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 July 21, 2016, the Commissioner of Canada Elections entered into a Compliance Agreement with Dr. Emily McMillan, Executive Director of the Green Party of Canada pursuant to section 517 of the Canada Elections Act. The text of the Compliance Agreement is set out in full below.
July 22, 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 Green Party of Canada (the Contracting Party) enter into this agreement aimed at ensuring compliance with the Act.
The relevant provisions of the Act are subsection 326(1) and paragraphs 495(1)(b) and 495(4)(a), which make it an offence to fail to set out the information that must be included with the results of an election survey transmitted to the public during an election period; and paragraph 482(b), which makes it an offence to use any pretence or contrivance to induce a person to vote or not to vote for a particular candidate in an election.
Statements of the Contracting Party
For the purpose of this compliance agreement, the Contracting Party acknowledges the following:
- Dr. Emily McMillan, Executive Director of the Green Party of Canada, is authorized to enter into this compliance agreement on behalf of the Contracting Party.
- During the campaign leading to the 42nd general election, the Contracting Party retained the services of a polling firm to conduct election surveys in the federal electoral district of Victoria, over a period of six days between October 13th and 18th, 2015, for polling data to be collected for internal party use only. Indeed, the level of polling services contracted and paid for by the Contracting Party was for data with a high margin of error, at 9.8%. According to the polling firm, reliable data intended for public dissemination would have required purchasing a more expensive polling services package.
- On October 7th, 2015, the Contracting Party's Executive Director and Deputy Executive Director both received an email advisory from Elections Canada reminding opinion poll sponsors and distributors of the mandatory information to be included with published election survey results. Neither of them read the contents of the Elections Canada advisory, nor did they pass it on to other party workers. The Contracting Party's Executive Director and other party employees and volunteers had little experience with the publication of election survey results.
- On October 18th, 2015, the day before polling day for the general election, the Contracting Party's National Campaign Manager directed local campaign volunteers to print and distribute, in certain neighbourhoods in the electoral district of Victoria, a flyer created by the Green Party National Office containing election survey results. Distribution of the flyer was intended to coincide with the Green Party Leader's Tour visit of Vancouver Island, which was to end in the electoral district of Victoria on October 18th, 2015. Approximately 1,200 of the 2,500 flyers that were printed were distributed door-to-door in the targeted neighbourhoods in Victoria.
- This constituted the first transmission of these survey results to the public. Thus, the person transmitting the results was required to comply with the informational requirements of subsection 326(1) of the Act. The flyer, however, only provided the polling firm's name and the survey's date; it did not contain the other information required under the Act. The failure to provide this methodological information constituted an offence under either paragraph 495(1)(b) or paragraph 495(4)(a) of the Act.
- The flyer presented the results of the October 13th, 2015, survey by the polling firm retained by the Contracting Party, and stated that the levels of voter support for the local New Democratic Party (NDP) and Green Party candidates differed by a single percentage point – 36% versus 35%, respectively. The flyer stated, "It's a Two-Way Race - the Choice is Yours Victoria - Latest Polling Results."
- Officials of the Contracting Party were aware that the polling data package that they chose to purchase was to be for internal use only to monitor trends. Some of these officials objected to the distribution of the flyer, on that basis. Further, the fact that methodological information was not provided, as required by the Act, resulted in the obscuring of the fact that the margin of error was especially high.
- Moreover, polling data was trending slightly downward for the Green Party candidate in the days between the October 13th poll and the October 18th distribution of the flyer. The Contracting Party chose the results for the date that cast its candidate's chances in the best light. Although it was the first of the six polls ultimately taken by the polling firm, the flyer claimed that it was the "latest results."
- Distribution of the flyer was intended to influence the votes of electors who were believed to live in neighbourhoods with greater numbers of Conservative Party of Canada (Conservative) supporters. The intention was to shift votes from the Conservative candidate to the Green Party candidate, whom the Contracting Party believed they would prefer, as an electoral option, to the NDP. As such, the flyer was intended as an invitation for Conservative supporters to vote strategically for the Green Party candidate, whose support, according to the flyer, was within 1% point of the NDP candidate in Victoria.
- The deliberate use of unreliable polling data intended for internal use, which use did not meet the informational requirements of the Act—as well as the erroneous presentation of the polling data as being the latest results when subsequent polling data was trending down—was misleading. It constituted an attempt to induce a person to vote or not to vote for a particular candidate using a pretence or contrivance, and as such, an offence under paragraph 482(b) 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 it of its right to be represented by counsel and has given it an opportunity to obtain counsel.
- The Contracting Party consents to the publication of this agreement in the Canada Gazette and on the Commissioner's web site.
Factors considered by the Commissioner
In entering into this compliance agreement, the Commissioner took into account the factors set out in paragraph 32 of the Compliance and Enforcement Policy of the Commissioner of Canada Elections, which is available on the Commissioner's web site, including the facts that:
- The Contracting Party co-operated fully, promptly, and in good faith in the Commissioner's investigation and, in particular, its employees and volunteers involved in the events under investigation provided statements and documentation to assist the investigators in clarifying what transpired; and
- The Contracting Party's Executive Director and other party employees and volunteers interviewed were immediately apologetic upon learning of the omissions with respect to the published survey.
Undertaking and agreement
The Contracting Party undertakes to prepare a notice, in both official languages, the contents of which must be entirely satisfactory to the Commissioner, describing the facts related to this matter and the contents of this compliance agreement. The proposed text is to be provided to the Commissioner within 30 days of receipt of a copy of this agreement signed by the Commissioner.
The Contracting Party undertakes to post the notice described in the preceding paragraph on the first page of its web site, for a minimum period of 30 days beginning as soon as practicable after the Commissioner has approved its content, in a conspicuous and publicly accessible location where it is readily visible. The Contracting Party further undertakes to provide evidence to the Commissioner that this undertaking has been complied with.
The Contracting Party undertakes to distribute the contents of the notice, referred to in the preceding two paragraphs, in the form of a bilingual news release to the national news media (which notably includes but is not limited to English regional news media in Victoria, B.C.), at its own cost, as soon as practicable after the Commissioner has approved its contents. The Contracting Party must provide a copy of the release to the Commissioner as evidence of compliance with this undertaking.
The Contracting Party undertakes to give written notice to its directors and to members of its Federal Council of the signing and scope of this compliance agreement by providing them with a copy of the aforementioned notice, electronically or otherwise, as soon as practicable after the Commissioner has approved its content and to provide written evidence to the Commissioner, within 30 days of the notice having been given in this manner.
The Contracting Party undertakes to comply with the relevant provisions of the Act in the future.
The Contracting Party consents to the publication of this agreement in the Canada Gazette and on the Commissioner's web site.
The Commissioner agrees that the fulfillment by the Contracting Party of the undertaking in this agreement will constitute compliance with the agreement.
Pursuant to subsection 517(8) of the Act, the Commissioner and the Contracting Party recognize that once this agreement is entered into, the Commissioner will be prevented from referring this matter for prosecution to the Director of Public Prosecutions unless there is non-compliance with the terms of the compliance agreement, and in any event, the Director of Public Prosecutions cannot institute such a prosecution unless non-compliance has been established.
Under subsection 517(5), the compliance agreement and statements it contains are not admissible in evidence against the Contracting Party in any civil or criminal proceedings.
For greater certainty, it is understood that an admission of responsibility for acts or omissions that constitute an offence made herein by the Contracting Party does not constitute a guilty plea within the meaning of criminal law.
Signed by Dr. Emily McMillan on behalf of the Contracting Party in the City of Ottawa, in the province of Ontario this 19th day of July 2016.
Dr. Emily McMillan
Executive Director, Green Party of Canada
Signed by the Commissioner of Canada Elections, in the City of Gatineau, in the province of Quebec, this 21st day of July 2016.
Yves Côté, QC
Commissioner of Canada Elections