level of intent that a person must have in order to be found guilty of a particular offence. Some offences are strict liability offences where the fact of the occurrence is sufficient for conviction, unless a person acted with due diligence. Other offences require a mens rea of having "knowingly" committed the prohibited act. This essentially means that the person was aware of what he or she was doing but did not necessarily desire the prohibited result of those actions. Finally, some offences require a level of intent whereby the person commits the offence "wilfully," which essentially means that the person acted intentionally to achieve the prohibited result.
The Act provides for specific ranges of penalties for every offence that include fines and prison terms. Penalties are proportional to the gravity of the offence, and to the degree of intent required for the offence to occur. The courts have also been given greater flexibility in imposing alternative punishments in section 501, including:
- a fine of up to five times the amount by which a third party exceeded the limit on election advertising expenses
- community service
- compensation for damages
- specific performance of the obligation which gave rise to the offence (e.g. submit return)
- any other reasonable measure (e.g. charitable donation)
Finally, in section 502, a number of offences are listed as being either illegal or corrupt practices. These include serious wrongdoings that affect the integrity of the election process. Upon conviction for these listed offences, automatic consequences that apply for the next five years for an illegal practice, and for seven years for a corrupt practice, are:
- loss of entitlement to be a candidate, or to sit in the House of Commons
- loss of entitlement to hold office in the nomination of the Crown or of the Governor in Council
Loss of right to vote is no longer a punishment for having being convicted of an illegal or corrupt practice, as was the case before 2000.
A sentencing digest listing all individuals found guilty of an offence under the Canada Elections Act is maintained on Elections Canada's Web site.
I have been Commissioner of Canada Elections for a period of more than 10 years. Since 1992, I have acted in that capacity for one national referendum, three general elections, and 37 by-elections.
Some movement towards decriminalization during my time as Commissioner is consistent with my general observation during the course of my work that Canadians by and large want to act in accordance with their statutory responsibilities. Once informed that they are in violation of these obligations, most immediately react to correct their behaviour to ensure their conformity with the law.
Criminal prosecution and sanctions must necessarily continue to be applied to serious wrongdoings that put the integrity of the electoral process in jeopardy. However, where there is no overriding public interest to be served by a prosecution, every effort must be made to promote alternative means of achieving compliance with the Canada Elections Act.
It is important to recall that the most effective element that ensures the smooth and harmonious unfolding of an electoral event and of related political processes remains the commitment of all stakeholders to abide, in good faith, by the rules prescribed in legislation. Indeed, the integrity of the electoral process can only be maintained where parties, candidates, third parties and electors have trust in the system and where they act in accordance with their obligations under the law.
Return to source of Footnote 1 Reporting of election expenses by candidates had been required since 1874 (Dominion Elections Act, S.C. 1874, c. 9), but the law did not include any means for enforcement.
Return to source of Footnote 2 Previous holders of the Office have been John P. Dewis (1974-1976), Joseph Gorman (1976-1987), and George M. Allen (1988-1991). The use of the masculine gender in this article is intentional as all commissioners to date have been male.
Return to source of Footnote 3 Although section 38 of the Referendum Act provides the Commissioner with a similar role with respect to that Act, the present article will deal solely with the Commissioner's responsibilities pursuant to the Canada Elections Act, S.C. 2000, c. 9.
Return to source of Footnote 4 An on-line copy of the manual can be found on the Elections Canada Web site, in the Electoral Law and Policy pages, together with all other public notices and information relating to the Office of the Commissioner of Canada Elections.
Note: The opinions expressed are those of the authors; they do not necessarily reflect those of the Chief Electoral Officer of Canada.