Commissioner Of Canada Elections
Canada Elections Act
This notice is published by the Commissioner of Canada Elections, pursuant to section 521 of the Canada Elections Act, S.C. 2000, c. 9.
On December 7, 2016, the Commissioner of Canada Elections entered into a compliance agreement with the City of Montreal, pursuant to section 517 of the Canada Elections Act. The text of the compliance agreement is set out in full below.
December 7, 2016
Yves Côté, QC
Commissioner of Canada Elections
Pursuant to section 517 of the Canada Elections Act (the Act), the Commissioner of Canada Elections (the Commissioner) and the City of Montréal (the Contracting Party) enter into this agreement aimed at ensuring compliance with the Act.
The provisions of the Act that are applicable are section 325 and paragraph 495(2)(b). Subsection 325(1) prohibits the prevention or impairment of the transmission to the public of an election advertising message without the consent of a person with the authority to authorize the transmission. Paragraph 495(2)(b) states that every person is guilty of an offence who contravenes section 325 with intent.
Subsection 325(2) sets out exceptions to the prohibition. It does not apply with respect to the prevention or impairment, by a public authority, of an unlawful transmission if reasonable notice has first been given to the person who authorized the transmission (paragraph 325(2)(a)). Under paragraph 325(2)(b), the prohibition provided for in subsection 325(1) does not apply to the removal by an employee of a public authority of a sign, poster or banner where the posting of it is a hazard to public safety. These two exceptions do not apply in this case.
Statements by the Contracting Party
For the purpose of this compliance agreement, the Contracting Party states the following:
- Me Patrice Guay, Director of Legal Affairs Service and Chief Counsel, City of Montréal, is authorized to sign this compliance agreement on behalf of the Contracting Party.
- During the electoral period leading up to the 42nd federal general election of 2015, the Director of Public Works for the borough of Ville-Marie, upon receiving complaints regarding the display on public property of signs depicting a dead child on a beach, instructed employees of the Contracting Party to remove the signs in question.
- The Commissioner's Office has informed the Contracting Party that, on September 26, 2015, during the electoral period leading up to the 42nd federal general election of 2015, a witness saw two employees of the Contracting Party removing two of the election signs involved that were posted on a city lamp post.
- The election signs at issue bore the acronym of "Boycott, Désinvestissements et Sanctions Québec" (BDS-Québec).
- At the time of the events, BDS-Québec was registered with the Chief Electoral Officer as a third party for the 2015 federal general election held on October 19, 2015. The borough of Ville-Marie of the city of Montreal was unaware of this fact.
- As a third party, BDS-Québec was entitled to transmit election advertising messages.
- After the Contracting Party had been made aware that the signs were election advertising, the Director of Public Works for the borough of Ville-Marie asked the City employees to stop removing them.
- The Contracting Party acknowledges that section 325 of the Act prohibits a public authority from preventing or impairing the transmission to the public of an election advertising message without the consent of a person with authority to authorize its transmission, except if reasonable notice is first given to the person who authorized the transmission or to eliminate a hazard to public safety.
- Prior to removing the signs in question, City employees had not obtained the consent of the financial officer of BDS-Québec or given him reasonable notice, because they did not know that the signs constituted election advertising. In addition, the signs did not constitute a hazard to public safety.
- The Contracting Party admits responsibility for the above-mentioned acts and understands that its admission of responsibility for acts constituting an offence under the Act does not amount to admission of guilt under criminal law and does not entail a criminal record.
- The Contracting Party acknowledges that the Commissioner notified it, by way of a Commissioner's compliance agreement Offer Letter dated September 6, 2016, of its right to retain legal counsel and that it had the opportunity to retain legal counsel.
Factors considered by the Commissioner
In entering into this compliance agreement, the Commissioner took into account the factors described in section 32 of the Commissioner of Canada Elections Policy on Compliance and Enforcement of the Canada Elections Act, which can be consulted on the Commissioner's website at www.cef.cce.ca. In particular, the Commissioner took the following factors into account:
- The removal of the signs was ordered in good faith by a City employee acting on the basis of complaints received, and in ignorance of the fact that they constituted election advertising messages protected by the Act.
- The employee of the Contracting Party who ordered the removal of the signs cooperated with the Commissioner's investigation by unequivocally admitting his responsibility for the commission of the acts at issue.
Undertakings and agreement
The Contracting Party undertakes to comply with section 325 of the Act in the future and, more specifically, to take all necessary measures to ensure that its employees also comply with it.
The Contracting Party undertakes to transmit the text of the compliance agreement to all of its City Council members representing the borough of Ville-Marie, and to all Ville-Marie borough managers.
The Contracting Party undertakes to post, during a 30 day period starting from reception by the Contracting Party of the copy of the compliance agreement signed by the Commissioner, a copy of the compliance agreement in a clearly visible location situated in the workplace used by Public Works employees of the borough of Ville-Marie, who would most likely be in a position to remove election advertising signs in the future.
The Contracting Party undertakes to provide the Commissioner, within 60 days of receipt by the Contracting Party of a copy of the compliance agreement signed by the Commissioner, with proof in writing that the compliance agreement was transmitted and published in accordance with the two preceding paragraphs.
The Contracting Party undertakes to post, on the first page of its website, a clear and visible link entitled “the City of Montréal enters into a compliance agreement with the Commissioner of Canada Elections” leading to the full text of the compliance agreement, and to transmit a link to the relevant web page on its official Facebook and Twitter accounts and provide proof to the Commissioner in writing within 60 days following the receipt by the Contracting Party of the copy of the compliance agreement signed by the Commissioner. The publications must be displayed for at least 30 days beginning on the first working day of its choice, between 9:00 a.m. and 5:00 p.m.
In accordance with paragraph 517(2)(b) and section 521 of the Act, the Contracting Party agrees that this compliance agreement shall be published in the Canada Gazette and on the Commissioner's website.
In accordance with subsection 517(5), the Commissioner and the Contracting Party acknowledge that the compliance agreement and the statements it contains are not admissible in evidence against the Contracting Party in any civil or criminal proceedings.
The Commissioner agrees that the Contracting Party will have complied with this compliance agreement when it has satisfied the requirements contained therein.
Pursuant to subsection 517(8) the Commissioner and the Contracting Party acknowledge that once this compliance agreement is entered into, the Commissioner may not refer the matter to the Director of Public Prosecutions against the Contracting Party, unless there is non-compliance with the compliance agreement and, in any event, the Director of Public Prosecutions may not institute such a prosecution against the Contracting Party unless it has been shown that the compliance agreement has not been fulfilled.
Signed by Me Patrice Guay, Director of Legal Affairs Service and Chief Counsel, on behalf of the Contracting Party, in the City of Montréal, in the Province of Quebec, on this 2nd day of December 2016.
Director of Legal Affairs Service and Chief Counsel, City of Montréal
Me Patrice Guay
Signed by the Commissioner of Canada Elections in the City of Gatineau, in the Province of Quebec, on this 7th day of December 2016.
Yves Côté, QC
Commissioner of Canada Elections