Briefing Book – To the attention of the Commissioner of Canada Elections

Overview of the Commissioner’s Mandate

1.1 Mandate and Appointment

The Commissioner of Canada Elections (CCE) is the independent officer whose duty is to ensure that the Canada Elections Act (the Act) and the Referendum Act are complied with and enforced. The CCE plays an important role in safeguarding Canadians’ trust in the democratic process and whose dual mandate of compliance and enforcement is carried out with the aim of promoting the integrity of the electoral process.

Generally speaking, the Commissioner's role involves taking corrective action when a provision of the Act is breached. The CCE receives complaints from the public and reviews them to determine if the issue falls within its mandate. If it does, the Commissioner may decide to initiate a review or an investigation to determine the facts of the case. The Commissioner may also initiate a review or investigation of their own initiative, absent any complaint having been made, or in response to a referral from Elections Canada.

In the exercise of their mandate, the Commissioner and their staff are always guided by the principles of independence, impartiality and fairness. Furthermore, and in particular when they select the measure of compliance or enforcement in a specific case, the CCE always does so in pursuit of the following overarching objective: which compliance or enforcement measure is most likely to best serve the public interest in light of the specific circumstances of each case.

The Commissioner is appointed by the Chief Electoral Officer of Canada (CEO), after consultation with the Director of Public Prosecutions (DPP), for a ten-year non-renewable term, and can only be removed for cause.

1.2 History

In 1974, the Election Expenses Act, which made a series of amendments to the Canada Elections Act, created the position of Commissioner of Election Expenses, whose responsibilities were restricted to ensuring that the election expenses provisions of the Act were complied with and enforced.

In 1977, the Commissioner's powers were significantly extended to include all provisions under the Act and the position was renamed “Commissioner of Canada Elections”.

In 1992, the Commissioner also became responsible for ensuring compliance with and enforcement of the Referendum Act.

In 2006, the Federal Accountability Act transferred the authority for prosecution of offences under the Act to the DPP.

In 2014, Bill C-23 received royal assent. The OCCE was moved from Elections Canada to the Public Prosecution Service of Canada, and the CCE was made a deputy head for the purposes of hiring his or her staff and managing the human resources of his or her Office.

Bill C-76 was adopted by Parliament in 2018. The OCCE was reintegrated to within the OCEO, but as a separate organization from Elections Canada. This administrative transfer facilitates collaboration between the two organizations and allows the Commissioner to have easier access to relevant information held by Elections Canada. Bill C-76 also granted additional powers to the Commissioner, including:

1.3 Independence

The Commissioner’s independence flows from a range of provisions in the Act, notably those related to the tenure of the position and the specific process for removal of the incumbent, accountability mechanisms and financial independence.

Although the Act provides that the Commissioner of Canada Elections is within the OCEO, it also expressly states that, in the performance of his or her mandate, the Commissioner is to act independently of the CEO.

More information on the CCE’s independence can be found in section 3.1 of this document.

1.4 Compliance and Enforcement Measures

Enforcement of the offence provisions of the Act devolves to the Commissioner and the DPP, who are charged, respectively, with the investigation and the laying of charges for offences under the Act, on one hand, and with prosecuting these offences, on the other. The Commissioner reviews allegations of non-compliance and investigates them, where appropriate. When he or she decides that it is in the public interest to institute a prosecution to address a case of non-compliance, the Commissioner causes charges to be laid, and the DPP takes over and conducts the prosecution of the offences.

Where appropriate, the Act allows the Commissioner to use non-punitive corrective measures in response to certain instances of non-compliance. For example, rather than instituting a prosecution, the Commissioner can address certain situations of non-compliance by entering into either a compliance agreement with or accepting an undertaking from a person or entity that did not comply with the requirements of the Act. The Commissioner may also issue a notice of violation that requires that the person or entity pay an administrative monetary penalty.

During an election period, the Commissioner may apply to a court for an injunction to bring an end to a breach, or require an individual to comply with the Act, if the integrity of the electoral process and the public interest are at stake. The Act also authorizes the Commissioner to request the judicial deregistration of a registered 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. Both of these powers were granted to the Commissioner as early as 2000, but have not been used to date.

In the execution of his or her duties, the Commissioner is assisted by investigators, lawyers and other personnel, including administrative, communications, and analytical support staff. The investigators review the complaints assigned to them. They gather the relevant information and evidence and, in the event that a decision is made to institute a prosecution, they lay the charges on behalf of the Commissioner and prepare, together with the support of the lawyers, the prosecution report and the disclosure of evidence.

Any decision to proceed with a review of complaints, to conclude them, to investigate them or not, to use one or another means of ensuring compliance with or enforcing the Act—including by laying charges for prosecution by the DPP—is taken by the Commissioner or by his or her staff who are duly authorized to do so.

1.5 Deputy Head for the Purposes of Human Resources

The Commissioner appoints and oversees permanent and temporary staff to assist in the delivery of their mandate. In accordance with the Act, as well as with the Financial Administration Act (FAA) and the Public Service Employment Act, the Commissioner has the status of deputy head for the purposes of human resources.

However, only the CEO is a deputy head for financial purposes (and accounting officer as defined under the FAA). The CEO, as an independent agent of Parliament, is accountable to Parliament for the measures taken to deliver programs in compliance with relevant policies, procedures and instruments. The CEO is also accountable for any expense incurred by, on behalf of, or in relation to the Commissioner under the Act. To this end, the Commissioner ensures that his or her financial practices are aligned with all applicable internal controls and financial management frameworks.

Subsections 509.1(2) and (3) of the Act read as follows:

Deputy head — Financial Administration Act
509.1 (2) For the purposes of sections 11 to 13 of the Financial Administration Act, the Commissioner is the deputy head in relation to the portions of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 occupy their positions.

Deputy head — Public Service Employment Act
509.1 (3) For the purposes of the Public Service Employment Act, the Commissioner is the deputy head in relation to the portions of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 occupy their positions.

Section 509.3 provides that indeterminate employees who are necessary to enable the Commissioner to carry out his or her mandate—and any additional employees the Commissioner considers necessary to enable the execution of this mandate—are appointed under the Public Service Employment Act. In the first of these cases, it is a submission to the Treasury Board, that it determines what constitutes "necessary" employees.

The fact that the Commissioner is a deputy head for these purposes means that he or she has certain obligations under other legislation, such as:

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