Enforcing the Canada Elections Act
The Commissioner of Canada Elections
The Commissioner of Canada Elections is the independent officer whose duty
is to ensure that the Canada
Elections Act is complied with and enforced. The Chief Electoral Officer
of Canada appoints the Commissioner under section 509 of the Act.
The current Commissioner, Raymond A. Landry, C.M., was appointed in April 1992.
History
The Election Expenses Act of 1974, 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
responsibilities were extended to cover all provisions of the Canada
Elections Act.
Role of the Commissioner
Generally speaking, the compliance aspect of the Commissioner's role involves
taking corrective action when the law is infringed. One aspect, for example,
is ensuring that registered political parties, electoral district associations,
leadership contestants, nomination contestants, candidates, and all their agents
fulfill their obligations under the Act. These obligations include submitting
financial returns and other documents by the deadlines specified in the Act.
Anyone with a complaint or allegation of wrongdoing should refer it to the
Commissioner. A review is made of each one to determine whether there is a basis
for the allegation. When satisfied that there is substance to the complaint,
the Commissioner may order an investigation. If the Chief Electoral Officer
has reasonable grounds to believe that an election officer may have committed
an offence, the Chief Electoral Officer directs the Commissioner to make the
inquiries that appear to be called for in the circumstances. The Commissioner
retains the services of resource persons at the Ottawa office and across the
country to assist in the exercise of his statutory mandate and to deal promptly
with acts or omissions contrary to the Act.
During an election period, if there is evidence leading the Commissioner to
believe that a serious breach of the Act may compromise the fairness of the
electoral process, the Commissioner may, taking into consideration the public
interest, apply to a court for an injunction ordering the person in question
to comply with the law. The Commissioner may also conclude a compliance agreement
with anyone the Commissioner has reasonable grounds to believe has committed,
is about to commit or is likely to commit an offence. This is a voluntary agreement
between the Commissioner and the person, in which the person agrees to terms
and conditions necessary to ensure compliance with the Act. The Commissioner
makes a summary of the compliance agreement public.
After giving a registered party a reasonable opportunity to clarify its fundamental
purposes, the Commissioner may also ask a court to order the deregistration
of that party if the Commissioner has reasonable grounds to suspect that the
party does not have as one of its fundamental purposes to participate in public
affairs by endorsing one or more of its members as candidates and supporting
their election.
When prosecution is authorized
If the Commissioner believes on reasonable grounds that an offence under the
Act has been committed, and that the public interest justifies it, the Commissioner
may institute a prosecution or cause one to be instituted.
The Commissioner must consent to prosecutions under the Act. The Commissioner
consents to a prosecution only when satisfied that the evidence demonstrates
a reasonable prospect of conviction, and that the public interest requires the
prosecution. Once the Commissioner authorizes a prosecution, charges are filed
in a court of competent jurisdiction.
A prosecution for an offence must be instituted within 18 months after the
day on which the Commissioner became aware of the facts giving rise to the prosecution,
and not later than seven years after the day on which the offence was committed.
Types of offences
Sections
480 to 499 of the Act list the offence provisions, categorized according
to whether intent is required, and the burden of proof required to prosecute
them. Offences include:
- illegally attempting to influence the vote of an elector or the results
of an election
- illegally hampering or delaying the electoral process
- contravening the limits and obligations set out for contributions and expenses,
including circumventing, attempting to circumvent or colluding in circumventing
the rules for ineligible contributors, for concealing a contributor's identity
and for contribution limits
- contravening the limits and obligations set out for third-party election
advertising
- publishing the results of an election opinion poll during the blackout period
or without the accompanying information required by the Act
- election advertising during the blackout period
- prematurely publishing election results
- partisan action by an election officer
- using personal information from a voters list or from the National Register
of Electors for unauthorized purposes
- acting as an officer of a registered political party while knowing that
the party does not include participating in public affairs among its essential
objectives
- as a party leader, certifying a declaration or report while knowing that
the document contains false or misleading information
- accepting or soliciting contributions for a political entity while representing
to the contributor that part or all of the contribution could be transferred
to some person or entity other than the registered party, candidate, leadership
contestant or electoral district association
Penalties
When the Commissioner authorizes the laying of a charge, a decision is made
whether to proceed by way of summary conviction or indictment. These are different
criminal processes that relate for the most part to the procedure to be followed
before the courts. The choice depends on the seriousness of the offence and
will affect the nature of the penalty in the event of a conviction.
If a judge finds a person guilty of an offence, the person may receive a fine
or a period of imprisonment, or both. The court may also impose additional penalties,
such as:
- performing community service
- performing the obligation that gave rise to the offence
- compensating for damages, or any other reasonable measure the court considers
appropriate, and
- a fine of up to five times the election advertising expenses limit exceeded
by a third party
- with respect to certain offences, order the deregistration of a party and
liquidation of its assets, and the liquidation of the assets of the party's
registered associations
The Act stipulates that certain offences are illegal practices (such as taking
a false oath) or corrupt practices (such as offering a bribe). In addition to
any other penalty that may be imposed, a person found guilty of one of these
offences loses the right to be a candidate in a federal election, to sit as
a member in the House of Commons, and to hold any office to which the incumbent
is appointed by the Crown or by Governor in Council – for five years in the
case of an illegal act, and for seven years in the case of corrupt practices.
For more information, please contact:
Elections Canada
257 Slater Street
Ottawa, Ontario
K1A 0M6
Telephone
1 800 463-6868
toll-free in Canada and the United States
001 800 514-6868
toll-free in Mexico
(613) 993-2975
from anywhere in the world
For people who are deaf or hard of hearing:
TTY 1 800 361-8935
toll-free in Canada and the United States
Fax
(613) 954-8584
1 888 524-1444
toll-free in Canada and the United States
This publication is available in alternative formats.
May 2004
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