Modernizing the Electoral Process – Recommendations from the Chief Electoral Officer of Canada following the 37th general election
Part 6: Effectively Enforcing the Electoral System
A regulatory scheme that cannot be effectively enforced cannot be effectively maintained. While the Canada Elections Act is fortunate in possessing a multi-tooled enforcement scheme, a number of subtle holes have been identified whose correction will ensure that breaches cannot be immunized by technical defects of the Act. The recommendations that follow cover a number of topics, all of which are aimed at ameliorating technical gaps in the enforcement scheme of the statute.64
6.1 A General "Attempt" Offence
There are essentially two methods of enforcement available under the Canada Elections Act. During an election period, the Commissioner of Canada Elections can seek an injunction requiring a person to comply with the directions of the statute. That is a civil remedy. A criminal remedy is also available whereby breaches of the Act, that are expressly declared to be offences may be prosecuted by the Commissioner. (The Commissioner may also elect to deal with the commission of an offence through compliance agreements). Not all breaches of the Act amount to the commission of an offence. The general offence scheme of the Canada Elections Act is based upon the creation of specific prohibitions against breaching particular provisions of the statute. The breach of a prohibition is then declared to be an offence. There are also a few freestanding offence provisions that make it an offence to commit actions set out directly in the offence provision, rather than indirectly through a reference to an earlier prohibition. (See ss. 480 to 482.)
In most cases, whether the electoral process suffers harm from a prohibited act is not dependent upon the success or failure of the action in question. The mere attempt to commit the act harms the process. For example, as much harm results to the process from an attempt to interfere with an elector who is marking his or her ballot as results from successfully carrying out that interference. This reality is recognized in many cases in the Canada Elections Act where the statute makes it as much an offence to attempt a specific act as it is to succeed in that act. This is sometimes done directly by expressly prohibiting attempts. Section 5 is an example of such a provision. It is also sometimes done indirectly by wording the prohibition so broadly that it catches both a successful and unsuccessful action. Subsection 481(1) is an example of this approach. This section makes it an offence to directly or indirectly offer a bribe to influence an elector to vote or refrain from voting for a particular candidate.
However, this case-by-case approach is not universally successful. Approaching the issue of attempts on the basis of each particular prohibition, rather than through the creation of a general attempt clause (as was done in s. 24 of the Criminal Code) creates the possibility that only the successful commission of some offences can be prosecuted. For example, s. 482(2) states that "every person is guilty of an offence who by any pretence or contrivance, including by representing that the ballot or the manner of voting at an election is not secret, induces a person to vote or refrain from voting for a particular candidate at an election." As worded, s. 482(2) only creates an offence when an elector is successfully induced to vote or refrain from voting, but it is the subjection of the elector to the pretence or contrivance that is as offensive to the process as is the fact that the elector was successfully induced.
In cases where attempts have fallen through the cracks as a result of the case-by-case approach taken in the Act, the attempt can be prosecuted under s. 24 of the Criminal Code, but such prosecutions would not be part of the enforcement scheme of the Canada Elections Act, and would be prosecuted by the Attorney General. This would be inconsistent with the demonstrated desire, in Bill C-2, for offences under the Canada Elections Act to be dealt with under this Act.
Recommendation: A general offence should be created respecting an attempt to commit an offence under the Act.
To "collude" means to enter into an agreement for some unlawful purpose or to accomplish some legitimate purpose by unlawful means. For a collusion to be established, it is not necessary that all of the parties must intend to commit the prohibited act personally. It is sufficient if the parties simply have the common goal of doing so and that the individuals are part of a common undertaking.
Sections 351, 423(2) and 443(2) of the Canada Elections Act aim at enforcing various spending limits imposed by the Act by prohibiting collusions aimed at avoiding those limits. Section 351 is aimed at supporting the spending limits imposed upon third parties. Subsection 423(2) is aimed at enforcing the spending limits imposed upon registered parties, and s. 443(2) is aimed at supporting the spending limits imposed upon candidates. Unfortunately, it appears that the wording of these provisions leaves large, illogical gaps.
Section 351 is drafted broadly to prohibit a third party from circumventing, or attempting to circumvent in any manner, a third party spending limit. This will catch any circumvention, or attempted circumvention by a third party. However, if the third party partners with a registered party or a candidate in that circumvention or attempted circumvention, the registered party or candidate will not be committing an offence under the Act, as s. 351 is aimed only at third parties.
Subsection 423(2) prohibits a registered party and a third party from colluding with each other for the purpose of circumventing a registered party spending limit. However, s. 423(2) does not prohibit a candidate from entering into such a collusion. Thus, in the event that a candidate is part of the common undertaking to circumvent the registered party spending limit, that candidate will not be committing a breach of s. 423(2). Furthermore, if the registered party only colludes with a candidate to avoid the registered party spending limit, neither will have breached s. 423(2), as that section only prohibits a collusion between a registered party and a third party.
Similarly, while s. 443(2) prohibits collusions between candidates, official agents of candidates, persons authorized to enter into contracts under s. 446(c), or third parties, to avoid the spending limits imposed upon candidates, it does not prohibit a collusion between any of those persons and a registered party to do so. Also, if a registered party is part of a collusion between any two of those specified persons, it will be guilty of a breach of s. 443(2), because registered parties are not included in the list of specified individuals.
It is not proper that some parties to an improper agreement should be guilty of collusion while other parties to the same agreement should not. The weakness in all of the above provisions is that in attempting undue specificity in defining the collusion, they may fail to catch all of the potential partners to a circumvention or attempted circumvention.
Recommendation: Sections 351, 423(2) and 443(2) should be replaced with a general provision prohibiting any person from circumventing, or attempting to circumvent, the respective spending limits.
6.3 Investigative Status for the Commissioner of Canada Elections
There are essentially two legal sources at the federal level that affect the ability of the Commissioner of Canada Elections to secure from government organizations personal information held under the control of those government organizations. The first is the constitutional guarantee against unreasonable search and seizure set out in s. 8 of the Charter, which protects all persons from unreasonable search and seizure, by any state body, of information that the person may reasonably expect to remain private, and which discloses information about the personal lifestyle and private decisions of the person. A further protection is afforded by s. 8(1) of the Privacy Act which prohibits a government institution (defined in the Privacy Act as any department or ministry of state of the Government of Canada listed in the schedule or any body or office listed in the schedule to the Act) from disclosing identifiable personal information under the control of a government institution, without the consent of the individual to whom it relates. Much more information falls into the definition of "personal information" in the context of the Privacy Act than is protected by s. 8 of the Charter. For the purposes of the Privacy Act, "personal information" means, very broadly, any information about an identifiable individual. As noted, in order to fall under the protection of s. 8 of the Charter, there must be a reasonable expectation of privacy of information. These are two separate protections. There may be instances where s. 8 of the Charter would not prohibit disclosure (because of the absence of a reasonable expectation of privacy) where the prohibition in the Privacy Act would continue to apply. The recommendation that follows is directed only at the capacity for access under the Privacy Act.
Paragraph 8(2)(e) of the Privacy Act provides that, notwithstanding the prohibition in s. 8(1), personal information may be disclosed to an investigative body specified in the regulations to the Act, on the written request of the body, for the purpose of enforcing any law of Canada or a province in carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed. The Act provides (in s. 77(1)(d)), that the Governor in Council may make regulations specifying which bodies are "investigative" for the purposes of s. 8(2)(e).
A number of bodies have been designated "investigative bodies" for the purposes of s. 8(2)(e) of the Privacy Act, including: the Audit Directorate of the Department of National Revenue (Taxation), the Audit Division of the Department of National Revenue (Customs and Excise); the Royal Canadian Mounted Police; the Security Intelligence Review Committee; Park Wardens of the Canadian Parks Service; and, the Control Branch (Insurance) of the Canada Employment and Immigration Commission.
It is the responsibility of the Commissioner of Canada Elections to ensure that the Canada Elections Act is complied with and enforced. That office is responsible for the investigation and prosecution of all offences under the Act. Yet the Commissioner is not an investigative body for the purposes of s. 8(2)(e) of the Privacy Act. As a result, under the Privacy Act, government institutions are not required to disclose personal information under their control to the Commissioner for the purposes of enforcing the Canada Elections Act, even if the information could be disclosed without a warrant under the search and seizure provisions of s. 8 of the Charter. The Commissioner must secure a search warrant for disclosure to be made.
The anomaly of this situation becomes evident in the context of breaches of the Canada Elections Act that also constitute breaches of the Criminal Code. In those cases, the same information respecting the same prohibited conduct may be disclosed by the government institution to the R.C.M.P without a search warrant, in the course of an investigation of the Criminal Code aspects of the breach, but not to the Commissioner of Canada Elections respecting the Canada Elections Act breach, unless the Commissioner first secures a search warrant.
In order to secure a search warrant, the Commissioner must first demonstrate that there is a reasonable suspicion of the commission of an offence. This puts the Commissioner in the position of first having to secure sufficient information from alternative sources to support such a reasonable suspicion before the Commissioner can secure a search warrant allowing the Commissioner access to the personal information. This imposes a further hurdle for the Commissioner to surmount in order to effectively enforce the Act. The personal information in the hands of the government institution may be necessary in order to establish the commission of an offence.65
If the Commissioner's Office were given the status of an investigative body for the purposes of s. 8(2)(e) of the Privacy Act, his investigations, like those of the other bodies designated investigative bodies, would still remain subject to the protection against unreasonable search and seizure set out in s. 8 of the Charter.
The Commissioner of Canada Elections is the only person who is authorized to enforce the provisions of the Canada Elections Act. He needs to be accorded the same investigative authority in the enforcement of the Act with respect to the Privacy Act as is possessed by the Royal Canadian Mounted Police, the Security Intelligence Review Committee, and the other bodies designated as investigative bodies with respect to their enforcement mandates.
Recommendation: The Commissioner of Canada Elections should be deemed to be an investigative body for the purposes of s. 8(2)(e) of the Privacy Act for the enforcement of the Canada Elections Act.
6.4 Appeal Rights of the Commissioner of Canada Elections
The Commissioner of Canada Elections prosecutes offences under the Canada Elections Act as either summary or indictable offences under the Criminal Code. While it is clear, under s. 813 of the Criminal Code, that the Commissioner possess the right of appeal from the first level decision in a summary proceeding (as he is an "informant"), it is not clear that the Commissioner, as the prosecutor, possess a right of appeal in proceedings prosecuted by indictment. It is also clear that the defendant in an indictable proceeding under the Criminal Code may appeal a decision (see s. 675 for example). However, the wording of the appeal rights in the Criminal Code for indictable offences is not as broadly worded as the rights of appeal in summary proceedings. In the context of the prosecutor, s. 676 of the Criminal Code only expressly provides for the right of appeal in the case of the Attorney General.
The Commissioner of Canada Elections, not the Attorney General, is the prosecutor in proceedings by indictment respecting breaches of the Canada Elections Act. It is clearly logical that the Commissioner, as well as the defendant, should be able to appeal a decision in indictable proceedings. Insofar as prosecutions are serious matters, particularly prosecutions by indictment, the authority of the Commissioner of Canada Elections should be made clear.
Recommendation: The Act should provide that the Commissioner of Canada Elections has the same appeal rights in prosecutions for breaches of the Canada Elections Act as does the Attorney General in other prosecutions under the Criminal Code.
6.5 Obstruction of Investigations
It is not currently an offence under the Canada Elections Act to mislead or obstruct an investigation by the Commissioner of Canada Elections. However, to knowingly mislead or obstruct an investigation into a possible prosecution is an offence under s. 139(2) of the Criminal Code. To be consistent with the underlying philosophy of the Canada Elections Act, election offences should be dealt with under the Canada Elections Act, rather than under the Criminal Code. A precedent for this change can be seen in s. 163.2 of the Manitoba Elections Act, which makes it an offence under that Act to obstruct, hinder or make a false or misleading statement to the Chief Electoral Officer (there is no Commissioner in the Manitoba statute), or a person appointed by the Chief Electoral Officer, when conducting an investigation.
Recommendation: It should be an offence under the Canada Elections Act to obstruct, hinder or make a false or misleading statement to the Commissioner of Canada Elections, or a person appointed by the Commissioner of Canada Elections, when conducting an investigation under the Canada Elections Act.
6.6 Failure to Return Ballot
While s. 167 of the Canada Elections Act sets out various prohibitions respecting ballots (destruction, alteration, defacement, removal from a polling station) there is no general offence for simply failing to return a ballot. This creates an evidentiary difficulty in the prosecution of a ballot offence, where the Commissioner can establish that a person did not return the ballot he or she was given, but is unable to establish beyond a reasonable doubt exactly what the person did with it. The essence of the various ballot offences is the removal of a ballot from the due electoral process. As a result, there should be an additional, more general prohibition designed to ensure that ballots, once given to electors, must be returned to the deputy returning officer.
Recommendation: It should be an offence under the Canada Elections Act for an elector who has been given a ballot by a deputy returning officer to fail to return that ballot.