Commissioner of Canada Elections Annual Report 2015-2016
The Year in Review: 2015-2016
42nd Federal General Election
Ensuring compliance with, and enforcement of, the Act is an ongoing process that extends well beyond voting day. Although the office received more than 1000 complaints during the 42nd federal general election – and more than 100 on election day – CCE staff were actively engaged in evaluating, resolving and investigating complaints from Canadians throughout the 2015-2016 fiscal year. A statistical breakdown of the files handled by the Office throughout the year is available at Appendix A.
In addition to this investigative work, CCE staff also used the first half of 2015–2016 to finalize preparations for the election. Working in partnership with officials at Elections Canada and the Canadian Radio-television Telecommunications Commission (CRTC), CCE employees played a key role in developing best practices for sharing and redirecting complaints. They also oversaw the evaluation and implementation processes for various technological safeguards that were necessary to securely transfer complaint-related information between the three oversight bodies.
While some enforcement measures are taken during an election period, the vast majority of cases involve minor compliance issues that can be resolved quickly – and often informally – through the timely intervention of CCE staff. The ability to swiftly manage the influx of allegations of non-compliance associated with an election period is dependent on a team of skilled intake, investigative and legal personnel. In an election year, this core team is supported through the hiring of additional investigative resources. In 2015-2016, additional investigators were hired in anticipation of the election period. The increase in the number of employees and contractors was essential in the final weeks of the campaign when intake, investigations and legal staff were available seven days a week to receive, triage and in many cases, resolve complaints.
Over and above the hiring of additional investigators, during the election period, the CCE's legal services group established and maintained a legal 'hotline'. This service, monitored throughout the week and on weekends by members of the Legal Services directorate, provided a direct line of communication between the Commissioner's legal staff and counsel for the various political parties, to quickly resolve issues.
To reinforce the work of CCE investigative and legal personnel, and to assist and educate Canadians about the requirements set out in the Act, the CCE also completed a redesign of its Web site during the election period. The changes made the site more user-friendly and easier to navigate by reorganizing and building on existing information. New elements included simplified home page navigation and a reformatted electronic complaint form. Moreover, individuals seeking to make a complaint were directed to a newly-created Frequently Asked Questions section. This process allowed complainants to make an informed decision about whether their concern fell under the CCE's jurisdiction prior to submitting their complaint.
Issues of Particular Interest
Every election brings with it unique circumstances and events. Both before and during the 42nd general election, a number of issues arose that, while they did not factor among the most complained-about topics, deserve to be highlighted.
Political Financing Rules for Nomination Contestants
Prior to the 42nd general election, the CCE received complaints regarding nomination contests. The complaints alleged that certain nomination contestants had failed to report all expenses for goods or services used during their campaign. However, as it currently stands, the Act does not regulate all expenses associated with a nomination contest, such as expenses incurred before the start of the contest.
When informed of this, individuals who complained to the CCE felt that the fact that the legislation leaves many of the goods and services used by contestants in these types of contests unregulated allowed campaigns to easily circumvent the otherwise strict rules in the Act. This has the potential to significantly undermine public confidence both with respect to the political financing rules for nomination contestants and the CCE's ability to enforce them.
Promises and Commitments by Provincial Politicians
During the election period, members of the public approached the Office with concerns over promises and commitments made by provincial politicians. Complainants believed that these promises, which were contingent on the outcome of the election, constituted illegal bribes or inducements under the Act. The CCE carefully reviewed these complaints and concluded that the sections of the Act pertaining to bribes and inducements did not capture promises or commitments made by politicians on public policy issues.
Interference by Foreigners
Section 331 of the Act prohibits non-citizens who reside outside of Canada from inducing electors to vote in a particular way. During the campaign, the CCE received a number of complaints alleging that foreign nationals who were not permanent residents of Canada could not provide campaigning advice to federal registered parties without infringing section 331 of the Act.
After careful review, the CCE concluded that providing advice to a registered party, or possibly having an influence on how a registered party will carry out its own inducement activities, is not caught by the wording of the prohibition at section 331. Nevertheless, there appears to be some confusion regarding the intended breadth of section 331 and Parliament may wish to revisit its wording to bring greater clarity to its scope.
Pictures of Marked Ballots on Social Media
The appearance of photos of marked ballots on social media platforms during the 42nd general election was the source of a number of complaints to the CCE. For many Canadians, they were viewed as a serious breach of the principle of the secrecy of the vote.
After consultation with the Office of the Director of Public Prosecutions, the CCE concluded that the prohibition against showing one's marked ballot could only apply to an elector who posted a photo of their own ballot on social media while still physically inside the polling station. Conversely, posting a photo of another person's marked ballot – regardless of where they are at the time the photo is uploaded – is captured by the existing provisions in the Act.
It is clear that the existing rules, adopted in a pre-Internet era, do not adequately address this issue. Consequently, consideration should be given to amending the Act if the secrecy of the vote is to be protected.
Removal of Anonymous Election Advertising
One of the prevailing themes during any election relates to missing authorization statements (taglines) on election advertising. During the 42nd general election, in addition to complaints regarding the absence of taglines, the CCE received complaints concerning the removal or interference with election advertising signs that did not contain the required authorization and failed to identify the third party responsible for the advertising.
Although signs missing this information are not compliant with the Act's transparency requirements, the Act currently makes no distinction between interfering with the transmission of compliant vs. non-compliant advertising. However, from the CCE's perspective, the public interest in taking formal enforcement or compliance action against a person who has interfered with anonymous third party advertising signs is unquestionably reduced.
Election Officers' Use of Elector's Personal Information
During the 42nd general election, the Office encountered a situation where an election officer used an elector's personal information – obtained in the course of the performance of his duties – for a purpose unrelated to the performance of those duties. Where it can be proven that this personal information was obtained from the list of electors, an existing prohibition in the Act can be used to take compliance or enforcement measures against the offender. However, where the information was obtained through other means in the course of the election officer's work, (for example, reviewing an elector's identification), there is no applicable prohibition in the Act. Indeed, while the Act does prohibit the communication of such information, it does not prohibit its use more generally.
Although the incident that occurred during the 2015 election was an isolated occurrence, the misuse of an elector's personal information has the potential to damage public confidence in the security of their personal information. Further, the inability to take action to address these breaches could undermine electors' trust in the electoral system. Consideration should be given to addressing this void.
Voting with Face Coverings
The CCE received a number of complaints of individuals who were alleged to have voted twice by showing up at the polls with their faces covered. In most cases, these complaints were filed after the alleged "double voters" had posted statements on social media claiming that, by covering their faces, they were able to vote twice. As of March 31, 2016, the Office had completed an examination of 34 such complaints and concluded that none had resulted in an elector having voted twice.
Third Party Use of Foreign Contributions
A number of complaints were received about third parties allegedly using foreign contributions to fund activities during the election period. Most third parties exist outside of an election period, and generally, the financing of their activities is only regulated under the Act to the extent that the financing is used to fund election advertising. As such, a third party can use foreign contributions to fund activities that do not include the transmission of election advertising messages. This includes carrying out election surveys, setting up election-related websites and using calling services to communicate with electors.
Campaigns Misleading Voters about the Vote
The Office received a number of complaints about voters receiving misleading information during the campaign. Most of these were with respect to various campaigns dropping off information leaflets containing information about times and places for voting that directed the members of the household to vote at the wrong polling station. After review, it was determined that, generally, these were the result of campaign volunteers dropping off the wrong information leaflet at particular addresses; there was no intent to mislead and no one was prevented from voting. This serves as a reminder to electors that they should obtain this type of information from Elections Canada as the potential for errors exists when provided by other sources.
Organization for Security and Co-operation in Europe
In May, the Commissioner and members of his management team met with officials from the Organization for Security and Co-operation in Europe's (OSCE) observation mission to discuss the role and mandate of the Commissioner of Canada Elections. The Commissioner provided an overview of the tools available to him, the changes to the compliance and enforcement scheme that had come about as a result of Bill C-23, and some of the challenges associated with enforcing the Act. The OSCE's report outlining their findings was published in February 2016 and contained a number of recommendations, including some directly related to the Commissioner's mandate. Among these was the priority recommendation that the "Commissioner of Canada Elections could be granted the right to compel witnesses and to impose administrative penalties as another option to resolve minor violations of the Elections Act with a view to improve the timeliness and effectiveness of investigations.Footnote 1"
Compliance and Enforcement
The integrity of the electoral process relies on the good faith of participants and their willingness to follow the requirements set out in Canadian election law. The Commissioner's mandate reinforces and strengthens oversight of the electoral system, ensuring that all participants can confidently partake in the electoral process. The Compliance and Enforcement Policy of the Commissioner of Canada Elections outlines how the Commissioner exercises his mandate under the Act.
Caution letters are an informal means of ensuring compliance with the Act. Between April 1, 2015, and March 31, 2016, the Commissioner issued 144 caution letters to address minor contraventions or inadvertent non-compliance. As is the case with other informal tools used by the CCE, caution letters are not made public.
The Canada Elections Act provides that the Commissioner may enter into a compliance agreement with anyone who he has reasonable grounds to believe has committed, is about to commit or is likely to commit an act or omission that could constitute an offence. Compliance agreements are voluntary and set out the terms and conditions the Commissioner considers necessary to ensure compliance with the Act.
Between April 1, 2015 and March 31, 2016, the Commissioner entered into 17 compliance agreements:
- Nine agreements were entered into with organizations that made illegal contributions to one or more political entities. The Act prohibits any person or entity other than an individual who is a Canadian citizen or permanent resident of Canada from making contributions.
- One compliance agreement was entered into with an individual who had made over-contributions to their own 2014 nomination contest. The Act does place limitations on the amount an individual can contribute in a calendar year, in total, to the registered associations, nomination contestants and candidates of a particular registered party.
- Two compliance agreements were concluded with individuals who, following the 2011 general election, failed to provide complete electoral campaign returns.
- Three compliance agreements were entered into with individuals who made contributions to a number of political entities in excess of the individual contribution limits established by the Act.
- A compliance agreement was entered into between the Commissioner and a group who engaged in third party advertising during the 42nd general election. As part of the agreement, the group acknowledged that they had failed to register as a third party advertiser – as required by the Act – and that their advertising did not contain the required authorization statement (tagline).
- One compliance agreement was entered into with an employer who had failed to provide their employees with time off to vote. The Act requires that employers provide the time required for the employee to dispose of three consecutive hours to vote.
The full text of these compliance agreements is available on the CCE's Web site at: www.cce-cef.ca
Charges and Prosecutions
If the Commissioner believes on reasonable grounds that an offence has been committed under the Act, he may refer the matter to the DPP, who has sole authority to decide whether charges will be laid. 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.
Charges were laid on May 6, 2015 in the Provincial Court of Newfoundland and Labrador in St. John's against official agent Reginald Bowers. He was charged with three counts: one count of failing to return ineligible contributions, and two counts of knowingly providing the Chief Electoral Officer with a document that contained a material statement that was false or misleading.
In October 2015, Mr. Bowers pleaded guilty to the count of having failed to return ineligible contributions, and to one count of having submitted a false or misleading return. The latter combined the elements of the two separate counts that dealt with the provision of false and misleading information for which he had been charged. The court imposed the following sentence in December 2015:
- A fine of $500 for the ineligible contributions.
- A fine of $1000 for providing a false or misleading document.
In addition, the trial for Mr. David Del Mastro, charged with Ms. Tory-Lynn Manchulenko, in October 2014 with knowingly concealing or attempting to conceal the identity of the source of a contribution and knowingly circumventing the campaign contribution limit for an individual donor, began in February 2016.
On January 29, 2016, Ms. Manchulenko pleaded guilty and received an absolute discharge. As of March 31, 2016, Mr. Del Mastro's case was still before the courts.
Finally, two additional cases remained before the courts at the end of 2015-2016. As of the writing of this report, the court's decision with respect to Mr. Dean Del Mastro's appeal was still pending and Mr. Michael Sona's appeal was scheduled to be heard in the spring of 2016. Additional information with respect to these two cases can be found in the 2014-2015 Annual Report.
Written Opinions, Guidelines and Interpretation Notes
Since December 19, 2014, as part of the amendments to the Act, the Commissioner is required to provide comments on draft written opinions, guidelines or interpretation notes proposed by the Chief Electoral Officer.
Guidelines and interpretation notes discuss the application of a provision of the Act to registered parties, registered associations, candidates, and/or leadership or nomination contestants (referred to collectively as "regulated political entities"). A guideline or interpretation note is issued for information purposes only and is not binding on regulated political entities. In keeping with the Act, the Commissioner has 15 days to comment on the drafts of these documents. When the guideline or interpretation note is officially issued, the Chief Electoral Officer must also publish the comments received from the Commissioner on the draft version.
Similar requirements exist when a registered party makes a request to the Chief Electoral Officer for a written opinion on the application of any provision of the Act. In this case as well, the Commissioner must comment on the draft within a 15-day consultation period, and these comments are published along with the final written opinion. If all material facts submitted with the application were accurate, the final written opinion is binding on the Chief Electoral Officer and on the Commissioner with respect to the activity or practice of the registered party that made the request or of its affiliated regulated political entities. With respect to similar practices or conducts of all other regulated political entities, the written opinion has precedential value for the Chief Electoral Officer and the Commissioner.
During 2015-2016, the Chief Electoral Officer issued 14 guidelines and interpretation notes.Footnote 2 Of these 14 guidelines and interpretation notes, the CCE provided comments on 12 of the drafts that were circulated for consultation. The CCE was in full agreement with the positions put forth by Elections Canada in the two remaining guideline and interpretation notes and therefore did not provide comments. The guidelines and interpretation notes issued by the Chief Electoral Officer during this period included the five political financing handbooks for each of the regulated political entities (i.e., registered parties, registered associations, nomination contestants, candidates and leadership contestants), as well as clarification on important issues such as what constitutes advertising on the Internet, the application of the political financing rules on leaders' and candidates' debates and on the use by Members of Parliament of parliamentary resources. All of these instruments proved to be extremely useful in clarifying the application of the Act with respect to various aspects of candidates' and parties' campaigns.
Return to source of Footnote 2 There were no requests for a written opinion submitted by a registered party in 2015-2016.