Statements and Speeches: Commissioner of Canada Elections

Remarks of the
Commissioner of Canada Elections

for an appearance before the
Standing Senate Committee on Legal and Constitutional Affairs

April 13, 2017

Check against delivery

Thank you, Mr. Chair.

I am very pleased to be here today to assist the Standing Committee with its examination of the former Chief Electoral Officer's reports on the 2015 general election, including his report on recommendations for legislative changes.

I am joined by Marc Chénier, who serves as General Counsel and Senior Director of Legal Services in our Office.

The mandate of the Commissioner of Canada Elections is, as you know, to ensure compliance with and enforcement of both the Canada Elections Act and the Referendum Act.

Chief Electoral Officer's Recommendations Report

There are a number of items contained in the former CEO's Recommendations Report that pertain specifically to strengthening the compliance and enforcement regime set out in the Canada Elections Act. They have a direct bearing on the mandate of my Office.

I would like to highlight a few of them that I consider particularly significant.

First, I wish to underscore the importance of granting a superior court the power, in certain circumstances and under strict conditions, to issue an order compelling witness testimony. The ability to compel individuals to provide information in relation to some of our investigations would ensure that serious instances of non-compliance are dealt with without undue delay.

I would point out that the power to compel testimony for election-related offences is not without precedent. It already exists in other Canadian jurisdictions, notably in Quebec.

Furthermore, I expect that if Parliament grants this power, it would include the important safeguards I have referred to in previous reports—in particular, the right of individuals to be represented by counsel, the right not to incriminate themselves, and the protection of their privacy rights.

It is important to emphasize that such orders would be issued by independent judges once they were satisfied that the legislated conditions for their issuance had been met.

This tool, which would be used sparingly, would be essential, in particular if there should occur a major event affecting the credibility of the electoral system.

In such cases, facts must be found quickly and perpetrators must be brought to justice quickly. Otherwise, there is a risk that Canadians will lose faith in their system. And that cannot be good for democracy.

Second, I fully endorse the CEO's recommendation that the Act should include Administrative Monetary Penalties (AMPs) to address regulatory offences. I have noted in the past that our current system—which relies heavily on criminal offences and sanctions—is ill-suited to effectively enforce many of the regulatory provisions contained in the Act.

Canadians rightfully expect that violations of our electoral law will be dealt with in a timely way. An AMPs regime would be extremely helpful in this regard.

Finally, I support the former Chief Electoral Officer's recommendation that the scope of terms and conditions that can be included in a compliance agreement be broadened.

In fact, if the ability to impose AMPs was given to my Office, the amount of the AMP itself could be a negotiated term of a compliance agreement.

This is what is provided for in many federal regimes: the official responsible for compliance and enforcement is able to negotiate the amount of an AMP to be imposed as part of a negotiated compliance agreement that includes other terms or conditions to enhance future compliance.

The combination of these two compliance tools would ensure an effective resolution to instances of non-compliance with real consequences.

Regulation of Activities of Third Parties

During the former CEO's last appearance before this Committee, last November, some Honourable Senators expressed an interest in the issue of the regulation of third parties' activities during an election period.

Currently, as is well known, the financing of third party activities is regulated only to the extent that the financing is used to fund election advertising during an election period. This includes expenses incurred in the production and transmission of an advertising message. It does not include many other types of expenses, such as those incurred for research and policy development, provided that they are independent expenditures not coordinated with a party or candidate.

This means, for example, that it is not illegal for a third party to use foreign contributions to fund activities that do not include the transmission of election advertising messages.

We received a significant number of complaints against the involvement of third parties in the 2015 general election – and many more than had been filed with respect to the previous election.

Common to many of these complaints was the perception that third parties, in some ridings, were so significantly involved in the electoral contest that this resulted in unfair electoral outcomes.

I would suggest that third party engagement in Canada's electoral process will likely continue to grow. For that reason, it may be time for Parliament to re-examine the third-party regime put in place seventeen years ago, with a view to ensuring that a level playing field is maintained for all participants.

Conclusion

In closing, I would draw your attention to section 510.1 of the Act, recently adopted by Parliament. This provision requires me to keep confidential any information obtained in the course of an investigation.

As a result, although I will endeavour to provide fulsome answers to the questions posed to me, I will not be able to discuss the details of any particular matter that is, or may have been the subject of a complaint to, or an investigation by my Office.

I will be pleased to take your questions.

Thank you.