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April 10, 2014 - No. 40

Discussion on Bill C-23,
An Act to Amend the Canada Elections Act and Other Acts


Picket at MP David Tilson's constituency office in Orangeville, March 25, 2014, against Bill C-23. (Leadnow)

Remarks of Chief Electoral Officer to Senate "Pre-Study" Committee on Bill C-23
Elections Canada Revised Proposed Amendments to Bill C-23


Remarks of Chief Electoral Officer to Senate "Pre-Study" Committee on Bill C-23

Thank you, Mr. Chair.

It is a pleasure to appear today as part of the pre-study of Bill C-23. I am accompanied by Mr. Stéphane Perrault, Deputy Chief Electoral Officer, Legal Services, Compliance and Investigations.

Given that this is a pre-study, I thought it would be useful to take a step back and provide you with my perspective on the key objectives underlying our electoral process, as well as the important challenges that we currently face. My hope is that this will assist the Committee in assessing whether Bill C-23 helps address those challenges.

While I intend to highlight certain elements of the bill in my remarks, I do not plan to enter into a detailed review of the various changes I recommend. I have brought a table indicating what those changes are and would be happy to discuss them after my introductory remarks, if the Committee so wishes.

1. Fundamental Objectives of Our Electoral System

The legal framework governing Canadian elections is a reflection of certain key values or fundamental democratic objectives, namely: accessibility, fairness and trust. In modernizing the electoral process, it is useful to consider these objectives.

Accessibility

By "accessibility," I refer both to the legal right to vote and be a candidate in federal elections, as well as to the actual means of exercising that right. Under our Constitution, every Canadian citizen is guaranteed the right to vote. That right is made meaningful, however, only to the extent that there is a proper legal and operational system in place allowing it to be exercised.

Over the years, not only has the right to vote expanded, but barriers have been removed by providing more options for voters, with the aim of giving all Canadians, no matter their particular circumstances in life, a true opportunity to exercise their right to vote. While barriers do remain, in particular for electors with disabilities, our constitutional obligation is to strive to reduce those barriers. It is also our international commitment under the United Nations' Convention on the Rights of Persons with Disabilities.

Fairness

A second fundamental objective of our electoral system is fairness. By this, I mean a system where those who compete for electoral success do so under conditions of relative equality. The expression "level playing field" is often used by the courts and experts to describe our regime of limits on election expenses, which serves to ensure that elections are not dominated by those with access to greater resources. Limits on contributions, in conjunction with public financing, similarly contribute to the level playing field.

Fairness also means a process for administering elections that is free from partisan bias or the appearance of it. In this regard, fairness is also linked to the third objective, which is trust.

Trust

The importance of preserving trust in the integrity of the electoral process is reflected in the various procedural safeguards that protect against fraud in the electoral process, and that ensure the transparency and reliability of results.

Trust also depends on timely and effective enforcement mechanisms that promote compliance with the rules and address cases of non-compliance when they arise. In our system, enforcement is primarily the role of the Commissioner of Canada Elections.

Given these three objectives -- accessibility, fairness and trust -- what then are the main challenges facing our electoral democracy?

2. Main Challenges Facing Our Electoral Democracy

Voter Participation

In my view, the single most important challenge facing our democracy today is the decline in voter participation. Declining turnout is far from unique to Canada and is not a recent phenomenon. But our participation rate is one of the lowest among advanced democracies.

The decline in voter participation is mainly driven by the decline in youth turnout beginning in the 1970s. We know from our research that young adults who do not vote in their first election tend to also not vote as they get older. This is why civic education programs are so important. There are, however, encouraging signs. From 2004 to 2011, first-time turnout has levelled off and is showing signs of increasing.

At the same time, Elections Canada's priority is to ensure that those who already want to vote have the necessary information to do so. At the last general election, 98% of our outreach and information expenses, or some $33 million, related to informing electors of where, when and how to vote. The parallel election program delivered by Student Vote cost less than $800,000 or 2%.

There are, nevertheless, electors for whom participation is a challenge. With a rapidly aging population, this is increasingly true of seniors. They tend to be less mobile and have more difficulty with the voter identification requirements, in particular the requirement to prove their address. This is why, at the last general election, I authorized the use of the voter information card (VIC), along with another piece of ID, at certain voting locations -- namely, in seniors homes, student residences and on reserves.

Building on our own experience of the last election and that of other jurisdictions, and in consultation with political parties, we have been planning to allow the use of the VIC as proof of address, along with another piece of ID, for all electors in 2015. This would serve to remove barriers, as well as to reduce the recourse to vouching, which has proven complex for election workers to administer.

Complexity

In this regard, a second important challenge for our electoral system is the complexity of the rules. Overly complex rules can create barriers to participation or situations of non-compliance that undermine trust in the integrity of elections.

This is a problem with respect to the voting procedures, which are administered by some 200,000 ordinary Canadians with limited training and often no prior experience. Our voting process was designed in the 19th century and assigns to two workers -- a deputy returning officer and a poll clerk — the task of administering all voting procedures. While the system was originally simple, successive amendments, and in particular the voter identification rules enacted in 2007, have made it much more challenging for poll workers.

Complexity also presents a challenge with respect to political financing. Again, this is a situation where the rules have become considerably more complex in recent years through successive reforms. And here as well, the regime relies largely on the work of volunteers serving as official agents for candidates. They are responsible for ensuring that the campaign respects all of the requirements of the Act, and they are ultimately required to account for the campaign's finances.

It has become increasingly difficult for these volunteers to understand and to comply with the regulatory requirements. In my recommendations to Parliament, I have strived to identify ways of reducing the regulatory burden and of improving the simplicity and clarity of the rules for the benefit of all participants. This remains one of my ongoing concerns.

Compliance and Enforcement

Finally, a third challenge that we face is the lack of adequate compliance and enforcement mechanisms to ensure timely and effective responses to contraventions of the Canada Elections Act.

Currently, the Act deals with regulatory non-compliance exclusively by way of criminal offences and criminal sanctions. This is a heavy-handed and time-consuming approach. It is ill-suited to the majority of cases of non-compliance that would be more effectively addressed by way of administrative sanctions.

In cases that do warrant an investigation, experience shows that the Commissioner lacks the proper tools to conduct his investigation in an effective and timely manner. Moreover, the fines currently in the Act are not sufficiently severe.

3. Impact of Bill C-23

I will now turn to Bill C-23 itself. In reviewing the bill, I would invite this Committee to consider the impact of its provisions on the challenges I have identified as well as on the main objectives of our electoral framework.

Positive Elements

Some elements of Bill C-23 will help address some of our challenges and support the key objectives.

The addition of one more advance voting day will provide more convenience for Canadians casting their ballot, although it must be said that the evidence suggests the impact on participation will be limited.

I also welcome the proposed increase of the fines. More importantly, I believe that the introduction of administrative sanctions for instances of overspending by political parties or candidates is a positive development. It is a move away from the traditional model of criminal sanctions and I certainly hope that it will serve as a precedent for future reforms.

Areas for Improvement

Bill C-23 also includes a number of reforms which, while positive, require amendment in order to produce their intended benefits.

This is the case, in particular, with the proposed regime for guidelines and written opinions. These could be extremely useful tools, but are unworkable as provided for in Bill C-23. Changes are needed to allow rulings to be made in a reasonable timeframe. Others are also needed to prevent partisan abuses that could result if political parties are allowed to require formal rulings on matters that are under investigation or pending before the courts. In addition, if rulings are to be legally binding on the Chief Electoral Officer and the Commissioner, they should be equally binding on the external party compliance auditors.

The regime for voter contact services must also be improved. In order to be useful, the regime must not only require information on the service providers, clients and scripts, but must also require the retention and production of telephone numbers called. As well, calls made for political parties and candidates by their own staff and volunteers should not be exempted from the disclosure requirements. As it stands, it seems that the proposed regime would increase the regulatory burden on political entities (and service providers) without significantly improving the integrity of the process and the ability to conduct timely investigations.

Fundamental Concerns

Finally, a number of aspects to Bill C-23 are deeply concerning, and I feel it is my duty as Chief Electoral Officer to inform Parliament of those concerns in the clearest possible terms. I would like to focus on five in particular.

The first of these are the proposed restrictions on voter identification -- namely, the removal of vouching for electors who cannot provide documentary proof of identity and address, as well as the prohibition on using the VIC along with another piece of ID.

It has been argued that all electors should have ID documents to vote. But this is not the problem. The problem, for a significant number of Canadians, is to have documents proving their address.

The notion that all Canadians have in their possession documents establishing not only their identity, but also their current residential address, is simply wrong and not borne out by experience. For example, seniors living in long-term care facilities often do not have drivers' licences, hydro bills or even health cards, which are typically kept by their children or facility administrators. Young Canadians commonly live at home or, as students, move frequently. They often do not have any documents to prove their current residential address.

Overall, we estimate that approximately 120,000 active voters rely on vouching, and we can expect that a large proportion of them would not be able to vote under the proposed rules.

Just as importantly, in the absence of any credible indication that vouching or the VIC are used fraudulently, their removal would compromise accessibility without in any way enhancing the integrity of the electoral process. We have not been able to find any other jurisdiction in Canada where a requirement to provide documentary proof of residence to vote is not also accompanied by a safety net such as vouching or a statutory declaration.

A second aspect of Bill C-23 that is cause for serious concern is the fact that it will diminish the level playing field in two ways: by increasing spending limits; and, more significantly, by introducing an exception for certain fundraising expenses, effectively creating a loophole in the regime. It is hard to conceive of soliciting funds without promoting a party or candidate. There is also no way of monitoring whether the individuals being solicited fall into the permissible category of previous donors, since the Act does not require reporting the names of contributors who give $200 or less -- which represents the vast majority of donors (78% between 2007 and 2012). There is also no requirement to report which contributors were contacted pursuant to the exemption. The fundraising exception is simply unenforceable and is an open invitation for abuse.

A third aspect of Bill C-23 that I find troubling is the prohibition on the Chief Electoral Officer providing information to the public on any subject matter except, essentially, how and where to register and vote. Of course, it is important that Elections Canada provide public information on these basic questions. As I indicated, in the last election, 98% of our communications and outreach expenses were focused precisely on that task.

The proposed measure would not simply continue to make this a priority: it would ban all other public communications, effectively prohibiting us from publishing basic research, participating in civic education initiatives, and informing Canadians on fraudulent activities or on measures to prevent them.

The Chief Electoral Officer needs to be able to speak freely and openly about any aspect of the electoral process. The restriction imposed would limit my ability to properly administer and supervise free and fair elections, and it would undermine public confidence in our electoral process.

A fourth area of concern regarding Bill C-23 is the weakening of the Commissioner's ability to effectively intervene and enforce the Canada Elections Act.

Both the former and the present Commissioner have indicated that the Commissioner's effectiveness depends on having direct and unfettered access to information and expertise within Elections Canada. They are also concerned that placing the Commissioner within the Office of the Director of Public Prosecutions would undermine the Commissioner's ability to intervene during the election period, in coordination with Elections Canada and election officers, to resolve situations of non-compliance.

Both have also stressed the importance of amending Bill C-23 to include a power to seek judicial authorization to compel witnesses to testify. They have indicated that the absence of such a power has been an important challenge in getting to the facts in major investigations of election offences.

Fifth, and finally, I do not believe that Canadians' trust in the integrity of their electoral system is improved by the addition of central poll supervisors to the list of election workers nominated by political parties. All election officers should be appointed based exclusively on merit, and in particular central poll supervisors. In my view, this provision should be deleted from the bill.

Conclusion

When I look at all of these issues, and I consider the important challenges that face our electoral democracy, I cannot but conclude that changes to the bill are required -- changes that include but go beyond issues related to voter identification.

I hope that this Committee and that the Senate as a whole will, in their wisdom, make the necessary changes to the bill in order to allow a broader consensus. I believe that this is critical to foster trust in our electoral system and I would be happy to assist in that regard. As I indicated at the outset, I have brought with me a table of proposed amendments, and I am certainly open to exploring other alternatives with this Committee.

Mr. Chair, I would be pleased to answer questions.

Thank you.

(Check Against Delivery)

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Elections Canada Revised Proposed
Amendments to Bill C-23

1. Key Amendments to C-23 Recommended by the
Chief Electoral Officer (CEO)

Clause 5 -- Guidelines, interpretation notes and written opinions
Canada Election Act Provisions: 16.1-16.4 

C-23 Proposal:
A new process is created for the issuance by the CEO of guidelines, interpretation notes and written opinions on the application of the CEA. The Advisory Committee of Political Parties (ACPP) is required to review and comment on these documents before they are finalized and published on Elections Canada's website.

The CEO is obligated to issue guidelines, interpretation notes and/or written opinions upon request within 45 days of an application by a chief agent of a registered party, including a 30-day (bilingual) consultation period with the ACPP.

Analysis:
Having to issue guidelines, interpretation notes and written opinions within 45 days of an application will be virtually impossible for the CEO to do in practice, especially when 30 of these days must involve (bilingual) consultation with the ACPP.

Most existing schemes permitting requests for an advance ruling involve a requirement for the applicant to submit all relevant information before any time period for issuing a ruling is counted. They also generally permit the decision maker to refuse to issue an advance ruling. By contrast, the open-ended nature of the C-23 provisions and the inability of the CEO to refuse a request may allow them to be misused (e.g. when a matter is already before the Commissioner or a court).

Proposed Amendment(s):
These provisions should be amended as follows:

- The timeline should be extended, allowing a minimum of 45 working days excluding [em]the 30-day ACPP consultation.

- The timeline should begin only once the CEO is satisfied that he has all the information necessary to write the opinion or issue the guidelines or interpretation notes.

- The CEO should have the discretion to decline to issue a written opinion or interpretation in certain circumstances.

- The written opinions, guidelines and interpretation notes issued by the CEO should bind external auditors.

Clause 7 -- Information provided to public by CEO
Canada Elections Act Provision: 18

C-23 Proposal:
Information provided by the CEO to the public is to be limited to the following subjects: how to become a candidate; how to have your name added to the list of electors or to have your information corrected; how, where and when to vote; how to establish your identity at the polling place; and measures to assist electors with disabilities to access the polling station and mark their ballot.

Analysis:
The new s. 18 imposes a severe limit on the ability of the CEO to communicate with the public. This will have an impact on a range of Elections Canada's activities, including: civic engagement programs; publication of research in areas not listed in clause 7 of C-23; online recruitment of election officers; publication of reports to Parliament; publication of political financing information and returning officer manuals; issuance of news releases.

Proposed Amendment(s):
This new provision should not be included in the bill. Instead, the current one -- which allows the CEO to implement public information programs, reach out to the public to ensure all are aware of the democratic right to vote and how to be a candidate, and make the electoral process better known -- should be retained.

Clause 10 -- CEO authority to hire technical experts
Canada Elections Act Provision: New 20(1)

C-23 Proposal:
The CEO's power to hire technical experts or specialists is explicitly recognized but is subject to Treasury Board approval for remuneration.

Analysis:
Requiring Treasury Board approval for this type of expenditure by the CEO is new. It is noteworthy that the equivalent provision for the Commissioner does not include such approval.

Proposed Amendment(s):
The requirement for Treasury Board approval should be removed to reflect the same degree of independence from the government as is recognized for the Commissioner in clause 108 (proposed s. 509.4).

Clauses 18, 19, 20, 21, 44 -- Appointment of election officers
Canada Elections Act Provisions: 34(1), 35(1), 36, 37, 39(3),(4), 124

C-23 Proposal:
Registered electoral district associations (or the party, in the absence of an association) will be allowed to recommend names for the appointment of two key poll workers: deputy returning officers and poll clerks. Previously, only the candidate could make recommendations. Appointments will also be made earlier in the election calendar.

In addition, the party whose candidate received the most votes in the previous election will be able to make recommendations to the returning officer for individuals to occupy the position of central poll supervisor.

Analysis:
All election officers should be appointed based on merit and not be nominated by candidates, electoral district associations or parties. There is no operational benefit to receiving partisan recommendations of names. If the returning officer did not have to wait for recommendations from candidates and parties, he or she could start recruiting, appointing and training election officers much earlier in the election process.

Appointment on the basis of merit is particularly important for the position of central poll supervisor. Central poll supervisors are the ones in charge of a polling place. There is no system of "checks and balances" such as may exist with respect to other poll workers who are appointed from opposing political parties. If central poll supervisors are not appointed strictly on the basis of merit, the perception may be that some of their decisions are not impartial but are in fact partisan — whether this is actually the case or not.

Proposed Amendment(s):
Remove from the Act all provisions allowing political entities to recommend names for election officers.

Clause 48(3) -- Voter Identification Card (VIC) as proof of identity or residence
Canada Elections Act Provision: 143(2.1)

C-23 Proposal:
The voter information card (VIC) is not to be used as proof of identity or residence.

Analysis:
Some groups of electors (e.g. seniors in seniors' residences, individuals in long-term care facilities, students on campus, First Nations electors on reserve, and individuals who have recently moved) face difficulties proving their residence. One way to alleviate this problem is to add the VIC to the list of authorized pieces of identification. Since 2010, Elections Canada has been testing the VIC as proof of residence in certain specific locations (e.g. in long-term care facilities, on reserves and on campuses). The initiative was successful and well received by electors, institutions and reserve administrators. Allowing voters to use a VIC to prove their residence will reduce reliance on vouching.

Proposed Amendment(s):
The VIC should be allowed to be used to prove residence in combination with one other piece of identification. 

Clauses 48(4), 53(1), 56(1) -- Vouching
Canada Elections Act Provisions: 143(3), 161(1), 169(2)

C-23 Proposal:
The bill repeals the provisions on vouching.

Analysis:
Currently, an elector who does not have the necessary proof of identity or residence may prove that identity and residence by taking an oath if he or she is accompanied by an elector of the same polling division who provides the poll official his or her own proof of identity and residence and vouches for the elector under oath. Vouching or taking an oath is permitted in all Canadian provinces where proof of identity and residence is required. Removing the possibility of vouching at the federal level takes away the last safety net for those electors who do not have the necessary documents to prove identity and residence.

Proposed Amendment(s):
Leave vouching in the Act.

Clause 48(5) -- Candidate's representatives to examine ID
Canada Elections Act Provision: 143(3.3)

C-23 Proposal:
Candidates' representatives are granted the authority to examine (but not handle) any piece of identification presented by an elector.

Analysis:
This authority may upset or delay voters. Some authorized documents, such as bank statements, contain sensitive information. Voters who do not wish to show their identification to the candidate's representative should still be permitted to vote.

Proposed Amendment(s):
An amendment should be added to clarify that no elector will be prevented from voting as a result of not wanting to show his or her ID to a candidate's representative.




Clause 62 -- Special voting rules in the office of a returning officer
Canada Elections Act Provision: 237.1

C-23 Proposal:
The bill proposes that many of the features of the voting process on advance polling days and on polling day apply to voting taking place under the special voting rules in the office of a returning officer, including voter identification requirements.

Certain rules are to be imported from the polling day voting process into the process for voting in the office of a returning officer, under subsection (4). These rules are referred to by their section number.

Analysis:
The wording of this provision limits the application of these features to electors who present themselves at the office of the returning officer for the electoral district in which they reside. However, other electors not residing in that electoral district may present themselves at the same office to register for special voting and to vote by special ballot. This means that two different sets of rules will be applicable to electors who vote in the office of a returning officer, which is likely to create confusion.

Some of the rules imported from the polling day voting process cannot apply to voting in the office of a returning officer. For example, s. 136(3) refers to the right of a candidate's representative to examine the list of electors (to determine who has voted or not voted yet). But unlike the deputy returning officer on polling day, the election officer who administers voting in the office of the returning officer does not have such a list.

Proposed Amendment(s):
Amend the proposed provision by striking out the words "for the electoral district in which the elector ordinarily resides" so that the new process be used by all electors voting by special ballot in the office of a returning officer.

The introductory words of the subsection should also be clarified by specifying that the provisions referred to in the following paragraphs apply "with the necessary modifications" for the purposes of voting in the office of a returning officer.

Clause 67 -- Bingo cards
Canada Elections Act Provision: 291(b)

C-23 Proposal:
The bill provides that a copy of all statements of electors who have voted ("bingo cards") should be given upon request, after polling day, to the candidate, his or her representative or a representative of the party.

Bingo cards are produced during advance polling days and polling day. They allow candidates and their representatives who pick up the statements periodically to follow up with their supporters who have not yet voted.

Analysis:
The bill proposes expanding the use of bingo cards from their original purpose (to get out the vote on polling day). Now, parties will be able to methodically collect and document for all Canadians, after the vote, who has voted and who has not voted. Collecting fundamental personal information in this way about whether or not people have voted goes beyond the operational purpose related to voting on polling day. Information on who has voted should not be shared with parties further than it already is.

Complying with this provision may in some circumstances require the returning officer to unseal the ballot box and open the poll bag to retrieve the bingo cards, which the law currently does not allow.

Proposed Amendment(s):
This provision should not be included in the bill. If the provision is included, an amendment should be added, similar to the existing provision in s. 295 for statements of the vote, to allow a returning officer to open ballot boxes if they cannot find the bingo cards from a particular poll after polling day.

Clauses 75-77 -- Voter Contact Calling Services
Canada Elections Act Provision: New Part 16.1

C-23 Proposal:
The bill adds a new part to the Act called "Voter Contact Calling Services", partly enforced by the Canadian Radio-television and Telecommunications Commission (CRTC). It details certain registration and filing requirements with the CRTC and requires providers of voter contact calling services to keep scripts or message recordings for a period of one year after the election.

Analysis:
While this new part of the Act responds in part to the CEO's recommendations, important elements are missing. For example, there is no requirement to keep or provide to anyone the telephone numbers that were called, which is key information for investigations.

Proposed Amendment(s):
The provisions in the bill should be amended as follows:
- There should be a requirement to retain and file with the CRTC lists of the telephone numbers that were called. Added April 8, 2014
- There should be a requirement to identify the source of the call in the script or message. Added April 8, 2014 (added April 8)
- Live calls made by internal services of political parties and electoral district associations should be covered. The party should register as the calling entity. (added April 8)
- There should be a mechanism, not involving a court order, for the Commissioner to obtain access to call scripts or recordings, or to request that they be preserved beyond one year if a court order is anticipated. 

Clause 86 - Fundraising exemption
Canada Elections Act Provisions: New Part 18, 376(3)

C-23 Proposal:
Election expenses will no longer include the cost of soliciting monetary contributions from individuals who have made at least one contribution of $20 or more to a party or one of its registered associations, candidates or nomination contestants in the last five years.

Analysis:
This fundraising exemption creates a potential loophole in the election expenses regime. As there is a large grey area between promotion and fundraising, the exemption could be used to avoid having to claim something as an election expense. Parties with a larger established contributor base will have a greater advantage. Verification that only existing contributors were contacted would be impossible for Elections Canada and difficult for the party's external auditor.

Proposed Amendment(s):
This exemption should not be included.

Clause 86 -- Pro-rated increase in spending limit based on length of election
Canada Elections Act Provisions: New Part 18, 430(2), 477.49(2)

C-23 Proposal:
The bill includes a pro-rated increase in the spending limit for parties and candidates if the election period is longer than 36 days.

Analysis:
This provision would affect the level playing field by increasing party spending limits up to $650,000 per day / per party, and does not appear necessary, especially in the case of fixed election dates. In addition, "election period" is defined under s. 2 of the Act to begin with the issue of the writ and end on polling day, which is actually 37 days. This means that even the minimum election period required by law would require a pro-rated increase in the spending limit.

Proposed Amendment(s):
This provision should be removed from the bill. If left in, 36 days should be changed to 37 days to reflect the true length of an election period.

Clause 86 -- Compliance audit of party returns
Canada Elections Act Provisions: New Part 18, 438, 444(1)(a)

C-23 Proposal:
An external "compliance audit" function in the review of financial returns is added to the duties of the party's appointed auditor. At the same time, the CEO's independent audit function is maintained and he continues to be required to certify whether or not a party's return on election expenses complies with the requirements of the Act.

Analysis:
While external compliance audits may reassure chief agents, the CEO still needs to certify financial returns to allow for the reimbursement of election expenses via public funds. The CEO still does not have any power to require a party to produce documents evidencing its compliance with the Act, including its claimed expenses. Such authority exists in all provinces and at the federal level with respect to candidates.

Proposed Amendment(s):
The bill should be amended to authorize the CEO to ask a party to produce the documents and provide the information that he considers necessary in order to verify that the party and its chief agent are compliant with the Act's requirements with regard to election expenses returns.

(added April 8, 2014)
Clause 108 -- Move of Commissioner to Office of Director of Public Prosecutions (DPP)
Canada Elections Act Provisions: New 509(1) 

C-23 Proposal:
The Commissioner of Canada Elections will be placed within the Office of the DPP. He will be appointed by the DPP for a term of seven years and may be removed for cause.

Analysis:
Moving the Commissioner to the Office of the DPP is unnecessary. He operates independently in the exercise of his functions from within Elections Canada, and benefits from having direct and unfettered access to Elections Canada's information and expertise.

Proposed Amendment(s):
This structural change should not be included in the bill. Any concern that may exist about the Commissioner's independence could be addressed by appointing him for a fixed term and tenure.

Clause 108 -- Confidentiality of investigations
Canada Elections Act Provisions: 510.1

C-23 Proposal:
The new confidentiality provisions respecting the Commissioner restrict his ability to provide the public with information about investigations, except in very narrow circumstances.

Analysis:
The new confidentiality provisions would limit the ability of the Commissioner to issue even de‑personalized public reports (such as to reassure Canadians in the case of an investigation into fraud that uncovered no illegality) and would subsume these into reports from the Director of Public Prosecutions. This compromises the independence of both offices.

Proposed Amendment(s):
This provision should not be included in the bill. For the Commissioner to operate effectively, it is sufficient that the confidentiality of his or her investigations be affirmed, subject to such disclosure as the Commissioner finds necessary for carrying out his or her duties under this Act.

Clause 108 -- Information-sharing between CEO and Commissioner
Canada Elections Act Provisions: N/A

C-23 Proposal:
The bill removes the Commissioner of Canada Elections from Elections Canada and places the position within the office of the Director of Public Prosecutions. However, information-sharing between the CEO and the Commissioner under the new structure is not expressly addressed.

Analysis:
With the separation of the two officers, clear mechanisms both for the CEO to transfer information to the Commissioner, and for the Commissioner to request information from the CEO -- such as occurs currently while both reside in Elections Canada -- are required.

Proposed Amendment(s):
Express provisions should be added to cover three points: the CEO should have the power to refer to the Commissioner a matter that the CEO believes could constitute an offence; the CEO should be obligated to include with the referral any relevant information, including personal information; and the CEO should have an obligation to provide, at the request of the Commissioner, any information or document obtained by the CEO in the exercise of his or her functions that the Commissioner considers necessary to the exercise of his or her functions (see s. 348.15 for a parallel provision with respect to the CRTC).

Clause 108 -- Commissioner power to compel testimony
Canada Elections Act Provisions: N/A

C-23 Proposal:
The bill does not expressly grant the Commissioner the power to seek a court order to compel a witness to provide information for purposes of enforcing the Act.

Analysis:
The power to compel witnesses to provide information has been identified by both the CEO and the Commissioner as a critical operational tool to assist in effectively investigating elections offences. This power exists in several provincial regimes. Compelling witnesses should only be possible on court order, when the Commissioner satisfies a judge that an investigation is taking place and that the person to be examined has directly relevant information. Any information obtained should not be used against the person required to provide it.

Proposed Amendment(s):
A power for the Commissioner to compel testimony upon court order should be added to the bill, as currently exists for the Commissioner of Competition under s. 11 of the Competition Act.

Definition of leadership and nomination campaign expenses
Canada Elections Act Provisions: 2(1)

C-23 Proposal:
The definitions of leadership and nomination campaign expenses are not amended in the bill. At the moment, these definitions include only expenses incurred during the contest proper, and none of those incurred before the formal start of the contest or after its conclusion. As well, they do not include the use of non-monetary contributions -- that is, gifts of goods or services.

Analysis:
Strictly applied, these definitions mean that contestants cannot use contributions received under the Act for expenses outside the contest period, even where the goods or services were used during the contest. Furthermore, spending and funds received outside the contest period are similarly not subject to the rules regarding disclosure and limits or claims. Elections Canada has not been applying these definitions strictly, as it has been thought that this cannot have been what Parliament intended when it adopted these definitions in 2003. However, the fact that the definitions have not been amended in C-23 -- despite the CEO's specific recommendation on the matter -- means that Elections Canada will now be required to reconsider its interpretation, with the results described above.

Proposed Amendment(s):
The definitions of leadership and nomination campaign expenses in s. 2(1) should be amended to remove the phrase "during the contest" and add a reference to the use of non-monetary contributions and transfers, as is the case for candidates at elections. Furthermore, to have a spending limit regime comparable to that of candidates, the nomination campaign expenses limit provision (at s. 476.67) should be amended to reflect the wording of the definition of election expenses under s. 376(1). This would have the effect of excluding pre- and post-contest expenses from the limit.

Privacy protection principles for political parties
Canada Elections Act Provisions: N/A

C-23 Proposal:
The bill does not extend the application of generally recognized privacy protection principles to political parties, nor does it impose an obligation on parties to demonstrate due diligence when giving access to their databases.

Analysis:
In order to preserve the confidence of Canadians in the political entities with whom they deal, and in order to better protect the privacy of Canadian electors dealing with political entities, the Act should provide a mechanism by which the application of privacy protection principles governing most Canadian institutions and organizations would be extended to political parties.

Proposed Amendment(s):
The bill should include a provision extending commonly accepted privacy protection principles to political entities and requiring that parties exercise due diligence when giving out personal information contained in their databases.

2. Technical Corrections to Bill C-23 C-23

Clause 79, 97 - Non-Canadian third parties
Canada Elections Act Provisions: 353(2) 496(1)(a)

C-23 Proposal:
Third parties who wish to register in order to spend funds over the $500 threshold must provide certification as to their residence in Canada.

Analysis:
These changes may have an unintended consequence as foreign corporations, groups and individuals may now be permitted to spend to the limit without registering, since the only offences are (1) for overspending, and (2) for not registering. Since foreigners are not permitted to register, they cannot be subject to the second offence.

Proposed Amendment(s):
Fix related offence (or add a new one) so that non-Canadian third parties who cannot register due to a lack of ties to Canada are still not allowed to spend over $500.

Clause 86 -- Leadership contest reports
Canada Elections Act Provisions: New Part 18, 478.81(3)

C-23 Proposal:
This provision obliges the financial agent of a leadership contestant who has collected more than $10,000 in contributions or incurred more than $10,000 in expenses after the 4th week before the end of the leadership contest to produce a report on contributions and loans. This report is to cover the period from the beginning of the leadership contest to one week before the end of the contest and is to be provided to the CEO no later than two days before the end of the contest.

Analysis:
The English and French versions of this provision are not consistent. The French version appears to be correct.

Proposed Amendment(s):
The English version should more clearly reflect the French version, so that it makes it clear that the person who needs to report under s. 478.81(3) is a person who "attains the threshold for contributions or expenses" after the period referred to in subsection (1).

Clause 89 -- Obstruction offence
Canada Elections Act Provisions: 482.1

C-23 Proposal:
An offence is created for a person who "obstructs or hinders […] the Commissioner of Canada Elections or any person acting under his or her direction" while this person or the Commissioner is "conducting an inquiry […]".

Analysis:
The bill should clarify the circumstances in which the prohibition applies. The term "inquiry" in English creates confusion because it is outdated, and it is also too narrow. The application of the prohibition should not be restricted to only during the conduct of an investigation.

Proposed Amendment(s):
The prohibited activity should apply to the Commissioner and persons acting on his or her behalf in the exercise of their functions.

Clause 108 -- Threshold for investigation by Commissioner
Canada Elections Act Provisions: 510(1)

C-23 Proposal:
The bill proposes that the Commissioner may conduct an investigation "if he or she believes on reasonable grounds" that an offence has been committed under the Act.

Analysis:
The threshold of believing on reasonable grounds that an offence has been committed is the standard for a search warrant, and should not be the standard for an investigation by the Commissioner. Describing a threshold is not necessary; the current Act does not include one for the Commissioner's work.

Proposed Amendment(s):
Omit any mention of a threshold in the Act or revise it to read "suspects that an offence under this Act may have been committed" (without reference to "reasonable grounds").

Clause 117 -- Commissioner access to election documents
Canada Elections Act Provisions: 540(4)

C-23 Proposal:
The bill states that the CEO and his or her staff, as well as the Commissioner, may inspect election documents in the custody of the CEO "and any of those documents may be produced by the Commissioner for the purpose of an inquiry made under subsection 510(1) or provided to the Director of Public Prosecutions […]".

Analysis:
The Commissioner will not be in a position to "produc[e]" documents for "an inquiry" under this section; rather, the Commissioner will need access to the documents from the CEO.

Proposed Amendment(s):
The wording of the provision should be amended: the sentence referred to in the bill should read "and any of those documents may be provided to the Commissioner for the purpose of the exercise of the Commissioner's functions under section 510 or provided to the Director of Public Prosecutions […]."

Clause 109 -- Limitation period for summary conviction offences
Canada Elections Act Provisions: 514

C-23 Proposal:
Currently, prosecution proceedings for offences under the Act must start within five years after the Commissioner became aware of the facts and no later than 10 years after the day the offence was committed.

The bill provides no limitation period for the more serious offences (those that are prosecuted by a procedure known as "indictment"). It also changes the period before which prosecution proceedings must start for some summary conviction offences (those referred to in subsection 500(1)) to six years from the day the offence was committed. For the summary conviction offences set out in subsections 500(2) to (5), there is no specific limitation period provided — which means that the limitation period of six months (from the date of the event) for summary conviction offences under s. 786 of the Criminal Code would apply.

Analysis:
Barring a change to this provision, the default limitation period of six months (after the facts giving rise to the offence have occurred) would mean that prosecution would not be a viable option for many summary conviction offences.

Proposed Amendment(s):
In addition to specifying a limitation period of six years for summary conviction offences referred to in subsection 500(1), a limitation period should also be provided for the summary conviction offences referred to in subsections 500(2) to (5).

Clauses 155(b) to (e) -- Incurring expenses on behalf of a political entity
Canada Elections Act Provisions: 426(2), 475(2), 476.66(5), 477.47(5)

C-23 Proposal:
The provisions of the Act to be modified by the bill refer to the individuals within a political entity (other than leadership contestants) who have the exclusive right to incur expenses on behalf of the political entity. The bill proposes to make these provisions subject to the proposed s. 348.1, which establishes that the CRTC is responsible for the administration and enforcement of the division of the Act on the provision of voter contact calling services.

Analysis:
This reference to s. 348.1 in this provision does not appear to make sense.

Proposed Amendment(s):
The cross-reference in this provision should be corrected (perhaps to ss. 348.01 or 348.02).

(Canada Elections Act provisions refer to: Canada Elections Act, S.C. 2000, c.9.)

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