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 September 13, 2021, the Commissioner of Canada Elections entered into a compliance agreement with David Z. Berlin, pursuant to section 517 of the Canada Elections Act. The text of the compliance agreement is set out in full below.
February 3, 2022
Pursuant to section 517 of the Canada Elections Act (the Act), the Commissioner of Canada Elections (the Commissioner) has entered into this compliance agreement with David Z. Berlin (the Contracting Party) aimed at ensuring compliance with the Act.
The relevant provisions of the Act are paragraphs 477.72(1)(a) and 497.4(2)(r), which make it an offence for the official agent of a candidate—and anyone who does or omits to do anything for the purpose of aiding them—to provide the Chief Electoral Officer with a candidate’s return that they know or ought reasonably to know contains a material statement that is false or misleading.
Statements by the Contracting Party
For the purpose of this compliance agreement, the Contracting Party acknowledges the following:
- The Contracting Party was the leader of The Bridge Party of Canada (the Party), which was registered from June 28, 2015 to January 31, 2017.
- After it had applied for registration as a party with the Chief Electoral Officer and had been ascertained as being eligible for registration, a by-election was called in the electoral district of Ottawa West—Nepean on May 3, 2015. The Party endorsed a candidate (the candidate) in that election and by so doing, met the final requirement to become a registered party.
- Prior to polling day for the by-election, however, the 42nd general election was called on August 2, 2015, and the writ for the by-election was deemed to have been superseded and withdrawn.
- While candidates must normally obtain 10% of the vote to qualify for the initial reimbursement of part of their paid election expenses and other eligible expenses, the Act applies special rules in the case of a superseded by-election. For such a by-election, each candidate is deemed by virtue of the Act to have received at least 10% of the vote, which causes each of them to automatically receive an initial reimbursement consisting of 15% of the preliminary candidate expenses limit for the electoral district. While this initial reimbursement is made automatically, the Act does require that the campaign return to the Receiver General for Canada (the Receiver General), without delay, the amount received that exceeds the amount of the reimbursement to which the campaign is entitled under the Act.
- The candidate’s campaign received 15% of the preliminary expense limit for the electoral district as an initial reimbursement, which amounted to $70,166.85. A cheque in that amount was issued by the Receiver General.
- Although an official agent was named for the candidate’s campaign, and had initially prepared a nil return with no reported expenses, the Contracting Party assumed the role of de facto official agent and prepared a new return that was submitted to the Chief Electoral Officer.
- Instead of returning the amount of the over-payment to the Receiver General, certain expenses that had been incurred by the Party were claimed as candidate’s expenses, contrary to what is required by the Act. Further, certain expenses were inflated.
- As a result, only $42,647.85 of the initial reimbursement was returned to the Receiver General.
- The Contracting Party acknowledges and accepts responsibility for failing to comply with the relevant requirements of the Act.
- The Contracting Party understands that acknowledgement of non-compliance does not constitute a guilty plea in the criminal sense and that no record of conviction is created as a result of admitting responsibility for acts that could constitute an offence.
- The Contracting Party acknowledges that the Commissioner has advised him of his right to be represented by counsel and that he has had the opportunity to retain and instruct 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 Compliance and Enforcement Policy of the Commissioner of Canada Elections Act. In particular, the Commissioner considered the following factors:
- the Contracting Party has no past history of non-compliance with the Act;
- the Contracting Party admitted his wrongful actions; and
- the conclusion of a compliance agreement ensures a swift and efficient resolution of the matter.
Further, in determining the terms and conditions to be included in the compliance agreement, the Commissioner took into account the Contracting Party’s ability to pay.
Terms and conditions
In accordance with subsection 517(2) of the Act, the Contracting Party undertakes to:
- provide to the Commissioner, within 30 days of being informed that this compliance agreement has been signed by the Commissioner, a series of post-dated cheques spread out over a period of 36 months totaling $20,000, in accordance with a payment schedule approved by the Commissioner, the amount of these post-dated cheques constituting debts due to Her Majesty in right of Canada, as provided for in section 521.31 of the Act;
- complete 150 hours of community service with a charitable organisation registered with Canada Revenue Agency within 120 days from the date he has been informed that this compliance agreement has been signed by the Commissioner; and
- provide written proof to the Commissioner from the charitable organisation where the community service hours were performed within 30 days from the date of their completion.
The Commissioner agrees that the fulfillment by the Contracting Party of the terms and conditions described in this compliance agreement will constitute compliance with the agreement.
The Contracting Party consents to the publication of this compliance agreement on the Commissioner's website in accordance with section 521 of the Act.
The Commissioner and the Contracting Party recognize that once this compliance agreement is entered into, the Commissioner will notify the Public Prosecution Service of Canada, and the prosecution of the Contracting Party instituted before the agreement was entered into will be suspended unless there is non-compliance with the agreement, in accordance with subsection 517(8) of the Act. If the Contracting Party subsequently complies with the terms and conditions of the compliance agreement, the Commissioner will issue a Notice of Compliance and provide a copy to the Contracting Party and to the Public Prosecution Service of Canada, thereby terminating the prosecution against the Contracting Party.
In accordance with section 508.1 of the Act, a Contracting Party who fails to comply with a provision of a compliance agreement commits a violation, and may be subject to an administrative monetary penalty.
Signed by the Contracting Party in the city of Toronto, in the province of Ontario, on this 2nd day of September 2021.
David Z. Berlin
Signed by the Commissioner of Canada Elections in the City of Gatineau, in the Province of Quebec, on this 13th day of September 2021.
Yves Côté, QC
Commissioner of Canada Elections