Commissioner of Canada Elections – Annual Report 2012-2013
IV. Handling of Complaints and Referrals
The following section summarizes the various tools at the Commissioner's disposal to ensure the CEA is complied with and enforced. The last section of this report provides more detail about the adequacy of these tools.
A. Caution letters
The Commissioner uses informal enforcement measures for inadvertent, less serious or technical violations of the CEA when he deems it is not in the public interest to use more formal enforcement action. This will often take the form of caution letters sent to the person or entity believed to be responsible for the violation. These letters are not made public.
Caution letters primarily serve an educational purpose. After setting out the available facts and the relevant provisions of the CEA, the letters contain a caution and request an acknowledgement of receipt.
If the conduct constituting a violation of the CEA appears widespread or involves several entities of the same political party, senior party officials may also be contacted and made aware of the problem. They may be requested to inform their organization and take measures to ensure the problem is corrected and does not recur.
In this way, the persons, entities and parties involved in the electoral process are encouraged to regulate minor and routine compliance problems, obviating the need to resort to formal enforcement measures.
Between April 1, 2012, and March 31, 2013, the Commissioner issued 47 caution letters, broken down as follows:
- 19 to official agents of candidates;
- 16 to electoral district associations;
- 6 to contributors;
- 2 to financial agents of nomination contestants;
- 2 to registered political parties;
- 1 to a candidate;
- 1 to a campaign worker.
The main issues raised in caution letters (a caution letter may raise more than one issue) are the following:
- Premature transfer of goods and services (subsections 404(1) and 404(2)): 17;
- Failure to satisfy bank account requirements (section 437): 16;
- Contributions in cash in an amount that exceeds $20 (section 405.31): 4.
B. Compliance agreements
Subsection 517(1) of the CEA provides that the Commissioner may enter into a compliance agreement with anyone who he believes on reasonable grounds has committed, is about to commit or is likely to commit an act or omission that could constitute an offence.
A compliance agreement is a voluntary agreement between the Commissioner and the person (the "contracting party") in which they agree to terms and conditions that the Commissioner considers necessary to ensure compliance with the CEA.
A compliance agreement typically includes a statement by the contracting party in which he or she admits responsibility for the act or omission that constitutes the offence. Once a compliance agreement has been entered into, the Commissioner may not refer the matter to the DPP for prosecution. However, if the contracting party fails to comply with the terms of the compliance agreement, the Commissioner may refer the matter to the DPP after having served a notice of default to the contracting party. The fact that a compliance agreement was entered into and any admission of responsibility made by the contracting party are not admissible in court in any civil or criminal proceedings against the contracting party. An admission of responsibility made by the contracting party in a compliance agreement does not amount to a criminal conviction by a court of law and, therefore, does not result in the creation of a criminal record for the contracting party.
In order to ensure transparency and deterrence, a notice that sets out the contracting party's name, the act or omission in question and a summary of the compliance agreement is published in the Canada Gazette. It is also posted on the Elections Canada website.
Between April 1, 2012, and March 31, 2013, the Commissioner entered into two compliance agreements:
The first was with an elector who had requested a second ballot during the 2011 federal general election.
The second was with a candidate, for having made a cash contribution to his own campaign over the maximum amount authorized for such contributions, and for having performed certain acts that, by law, only the official agent may perform.
If the Commissioner believes on reasonable grounds that an offence under the CEA has been committed, the Commissioner may refer the matter to the DPP, who has sole authority to decide whether charges will be laid.
Since the creation of the Public Prosecution Service of Canada in 2006, when the Director of Public Prosecutions Act came into force, the DPP acts as an independent prosecution authority, with a mandate to prosecute cases under federal law and to provide legal advice to investigative agencies. The Office of the DPP conducts prosecutions on behalf of the Crown with respect to any offences under the CEA (and the Referendum Act), as well as any appeal or other proceeding related to such a prosecution. When the DPP determines, following a referral to him from the Commissioner, that a prosecution should be initiated, he requests the Commissioner to lay a sworn information in writing before a judge.
When a prosecution is initiated, a notice that sets out the accused's name and a summary of the charges is posted on the Elections Canada website. Once a case has been concluded, the decision of the court (including a summary of any sentence imposed) is also posted to the website.
Between April 1, 2012, and March 31, 2013, the following charges were laid:
Charges were filed on May 2, 2012, in the Court of Québec against a candidate for theft of a sum of money over $5,000.00; falsely taking an oath; and aiding, counseling or abetting the official agent to submit to the Chief Electoral Officer a Candidate's Electoral Campaign Return that he knew or should have known to contain information that was false or misleading.
Charges were filed on August 21, 2012, in the Provincial Court of British Columbia, against an official agent for willfully failing to dispose of a surplus of electoral funds in relation to the 39th (2006) general election within 60 days of receiving the notice of estimated surplus; failing to ensure all transactions of the candidate in relation to the 39th (2006) general election passed through the campaign bank account; submitting a false Candidate's Electoral Campaign Return for the 40th (2008) general election, and failing to open a separate bank account for the 40th (2008) general election.
Charges were filed on September 25, 2012, in the Ontario Court of Justice in Brampton against an official agent for failing to comply with a requirement of the Chief Electoral Officer to provide additional documents.
As of March 31, 2013, these matters were all pending before the courts.
As previously mentioned, as a result of a request received from the DPP prior to the end of the fiscal year, a charge was filed on April 2, 2013, in the Ontario Court of Justice in Guelph against an individual for having willfully prevented or endeavored to prevent an elector from voting at an election.