Commissioner of Canada Elections – Annual Report 2012-2013

Message from the Commissioner of Canada Elections

In only a very few words, the Canada Elections Act (CEA) sets out the mandate of the Commissioner, stating that his or her duty "is to ensure that this Act is complied with and enforced" (s. 509).

Even though the office has been in existence for over 40 years, it is apparent that not much is known about who we are, what we do, and how we do it.

Through this first annual report, my aim is to shed some light on these issues: What kind of work do we do? What kind of complaints do we get? What resources and what tools do we have to do our job?

I hope that the information contained in this report will be useful in that respect. I intend, through future annual reports, to continue in this direction.

I also want to highlight here some of the challenges we are facing. These are serious issues that deserve to be discussed and that demand to be addressed. (The last section of the report deals with challenges in a much more detailed way than is done below.)

Raising these challenges is perhaps particularly important at this time, when the government has said it plans to introduce significant amendments to the CEA.

The first challenge: It regularly happens, in the course of our investigations, that we approach individuals who we know will have information relevant to a file we are working on, only to be told that they do not wish to talk to us – they refuse to say anything.

In order to address this issue, we need to have some means of compelling the production of information. One example would be the power to apply to an independent judge for an order forcing reluctant witnesses to tell investigators what they know about a particular situation. Such orders would be accompanied by a number of safeguards, as described in the report.

At the federal level, the Competition Act allows the Commissioner of Competition to apply to a court for orders of this nature. Importantly, several provincial election laws grant the chief electoral officer (or commissioner) the power to compel persons to appear before them and provide information or produce records. (This includes Alberta, Manitoba, New Brunswick, Nova Scotia, Quebec, Ontario and Yukon.)

If there is a genuine intent to facilitate and expedite the conduct of investigations in the electoral field, then this proposal must be seriously examined.

As Commissioner, I strongly believe that this proposed change would do the most to improve the efficiency of our work, especially for investigations into particularly complicated matters. It would allow us to proceed much more quickly and would greatly strengthen our ability to get to the bottom of things.

The second challenge: There is a lack of flexibility to deal with offences under the CEA. This issue has been repeatedly raised by the current Chief Electoral Officer and by his predecessor.

The CEA contains over 400 different offences. Many of them are truly regulatory in nature – they do not involve high moral culpability and do not undermine in a fundamental way the core principles of the legislation.

For example, to ensure transparency, different reports have to be filed by various actors. It is important that these reports be filed, and that they be filed on time. However, they are often filed late or not filed at all. If the system worked as it should, sanctions would be imposed promptly for these violations. Yet the only way now to impose such sanctions is to launch a prosecution.

This is the proverbial case of a hammer being used to swat a fly. There is complete disproportion between the evil to be addressed in these cases and the means available to deal with it.

Prosecuting offenders requires a lot of time and effort. It is extremely expensive. Courts in Canada are struggling with ever-increasing workloads. If a charge is defended and goes to trial, a long time will elapse between the alleged commission of the offence and the court's decision. It should therefore come as no surprise that, in many such cases, the laying of charges is not an avenue pursued.

More flexibility must be built into the enforcement components of the CEA. The Chief Electoral Officer has indicated before that the enforcement regime should be amended to introduce various administrative sanctions (such as graduated fees for the late filing of reports). A number of federal enforcement schemes provide for the imposition of administrative penalties. That is, incidentally, one of the tools available to the Canadian Radio-television and Telecommunications Commission to deal with robocalls that are in violation of its Unsolicited Telecommunications Rules.

If real progress is made on those two fronts, the enforcement of the legislation would be more robust and more timely. This is particularly important in the electoral context, where sanctions can become largely meaningless if they come down after the election cycle in which the offences were committed.

As well, and crucially, the above amendments would contribute to reassure Canadians of two things: that the officials responsible for enforcing the CEA do have the tools they need to properly investigate alleged violations and uncover the facts; and that they have the flexibility to address violations in a manner that is proportionate to the seriousness of the misdeeds.

Finally, I would like to acknowledge that the Chief Electoral Officer has been extremely supportive of our efforts throughout my first year as Commissioner. In particular, and as noted in the report, he has provided us with additional resources to strengthen our investigative capacity. Given the volume of our work, this was most welcome.

Yves Côté, QC
Commissioner of Canada Elections

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