Completing the Cycle of Electoral Reforms – Recommendations from the Chief Electoral Officer of Canada on the 38th General Election

Chapter 1 – Operational Issues

1.1 An Advance Administrative Confirmation Process

1. Administrative nomination process

The current nomination process is unnecessarily complex and cumbersome. It also provides advantages to certain candidates over others, creates ambiguities for electors seeking to make contributions outside of an electoral event, and fails to capture surplus contributions made when a person decides not to have his or her candidature confirmed in an election. Furthermore, the process diverts the energy of both returning officers and candidates away from the essential delivery of an election.

2. Simplification of the confirmation process

The 2001 report, Modernizing the Electoral Process, recommended that the nomination process should be a purely administrative matter, involving only the indication by an eligible person that he or she wishes to be a candidate, the provision of the necessary information for administrative purposes, the party leader's endorsement where applicable, and the payment of the candidate's deposit. This would involve removing the current obligations to provide the signatures of 100 nominating electors; the requirement that nomination papers must be filed by a witness (not by the candidate), who is required to take a oath; and the requirement for the candidate to take an oath in consenting to run. This report repeats those recommendations.

Currently, the nomination paper of a potential candidate must have the names, addresses and signatures, recorded in the presence of a witness, of at least 100 electors residing in the electoral district in which the candidate wishes to run.¹

The requirement that a nomination paper be accompanied by a specific number of signatures of supporting electors is an old one, and was present in the first permanent federal electoral law in 1874. As the Royal Commission on Electoral Reform and Party Financing (the Lortie Commission) stated in its 1992 report, the requirement exists so that prospective candidates can demonstrate that they have a degree of popular support for their candidature. Its justification was found in the perceived need to have elections contested only by candidates who show that they represent the political preferences of a significant number of voters.

The continuing propriety of this justification must be reconsidered in light of the decision of the Supreme Court of Canada in Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 12, which recognized that democracy was served by the ability of parties and candidates that do not necessarily reflect mainstream beliefs to participate in elections, and that the ability of those who hold less conventional beliefs to put those views before the electorate served the purpose of the informed vote and the democratic right of Canadians under section 3 of the Charter. As stated in the Supreme Court of Canada's decision:

Thus, the Supreme Court of Canada has stated that democracy and the democratic rights protected by section 3 of the Charter are served by the candidature of an eligible individual who does not enjoy broad electoral support.

The current requirement in the Act that a potential candidate be supported by 100 local electors has a practical effect on the conduct of elections as well. This requirement imposes a serious demand on the resources of the candidate in securing those signatures, and upon the electoral system in verifying them. In the 38th general election, returning officers rejected the candidacies of two prospective candidates (one in Halifax West, Nova Scotia, and one in Fleetwood–Port Kells, British Columbia) for lack of sufficient signatures from eligible electors. In the 37th general election, three potential candidates were rejected for this reason; a further unsuccessful nomination was referred to the Commissioner of Canada Elections.

The value of the current requirement is nominal at best. In the case of candidates who are nominated by parties, that nomination itself serves as an indication of some electoral support. Even for those candidates who are not part of a registered party, the modern reality is that the ability to secure 100 (or 50) signatures does not demonstrate any real electoral support. Past elections are rife with candidacies endorsed by the required nominating signatures, but which in fact enjoyed little serious support. More than anything else, the current requirement is more a measure of a prospective candidate's organizational abilities than of his or her electoral support.

In addition to the requirement's dubious benefits, it imposes a strain on the resources of the electoral system. Verifying the submitted signatures of potential candidates within the 48-hour period mandated by the Act has proven administratively difficult. At best, the time available allows only the verification that the address of a nominating elector falls within the relevant electoral district. It is not possible to verify the other bona fides of the signatures. Surely, the incompleteness of verification further reduces whatever benefit is gained from the requirement to have the signatures in the first place.

Finally, the purposes served by requiring nominating signatures for candidacies will be lessened if the recommendation of permitting pre-writ nomination confirmation is acted upon. The electors who nominate a person in a pre-writ nomination process might not still be resident in the district when the election is called. Also, the removal of the requirement for nominating signatures will facilitate the central confirmation of nominations by Elections Canada in advance of the drop of a writ.

3. Removal of the limitation of the securing of candidate status to election periods

As the Canada Elections Act is currently structured, a "candidate" is a person whose nomination as a candidate in an election has been confirmed by a returning officer under subsection 71(1) (definition in section 1 of the Act). That confirmation can take place only during an election. A person who wishes to be a candidate must, by the end of the 21st day preceding polling day, complete the necessary nomination papers – a process that includes obtaining the required signatures of nominating electors, having that nomination paper filed with the local returning officer, and securing the review and confirmation of the paper by the returning officer (section 69). A person who is unable to complete this process before the close of nominations, 21 days before polling day, cannot be a confirmed as a candidate.

This process gives rise to a number of negative issues: delay, exposure to retroactive liabilities, uncertainty as to the application of contribution rules, avoidance of surplus disposal requirements, diversion of candidates' and returning officers' resources from other election functions, inability to issue tax receipt contributions made prior to drop of the writ, and delay in the operation of transfer provisions for registered party entities to move their assets among themselves. These issues, each of which is discussed below, can be alleviated by the creation of an advance, administrative confirmation process.

Delay – Even during an election period, there may be a delay before a returning officer is able to confirm the nomination of a candidate. Section 67 of the Act directs that the nomination paper of a potential candidate cannot be filed with the returning officer until after the returning officer has issued the Notice of Election – an event that can take place up to four days after the drop of the writ (section 62). Nor is a returning officer in a practical position to confirm a candidate until the returning office has been set up and opened. In the 38th general election, most returning officers had opened offices and issued the required Notice of Election within 48 hours of the drop of the writ; however, even 48 hours amounts to two days of a 36-day election calendar. Once a nomination paper has been filed, the returning officer has a maximum of 48 hours to review the paper and confirm or reject the nomination (section 71).

Permitting the advance confirmation of nomination would reduce delays in formally achieving candidate status during an election, and allow candidates to devote their time and energy to campaigning as soon as the election is called.

Retroactive imposition of status – Technically, a person is not a candidate until he or she has been confirmed as such by a returning officer during the election period.

However, many individuals start to collect contributions to support their campaigns before the election period begins. This is a matter of practical necessity, particularly for individuals who have not yet been endorsed by a particular party or who intend to run without political affiliation.

The Act imposes a number of requirements on the collection, management and expenditure of such funds. For example, a candidate must appoint an official agent before accepting a contribution or incurring an electoral campaign expense (s. 83(1)). The candidate must also appoint an auditor when he or she appoints a financial agent (s. 83(2)). The official agent is required to open a campaign bank account into which all contributions must be deposited and from which all electoral campaign expenses must be paid (s. 437(1)). Only the official agent can accept contributions (s. 438(2)). The official agent must issue a receipt for each contribution on acceptance (s. 404.4). No person other than the candidate's official agent may pay expenses in relation to the candidate's campaign, other than for petty expenses and a candidate's personal expenses (s. 438(4)). In practical terms, if an official agent is to be able to comply with the reporting obligations under section 454 of the Act at the end of a campaign, that agent must maintain careful and complete records from the time the first contribution or electoral campaign expense is incurred.

Technically, none of these obligations applies to a person until his or her nomination as a candidate is confirmed. At that point, the obligations are imposed on the candidate and the official agent retroactively back to the time of the first contribution or expense. Individuals might not have been aware of those obligations at that time and may inadvertently find themselves later in a retroactive offence position. This information is publicly available on the Elections Canada Web site, but an individual might not think to check there; furthermore, Elections Canada is not aware of the identity of these individuals, unless they approach the organization, until their nomination is actually confirmed. So, Elections Canada cannot provide them with the information packages available to assist candidates until a time when the individual may already be in breach of the Act.

Permitting advance confirmation of nomination would not only dispense with the complex application of retroactive status and obligations, it would also allow the identification of these individuals in advance and permit Elections Canada to provide them with the necessary information and tools at the start of their campaign preparation.

Application of contribution cap rules to persons who are not technically candidates – Section 405(3) of the Canada Elections Act provides that a contribution given to a person who presents himself or herself as seeking the endorsement of a registered party shall be treated for the purposes of the contribution rules as a contribution to a candidate of that party. Similarly, a contribution to a person who presents himself or herself as seeking to be a candidate not endorsed by any registered party shall be treated as a contribution to a candidate who is not of a registered party. In this way, contributions given between elections to individuals who are not at that time technically candidates are taken into account in the calculation of contribution caps. These rules also apply to contributions by individuals to nomination contestants, but there is no similar provision for contributions by corporations, trade unions or unincorporated associations. In those cases, a contribution given to a person between elections does not constitute a contribution until the person is confirmed as a candidate during the election. At this time, the contribution status operates retroactively along with the status of candidate. Permitting individuals to become candidates prior to the drop of a writ would alleviate the need for these legal fictions.

Disposal of surplus contributions – Under the current process, a person who collects contributions prior to an election with the intent of becoming a candidate is not subject to the surplus-disposal rules if that person does not actually become a candidate in that election. The disposal of those funds then depends on the private arrangements between the person and the contributors and they may be retained for the candidate's personal benefit. This is inconsistent with the situation of individuals who actually become candidates and who are ultimately required to dispose of their surpluses to a registered party, registered association or the Receiver General, depending on the case – but these candidates do not profit personally from collecting contributions toward a candidature.

If confirmation of candidacy were permitted in advance of the drop of a writ, candidates would from that time be subject to the obligation to make financial disclosure at the end of a campaign under section 451 and would, from the time of confirmation, be subject to the surplus obligations of the Act as they apply to contributions and other campaign revenue not expended on the campaign.

Furthermore, insofar as candidates could collect contributions for more than a year in advance of an election, an additional obligation could be imposed upon candidates to disclose contributions annually until such time as the campaign return is required under section 451, at the end of an election.

This proposal would address the existing inconsistency that allows individuals who collect contributions prior to an election with the intent of becoming candidates but who do not actually become candidates to dispose of their surplus otherwise than in accordance with the Act. It would also contribute to the informed vote by providing, in many cases, for a kind of disclosure in advance of an election.

Diversion of resources – The limitation of the confirmation of candidates to an election period can also force candidates to divert resources at the beginning of an election to the nomination confirmation process, including the collection of electors' signatures. For the 38th general election, the nomination paper was available on-line from Elections Canada before the drop of the writ and candidates were permitted to collect nominating signatures in advance of the election. In doing so, however, candidates took the risk that an elector who signed the nomination papers in advance of the drop of the writ might no longer be an elector in the district at the time the election was actually called. Such signatures could not count toward the numerical requirement.

Similarly, returning officers, who are at that time engaged in opening their offices, ensuring the delivery of voter information cards and securing polling stations, must divert their energies to the review and confirmation of the nomination papers.

Permitting confirmation of candidates in advance of an election would allow candidates to concentrate on the campaign itself, and allow returning officers to concentrate on election delivery, once the election period begins.

Income tax receipts – Income tax receipts cannot be issued for campaign contributions to a person who has not yet been confirmed as a candidate. This is because subsection 127(3) of the Income Tax Act permits tax receipts to be given by official agents of candidates only for contributions given to a "candidate" as that term is defined in the Canada Elections Act. As noted above, section 2 of the Canada Elections Act defines a candidate as a person whose nomination has been confirmed by a returning officer during an election.

This is not a significant problem for candidates who are endorsed by a registered party. Contributions given prior to an election but which are ultimately intended for the candidate can be given to the registered party or, where one exists, to the person's registered electoral district association, which can issue a tax receipt. Once the election is called, the registered party or registered association can transfer the funds to the candidate. However, candidates who are not of a registered party have neither a party nor a registered electoral district association through which advance contributions can be given.

Permitting the confirmation of a candidate in advance of the drop of a writ would make that person a "candidate" prior to the election and thus permit income tax receipts to be issued for contributions made to that person before the calling of an election, once his or her nomination has been confirmed. This would lessen the advantage that registered party candidates may have over candidates who are not of registered parties.

Transfer rules – Under the current system, neither a party nor a registered electoral district association can transfer assets to a party "candidate" prior to that person's actual confirmation as a candidate during an election. This situation would also be addressed by permitting advance confirmation and endorsement of candidature.

4. Confirmation by the Chief Electoral Officer

If the nomination confirmation process were transformed into a simple, administrative registration process, it could be done through the Office of the Chief Electoral Officer rather than through the individual offices of returning officers. In turn, this would permit registered parties to have central file lists of endorsed candidates (with the candidates' consent) or to collectively pay the candidate deposits for their endorsed candidates. Under the current system, each nomination process can be conducted only by the returning officer of the electoral district in which the candidate is to run. This means that a separate party endorsement must be filed for each candidate in each relevant district. Similarly, the nomination deposit for each candidate must be paid separately to his or her respective returning officer.

Implementation

If this recommendation were adopted, a person could be permitted to seek confirmation of his or her nomination in advance of an election call. The person would be required to identify the electoral district for which he or she is seeking confirmation. At the next election in that district, the individual would be required to run either as a candidate or to withdraw from the contest, file the necessary disclosure returns and dispose of any surplus contributions. In light of the new ability of a party to endorse a candidate in advance of an election, consideration should be given to permitting parties greater latitude to change their endorsements before the calling of an election.

Early confirmation of nominations would have no impact on the operation of the rules that apply to contribution caps and eligibility, which already account for pre-writ contributions.

1.2 Integration of the Office of the Chief Electoral Officer and Returning Officers

In the minds of the public, returning officers and Elections Canada are one and the same. This common perception is not surprising. It reflects the close interaction of those entities in the delivery of elections.

Legally, however, the offices are independent and separate entities. Returning officers are not part of the Office of the Chief Electoral Officer but are Governor in Council appointees upon whom the Act directly imposes duties and vests authorities exercisable only within their particular electoral districts. In effect, they constitute 308 independent offices. Returning officers are, in the performance of their duties, subject to the directions of the Chief Electoral Officer under section 24 of the Act, but that direction does not make them part of, or employees of, Elections Canada. This arrangement has a number of significant consequences, as detailed below.

Personal liability of returning officers – Legal liability for returning officers' activities rests with each returning officer personally, and not with the Chief Electoral Officer. Activities giving rise to liability are numerous: they include the renting of space for returning offices and polling stations, the hiring of election officers and staff, injuries arising out of accidents at returning offices or polling stations, damages to premises, rents owing, or employment or human rights claims by or against election officers or elections staff hired by returning officers. While the Treasury Board's Policy on the Indemnification of and Legal Assistance for Crown Servants applies to returning officers, there remains a great deal of confusion and uncertainty concerning the assistance they may expect from the government in general, and Elections Canada in particular, when they are sued for their actions or those of their employees.² Clarifying the direct legal responsibility of the Chief Electoral Officer for returning officers with respect to the execution of the various election-related activities would address returning officers' concerns about their personal liability as it applies to the performance of their election-related duties. It would also address the confusion experienced by complainants, who might otherwise identify the wrong respondent in their legal proceedings against returning officers.

Application of the machinery of government statutes to returning officers – The fact that the Office of the Chief Electoral Officer is subject to the basic machinery of government statutes such as the Financial Administration Act and the Privacy Act does not make those statutes applicable to returning officers or their operations. To be subject to these statutes, returning officers would have to be included in the relevant statutory designations – which they are not. Making returning officers and their staff in fact agents of the Chief Electoral Officer would result in the automatic application to these officers of statutes applicable to the Office of the Chief Electoral Officer.

Inability to act – The appointment of returning officers outside of the structure of the Office of the Chief Electoral Officer results in an absence of any practical remedial or replacement authority in the case of inability, accident or insubordination. While the grounds for the removal of returning officers are suitable to the status and protection of the office,³ it is the Governor in Council, not the Chief Electoral Officer, who is the judge of the necessity for such removal. The Governor in Council is not obliged to act upon such recommendations and few have been accepted in recent years. The realities of the electoral process make it even less likely that the Governor in Council would take action in the midst of an election. Finally, removal from office is an inflexible and extreme remedial authority not suitable for every failing. The Act should be amended to vest the authority for the removal of returning officers with the Chief Electoral Officer, who would be permitted to do so for sufficient cause, according to due process.

Appearance of bias – As has been indicated several times in the past, many candidates have reported that the appointment by the government (or by a previous government) of returning officers, who are the principal engine for the delivery of elections at the local level, gives rise to a reasonable apprehension of bias. Appointment by the independent and neutral Chief Electoral Officer would address this concern, as has been demonstrated in the provinces of Quebec and Manitoba.

Merit-based appointment – As has also been reported on several occasions, the appointment of returning officers is not based on merit. The role of returning officer is a demanding one that requires multiple skills, yet there is no systematic process for evaluating candidates for appointment as returning officers. Although the Chief Electoral Officer has provided guidance on selection criteria, the current process does not guarantee that returning officers will have the necessary skills or be suitable for the job. The appointment of returning officers should be based on merit.

As is currently the case, each appointee should be a resident of his or her electoral district; this ensures that the returning officer is knowledgeable about local issues and is present within the electoral district. This report also recommends that returning officers be appointed for a period of 10 years, thus giving them the opportunity of managing at least two elections. This appointment could terminate earlier in case of death, resignation, ceasing to reside in the electoral district or removal from office. Causes for removal would remain the same (subsection 24(7) of the Act). Finally, provisions of the Act for situations when an assistant returning officer may act for a returning officer should be clarified to ensure that there is full continuity of authority for the acting returning officer.

Rationalizing division of tasks – The provisions of the Canada Elections Act that require the performance of tasks expressly by returning officers impede the division of tasks among returning officers themselves and between returning officers and Elections Canada personnel. It would be preferable if tasks were to be performed on the basis of whoever may be in the best position to do so. For example, voter information cards could be prepared and issued, either by Elections Canada or locally by a returning officer, according to which may be best positioned in the circumstances of each case. Integration of the responsibility for the delivery of elections with the Chief Electoral Officer would provide a wider latitude to returning officers from different districts to assist each other in the execution of these duties as requested by the Chief Electoral Officer. This integration would also require formal authority for the Chief Electoral Officer to delegate some of his functions to returning officers.

The closer integration of these offices would answer the needs of the current electoral process; however, the aspect of this recommendation that deals with the reform of the appointment process has both historical and modern precedents. The appointment of returning officers rested with the Chief Electoral Officer from 1929 to 1934, after which it was returned to the Governor in Council for reasons wholly unrelated to the exercise of that duty by the Chief Electoral Officer. Furthermore, six provincial and territorial jurisdictions (British Columbia, Manitoba, Newfoundland and Labrador, Northwest Territories, Nunavut and Quebec) now provide for the appointment of returning officers through a process based on merit. Nor is it estimated that returning the appointment power to the Chief Electoral Officer would create significant infrastructure demands: likely only two additional positions would be needed, with any additional requirements being absorbable through existing resources.

¹ Only 50 such signatures are required for electoral districts listed in Schedule 3 of the Act; these are generally the more remote and sparsely populated districts.

² Without comprehensively outlining Treasury Board's Policy on the Indemnification of and Legal Assistance for Crown Servants, the policy basically provides that it is government policy to indemnify Crown servants against personal civil liability, to make no claim against servants based upon such personal liability, and to authorize the provision of legal assistance to Crown servants in the circumstances specified in the policy.

³ Subsection 24(7) sets out the four grounds for removal:

24(7) The Governor in Council may remove from office any returning officer who

(a) is incapable, by reason of illness, physical or mental disability or otherwise, of satisfactorily performing his or her duties under this Act;

(b) fails to discharge competently a duty of a returning officer under this Act or to comply with an instruction of the Chief Electoral Officer described in paragraph 16(c);

(c) fails to complete the revision of the boundaries of the polling divisions in their electoral district as instructed by the Chief Electoral Officer under subsection 538(3); or

(d) contravenes subsection (6) [knowingly engaging in political activity while in office], whether or not the contravention occurs in the exercise of his or her duties under this Act.

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