Commissioner of Canada Elections – Annual Report 2012-2013

V. Challenges

This section describes some of the key challenges that the Commissioner faces in the execution of his mandate. This may provide answers to some of the questions that are raised from time to time regarding, for example, the duration of some investigations or the perceived lack of transparency regarding the progress of investigations. In some cases, it also highlights the need to consider amendments to the legislation.

Four issues are addressed in this section:

  1. Transparency vs. privacy and the need to ensure the confidentiality of investigations
  2. Increasing complexity of investigations
  3. Insufficiency of investigative tools
  4. Lack of flexibility when dealing with contraventions of the CEA

A. Transparency vs. privacy and the need to protect the confidentiality of investigations

From time to time, comments have been made that the Commissioner's investigations are conducted in secret and that there is not enough transparency.

Those who demand more transparency on behalf of the public have asked, for example, that information be communicated periodically on the progress of investigations. Others have suggested that individuals who are directly interested in or affected by an investigation be provided information on its status and progress (e.g. what stage the investigation is at, what the next steps are, and when it is expected to be concluded).

As understandable as these concerns are, they are difficult to address satisfactorily when one considers that an investigation may result in criminal charges being laid, with significant consequences for the subject of the investigation regardless of the outcome. Ensuring fairness is paramount.

It is also imperative that investigations be protected from factors that could negatively affect their integrity. Investigators must be able to keep their investigative strategy confidential. Potential witnesses must also, as much as possible, be protected from undue interference or influence.

Some potential witnesses, for example, shun the notoriety that comes from being mentioned in a news report, and have chosen not to cooperate with an investigation simply on that basis. Others may not wish their cooperation with authorities known for a number of reasons and will either decline to cooperate, or do so only on some understanding of confidentiality. Potential suspects will often be interviewed last because investigators typically want to collect as much relevant information as possible in a confidential fashion before they meet with them. With all, whether witnesses or suspects, investigators want to avoid as much as possible one individual being tainted by how another person recollects – or claims to recollect – the events.

In this regard, it should be noted that police forces and other investigative bodies also take great care to protect their investigations from the disclosure of information that could hamper or affect how they are carried out.

In addition, and fundamentally, the presumption of innocence and the reputations of individuals must be protected. That is always important, but perhaps even more so when the reputations of political actors or organizations are at stake.

The Commissioner's investigators must comply with the provisions of the Canadian Charter of Rights and Freedoms and the Privacy Act, both of which impose on state actors a duty not to unduly encroach on the privacy of individuals.

On the other hand, investigators must comply with the provisions of the Criminal Code that require that a report be made to a judge after the execution of a search warrant or the production of documents under a production order. When such a report is made, the public (and, of course, the media) may access the affidavit prepared by the investigators and used to obtain the warrant or the production order. Such an affidavit sets out the evidence collected by the investigators up to that point to satisfy the judge that there are reasonable grounds to justify the issuance of the warrant or the order. When investigators apply for a search warrant or a production order, they are legally required to make full and frank disclosure to the judge of the evidence that is relevant to the request for the order. As a result, the affidavits in support are generally quite detailed and contain a great deal of information.

The exception to full access to or disclosure of supporting materials for a production order or search warrant is where a "sealing" order has been obtained from the judge to prevent full or partial public access to or disclosure of the materials. The grounds on which a sealing order may be obtained are set out in the Criminal Code and are rather limited. The main ones are that the disclosure of information would:

The application for a sealing order must also satisfy the judge that the reasons or grounds cited for sealing are sufficient to outweigh in importance of the "open court principle", which carries a strong presumption in favour of granting the public access to information contained in court documents.

In short, when considering calls made for more information to be disclosed on the status and progress of investigations, one must consider the interests on the other side – i.e. the need to protect the investigative process itself and the need to protect the privacy and reputations of individuals. Often, the latter will carry a greater weight. However, the ability to maintain the confidentiality of investigations is subject to some factors that are beyond the investigator's control, including, for example: 1) the Criminal Code requirement that certain information be made public after the execution of a search warrant or once a production order has been complied with; and 2) what people may choose to say or to whom they may say it after they have been contacted or interviewed by an investigator for the purpose of an investigation.

B. Increasing complexity of investigations

In recent years, files brought to the Commissioner for investigation have grown increasingly complex. The complexity is both legal and technological.

In large part, this stems from changes to the rules on political financing. Since 2004, registered electoral district associations, nomination contestants and leadership contestants have been added to the list of regulated entities and must comply with intricate rules. New restrictions have been imposed on the source and amount of contributions, as well as on transfers between political entities. Layers of rules and restrictions have thus been added by Parliament in response to emerging issues, without necessarily aiming to also preserve or enhance the coherence and effectiveness of the enforcement regime. This is particularly significant in the electoral context, where many of the participants are volunteers or have little previous experience in these matters.Footnote 3 In addition, the tightening of rules on political financing has resulted, not surprisingly, in conduct or schemes, sometimes complex, that test the limits of what is permissible. Investigations into such matters raise difficult questions, often legal in nature, that are not easily resolved and may be controversial. Also, they often require gaining access to the financial documents and bank records of multiple entities, which can be difficult to achieve.

Other factors contribute to the increasing complexity of investigations. The recent robocalls investigation in Guelph required 10 judicially authorized production orders to compel the production of evidence that was otherwise protected because it affected the privacy interests of one or more persons. With three exceptions, these production orders had to be completed sequentially, as each built on the results of the orders that had been obtained before, with the inherent delays and attention to detail that this process entails. Each order must be extensively and progressively sourced and meet the full disclosure requirements for the issuing judge to act, all of which increases as the results of earlier orders become known. Each order may, of course, be subject to challenge in any future court proceeding – hence the need to proceed with care.

Because of the requirements under the Criminal Code (section 487.012) (the requirements are detailed in Section I: Mandate and Powers, under Investigative tools) an investigation must have made significant progress, and there must be solid evidence before a production order can be obtained.

Technological complexity is largely the result of digital record-keeping. Recent cases have highlighted the need to access by seizure, and to review and organize extensive electronic documentation and store it in a database. Investigators have also had to trace the source of increasingly diverse communication methods used in the commission of offences under the CEA. Matters dealing with tracing Voice over Internet Protocol (VoiP) calling and automated calls, e-mail sourcing and database integrity, often months after the fact, were never contemplated when the CEA was drafted.

The Chief Electoral Officer's March 2013 report entitled Preventing Deceptive Communications with Electors, to which reference was made earlier, describes in greater detail many of the difficulties associated with the investigation of offences committed through the use various technological means of anonymity.

C. Insufficiency of investigative tools

When investigating matters where the stakes are perceived as significant (and, in electoral matters, most investigations belong in this category), investigators often face reluctant witnesses. Frequently, key individuals will simply refuse to be interviewedFootnote 4 or they will initially accept, only to later decline. In some cases, they will participate in interviews but will provide only partial information and incomplete answers, often citing a faulty recollection of events or the inability to retrieve key documents. In other cases, a potential witness will profess a complete willingness to cooperate, but the process will take time – resulting in information being provided slowly and in an incomplete fashion.

Under the legislative regime as it currently exists, potential witnesses (e.g. candidates, official agents, representatives of political parties) do not have any obligation to cooperate with or assist investigators. Any assistance or information they provide is given voluntarily, except where a production order has been obtained.

This raises the question of whether in light of the difficulties frequently encountered in the course of investigations, consideration should be given to changing the legislation. Several provincial electoral statutes grant either the Chief Electoral Officer or the Commissioner, as the case may be, the power to compel persons to provide testimonial evidence or produce records.

In Preventing Deceptive Communications with Electors, the CEO recommended that changes be made to the CEA in order to give the Commissioner the power to apply to a judge for an order to compel any person to provide information relevant to an investigation. As noted by the CEO, these powers are similar to those found under section 11 of the federal Competition Act and also in several provinces.

Importantly, this recommendation comes with key safeguards. Among them are the following:

This proposed legislative change is one the Commissioner fully endorses. This new tool would allow investigators to proceed more quickly and would significantly enhance their ability to uncover the facts.

D. Lack of flexibility when dealing with contraventions of the CEA

Currently, the legislation provides the Commissioner with two formal tools to enforce the CEA: compliance agreements with offending parties, or recommendations that charges be laid. (Caution or warning letters, which are used to deal with less serious offences, have no formal existence legally and, though they do serve a useful educational role, they are clearly not an effective enforcement tool for serious or deliberate violations.)

Compliance agreements have been and can be an effective tool for dealing with violation of the CEA. But they are limited in many ways. For one, they are "agreements", i.e. the contracting party must agree to their content, and in some cases, it can take a long time to arrive at an agreement with the contracting party. Also, the current legislative scheme does not provide for monetary penalties or other forms of sanctions, which could form part of a negotiated compliance agreement. For that reason, they are not usually well-suited to address more serious breaches of the legislation.

Prosecutions, on the other hand, certainly have an important role to play and can be very effective as powerful enforcement responses to violations. They are particularly useful for dealing with serious matters. They also play a strong deterrent role.

However, prosecutions also have drawbacks. Given that the various elements of an offence must be proven beyond a reasonable doubt in order for a prosecution to be successful, investigations are often lengthy (especially where complex or technological issues arise). Before any charges can be laid, the file must be referred to the DPP for examination and decision. Between the laying of a charge and the beginning of the trial, many months will usually elapse. Any final judgment by a court is subject to appeal. In short, to prosecute a case is an expensive and lengthy proposition – for the accused, for the Commissioner and for the justice system. For that reason, prosecutions are reserved for the most serious breaches and are ill-suited for the majority of situations where, as alluded to above, regulatory requirements under the CEA have not been fully complied with.

This strongly suggests that there is a need to complement the existing set of tools so that the legislation provides better and more flexible ways to deal with the breaches that are too serious to be settled through compliance agreements yet not serious enough to be dealt with through prosecutions. Examples of new tools are an enhanced compliance agreement regime that would make it possible to include broader terms and sanctions in the agreement, and the ability to impose administrative penalties for true regulatory offences, such as the premature transfer of goods or funds to a candidate, minor violations of the rules concerning bank accounts, or minor overcontributions by an individual. These are only two examples of possible changes. There are certainly others that could be considered.

In this regard, reference should be made to the recommendations contained in the report prepared by the CEO in June 2010 entitled Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election.Footnote 5 As well, it should be mentioned that the CEO has indicated his intention to table, in the future, recommendations to improve and facilitate compliance and enforcement.

Footnote 3 This has been an important concern of the Chief Electoral Officer, who has stressed the need to simplify the rules and to reduce the regulatory burden on participants. His 2010 report to Parliament, Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election, proposes a number of changes in this regard.

Footnote 4 For example, in the case of the Guelph investigation into misleading robocalls, the publicly available court records show that at least three individuals who were believed to have key information refused to speak with investigators.

Footnote 5 See in particular recommendations II.2 and II.9. The first of the two recommendations proposed that candidates or political parties who exceed their authorized expense limits should see a dollar-for-dollar reduction in their election expenses reimbursement. The second proposed that when a candidate or political party fails to file a report by the applicable statutory date, they should forfeit up to 50% of their nomination deposit.

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