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

Delivering on the CCE’s Mandate

3.1 Relationship between the Chief Electoral Officer and the Commissioner of Canada Elections: Key Guiding Principles

Source: https://www.elections.ca/content.aspx?section=abo&dir=cce&document=princip&lang=e

In June 2014 and December 2018, Parliament adopted significant amendments to the Canada Elections Act (the CEA) that affect the mandates of the Chief Electoral Officer (CEO) and of the Commissioner of Canada Elections (the Commissioner). Notably, the position of Commissioner was most recently relocated from the Office of the Director of Public Prosecutions (DPP) to the Office of the CEO (OCEO). As a result, it has become necessary to update the key principles that guide the relationship between the CEO and the Commissioner in the exercise and performance of their respective powers, duties and functions. Such an update is the purpose of this document. 

Appointment and mandate of the CEO and of the Commissioner

Under the CEA, the CEO and the Commissioner each have a specific statutory mandate that provides expressly for their appointment and the exercise or performance of particular powers, duties and functions in relation to federal elections. The CEA also governs the relationship between the CEO and the Commissioner.

(a) The CEO

The CEO is an officer of Parliament. He is appointed by resolution of the House of Commons and can only be removed from office for cause by the Governor General after a joint request by the House of Commons and Senate following a majority vote.

The CEO is responsible for the conduct of elections, the administration of the third-party and political financing regimes, and the overall administration of the CEA. This mandate requires the exercise of certain compliance functions, such as:

The CEO appoints and oversees permanent and temporary staff and a group of returning officers and field liaison officers, who assist him in delivering the election across the country.

(b) The Commissioner

The CEO appoints the Commissioner after consultation with the DPP and may remove the Commissioner for cause.

The Commissioner is responsible for ensuring that the CEA is complied with and enforced. He may launch an investigation of his own initiative or following a complaint or a referral made by the CEO. In delivering his mandate, the Commissioner carries out various activities, some of which are complementary and similar in purpose to those of the CEO. These activities include:

The Commissioner appoints and oversees permanent and temporary staff to assist him in delivering on his compliance and enforcement mandate. He has the status of deputy head of a department for these limited human resources purposes.

(c) Independence

Although the Commissioner is located within the OCEO, the CEA expressly states that, in the performance of his compliance and enforcement mandate, the Commissioner is to act independently of the CEO. Consequently, the CEO may not interfere with the conduct of any investigation or with the decisions of the Commissioner as they relate to the exercise of the Commissioner’s mandate. The Act specifies, however, that this does not preclude the Commissioner from consulting with the CEO in respect of any matter, if the Commissioner considers it appropriate.

Ultimately, the CEO is accountable to Parliament for the operations of the OCEO, which include, on the one hand, Elections Canada (the name under which electoral activities and political financing operations of his Office are carried out), and, on the other hand, the Commissioner and his staff.

The Need for Effective, Predictable and Coherent Compliance: Guiding Principles for the Relationship between the CEO and the Commissioner

Notwithstanding these distinct but complementary roles with respect to ensuring regulatory compliance, regulated political entities and Canadians in general must be able to rely on an approach to compliance with the CEA rules that is as coherent, predictable and effective as possible on the part of the CEO and the Commissioner. In this regard, the following considerations are key:

(a) Consultation and cooperation

The CEO and the Commissioner must cooperate to ensure that the CEA is interpreted consistently, that all participants operate under the same assumptions, and that compliance issues are promptly identified and addressed.

With respect to the need for consistent interpretation of the CEA by the two offices, Parliament has recognized this need as a key principle by requiring that the CEO formally consult with the Commissioner in addition to the Advisory Committee of Political Parties (ACPP) before issuing any formal guideline, interpretation note, or written opinion on the application of the CEA.

At the same time, beyond the requirements of the CEA regarding this formal statutory consultation framework, there is a need for the CEO and the Commissioner to cooperate to ensure that regulated entities are properly informed of these requirements and that their needs and legitimate expectations are taken into account.

The ACPP—which is recognized in statute as consisting of the CEO and two representatives of every registered party—provides a forum for all members to share their views and participate in the development of new systems and programs. While the Commissioner is not a member of the ACPP, he has received an open invitation to attend the ACPP annual meeting, and the CEO may invite him to attend other ACPP meetings in order to engage directly with political parties on enforcement-related matters.

Similarly, since ensuring compliance with the CEA involves actions that are performed by both the CEO and the Commissioner, there is a need for the two office-holders and their officials to meet and exchange information regularly.

It is in this vein that a practice has evolved whereby the CEO and the Deputy CEO for Regulatory Affairs meet the Commissioner and his Deputy on a quarterly basis. At these meetings, statistical information about complaints or potential referrals is shared, general information is exchanged to ensure a common understanding of issues, and approaches to systemic issues are discussed to identify potential solutions.

(b) Information sharing

Since the Commissioner is now part of the same government institution for the purposes of the Access to Information Act and the Privacy Act (ATIP legislation), Elections Canada may disclose personal information that it has obtained, where such disclosure may be useful to the Commissioner as he carries out his mandate. In addition, the CEA requires that the CEO provide information and documents to the Commissioner, when the latter believes that such disclosure is necessary for him to perform his work.

Conversely, for a number of reasons, the Commissioner provides some information to the CEO to favour a consistent and effective compliance environment. The information provided to the CEO may concern areas of non-compliance that appear to be particularly problematic. The CEO can thus better target his office’s efforts at educating regulated entities about their obligations under the CEA.

(c) Confidentiality of investigations

The CEA requires that the Commissioner and his staff not disclose information obtained in the course of an investigation. The Commissioner will thus not provide information on investigations to the CEO and his staff, unless such disclosure is permitted by one of the limited exceptions to the confidentiality provisions at section 510.1 of the CEA.

There is sometimes a need for the Commissioner and his office to consult with Elections Canada to verify whether a course of action being considered by the Commissioner as part of a compliance or an enforcement activity is coherent and consistent with the manner in which the CEO usually administers the legislation in similar circumstances. Such disclosure is authorized under the CEA as an exception to the confidentiality requirement, since it is required in order to carry out an investigation, to enter into a compliance agreement, to issue a notice of violation, or to accept an undertaking.

The CEO—as the head of the government institution under ATIP legislation—has fully delegated his powers under this legislation to the Commissioner regarding information under the Commissioner’s control. This delegation allows the Commissioner to respond to ATIP requests without having to involve the CEO in the review of documents that relate to the Commissioner’s enforcement activities.

(d) Communications to the public

The CEO and the Commissioner benefit from each having their own communications advisors to develop their respective media responses to events and to communicate with the public effectively and professionally. Nevertheless, in certain circumstances, some coordination of public response will be necessary to ensure consistency of messages and to avoid confusion. Ultimately, the decision to proceed with a particular message is reached individually by the CEO and the Commissioner.

As the CEO is responsible for administering the CEA, public enquiries concerning interpretation of the CEA will normally be handled by Elections Canada. That said, where the enquiry has to do with a compliance or enforcement function of the Commissioner or with the legal standard to make out a contravention of the CEA, the Commissioner’s office will be the appropriate source of information.

(e) Accountability and reporting

The CEO is accountable to Parliament for the general administration of the CEA. As the accounting officer for the OCEO, he is also accountable under the Financial Administration Act for all expenses incurred by his Office, including the Commissioner’s expenses. He reports annually to Parliament by tabling a Departmental Plan and Departmental Results Report. Since the position of Commissioner is within the OCEO, the CEO will include a section on the Commissioner’s activities and associated expenses in each of these reports. The Commissioner renders accounts to the CEO on his use of human and financial resources to fulfill his mandate to enable the CEO to report to Parliament for the whole of his Office.

The CEO is also required to prepare a number of other reports under the CEA, including the recommendations report that is issued following a general election. This report sets out amendments that, in his opinion, are desirable for the better administration of the CEA. With the 2018 amendments to the CEA, the Commissioner must now make a report to the CEO after each general election setting out amendments that, in his opinion, are desirable for better compliance with, and enforcement of, the CEA. These recommendations are set out separately in the CEO’s own report to Parliament.

The Commissioner must also prepare an annual report that provides an overview of his activities and operations during a year, without providing details of any investigation.

The CEO has established a Departmental Audit Committee (DAC) to provide him with objective and strategic advice on risk management, control and governance frameworks and processes. The DAC assists both the CEO and the Commissioner in ensuring that the CEO’s financial accountability is maintained, while respecting the independence of the Commissioner in the exercise of his mandate.

(f) International Cooperation

In order to carry out their respective mandates, the CEO and the Commissioner are studying the experiences and lessons learned from common electoral partners. In an effort to ensure consistency of action with partners and forums of shared interest, the International, Provincial and Territorial Relations Division (IPTR) of the Office of the Chief Electoral Officer (OCEO) will coordinate interactions, with the exception of activities directly related to compliance and enforcement.

3.2 Role of the Chief Human Resources Officer of the OCEO

Legislative framework

As mentioned in section 1.5 of this binder, the Chief Electoral Officer is the deputy head for the purposes of hiring Elections Canada employees and managing Elections Canada’s human resources, and the CCE is the deputy head for these same purposes with respect to the employees of his or her office. Section 509.5 of the Act allows the Commissioner to authorize any person employed by the OCEO to assist the Commissioner in carrying out the duties and functions of a deputy head on such terms and conditions as he or she may determine.

Role of the Chief Human Resources Officer

It is in this context that the Chief Human Resources Officer provides human resources services to the CCE. Although the Chief Human Resources Officer is an employee of the Chief Electoral Officer—and not of the Commissioner—the Commissioner has authorized him to assist the Commissioner in the performance of the duties of a deputy head. In the performance of the duties entrusted to him by the CCE as a deputy head of the OCCE for the purposes of human resources, the Chief Human Resources Officer does not report to the Chief Electoral Officer. In fact, the Chief Human Resources Officer and his staff must not disclose to the Chief Electoral Officer or to his staff any information related to the human resource issues for which they are called upon to assist the CCE.

Furthermore, while it may be tempting to adopt joint practices and processes with Elections Canada for reasons of efficiency, this is strongly discouraged. For example, just as it would be inappropriate for two separate departments to create a single joint workplace health and safety committee—since their respective deputy heads are different employers for the purposes of the Canada Labour Code and each is separately responsible for the health and safety of his own employees—it would be inappropriate for the CEO and the Commissioner to do so.

Parliament intended the CCE to be accountable for the issues for which it deemed him or her to be a deputy head, and this role of the Commissioner must be exercised independently of the Chief Electoral Officer.

3.3 Relationships between the Commissioner of Canada Elections (CCE) and other government partners

Achieving the CCE’s mandate requires collaboration between the OCCE and other government agencies. With some of these agencies, the OCCE has entered into a memorandum of understanding that sets out the framework for collaboration between the two organisations, within the limits of what is legally permissible.

Public Prosecution Service Canada (PPSC)

Under the Canada Elections Act (the Act), the CCE is the federal agency responsible for conducting criminal investigations into and instituting the prosecution of offences under the Act.1 The Director of Public Prosecutions Act gives the Director of Public Prosecutions the authority to conduct prosecutions for offences under the Act, as well as any appeal or other proceeding relating thereto.2

A person other than the CCE may only prosecute an offence under the Act with the written consent of the Director of Public Prosecutions, provided after consultation with the CCE.3

For OCCE cases involving a prosecution, the OCCE and PPSC exercise their respective roles in a manner that respects the independence of each, but in collaboration with each other. The two offices have signed a memorandum of understanding, outlining the steps in the processes for laying charges and conducting prosecutions, and providing for the PPSC to offer advice to the OCCE. All services delivered by PPSC to the OCCE are provided on a cost-recovery basis.

Investigation and prosecution

CCE investigators conduct the investigation and collect any incriminating or exculpatory evidence.

Normally, during the investigation, the CCE and his investigators receive legal assistance from OCCE lawyers to support the investigation. However, in some cases, the OCCE may seek legal advice from the PPSC as part of an investigation. In such cases, the request is made to the PPSC’s Senior General Counsel and the Director General of Regulatory and Economic Prosecutions.

If, after reviewing the file, the CCE has reasonable grounds to believe that an offence under the Act has been committed and that it would be in the public interest to lay charges, the CCE will direct the investigator to prepare a report to the prosecutor, including a draft information that can be used to lay charges.

With the assistance of an OCCE lawyer, the investigator in charge of the case prepares a draft report to the prosecutor summarizing the proposed offences, the theory of the case and the evidence available in the file. The CCE may then institute prosecutions or cause prosecutions to be instituted.4

Prosecutions for offences under the Act are instituted by filing an information on oath before a justice of the peace, as defined in section 2 of the Criminal Code, by an investigator of the CCE or another person mandated by the CCE.5

Conduct of prosecutions

Upon receipt of the report to the prosecutor, the PPSC designates a prosecutor from the region in which the charges are to be laid to handle the case. After reviewing the report to the prosecutor and consulting with the OCCE, the designated prosecutor decides whether there is a reasonable prospect of conviction on the proposed charges, and whether the prosecution is in the public interest.

The CCE is authorized to lay or cause to be laid charges for offences under the Act without the prior approval of the Director of Public Prosecutions. However, the OCCE informs, and always works closely with, the PPSC Regional Office responsible for the judicial district where the identified charges may be laid. The purpose of this cooperation is to ensure that the prosecutor is satisfied that the evidence on file and the disclosure are sufficient to justify the conduct of a prosecution.

Royal Canadian Mounted Police (RCMP)

A memorandum of understanding exists between the OCCE and the RCMP to govern their relationship, whether it be for the conduct of a joint investigation or for the provision of specialized services to the Commissioner’s investigators during the course of their investigations.

The CCE may request that the RCMP participate in a joint investigation in relation to an alleged offence under the Act or under the Referendum Act. The CCE may also call upon the RCMP in situations where the use of peace officers is necessary to maintain the peace, prevent the commission of criminal acts, execute judicial authorizations (search warrants, production orders, etc.), or to obtain any other service that may facilitate compliance or enforcement of the Act or of the Referendum Act.

Further, the CCE may also request information technology support from the RCMP with respect to an investigation, to assist in compiling and viewing electronic documentation or presenting such documentation to a court of competent jurisdiction.

As part of an investigative file, the CCE may request the RCMP to provide, to the extent permitted by law, information from the Canadian Police Information Centre (CPIC) system, such as information on outstanding warrants, criminal history, or information to ensure the safety of CCE investigators when executing a search warrant, court order or investigative technique. The OCCE may also request that the RCMP serve a notice or document on an individual in accordance with the Act.

Finally, the RCMP is responsible for recording the data of individuals in CPIC relating to release conditions, convictions and other court matters related to offences under the Act.

Canadian Radio-television and Telecommunications Commission (CRTC)

Part 16.1 of the Act contains rules regarding voter contact calling services. These rules are divided into two groups: those under the exclusive jurisdiction of the CRTC (Division 1.1 of Part 16.1), and those under the exclusive jurisdiction of the CCE (Division 2 of Part 16.1). A memorandum of understanding was signed between the OCCE and the CRTC to provide a framework for exchanges between the two organizations.

Division 1.1 sets out rules identifying the persons authorized to sign an agreement for the provision of voter contact calling services, the information that the signatory of such an agreement must provide to the provider of such services, the information that the provider must collect and retain, and the retention period. This division also specifies the obligations for the signatory, the provider, and a person or group using its internal services to make robocalls, including the obligation to register with the CRTC and provide certain information to the CRTC, etc.6 The CRTC is responsible for the implementation and enforcement of these rules.7 Failure to comply with them may constitute a violation for which the CRTC may impose an administrative monetary penalty, as provided in the Telecommunications Act.8

On the other hand, Division 2 of Part 16.1 of the Act sets out rules requiring the retention of a copy of scripts, the recording of messages transmitted, and a list of telephone numbers called during the election period, as part of an agreement to provide voter contact calling services.9 The CCE is responsible for ensuring compliance with, and enforcement of, these rules, and non-compliance with these provisions may constitute an offence of the Act. Note that the contravention of these rules does not constitute a violation under the Act, which means that the administrative monetary penalty regime of the Act can not be applied.10

The CRTC is required by law to disclose to the CCE, upon request, any information obtained by the CRTC under the Act that the CCE considers necessary to ensure compliance with, and enforcement of, the provisions of the Act, other than those provisions under the jurisdiction of the CRTC.11

Canadian Security Intelligence Service (CSIS)

In certain situations, the OCCE may share information with CSIS, to the extent permitted by law, and subject to appropriate security clearances. A memorandum of understanding has been signed between the OCCE and CSIS.

Other law enforcement agencies

In order to facilitate compliance with, or enforcement of, the Act or the Referendum Act, OCCE investigators may collaborate and exchange information with other law enforcement agencies, such as police forces or other government agencies like the Canada Revenue Agency and Immigration, Refugees and Citizenship Canada. Similarly, CCE investigators may contact representatives of these agencies for the purpose of obtaining information or assistance in locating a witness or suspect, or for the purpose of preserving the peace.

Finally, the OCCE may occasionally receive a request from another law enforcement agency to share information. The CCE and its employees or agents are bound by a duty of confidentiality with respect to information collected during an investigation under the Act. Accordingly, the OCCE may only disclose investigative information with the authorization of the CCE and in limited situations, as set out in the Act.12

Minister responsible for the Act and the federal department supporting him in this role

The Honourable Dominic Leblanc, Minister of Intergovernmental Affairs, Infrastructure and Communities, is the Minister responsible for the Act. With respect to this role, Minister Leblanc received the following instructions from the Prime Minister in the mandate letter of December 16, 2021:

You will also continue to work to strengthen our democratic institutions, including combatting disinformation and examining the link between technology and democracy.

To realize these objectives, I ask that you achieve results for Canadians by delivering the following commitments. . . .

Minister Leblanc is supported in his role as the Minister responsible for the Act by the Democratic Institutions group in the Privy Council Office. In recent years, officials of the Democratic Institutions group have consulted with the OCCE regarding proposed changes to the Act and its compliance and enforcement regime. These consultations took place, when appropriate, during the policy development stage, the drafting of bills, or when considering proposed amendments to bills. Given that the outgoing Commissioner (Yves Côté) recently made a number of recommendations for amendments to the Act, officials from the Democratic Institutions group are likely to be in contact with the OCCE in the coming months.

Community of Federal Regulators (CFR)

The CFR is a partnership of federal departments and agencies that facilitates collaboration and the professional development of employees involved in regulatory work across the federal government. The OCCE is a partner agency of the CFR. In the past, the CFR has been a valuable source of information and advice on compliance and enforcement issues, and the training sessions organized by the CFR have been of very high quality.

3.4 Commissioner of Canada Elections Funding and Statutory Authority

The CCE derives its financing from two sources. It is funded in part by an annual appropriation, its voted authority, that covers only the salaries of its indeterminate positions and is not affected by the electoral cycle. The CCE also has a statutory authority that allows it to draw directly from the Consolidated Revenue Fund for all other expenses including determinate employees and contractual resources. The statutory authority ensures that the OCCE has access to the funds required to carry out its investigative work while maintaining its independence from the government.

3.5 OCCE Committees and Working Groups

Senior Management Meetings

On a weekly basis, the Commissioner, Deputy Commissioner and Chief Legal Counsel, the Senior Director of Enforcement and the Director of Corporate Services meet to discuss organizational issues and priorities, and to provide an overview of key activities carried out by their respective sectors.

Held in a round table format, senior management meetings typically occur every Friday morning, and follow an agenda prepared by the Director of Corporate Services in collaboration with the Commissioner and other members of the management team. Members may occasionally appoint an alternate from their team to attend in their absence.

Extended Management Team Meetings

Every 6 weeks, the Commissioner currently meets with the extended management team – comprised of all CCE personnel who hold supervisory functions within the Office. These meetings provide a forum for the Commissioner to convey key developments within the organization, but also provide an opportunity for members to discuss management-related issues, challenges and best practices.

Meetings may also include guest-speakers, presentations and discussions examining specific issues that can assist managers in carrying out their work or to help expand their supervisory/managerial toolkit.

Strategic Enforcement and Compliance Initiatives Committee

In early 2021, the Strategic Enforcement and Compliance Initiatives Committee (SECIC) was established for the OCCE to provide additional support in the execution of the Office’s compliance and enforcement mandate, and enhance the OCCE’s ability to address sensitive matters in a more strategic manner.

The SECIC oversees the efficient use of the OCCE’s enforcement and compliance resources in accordance with its established priorities, policies and practices. The Committee’s role also includes ensuring effective information sharing, coordination and collaboration concerning major enforcement and compliance initiatives.

The Committee generally meets every two weeks to offer comments and review progress on certain files or projects. Headed by the Senior Director of Enforcement, the committee is composed of the following members: Commissioner, Deputy Commissioner and Chief Legal Counsel, Director of Legal Services, Director of Investigations and Operations, Lead Investigator, Strategic Advisor, Manager of Compliance Unit, and Manager of Communications, Policy and Engagement.

Terms of reference for SECIC are currently under review.

Employment Equity, Diversity and Inclusion Committee

The OCCE is committed to employment equity, diversity, and inclusion (EEDI) in the workplace. In 2021, the EEDI Committee was created to raise awareness of the importance and the benefits of creating an equitable, diverse and inclusive workforce, as well as to increase the organization’s knowledge of EEDI barriers faced by staff during the hiring process or during employment.

The OCCE aims to foster a culture of inclusion in which the diversity of people and ideas are supported by a welcoming, respectful and positive work environment where all employees feel valued and recognized for their unique qualities, ideas, voices, and perspectives. In its efforts to build a sustainable organization, the OCCE continues to strive for greater employment equity through the sharing of educational resources and learning activities, by providing managers with the tools they need to have open conversations with their staff on EEDI issues, and by promoting national and international commemorative days and events related to diversity and inclusion. Also among its key projects and initiatives, the EEDI Committee is leading the development of an internal mentoring program.

Wellness Committee

The OCCE’s Wellness Committee is an employee-led committee that was launched in 2016. The Committee seeks to implement initiatives to improve employees’ physical and mental health. Among other things, the Committee makes a number of activities and initiatives available to staff, including sharing guided meditation sessions, physical activity challenges, the planning of the Office’s annual National Public Service Week activity, and various initiatives to mitigate mental health risks that may arise in the context of our team members’ work.

Green Committee

In the spirit of encouraging environmentally sound initiatives within the Office, a Green Committee was created in 2018. Although the shift to telework has modified initiatives led by this committee, the Green Committee is normally tasked with managing and progressing sustainable activities and sharing of information on topics such as composting, recycling and other environmentally friendly practices within the workplace.

Workplace Health and Safety

The OCCE is committed to promoting and fostering a safe and healthy workplace by playing an active role in identifying and expeditiously and effectively resolving health and safety issues in accordance with the Canada Labour Code, Part II.

The OCCE’s Workplace Health and Safety Committee was established to address occupational health and safety (OHS) policy and programs for its workplaces. The Committee is a participatory forum, composed of both employees and employer representatives, that advises the management team and aims to prevent workplace accidents and occupational illnesses.

Further information on the Workplace Health and Safety Committee, including reports and meeting minutes, are available on the CCE’s Intranet site.

3.6 External Committees

In the exercise of his or her mandate, the CCE participates in various external committees and initiatives.

Elections Canada’s Corporate Affairs Committee

Following a decision to modify the structure of Elections Canada’s executive committee, a Corporate Affairs Committee was created. The Committee examines issues related to corporate and internal services for the OCEO. The OCCE’s Director of Corporate Services represents the office on the newly created Committee to ensure CCE requirements are included in Agency-wide decision-making.

Advisory Committee of Political Parties

The Advisory Committee of Political Parties (ACPP) is a forum for registered political parties to share information with and provide advice to the Chief Electoral Officer (CEO) on the conduct of elections, the administration of the Act and matters related to political financing.

The ACPP brings together two representatives from each registered political party and is chaired by the CEO. While the Commissioner is not a member of the ACPP, the CCE is welcome to attend meetings. Former Commissioner Côté attended some ACPP meetings, particularly following the reintegration of the OCCE to within the OCEO, as an opportunity to engage with political parties on matters related to compliance and enforcement of the Act.

Parliamentary Committees

During his term as CCE, Commissioner Yves Côté appeared before parliamentary committees on several occasions to discuss questions related to electoral legislative matters, including:

The majority of these appearances were before the House of Commons’ Standing Committee on Procedure and House Affairs (PROC) and the Senate’s Standing Committee on Legal and Constitutional Affairs (LCJC).

In November 2018, the CCE also appeared before the Senate’s Committee of the Whole alongside the CEO, on proposed legislative amendments to the Act contained in Bill C-76.

Standing Committee on Procedure and House Affairs

The Procedure and House Affairs Committee (PROC) studies and reports on the rules and practices of the House and its committees, electoral matters, questions of privilege, MP conflicts of interest, internal administration of the House, and services and facilities for MPs.

The mandate of the House of Commons Standing Committee on Procedure and House Affairs (the “Committee”) is set out in section 108(3)(a) of the Standing Orders of the House of Commons. The Committee also acts as a striking committee for House standing committees under section 104 of the Standing Orders, and possesses the powers of examination and inquiry common to all standing committees under section 108(1)(a) of the Standing Orders.

In addition to its mandate as outlined in the Standing Orders, the PROC is responsible for all matters related to referendums, possesses a role in the electoral boundaries readjustment process, and is the House of Commons committee to which questions of privilege are referred.

Standing Senate Committee on Legal and Constitutional Affairs

The Standing Senate Committee on Legal and Constitutional Affairs has the mandate to examine legislation and to study matters relating to legal and constitutional matters generally, including the criminal justice system and the Criminal Code, constitutional issues, electoral matters, linguistic and legal duality, federal-provincial relations, law reform, the judiciary and most private bills.

The committee has historically been, and continues to be, one of the Senate’s busiest committees. The vast majority of the committee’s work entails the consideration of legislation, although from time to time the committee has undertaken more in-depth special studies on areas related to its mandate.

This committee also normally receives all legislation relating to the electoral process and electoral districts in Canada. Although the committee clearly has a mandate to study constitutional or federal-provincial matters, major studies of this nature have more recently been referred to either a special committee or to a joint committee of the Senate and the House of Commons. However, constitutional issues remain within the general scope of study of the committee and the committee has been tasked with studying some Senate reform initiatives.

In 2016, the committee undertook a review of the Canada Elections Act, specifically focusing on controlling foreign influences in Canadian elections. In its report, the committee concluded that the Act did not sufficiently protect Canadians elections from foreign interference and that existing regime that regulates third-party advertising during election periods required modernization in order to better ensure transparency and electoral fairness.

Senate Committee of the Whole

Most deliberations of the Senate take place either in the Senate Chamber, or in its standing or special committees. On occasion, deliberations will take place in a Committee of the Whole, which combines elements of procedure followed by the Senate and its committees. A Committee of the Whole is composed of all senators and may be formed to deliberate on a bill or other matter before the Senate. It meets in the Senate Chamber, but its proceedings are generally less formal than those of the Senate itself.

The Senate generally sits in Committee of the Whole to receive officials nominated for appointment to positions such as the Senate Ethics Officer, the Privacy Commissioner, the Official Languages Commissioner, the Auditor General or the Parliamentary Budget Officer. The Senate has also used this process to consider urgent bills such as back-to-work legislation and to study proposed revisions to the Rules of the Senate.

As mentioned above, as part of Bill C-76, the CCE appeared before the Committee of the Whole in November 2018 to discuss legislative changes he deemed necessary to improve enforcement of the Act.

Election Security

In anticipation of the 2019 and 2021 general elections, a framework was established to strengthen coordination and facilitate the exchange of information between Canada’s security and intelligence community, federal departments and agencies supporting the administration of general elections, and organizations with a mandate and responsibility for administering general elections and ensuring compliance with, and enforcement of, the Canada Elections Act (the Act). As the body responsible for ensuring compliance with, and enforcement of, the Act, the OCCE participated in these efforts to prepare for these general elections.

The other key departments and agencies involved in these efforts were the following:

Interdepartmental Committees

In order to coordinate the government’s response to incidents that could affect election integrity—and in particular, incidents related to cyber interference, terrorism and criminal activity, foreign interference, and attempts at disinformation—three interdepartmental committees on election security were formed almost a year before the scheduled start of the 2019 and 2021 general elections. The agencies and departments that served on the interdepartmental committees were:

The Deputy Ministers’ Coordination Committee on Election Security

This committee, on which the CCE has served, guides the actions of departments and agencies to ensure collaboration and to coordinate preparatory work related to election security. In addition to the CCE’s participation, the membership of the Deputy Ministers’ Committee included those individuals who held the equivalent positions of Deputy Ministers for the departments and agencies named above. In preparation for the general election, the Deputy Ministers’ Coordination Committee met quarterly. The committee did not meet during the election period for the 2021 general election.

The Assistant Deputy Ministers’ Steering Committee on Election Security

This committee, on which the Deputy Commissioner has served, also provides guidance for departments and agencies to act collaboratively and to ensure a state of readiness with respect to election security. In addition to the Deputy Commissioner’s participation, the membership of the Assistant Deputy Ministers’ Committee included those individuals who held the equivalent positions of Assistant Deputy Ministers for the departments and agencies named above. In preparation for the general election, the Assistant Deputy Ministers’ Steering Committee met monthly. During the election period for the 2021 general election, the committee joined the Directors General Committee (see below) for a weekly meeting each Friday.

The Directors General Committee on Election Security

This committee was responsible for developing many of the processes and preparation tools to ensure election security. For the purposes of the preparation exercise leading up to the 2021 general election, the OCCE’s Director of Legal Services sat on this committee. In addition to the participation of the OCCE’s Director of Legal Services, the membership of the Directors General Committee included those individuals who held the equivalent positions of Directors General for the departments and agencies mentioned above. In preparation for the general election, the Assistant Deputy Ministers’ Steering Committee met monthly. During the election period for the 2021 general election, the Directors General Committee met briefly on Mondays and Wednesdays, and jointly with the Assistant Deputy Ministers on Fridays.

Panel of 5

Since the Caretaker Convention of the “transition period” during an election period requires that Ministers exercise restraint, a process has been established by the government to warn Canadians of any undue attempts to influence their vote during an election period. This means that a group of five deputy ministers, including the Clerk of the Privy Council, would potentially intervene by issuing a public notice if a serious threat to election integrity had been identified by the heads of the national security agencies (including CSIS, TBS, GAC, and RCMP). The threshold for such an intervention requires a very serious threat that cannot be addressed by any other means (e.g., by the intervention of the interdepartmental committees mentioned above).

The Panel of 5 did not intervene or issue a public notice in the 2019 and 2021 general elections.

3.7 Status of Investigative Body

For the purposes of section 8(2)(e) of the Privacy Act (PA)

Subsection 8(1) of the PA provides that personal information under the control of a government institution shall not be disclosed without the consent of the individual to whom the personal information relates. One of the exceptions in subsection 8(2) of the PA allows institutions to disclose to a government institution with investigative body status personal information required in the course of an investigation that they would not otherwise be permitted to disclose to the institution. Section 8(2)(e) provides that, subject to any other Act of Parliament, a government institution may disclose personal information to a prescribed investigative body, on written request, for the purpose of enforcing any law of Canada or a province or for the purpose of carrying out a lawful investigation, provided that the request specifies the nature of the information requested and the purpose for which it is to be used.13

The Privacy Regulations (Regulations) refer to those government institutions or divisions thereof that are investigative bodies for the purposes of section 8(2)(e) of the PA. The Commissioner of Canada Elections’ Investigations Division had achieved this status in 2015, at which time the OCCE was part of the Office of the Director of Public Prosecutions. This status was continued when the OCCE was administratively placed within the Office of the Chief Electoral Officer. As a result of a recent organizational review of the OCCE, the “Investigations Division” has been renamed the “Enforcement Directorate”, and now includes two new units: the Paralegal Unit and the Analytical Services Unit.

When an investigative body changes its name, an amendment to the Regulations is required. As a result, the OCCE recently applied to the Department of Justice to have the name of the designated agency changed to “Enforcement Directorate”. This change is required in order to allow our investigators, paralegals and analysts to make requests to other government departments (for example, to Immigration, Refugees and Citizenship Canada in cases of potential illegal voting, where evidence is required that a person who voted was not a citizen at the time of voting).

The OCCE is currently awaiting a response to its request for a change to the Regulations.

For other purposes under the PA and the Access to Information Act (ATIA)

It is also important to note that the OCCE is not an investigative body for the purposes of section 22(1)(a) of the PA and section 16(1)(a) of the ATIA. These provisions allow a government institution that is designated as an investigative body specifically for the purposes of these provisions to refuse to disclose investigative information that is under twenty years old.

In his 2022 Recommendations Report, the outgoing Commissioner recommended that the Canada Elections Act (the Act) be amended to fully achieve the confidentiality objective of section 510.1 of the Act. The recommendation therefore proposes to give the CEO the authority to refuse to disclose information that is obtained or prepared by the CCE or a person acting on his or her behalf in the course of an investigation, review, or AMP review process, and that is under twenty years old.

3.8 Chief Electoral Officer’s Written Opinions, Guidelines and Interpretation Notes (OGIs): Role of the CCE and Internal Processes

Guidelines and Interpretation Notes

Under section 16.1 of the Act, the Chief Electoral Officer (CEO) is required to issue guidelines and interpretation notes (interpretation instruments) concerning the application of the Act to registered parties, registered associations, nomination contestants, candidates and leadership contestants (regulated political entities).

The interpretation instruments take the form of:

Written opinions

Section 16.2 of the Act requires the CEO to issue written opinions on the application of any provision of the Act to an activity or practice that a registered party, registered association, nomination contestant, candidate or leadership contestant of a registered party proposes to engage in.

The role of the CCE and the Internal Process

Informal discussions are often held between the group responsible for the development of the OGIs at Elections Canada and members of the Commissioner’s Legal Services team in order to ensure consistency between the two offices’ interpretations of the provisions of the Act as much as possible before a draft OGI is distributed for the formal consultation period. Legal Services notifies the Commissioner of any requests for informal discussions and seeks his or her feedback regarding the preferred interpretation.

Given these informal discussions, the draft circulated by the CEO in the context of the official consultation frequently meets the Commissioner’s expectations. In such a case, Legal Services will notify the OGI group at Elections Canada, within the time frame provided in the Act, that the OCCE agrees with the OGI.

However, if the OCCE has an interpretation of the provision of the Act that differs from that proposed by the CEO, or if the CCE wishes to suggest an improvement to the text, Legal Services will communicate these comments to Elections Canada’s OGI team, and these comments will be considered by the CEO when finalizing the text of the notice. In addition, when the final OGI is published in the registry on Elections Canada’s website, comments that were received from the OCCE or registered parties during the formal consultation period will also be included in the registry, with a response from Elections Canada to each comment received.

The OGI Registry is available at:

https://www.elections.ca/content.aspx?section=res&dir=gui/reg&document=index&lang=e

Notes

1Section 509.2 of the Act.

2Subsection 3(8) of the Director of Public Prosecutions Act, S.C. 2006, c. 9.

3Subsection 512(1) of the Act.

4Subsection 511(1) of the Act.

5Subsection 511(2) of the Act.

6Sections 348.02 to 348.09 of the Act.

7Subsection 348.1(1) of the Act.

8Subsection 348.1(2) of the Act and s. 72.001 of the Telecommunications Act, S.C. 1993, c. 38.

9Sections 348.16 to 348.19 of the Act. Offences under these provisions are set out in ss. 495.1 and 495.2 of the Act.

10Section 508.1 of the Act which defines contraventions for which the CCE may impose an administrative monetary penalty does not cover the provisions contained in Division 2 of Part 16.1 of the Act.

11Section 348.15 of the Act.

12Section 510.1 of the Act.

13Note that even where a lawful investigation is underway, if the nature of the personal information requested is such that there is a reasonable expectation of privacy, a production order will be required to obtain the personal information. Failure to do so may result in a breach of rights under section 8 of the Canadian Charter of Rights and Freedoms.

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