April 10, 2014 - No. 40
An Act to Amend the Canada Elections Act and Other Acts
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
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
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.
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
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.
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
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
2. Main Challenges Facing Our Electoral Democracy
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
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
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
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
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.
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
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
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
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
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.
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.
Elections Canada Revised Proposed
Amendments to Bill C-23
1. Key Amendments to C-23 Recommended by the
Chief Electoral Officer (CEO)
notes and written opinions
Election Act Provisions: 16.1-16.4
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.
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).
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.
7 -- Information
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.
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.
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.
10 -- CEO authority to hire technical experts
The CEO's power to hire technical experts or specialists is explicitly
recognized but is subject to Treasury Board approval for remuneration.
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.
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).
18, 19, 20, 21, 44 -- Appointment of election officers
35(1), 36, 37, 39(3),(4), 124
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
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.
Remove from the Act all provisions allowing political entities to
names for election officers.
48(3) -- Voter Identification Card (VIC) as proof of identity or
The voter information card (VIC) is not to be used as proof of identity
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.
The VIC should be allowed to be used to prove residence in combination
with one other piece of identification.
48(4), 53(1), 56(1) -- Vouching
The bill repeals the provisions on vouching.
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.
Leave vouching in the Act.
48(5) -- Candidate's representatives to examine ID
Candidates' representatives are granted the authority to examine (but
not handle) any piece of identification presented by an elector.
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.
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.
voting rules in the office of a returning officer
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.
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.
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
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.
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.
67 -- Bingo cards
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
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.
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
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.
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.
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.
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
- 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.
86 - Fundraising exemption
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
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
This exemption should not be included.
86 -- Pro-rated increase in spending limit based on length of
The bill includes a pro-rated increase in the spending limit for
parties and candidates if the election period is longer than 36 days.
This provision would affect the level playing field by increasing party
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.
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
of party returns
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.
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.
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
Commissioner to Office of Director of Public Prosecutions
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.
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.
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.
108 -- Confidentiality of investigations
The new confidentiality provisions respecting the Commissioner restrict
his ability to provide the public with information about
investigations, except in very narrow circumstances.
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.
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.
CEO and Commissioner
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.
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.
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
to compel testimony
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.
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.
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
of leadership and nomination campaign expenses
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.
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
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.
principles for political parties
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.
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.
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
Third parties who wish to register in order to spend
funds over the $500 threshold must provide certification as to their
residence in Canada.
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.
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
to spend over $500.
86 -- Leadership contest reports
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
The English and French versions of this provision are not consistent.
The French version appears
to be correct.
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).
89 -- Obstruction offence
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
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.
The prohibited activity should apply to the Commissioner and persons
acting on his or
her behalf in the exercise of their functions.
108 -- Threshold for investigation by Commissioner
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.
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
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").
117 -- Commissioner access to election documents
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 […]".
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.
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 […]."
109 -- Limitation period for summary conviction offences
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
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.
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.
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).
155(b) to (e) -- Incurring expenses on behalf
of a political entity
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
This reference to s. 348.1 in this provision does not appear to make
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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