Commissioner of Canada Elections – Annual Report 2012-2013
I. Mandate and Powers
As described in greater detail in the Information Bulletin on Enforcement of the Canada Elections Act, the Commissioner of Canada Elections (hereafter, Commissioner) is responsible for ensuring that the Canada Elections Act (CEA) and the Referendum Act are "complied with and enforced."
In the exercise of his duties, the Commissioner acts in a completely independent manner: he decides how complaints and referrals will be handled, what type of investigation will be carried out, which cases will be referred for possible prosecutions and what charges will be recommended.
The Commissioner is appointed by the Chief Electoral Officer (CEO) pursuant to section 509 of the CEA. The current Commissioner assumed his responsibilities on July 2, 2012.
The Election Expenses Act of 1974, a series of amendments to the CEA, created the position of Commissioner of Election Expenses, whose responsibilities were restricted to ensuring that the rules concerning election financing and expenses were enforced. In 1977, the Commissioner's responsibilities were extended to cover all provisions of the CEA.
A. Referrals and complaints
The Commissioner receives complaints from the public and political entities, as well as referrals from Elections Canada concerning potential offences under the legislation. The Commissioner may also launch an investigation on his own when, in his view, the facts and circumstances so warrant.
The referrals from Elections Canada come mainly from the Political Financing and Audit Directorate (PFAD), which is primarily responsible for administering the political financing provisions of the CEA. After an election, candidates have four months to provide their campaign's returns with all supporting documents to Elections Canada. Registered parties, electoral district associations, nomination contestants and leadership contestants are also subject to distinct reporting requirements. After they have been submitted, PFAD performs an audit of these returns. Where instances of non-compliance are identified, PFAD, guided by its Administrative Compliance Policy for Political Financing, may refer identified cases of non-compliance to the Commissioner. Usually, approximately nine months to a year after a general election, PFAD begins to forward referrals relating to alleged violations of the CEA. Typically, these referrals cover a wide range of potential violations. They include, for example, cases where PFAD, based on its audit, has come to the view that:
- there was a failure to file a report at all or in a timely way;
- a campaign incurred expenses beyond the maximum permitted;
- individuals exceeded their contribution limits, or contributions were received from corporate or other ineligible entities;
- ineligible contributions were not returned; or
- surplus electoral funds were not appropriately disposed of.
Referrals can continue for a long period following a general election, as the audit process may in some cases last for a considerable period of time. (It is not uncommon for auditors to engage in extended exchanges with the official agent of a campaign in an attempt to work out and clarify issues.)
The Commissioner also receives referrals from Elections Canada that are not related to the political financing regime. The number of these referrals is limited. For example, after each election, a number of referrals are made regarding individuals who may have requested more than one ballot.
Finally, anyone with reasons to believe that an offence under the CEA has been committed may file a complaint with the Commissioner. These complaints are acknowledged, and complainants are advised of the manner in which their complaint was resolved.
It is important to note that not all complaints or referrals result in an investigation. Once a file is opened, a preliminary assessment is conducted with a view to making a recommendation to the Commissioner as to whether further action is warranted. This may involve internal legal advice or external communications with the complainant. Where the Commissioner decides to conduct an investigation, the scope and duration will vary depending on the complexity of the matter.
B. Investigative tools
The Commissioner may review public information; information provided voluntarily by the complainants, the parties who are the subject of a complaint or any other person; as well as information held by Elections Canada.
The Commissioner's investigators may also interview witnesses or the persons who are the subject of the investigation on a voluntary basis in order to obtain their account of the facts. (The Commissioner does not have the power to compel testimony or the production of documents that may be relevant to his investigations. This matter is further detailed in Section V: Challenges, under C: Insufficiency of investigative tools.)
Investigators may also apply to a judge to obtain a search warrant or a production order if the requirements under the Criminal Code for such a warrant or order are met. The judge must be satisfied that there are reasonable grounds to believe that: an offence against the CEA has been committed; the information that is sought will afford evidence respecting the commission of the offence; and, in the case of a production order, that the person who would be the subject of the order has possession or control of the information (in the case of a search warrant, that there is in the place to be searched anything that will provide evidence of the offence). In order to obtain a search warrant or a production order, the investigator must submit an "Information to Obtain" (ITO), which is an affidavit outlining the basis for reasonable grounds. Once the information has been produced, or after a search warrant has been executed, a report is made to a justice in accordance with the provisions of the Criminal Code.
The Commissioner may seek production orders to obtain information from banks and other financial institutions (e.g. cancelled cheques, bank statements, etc.), and from telephone companies and Internet service providers. The evidence obtained by such orders may not be used against the person who provides the information.
C. Referral for prosecution
Following an investigation, and in accordance with section 511 of the CEA, the Commissioner may refer a matter to the Director of Public Prosecutions (DPP) if the Commissioner believes on reasonable grounds that an offence has been committed. The DPP decides whether charges should be instituted, and if charges are laid, conducts the prosecution. The role of the DPP is further explained in Section IV: Handling of Complaints and Referrals, under C: Prosecutions.
D. Penalties and compliance measures
If the accused is convicted of an offence by a court, the court can impose a sentence chosen from a range of penalties provided for each offence, including fines and prison terms.
There are over 400 offences listed in the CEA. The CEA sets out the maximum penalties for different types of offences. The maximum penalties for the offences at the lower end of the scale are a fine of not more than $1,000 or imprisonment for a term of not more than three months, or both.
A person who is found guilty of an offence belonging to a more serious category of offences (many of which require proof of intent) is liable, depending on the offence and the procedure, to a maximum fine of either $2,000 or $5,000, or to a maximum term of imprisonment of six months or five years, or to both.
A number of offences are identified in section 502 of the CEA as constituting practices that are either "illegal" (e.g. willfully exceeding election expenses limits for a candidate or an official agent) or "corrupt" (e.g. obstruction of an election officer by a candidate or an official agent). These are essentially acts of wrongdoing that are considered by Parliament as having the potential to seriously affect the integrity of the electoral process. An individual convicted of such an offence automatically loses certain entitlements – for the following five years in the case of an illegal practice, and seven years in the case of a corrupt practice – namely the right to be elected to or to sit in the House of Commons, and the right to "hold any office in the nomination of the Crown or of the Governor in Council" (paragraph 502(3)(b)).
Aside from recommending that charges be laid, the CEA also specifically allows the Commissioner to use "compliance agreements" as non-punitive corrective measures (see subsection 517(1)). More information about compliance agreements is found in Section IV: Handling of Complaints and Referrals, under B: Compliance agreements.
The CEA provides for two additional measures, which have yet to be used. During an election period, the Commissioner may apply under subsection 516(1) for a court injunction to bring an end to a breach of, or oblige an individual to comply with, the CEA, taking into consideration the "need to ensure fairness of the electoral process and the public interest." Secondly, under subsection 521.1(1), the Commissioner may apply to a court for an order to deregister a political party that "does not have as one of its fundamental purposes participating in public affairs by endorsing one or more of its members as candidates and supporting their election."