An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election
Table B—Other Substantive Recommendations
|No.||Subject||Provision(s) in the Act||Issue||Recommendation|
|B1.||Statement of electors who voted||2
|Statements of electors who voted ("bingo sheets") are completed by poll clerks and provided to candidates' representatives every hour on polling day. At the end of the election, ROs must make all bingo sheets available to candidates and parties on request. However, by virtue of the definition of "election documents" in subsection 2(1), once bingo sheets are returned to Elections Canada, they become election documents, which cannot be accessed except by court order. There is no reason to afford such protection to bingo sheets, and this protection prevents Elections Canada headquarters from coordinating their distribution to parties and candidates centrally after the election.||Bingo sheets should be removed from the definition of "election documents" in subsection 2(1) to permit Elections Canada to manage a central distribution process after the election, if required.|
|B2.||Proof of identity and residence||2(3)||The Act defines satisfactory proof of identity and residence as "documentary" proof prescribed by the CEO. The requirement for "documentary" proof of identity and residence ("la production de pièces d'identité" in French) when electors register to vote or apply for a special ballot prevents the use of technological solutions where this proof is required, such as online applications for special ballots and certain forms of e-registration. Without this requirement, electors could type in a piece of unique information contained in a document to prove their identity, rather than having to provide the document.||The requirement for "documentary" proof of identity and residence ("la production de pièces d'identité" in French) should be removed, and satisfactory proof of identity and residence should be established instead in the manner that the CEO determines. The CEO also made this recommendation in 2010.|
|B3.||Assistant Chief Electoral Officer||4(b)
|The Governor in Council is responsible for making appointments to this position. It is an anachronistic position that is not given any specific statutory mandate, other than what may be assigned from time to time by the CEO. It has not been filled since 2001.||All references to the Assistant Chief Electoral Officer should be deleted. This recommendation was made twice previously, in 2001 and 2005.|
|B4.||Voting by federal inmates||4(c)
|The provision preventing federal inmates (incarcerated persons serving a sentence of two years or more) from voting in paragraph 4(c) was declared of no force and effect by the Supreme Court of Canada in the Sauvé decision in 2002, but has never been repealed. As a result, the CEO has used his statutory authority under section 179 to design a process for voting by federal inmates similar to the process in sections 246 and 247 for persons incarcerated in provincial correctional institutions. The ongoing use of the CEO's discretionary power to adapt the Act is undesirable and difficult to justify. The CEO's extraordinary authority should not replace the legislative function.||Paragraph 4(c) should be repealed as required by the Sauvé decision. Provisions should be added to Division 5 of Part 11 to establish a voting process for electors who are incarcerated in federal institutions that is similar to what is already in place for provincial institutions.|
|B5.||Publication of written opinions, guidelines and interpretation notes||16.1
Although guidelines and interpretation notes are not binding and are issued for information purposes only, they must be published for 30 days on the Elections Canada website before they are "issued" and placed in the registry. This period serves no purpose. In addition, the timelines for Elections Canada to consult with political parties and with the Commissioner (15 days) and to issue the final documents have not proven realistic. In practice, Elections Canada has allowed a 45-day consultation period, which political parties have indicated is necessary for them to provide feedback. More time is also needed to allow Elections Canada to finalize the documents, including editing and translating them and fulfilling electronic publication requirements. Currently the Act provides for a 60-day timeline, including consultations.
The production of written opinions in response to requests from political parties also presents challenges, but there is a greater need for timeliness here in order for them to remain useful.
A distinction should be made between guidelines and interpretation notes, on the one hand, and written opinions requested by political parties, on the other hand.
In the case of guidelines and interpretation notes, the requirement for the CEO to "publish" them before they are officially issued should be deleted. The consultation period with the Commissioner and political parties should be lengthened to 45 days, and the overall production deadline should be deleted.
In the case of written opinions, the requirement for pre-publication should be maintained. However, the consultation period should be lengthened to 30 days and the overall production timeline lengthened to 90 days. The Commissioner agrees with these recommendations, and members of the Advisory Committee of Political Parties are supportive.
|B6.||Restrictions on use and disclosure of personal information by election officers||23(2)
|Currently, the Act restricts the use of personal information contained in a list of electors (paragraph 111(f)) and the communication of information obtained by election officers during the course of their duties (subsection 23(2)). However, the Act does not address the improper use of personal information obtained by election officers in the course of their duties from a source other than a list of electors (for example, personal information on pieces of identification that electors present to poll workers or information provided on an application for registration and special ballot). The Commissioner noted this deficiency in his 2016 annual report.||As the Commissioner recommended to the CEO, subsection 23(2) should be amended to prohibit election officers from using or disclosing personal information that they obtain in the course of their duties, other than for a purpose related to the performance of those duties.|
|B7.||Appointment of AROs||26(1)||Currently, ROs have complete discretion in appointing their ARO. In some cases, this creates difficulties for the CEO. The ARO must be ready to replace the RO in all circumstances, and yet the CEO does not have a direct relationship with AROs or any involvement in their selection.||An RO's appointment of an ARO should be subject to the CEO's approval.|
|B8.||Appointment of revising agents||33(3)
|Revising agents are required to work in pairs, made up as much as possible of partisan nominees from different parties. Historically, enumerators worked in pairs to "watch over" each other in the door-to-door enumeration process. But the revision process has changed, and there is no longer a need for revising agents to work in pairs in all cases to ensure the integrity of the lists of electors. For example, it is impractical in an office to have two revising agents take all the information by phone. Integrity is already ensured in other ways: the RO or ARO must approve all changes made to the lists, and revising agents work under a revision supervisor.||The requirement that revising agents always work in pairs should be deleted. Instead, subsections 33(3) and 100(1) should authorize the CEO to determine in which situations revising agents must work in pairs and instruct ROs accordingly.|
to electors' gender in the Act
Many provisions of the Act require the collection of information about the "sex" of electors. Thus, many Elections Canada forms require an elector to indicate whether they are male or female; there is no other option. However, there are gender identities other than male and female.
This issue is not restricted to Elections Canada–it is a government-wide matter. The Canadian Human Rights Commission and the Treasury Board Secretariat are currently conducting research into the collection and use of gender information by government institutions.
The absence of gender information on lists of electors at polling stations would not impact the integrity of the voting process. In fact, poll workers are currently instructed to disregard gender information on the lists of electors. However, the collection of gender information is important in many cases for identifying electors and matching information in the NROE, and is also useful to provide statistical information about candidates.
|The collection and use of gender information is currently being reviewed on a federal government–wide basis, with input from all departments and agencies. As part of this review, the terminology in the Act respecting gender identification should be updated. Some form of gender information (regardless of the number or description of categories) is required to be collected in the NROE for operational reasons and is useful for statistical reasons with respect to candidates. It is not necessary for any operation at the polls. All requirements to indicate an elector's "sex" on lists of electors or other related documents should be deleted (sections 107, 194, 195, 199, 204 and 222).|
|B10.||Withdrawal of a writ in case of disaster||59||
The Governor in Council may order the withdrawal of the writ in any electoral district where the CEO has certified that it is impracticable to conduct an election because of "flood, fire or other disaster". When a writ is withdrawn, the election period for the affected electoral district must be entirely restarted, with all the attendant costs, time delays and political financing considerations. It would be preferable to have the option of postponing polling day for several days, rather than withdrawing the writ entirely. Several provincial electoral regimes allow postponements.
In addition, in cases where the writ is withdrawn, the Act should affirm that the Governor in Council retains the authority to order the issue of a new writ. The wording of the current provision suggests that the CEO might bear this responsibility.
This provision should authorize the CEO to recommend to the Governor in Council that an election be postponed for a maximum period of one week, rather than cancelled altogether, in circumstances where a postponement is practicable.
When a writ is withdrawn and a new writ must be issued, it should be clear in the Act that the Governor in Council, not the CEO, is responsible for setting the date for a new election in that electoral district.
|B11.||Notice of election||27
|Currently, ROs must issue a Notice of Election with certain basic information about the timing of the election, the validation of results and the location of the RO office. This is an antiquated requirement that no longer serves to effectively inform electors. Elections Canada more usefully disseminates relevant information on its website and by other means, such as the voter information card. When elections are called, the website is updated with all the information that must be included in the notice, except for the date and time of the validation in each electoral district, which could easily be added. Deleting the requirement for ROs to issue a Notice of Election would allow them to focus on more important tasks.||
The requirement in section 62 for ROs to publish a Notice of Election should be repealed. Alternatively, the section could be amended to make the CEO responsible for publishing the specified information centrally.
Consequential amendments would be required wherever reference is made to the Notice of Election (sections 27, 67, 77, 130, 293 and 548), including Form 2 of Schedule 1, which prescribes the notice's format.
|B12.||Publishing false statements to affect election results||91||Section 91 prohibits the making of false statements about the personal character or conduct of a candidate with the intention of affecting the results of an election. The intended scope of the provision is unclear in terms of the behaviour it seeks to capture (that is, what constitutes a false statement about personal character or conduct). It is also unclear how the provision applies when the intent is to affect the results of the election in general, rather than the election of a candidate in a particular electoral district. The Commissioner has noted that the provision's lack of clarity causes enforcement difficulties. It also raises expectations of what can be prosecuted.||The Commissioner has suggested to the CEO that Parliament may wish to clarify or repeal this provision. The CEO recommends that section 91 be repealed. Serious cases of defamation or libel can be dealt with through alternative civil or criminal legal mechanisms.|
|B13.||Polling divisions and advance polling districts||108
The Act contains prescriptive rules for drawing polling divisions and establishing polling stations. These rules include timeframes in which polling divisions may be redrawn (that is, "merged" or "split" because of the number of electors) and deadlines for providing candidates and parties with written notice of the addresses of the polling stations. The strict rules limit the ability of ROs to make adjustments to better serve electors when circumstances change, which can happen at any time. This is despite the fact that any adjustments made can be rapidly communicated to electors, candidates and parties through the news media, social media and other methods as required.
Furthermore, the rules for ordinary polling divisions are often different from advance polling districts in ways that are not explained by the substantive differences between the two types of polls.
These rules should be flexible so that polling divisions can be drawn in a way that is consistent, serves electors and is transparent to everyone.
If Recommendation A2 is not accepted, the Act should be amended to allow polling divisions or advance polling districts to be merged at any time. Under current restrictions, this can only be done after the revision period (section 108) for ordinary polling divisions and within the first four days after the issue of the writ (subsections 168(4) and (5)) for advance polling districts. These time limits should be deleted. The only restriction should be that the RO must seek prior approval from the CEO.
Similarly, deadlines for splitting polling divisions–where a poll is found to have too many electors to operate efficiently–should be removed. This can be achieved by deleting the deadline in subsection 120(2) for ordinary polling divisions, and adding a new subsection under section 168 to allow for the splitting of advance polling districts.
Finally, section 125.1 provides that notice of the addresses of ordinary polling stations must be provided to candidates and any parties running candidates in the electoral district by the 24th day before polling day, and changes must be provided by the 5th day before polling day. This section requires both electronic and written notice, which is unnecessary. It should simply provide for notice, which in most cases will be more efficient to provide electronically.
An equivalent provision should be created for notice of advance polling stations, but the deadline in this case should be the 15th day before polling day (the 5th day before the first day of advance polls).
|B14.||Observers||135(1)||Subsection 135(1) lists the persons allowed at a polling station on polling day. This list does not include some groups of people who should be permitted at a polling station, such as field liaison officers, central poll supervisors and information officers. The provision also does not clearly allow for the presence of international observers, representatives of provincial or territorial election agencies, other domestic non-partisan groups, interested citizens or the external auditors required under section 164.1. After its most recent observation mission to Canada, the Organization for Security and Co-operation in Europe recommended that a provision be added to the Act to allow the attendance at the polls of international and citizen observers.||Instead of amending this provision to create additional categories, subsection 135(1) should be replaced by a more general provision allowing the attendance at the polls of persons or classes of persons authorized by the CEO.|
|B15.||Oath of assistance||155(3)||
Under this provision, when a family member or friend assists an elector with a disability in voting, the family member or friend must take an oath. The oath sets out the following: that the assistor will mark the ballot paper as directed by the elector; will keep the elector's choice of candidate secret; will not try to influence the elector in making that choice; and, if assisting as a friend, has not so assisted another person during the current election.
It is sufficient to have the election officer, acting on the CEO's instructions, inform assistors that they must not influence the elector's choice, must mark the ballot as directed and must keep the elector's choice of candidate secret. The use of an oath is unnecessary in this circumstance and creates an air of formality and intimidation that is not consistent with the goal of the provision, which is to help electors vote.
|The requirement for a family member or friend to take an oath of assistance should be repealed.|
|Transfer certificates allow electors who are unable to vote at their assigned polling station, for one of several specified reasons, to vote at another polling station. It is currently unclear that transfer certificates issued under sections 158 and 159 can be used at advance polls. As well, section 158 only permits election officers who work on polling day to obtain transfer certificates, not those who work at advance polls. Finally, under subsection 158(2), only an RO or ARO may issue a transfer certificate to an election officer.||The Act should make it clear that transfer certificates may also be used to vote at advance polls. Election officers who work at advance polls should be entitled to obtain transfer certificates to vote there. Any election officer working at a polling station, as well as the RO and ARO, should be authorized to issue a transfer certificate.|
Under a requirement enacted in 2014, an external audit was conducted during the 42nd general election to assess whether certain poll workers properly performed a specified set of duties. The Act calls for this audit to take place in every election.
The utility of repeating exactly the same audit in every general election and by-election is unclear at best. The CEO can have poll workers' performance audited at any time, including by an external auditing firm, should this be desirable. The CEO has in the past relied on independent audits where appropriate. Such audits are not limited to the very specific audit scope in the Act, which means they can be targeted to continuously improving electoral operations.
|The requirement for an external audit in every general election and by-election should be repealed, recognizing that the CEO retains the authority to audit or assess poll workers' performance through an external review at any time.|
|B18.||Counting of votes from advance polls||172(a)(iv)
|When there is high voter turnout at advance polls, it is difficult to count the ballots from those polls in a timely manner, since the Act specifies that the counting can only begin after the polls close on polling day.||A provision should be added to specify that ballots cast at advance polls may be counted on polling day before the polls close, if ROs obtain the CEO's prior approval. The counting would have to occur in the presence of candidates' representatives. The provision should include safeguards for keeping the results secret until the polls close.|
|175||Under amendments to the Act in 2014, separate ballot boxes are required for each day of advance polls and another box is required for keeping supplies. Although in some cases it may be desirable to use extra ballot boxes because of the number of electors, the use of multiple boxes renders opening and closing procedures complex. In many cases, the large number of boxes and accompanying paperwork is unnecessary. The CEO should retain some flexibility for streamlining the number of ballot boxes used at advance polls where possible.||Subsections 175(2) and (3) should be replaced by one provision indicating that, on each day of advance polls, the DRO shall close the polling station and seal the ballot box and envelopes in accordance with the CEO's instructions.|
|B20.||Voting by incarcerated electors||177
Division 5 of Part 11 sets out the Special Voting Rules that allow incarcerated electors to vote. It applies specifically to electors confined in "correctional institutions"; however, the Act does not define this term. As a result, Division 5 does not necessarily apply to some electors who should logically be covered, insofar as they are confined and cannot vote at the polls nor easily vote by regular mail.
The term "correctional institution" clearly includes a provincial penitentiary. However, it does not clearly include a secure youth custody facility, or a jail or remand centre where electors remain while awaiting trial. Under the current rules, electors confined in these institutions do not have the same opportunity to vote as electors in penitentiaries.
The Act should be amended to add a definition of "correctional institution" that expressly enumerates what types of institutions are contemplated for the purposes of Division 5. The definition should be broad enough to include electors confined in a variety of institutions, such as a prison, jail, correctional centre, correctional facility, penal institution, secure youth custody facility, detention centre, remand centre, lock-up or other place designated or established pursuant to an Act of Parliament or of a legislature for the confinement of an elector upon arrest, pending or following a court hearing.
The definition should not include residential facilities that provide accommodation to offenders who are on parole, conditional release or temporary absence, or living in a halfway house, as such persons are not confined and are able to vote at the polls or by mail. It should also not include addictions treatment facilities, and hospitals or other health institutions operated for the care of people who have a disease, injury, sickness, disability or mental disorder. These electors can be served as part of Elections Canada's hospital voting program.
Finally, sections 246 and 247 should be amended to ensure that the references to responsible ministers cover all provincial ministers who have oversight over potential electors in Division 5, including youth.
|B21.||Special Voting Rules for CF electors||Part 11,
Division 2 of Part 11 sets out the Special Voting Rules that apply to CF electors. It is very prescriptive and relies on paper-based processes, making it difficult to improve efficiency using technology. In addition, whether they are deployed or not, CF electors may only vote under Division 2 (with limited exceptions). This is confusing for some of them and means they do not have the same voting opportunities as their families and neighbours.
When it was first established, voting by special ballot was a privilege extended only to CF electors. However, the rules that apply to them are stuck in the past. Compared to today's process for other electors who wish to vote in an RO office or by mail, the rules that apply to CF electors are unduly restrictive rather than beneficial.
Division 2 of Part 11 should be reviewed, in consultation with the Canadian Armed Forces, to determine the best way to facilitate voting by CF electors. The Canadian Armed Forces agrees with this recommendation.
If an overall review is not approved, the specific amendments to Division 2 of Part 11 recommended in this table (Recommendation B22) and in Table C—Minor and Technical Recommendations (Recommendations C14–C17) should be made.
|B22.||Hiring of liaison officers||201||Liaison officers are the election workers that link the commanding officers of each military unit with the Canadian Armed Forces and Elections Canada during an election. Liaison officers should be appointed and trained before the issue of the writs, but section 201 currently only permits the Minister of National Defence to designate liaison officers upon the Minister "being informed of the issue of the writs".||The Minister of National Defence should be authorized to designate liaison officers before the writs are issued, so that these individuals can be trained and ready at the start of the election period. The Canadian Armed Forces agrees with this recommendation.|
|B23.||Deadline for applying to vote by special ballot||232||
The Act provides that an application to vote by special ballot must be received by the SVRA or RO no later than the 6th day before polling day. This means that special ballot voting cannot be initiated after this time, including in an RO office.
Presumably, this deadline was set to allow enough time before polling day for updating the lists of electors to indicate who has received a special ballot. However, if electronic lists are used at the polls in the future, it may be operationally feasible to add updates about special ballot voting closer to polling day.
|The CEO should be authorized to extend the deadline for receiving applications beyond the 6th day before polling day, to no later than the day before polling day.|
|B24.||Advertising "using a means of transmission of the Government of Canada"||321||
This provision deals specifically with the way that election advertising is transmitted, and not with its content. It is not clear what the prohibition is meant to cover beyond what is already prohibited by the Policy on Communications and Federal Identity and the Directive on the Management of Communications. The provision appears to have been created in the 1970s to complement an advertising blackout at the start of the election period, which no longer exists.
Any use of Government of Canada resources to conduct election advertising is a contribution by the person using those resources and is addressed by other provisions.
|The Commissioner has suggested to the CEO that he would welcome a clarification of the scope of this provision. The CEO recommends that the scope of the provision be clarified, or that the provision be repealed.|
|B25.||Opinion polls and election surveys||326||
The first person who transmits the results of an election survey (for example, an opinion poll), or anyone else who transmits them within 24 hours, must provide background information about the survey. This includes the date on which the survey was conducted, the population surveyed and the margin of error.
For all means of transmission other than broadcasting, additional information must be provided, including the wording of the questions asked and how to obtain a detailed written report on the survey. No matter how the survey results are transmitted, the survey sponsor must make this report available to anyone upon request.
The requirement for a written report is onerous. It would be less of a burden on the sponsor, and more useful to electors, if the report were in electronic format. A link to the report or information on how to obtain it could be provided in the case of all means of transmission, including broadcasts.
The requirement for survey sponsors to provide additional information in a written report should be deleted. Instead, the same information should be made available in electronic format.
The obligation to provide a website address or link to where the additional information can be found should apply to all persons, including broadcasters, who first transmit the results or who transmit them within the next 24 hours.
The Commissioner agrees with this recommendation.
|B26.||Broadcasting outside Canada||330||During the 42nd general election, the Commissioner received complaints about Canadian broadcasting stations that were intentionally transmitting broadcasting signals to the United States for retransmission (and termination) in Canada. In such situations, the broadcasting signal is transient; the sole goal of routing the signal this way is to better reach Canadian audiences. This sort of transmission should not be caught by the prohibition on broadcasting from outside Canada.||As the Commissioner recommended to the CEO, this provision should be amended to limit its scope. It should exclude situations where, at any point, the signal is carried by a broadcaster subject to the Canadian government's broadcasting policies and regulations (for instance, where a broadcast signal originates in Canada and is destined for Canadian audiences, but is retransmitted via a foreign broadcasting station).|
|B27.||Foreigners inducing electors to vote or refrain from voting||331||Section 331 prohibits anyone who does not reside in Canada, or who is not a Canadian citizen or permanent resident of the country, from "induc[ing] electors to vote or refrain from voting or vote or refrain from voting for a particular candidate". This section's breadth has caused difficulties for Elections Canada and the Commissioner in recent elections. Elections Canada receives frequent complaints that media statements (such as tweets or interview comments) made by non-Canadians violate this provision. It also receives questions about whether goods and services supplied by a foreign provider violate the Act. The overly broad wording of this provision diminishes public trust in how well the rules can be enforced. It also leads to criticism of both Elections Canada and the Commissioner for not properly enforcing a law that was likely never intended to limit all speech and actions by foreigners.||The Commissioner has suggested to the CEO that Parliament may wish to modernize this provision or repeal it. The CEO recommends that section 331 be repealed.|
|B28.||CRTC publication of registration notices relating to voter contact calling services||348.12||Section 348.12 requires the CRTC to publish registration notices that it receives in relation to voter contact calling services, but no earlier than 30 days after polling day. During the 42nd general election, Canadians who received calls from various political entities called the CRTC to ask whether these entities were properly registered. The callers needed the information during the election period, but because the Act does not require timely publication of the registration notices, there was no way for complainants to independently ascertain whether entities providing the calling services were properly registered until after the election.||As the CRTC recommended to the CEO, registration notices relating to voter contact calling services should be published by the CRTC as soon as feasible, instead of 30 days after polling day. For greater certainty, the Act should also provide that the notices may be published during an election period and may be published even if they only include partial information.|
|B29.||Requirement to keep lists of numbers called||348.16–
|In the part of the Act that regulates voter contact calling services, there is currently no requirement to keep lists of telephone numbers called and provide them to the CRTC. This information could prove extremely useful for investigations into breaches of the voter contact calling rules or of the Act's other rules on transmitting information to electors. The CEO made a recommendation on this general issue in 2013.||The Act should be amended to add a requirement for certain persons or groups to retain lists of telephone numbers called and file them with the CRTC. This rule would apply to calling service providers and others under the Act who are entitled to conduct voter contact calls, as well as to the entities for whom the calls are being made. The Commissioner and the CRTC agree with this recommendation.|
|B30.||Third party election advertising reports||361
|The Act's rules for third party election advertising reports—specifically, the rules about filing deadlines, corrections, the publication of revised reports and public access to reports—are out of step with the regime in place for candidate and party returns. The number of third parties more than doubled in the 42nd general election, from 54 in the previous election to 114. The more of a role third parties play in elections, the more striking it is that they are not subject to the same obligations as other political participants.||The third party regime should be made consistent with the candidate and party regimes by means of the following changes: add a provision allowing a third party to request extensions of the filing deadline for its election advertising report; allow the CEO to require corrections to an election advertising report, and allow a third party to request corrections to its own report (section 361); require the publication of the revised report (section 382); and include third party reports in the list of documents that are public records and that may be inspected by any person on request (section 541). Section 496, which is the relevant offence provision, would need to be updated as a consequence of these changes.|
|B31,||Length of party name||385(2)||The Act does not limit the length of a party name as it appears on the ballot, called its "short-form" name. There is a danger that parties will choose to use longer and longer "short-form" names (for example, to include slogans), and that this will impact the readability of the ballot.||The CEO should have the authority to limit the length of party names on the ballot in order to ensure that the ballot is legible.|
|B32.||Political party expenses||437||
Unlike candidates, political parties are not required to provide documents evidencing the expenses set out in their election expenses return. This is despite the fact that Elections Canada needs such documents to properly review party returns to ensure that the transparency sought by the Act is being achieved, and despite the fact that parties receive tens of millions of dollars in direct public subsidies every election as well as millions in public subsidies in the form of substantial tax credits for their contributors.
The CEO has twice previously (in 2005 and 2010) recommended that parties, like candidates, be required to provide some evidence of their expenses. This is in the interests of transparency and would ensure that the subsidy is being properly paid out. As an alternative, the CEO recommended in 2010 that party auditors be given increased responsibility to consider whether the parties they audited have complied with their statutory reporting obligations.
In 2014, the Act was amended to enhance party auditors' responsibilities. Nonetheless, Elections Canada continues to believe that, as a matter of transparency and because of the large amount of public money at issue, parties should be required to produce documentation evidencing the expenses claimed in their returns on the CEO's request.
|To improve transparency in financial reporting by political parties, the CEO should be authorized to request that parties provide any documents and information that may, in the CEO's opinion, be necessary to verify that the party and its chief agent have complied with the requirements of the Act with respect to the election expenses return.|
|B33.||EDA spending during an election period||450(1)||
Currently, EDAs are specifically prohibited from incurring election advertising expenses during an election period. Elections Canada takes the position that if other spending by an EDA during the election period promotes the candidate or party, such an expense is an election expense of the candidate or the party.
The Act should indicate more clearly that EDAs are not allowed to incur any expense that would otherwise be an election expense of a candidate or party—that is, not only is election advertising prohibited, but also such things as get-out-the-vote calls.
|The prohibition on EDA election advertising during an election period should be clarified to prohibit EDAs from incurring any expense that would otherwise be an election expense of a candidate or party. An exception should be made for expenses that an EDA incurs for goods or services that are subsequently transferred or sold to the party or candidate. The Commissioner agrees with this recommendation.|
|B34.||Candidate bank account||477.46(1)||Many candidates conduct no financial transactions during the campaign, but are still required to open a bank account by law.||Candidates who conduct no financial transactions should not be required to open a separate bank account for the campaign. The CEO also made this recommendation in 2001 and 2010.|
|B35.||Exceeding expenses limit||477.47(5) 477.48
|The Act provides that no candidate, official agent or other person with authority to incur expenses shall exceed the election expenses limit. The Commissioner has indicated that the way this prohibition is worded can create challenges in enforcement, as it is sometimes difficult to prove which expense, incurred by whom, pushed the campaign over the limit. Because the official agent and the candidate can incur expenses or cause them to be incurred independently from one another, it may be impossible to enforce the spending limit where there was no coordination between the persons allowed to incur expenses.|| |
The Act should be amended to provide that candidates may incur election expenses only in accordance with written authorization from the official agent, as is already the case for any other person authorized by the official agent to incur expenses on behalf of the campaign. This would make it easier to enforce the existing prohibition against exceeding the limit. The Commissioner agrees with this recommendation.
Parliament may also wish to consider a similar amendment with regard to the election expenses of political parties.
|B36.||Incomplete, false or misleading returns||477.72(1)
|Subsection 477.72(1) prohibits the official agent and the candidate from providing a document required in relation to the campaign return that the candidate or official agent knows contains a material statement that is false or misleading or does not substantially set out the required information. However, the related offence provisions at paragraphs 497.4(1)(p) and 497.4(2)(r) refer only to the official agent.|| |
As the Commissioner recommended to the CEO, the offence provisions at paragraphs 497.4(1)(p) and 497.4(2)(r) should be made consistent with the prohibition by referring to the candidate as well as the official agent. The CEO also made this recommendation in 2010.
A similar amendment should be made to the equivalent provision relating to nomination contestants (paragraph 497.3(1)(s)). The CEO also made this recommendation in 2010.
|B37.||Suspension of members of the House of Commons for non-compliance||477.72(2)
|Subsections 477.72(2) and (3) govern when the suspension of a member of the House of Commons who has failed to comply with the document-filing rules in the Act takes effect. Currently, some elected candidates who fail to produce, correct or revise their electoral campaign returns by the applicable deadline or any extension to that deadline have the benefit of a grace period before they can be precluded from voting and sitting in the House of Commons, whereas others do not. Only a member who fails to make, within the specified period, a correction or a revision requested by the CEO under subsection 477.65(2) is entitled to such a grace period. The member is suspended not when the filing deadline has passed, but two weeks after the end of the period for making the correction or revision if the candidate has not applied to a judge to be relieved from complying with the CEO's request (or, if the candidate has applied, when the application is denied by a judge). This distinction is hard to justify, and the same rule should apply to all cases of members not complying with the Act's filing rules.||The Act should be amended to provide the same two-week grace period for all elected candidates who fail to produce, correct or revise their electoral campaign returns within the prescribed or extended deadlines.|
|B38.||Independent candidates' surpluses||477.82–
|Independent candidates must dispose of any surplus of electoral funds to the Receiver General. This is in contrast to candidates endorsed by a party, who are able to dispose of their surplus to either their party or their party's EDA in the electoral district. The difference in treatment means that candidates of registered parties can have surplus funds available to them for a future election, but independent candidates cannot.||The Act should be amended to allow for an independent candidate's surplus of funds to be held in trust by the CEO until the next general election. If the candidate is nominated in that next general election (or any intervening by-election) as an independent or non-affiliated candidate, the money shall be paid to the candidate's campaign. If the candidate is not nominated in the next general election, or is endorsed by a party, the funds should revert to the Receiver General. The CEO made a similar recommendation in 1996 and 2001.|
|B39.||Maintaining order at the polls||479||Section 479 of the Act provides the legislative framework for maintaining order at an RO office or at a polling place. This provision grants considerable powers, including forcible ejection or arrest of a person. But it is complex, calls for a difficult exercise of judgment, and requires election officers to perform duties for which they are not trained and likely cannot be adequately trained, given the extent of their current duties and skill sets. The potential risks arising from section 479 include violence and injury as well as violation of fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms. Local law enforcement officials are better trained and equipped to perform these functions.||While this section should continue to make it clear that the relevant election officer has the power to maintain order at the polls and may order a person to leave if the person is committing or reasonably believed to be committing an offence, the election officer's power of arrest without a warrant should be deleted. The subsections providing for the use of force and listing procedures in the event of an arrest should be repealed.|
|B40.||Impersonation offence||480.1||This provision was introduced in 2014 in response to a recommendation by the CEO. Based on the Commissioner's experience during the last general election, the provision is not specific enough to capture the distribution of false communication material, including the creation of false campaign websites or other online or social media content for the purpose of impersonating a party or candidate.||As the Commissioner recommended to the CEO, a new provision should be added to establish a specific offence for the creation and distribution of false candidate or party campaign communication material, including false websites or other online or social media content, with the intent to mislead electors.|
|B41.||Disclosure of correspondence with election officers and others||541||The CEO has an obligation to make available to the public a wide variety of political financing reports and returns, as well as all instructions to election officers respecting their duties at the polls. While these requirements are sensible and consistent with the need for transparency in the electoral process, the Act also requires public access to be provided to "all correspondence with election officers or others in relation to an election." This requirement could lead to disclosures of sensitive personal information. It is out of step with the Access to Information Act and Privacy Act, which allow for a balance between disclosure of information and the protection of individual privacy. It would be more appropriate to rely on that established regime to govern the disclosure of correspondence with election officers and others, rather than making such correspondence available to the public without restriction in all situations.||The right of access to "all correspondence with election officers or others in relation to an election" should be deleted from the provision, allowing individuals to instead request copies of this correspondence under the established federal access-to-information regime.|
|B42.||Prohibition on partisan conduct by election officers and RO office staff||n/a||Although ROs and field liaison officers are prohibited from engaging in partisan conduct, there is no general prohibition on partisan conduct by other election officers in the performance of their duties. The Commissioner has raised this as a gap in the Act. A prohibition for election officers would have to be more targeted than the one applicable to ROs and field liaison officers, given that many other election officers do engage in partisan activities outside their electoral role.||As the Commissioner recommended to the CEO, a new provision should be added to prohibit anyone who is performing the duties of an election officer, or who is hired as a staff member of an RO, from encouraging a person to vote or not to vote for a particular candidate while the election officer or staff member is performing his or her duties.|
|B43.||Privacy protection principles for parties||n/a||Political parties are entitled by law to receive lists of electors annually and at election time. These lists are used by the larger parties to update databases that contain personal information about millions of Canadians. Political parties and candidates are not, however, subject to the basic privacy rules to which government bodies and private-sector business organizations must adhere.||In order to receive the lists of electors, parties should be required to obtain an assurance from an external management auditor, attesting that the party has systems in place to protect the personal information of electors and that these systems respect generally accepted privacy principles. A party would need this assurance to continue to receive lists of electors from Elections Canada. The CEO made a similar recommendation in 2013.|
|B44.||By-election called specifically to overlap with fixed-date election||Parliament of Canada Act, s. 31||The Parliament of Canada Act requires that a by-election be called no later than 180 days after the CEO receives notice of a vacancy in the House of Commons. In most cases, this is not problematic; however, the obligation to call a by-election shortly before a fixed election date serves little purpose and does cause a number of problems. In 2015, three by-elections were called with the same polling day as the fixed general election date. The by-election periods were six months long and raised several operational and political financing questions. Some parties and third parties were in the difficult situation of having to distinguish between by-election expenses and pre-writ expenses for the impending general election.||Section 31 of the Parliament of Canada Act should be amended so as not to require the issuance of a warrant where a vacancy in the House of Commons occurs within one year (or some other period) before the fixed election date in subsection 56.1(2) of the Canada Elections Act.|