Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts (short title: Fair Elections Act) was introduced in the House of Commons by the Minister of State (Democratic Reform), the Honourable Pierre Poilievre, and received first reading on 4 February 2014.
The bill proposes various amendments to numerous aspects of the Canada Elections Act (CEA),1 along with related amendments to various statutes, such as the Telecommunications Act (TA),2 the Electoral Boundaries Readjustment Act,3 and the Director of Public Prosecutions Act.4 The amendments relate to the office of the Chief Electoral Officer of Canada (CEO), preparation for the vote, voting procedures, communications with electors, campaign financing, enforcement and prohibitions and the office of the Commissioner of Canada Elections, among other matters.
The changes proposed in the bill derive from a number of sources. They are, in part, a response by the government to a series of recommendations proposed by the CEO in his report to Parliament following the 40th federal general election.5 The House of Commons Standing Committee on Procedure and House Affairs (the Committee) supported many of the recommendations in its study of the report during the 1st Session of the 41st Parliament.6 Other amendments contained in the bill respond to reports prepared for or by Elections Canada which address concerns about irregularities in voting procedures and allegations of deceptive and unlawful voter contact practices during the 41st general election.7 These reports include Preventing Deceptive Communications with Electors: Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election,8 and Compliance Review: Final Report and Recommendations.9
Some of the amendments proposed in the bill also formed part of other proposed legislation:
Finally, a number of amendments are government initiatives.
The CEA gives the CEO considerable security of tenure. He or she is responsible to Parliament, rather than to the government; holds office until the age of 65; and can be removed only for cause and only by the Governor General upon a joint address of the Senate and the House of Commons.
Clause 3 limits the CEO’s tenure to a 10-year term by amending section 13 of the CEA. Clause 127 is a transitional provision which states that the current CEO may continue to hold office until the age of 65. As a result of amendments made at the House of Commons committee stage, CEOs who have served in that position cannot be reappointed (new section 13(2)).
As discussed in section 2.4.3.4 of this Legislative Summary, the CEO will not have the authority to administer the new provisions regarding voter contact calling services (clause 76). Pursuant to new section 348.1, the Canadian Radio-television and Telecommunications Commission will be responsible for the administration and enforcement of these provisions.
Clause 5 of the bill adds a series of provisions to the CEA requiring the CEO to issue to the various political entities whose electoral activities are regulated by the amended CEA non-binding guidelines and interpretation notes on the application of the legislation. The CEO is also required to provide binding written opinions on the application of the CEA at the request of registered political parties.
New section 16.1 requires the CEO to issue non-binding guidelines and interpretation notes regarding the application of the CEA to registered political parties, registered associations, nomination contestants, candidates and leadership contestants.10 The obligation to issue these notes can arise from two sources: the CEO’s own initiative (new section 16.1(1)) or the application of the chief agents11 of registered political parties (new section 16.1(2)). Chief agents of political parties may request the CEO’s guideline or interpretation on the application of any provision of the CEA to registered parties, registered associations, nomination contestants, candidates and leadership contestants (new section 16.1(2)). A new body, the Advisory Committee of Political Parties (discussed in section 2.1.3.4 of this Legislative Summary), is to be consulted before the issuance of any guideline or interpretation note (new section 16.1(3)).
As a result of amendments made at the House of Commons committee stage, the Commissioner must also be consulted before the issuance of any guideline or interpretation note. The Commissioner and the Advisory Committee have 15 days to provide written comments.
It appears that only registered political parties (through their chief agents) have the right to submit an application to the CEO under new section 16.1(2).
New section 16.2(1) will enable chief agents of registered political parties to require the CEO to issue an opinion on an activity or practice that the party or its registered associations, candidates, nomination contestants or leadership contestants propose to engage in. The Advisory Committee of Political Parties (discussed in section 2.1.3.4 of this Legislative Summary) is to be consulted in preparing an opinion (new section 16.2(2)).
As a result of an amendment made at the House of Commons committee stage, the Commissioner must be provided with the proposed opinion. Prior to this amendment, only members of the Advisory Committee were to be given the proposed opinion. Those members and the Commissioner have 15 days to provide written responses (compared with the original period of 30 days).
The bill originally provided that if the material facts provided to the CEO in the application are complete and accurate, the opinion is binding on the CEO and the Commissioner for as long as the facts remain substantially unchanged and the practice is carried out substantially as proposed (new section 16.2(6)).
Amendments made at the House of Commons committee stage narrow the effect of an opinion, so that an opinion is only binding with respect to the activity or practice of the party (or its registered associations, candidates, nomination contestants or leadership contestants) in question. Otherwise, for other purposes, the opinion is not binding on the CEO and the Commissioner, but it has precedential value for them until a contrary interpretation is issued by means of a guideline, an interpretation note or an opinion (new sections 16.2(7) and 16.2(8)).
Therefore, it appears that if, in an opinion, the CEO approves of the activity or practice, the registered party will be able to rely on the CEO’s opinion and engage in that activity or practice, provided that the material facts presented to the CEO are accurate and continue to be so.
Opinions may be superseded by a subsequent contrary guideline, interpretation note, or opinion issued by the CEO. The superseding interpretation becomes binding on the date it is issued (new section 16.3).
At the House of Commons committee stage, clause 5.1 (new section 16.5) was added. This new provision states that the CEO may disclose any document or information obtained under the CEA to the Commissioner, if the CEO considers that it would be useful to the Commissioner in the exercise of his or her powers, duties and functions. The Commissioner may also require the CEO to disclose documents or information obtained under the CEA if the Commissioner believes that it is necessary for the exercise or performance of his or her powers, duties and functions.
An amendment to clause 117 (new section 540(4.1)) at the House of Commons committee stage enables the CEO to share information contained in the Register of Electors with the Commissioner to enable the Commissioner to exercise his or her powers, and to perform his functions and duties under the CEA.12
Clause 11 adds new section 21.1 to the CEA and establishes an Advisory Committee of Political Parties. The Advisory Committee is comprised of the CEO and two representatives of each registered political party (new section 21.1(1)).13 It is to meet at least once a year, and the CEO is to preside over the meetings (new section 21.1(4)).
This provision does not differentiate between parties of different sizes. Each registered party is entitled to appoint two members to the Advisory Committee. There are currently 17 registered political parties in Canada.14 Assuming this number does not vary, the Advisory Committee will have 35 members, including the CEO.
According to new section 21.1(2), the purpose of this committee is to provide the CEO with advice and recommendations relating to elections and political financing. The Advisory Committee’s advice and recommendations are non-binding on the CEO (new section 21.1(3)).
Before the CEO issues any guideline, interpretation note or opinion, it must be posted for 30 days on the CEO’s website (new sections 16.1(5) and 16.2(4)). This step provides notice to affected parties before the guideline, interpretation note or opinion takes effect.
Where the CEO is responding to an application from a political party under new sections 16.1 and 16.2, the CEO must pre-publish her or his response. The bill originally stipulated that the response be published within 45 days of the application, or if there is overlap with a general election, 45 days after polling day for that election (new sections 16.1(6) and 16.2(4)).15 Amendments at House of Commons committee stage extend the time within which the CEO must pre publish his or her response. The CEO now must pre-publish a response in 60 days instead of 45.
New section 16.4 requires that the CEO establish and maintain a registry on the CEO’s website. This registry contains all guidelines, interpretation notes and opinions issued by the CEO and all of the Commissioner's comments.
New sections 16.1(7) and 16.2(5) provide that once the pre-publication period has expired, the CEO is to register the guideline, interpretation note or opinion in the registry. The guideline, interpretation note or opinion is then considered “issued” by the CEO.
Section 17(1) of the CEA provides that, during an election period or within 30 days after it, the CEO may adapt any provision of the CEA if an emergency, an unusual or unforeseen circumstance or an error makes it necessary. Clause 6 of the bill amends section 17(1) of the CEA to limit the CEO’s power to adapt the CEA “for the sole purpose of enabling electors to exercise their right to vote or enabling the counting of votes.” 16
A restriction in section 17(2) is also deleted by clause 6. The CEO currently cannot extend the hours during which a returning officer may receive nomination papers. The CEO may now use the adaptation power to do so.
Clause 7 replaces section 18 of the CEA. The current section authorizes the CEO to implement public education and information programs “to make the electoral process better known,” particularly for disadvantaged groups. In particular, section 18 provides that these programs can be aimed at persons or groups who are most likely to experience difficulties in exercising their democratic rights. Similarly, section 18(2) enables the CEO to use any form of media to disseminate information broadly on any aspect of the electoral process, the democratic right to vote and how to become a candidate.
New section 18(1) provides that the CEO’s power to educate is limited to electoral processes, such as how to vote, how to become a candidate, how to be included on a voters’ list, the identification requirements for voting and measures for assisting voters with disabilities. The reference to persons or groups who are most likely to experience difficulties in exercising their democratic rights is removed from the CEA.
At the House of Commons committee stage, new section 17.1 was added, and new section 18 was amended. The CEO’s power to educate is now limited as follows:
The CEO must ensure that any communications with electors under this section are accessible to persons with disabilities (new section 18(2)). In addition, the CEO cannot communicate with electors by way of unsolicited automated calls (new section 18(3)).
Clause 8 grants the CEO broader powers to implement pilot projects on alternative voting processes (new section 18.1).The CEO recommended broadening his powers to allow pilot projects to test potential improvements to the voting system. The Committee agreed to the recommendations, and required that the CEO report to the Committee on pilot projects.19
Current section 18.1 allows the CEO to carry out studies on alternative voting means, and devise and test electronic voting processes with the approval of the committees of the Senate and House of Commons that normally consider electoral matters. Under new section 18.1, alternative voting processes may not be used for an official vote without prior approval of both committees. With respect to alternative electronic voting, prior approval of the Senate and the House of Commons is required before the process may be used for an official vote.20
New section 18.3 (clause 9) grants the CEO the authority to establish how a requirement in the CEA for a signature may be satisfied. The issue of electronic signatures was considered by the Committee in response to the CEO’s 2010 recommendation to enable Elections Canada to implement a system of electronic signatures for various kinds of documents that participants in the electoral process are required to provide (party leader’s endorsement and candidate’s consent to be nominated for an election, among other documents).21 The Committee supported the recommendation with a companion recommendation requiring the CEO to report to the Speaker of the House of Commons regarding how the requirement for a signature might be satisfied (clauses 115 and 116).22
Clause 10 of the bill divides section 20 into two subsections:
Clause 10 appears to respond to a recommendation from the CEO following the 38th general election that section 20 be divided into two sections.23 He recommended that the employees dealt with in the first part of the provision be hired from outside the scope of the PSEA while the second group of employees would be subject to the provisions of the PSEA dealing with casual and temporary employees. With respect to the latter, it may be noted that such employees were already subject to the PSEA, which had been amended in 2007 with the enactment of Bill C-31, An Act to amend the Canada Elections Act and the Public Service Employment Act.24 This amendment made an exception to the length of time that casual employees may work for a particular government department or organization (90 days per calendar year) for Elections Canada’s casual or temporary workers, extending that period to 165 days.25
The amendment to section 20 creates two groups of temporary employees subject to different employment rules: the first group would not be subject to the limitation imposed by the PSEA on temporary employees, while the second would continue to be subject to those limitations.
Clause 145 adds the CEO to the definitions of “public office holder” and “reporting public office holder” set out in section 2(1) of the Conflict of Interest Act (CIA).26 Under the CIA, public office holders are required to avoid conflicts of interest, and recuse themselves in the event of a conflict. They may also not act in a manner that takes improper advantage of their office after their term ends.
Reporting public office holders are generally prohibited from engaging in commercial activities and from holding specific types of assets. They are also required to disclose their assets, make public declarations of conflicts of interest after a recusal, and declare some types of gifts. They must divest themselves of specific types of assets. Reporting officers are prohibited, for a specified amount of time after they leave office, from working for any entity with which they had had significant official dealings.
These related requirements and prohibitions now apply to the CEO.
Part 21 of the CEA prescribes the various reports that the CEO must prepare for the Speaker of the House of Commons and for public dissemination. It also deals with a variety of responsibilities of the CEO, such as the payment of election expenses.27
Section 533 requires the CEO to prepare a report following each general election and by-election. Clause 112 requires that the CEO provide additional information, setting out the number of names added to or deleted from the official list of electors, as well as the number of corrections made to the list. The information is to be provided for each polling division.
As a result of an amendment at the House of Commons committee stage, the CEO is required to also report on the conclusions of the auditor engaged under new section 164.1 to perform an audit and report on whether deputy returning officers, poll clerks and registration officers have properly exercised their powers and duties under the voter identification provisions of the CEA. (See section 2.3.5 of this Legislative Summary.)
For each general election and by-election, the CEO must provide a report to the Speaker of the House of Commons on any measures taken under his or her adaptation power in section 17 and any matters in relation to the office of the Commissioner of Canada Elections as set out in sections 509 to 513, since the issuance of the writ. The CEO may also report on any matter that he or she determines should be brought to the Speaker’s attention since the last report (current section 534).
Section 534 is amended to provide that the CEO must also report on any measures taken or proposed to improve the accuracy of the lists of electors. In addition, references to the provisions governing the Commissioner of Canada Elections are removed.28
In 2010, the CEO recommended a series of amendments to authorize the CEO to set the amount that may be paid for goods and services not covered by the Federal Elections Fees Tariff and that are required for an election; he also recommended amendments to authorize any additional sums the CEO considers fair and reasonable. In addition, he recommended that the Treasury Board’s Travel Directive be directly incorporated in the CEA.29 These changes would enable the adjustment of the amounts paid to elections workers where there are unforeseen expenses for these workers. Thus, clause 119 amends section 542 to grant the authorization sought by the CEO. A related amendment (clause 121) repeals section 545, which required Governor in Council approval for the payment of additional sums.
Currently, all expenses relating to the conduct of an election are paid by way of cheque from the Receiver General. Clause 120, amending section 543, enables electronic payments.
Clause 124 amends section 554(2) of the Act to require, upon the coming into force of any amendment to the legislation, that the CEO publish a consolidated version of the CEA on the Elections Canada website.
Clause 136 of the bill amends the Electoral Boundaries Readjustment Act to add a provision (section 28.1) which states that the CEO may, despite any other Act of Parliament, provide a variety of administrative support services (listed in the section) to commissions to assist them in performing their duties under the CEA.
This group of amendments affects Parts 3 to 8 of the CEA, which deal with election officers (Part 3), the Register of Electors (Part 4), the conduct of an election (Part 5), candidates (Part 6), revision of lists of electors (Part 7) and preparation for the vote (Part 8). The amendments cover such matters as the appointment of various election officers, the lists of electors available to political parties, and notification of the locations of polling stations.30
Amendments to the CEA will enable the CEO to establish a new category of election officer: the field liaison officer (clauses 12 and 13, amending sections 22 and 23). The CEO may appoint field liaison officers, specify their qualifications, determine the term of appointment, and remove them from office. The responsibilities of field liaison officers include (clause 13):
Another amendment will allow returning officers, with the approval of the CEO, to appoint additional election officers necessary for the conduct of the vote or the counting of the votes (clause 17, new section 32.1).31
Clauses 18 to 22 are amendments concerning the appointment of deputy returning officers (section 34), poll clerks (section 35), and registration officers (section 39).
Currently, the CEA places the responsibility for supplying lists of names of suitable persons to assume these positions on the candidates that finished first and/or second in the previous election.
The CEO’s report following the 40th general election noted the difficulty Elections Canada has had in obtaining from candidates the names of suitable persons to be appointed to these positions. In light of these difficulties, both the CEO and the Committee recommended that amendments be made to partly relieve candidates of the burden of providing such lists.33
Clauses 18 to 22 address these recommendations and introduce amendments to permit the returning officers to contact the appropriate party’s registered association or the registered party for such lists, in addition to candidates (clauses 18 and 19). The bill originally provided that the selection process for central poll supervisors (original clause 44) would be the same as the process for deputy returning officers, poll clerks and registration officers. As a result of amendments made at the House of Commons committee stage, clause 44 was deleted, with the effect that the current process for the appointment of central poll supervisors will remain in place.
Clauses 20 and 21 address another recommendation made by the CEO and the Committee:34 they tighten the deadline within which such lists must be submitted. The bill requires that lists must be submitted within 24 days of polling day, as opposed to the current 17 (sections 36 and 39 of the CEA).35
Sections 24 to 31 set out the provisions of the CEA that govern the positions of returning officers, including the appointment and removal process and their duties and functions. They are responsible, under the general direction of the CEO, for preparing and conducting an election in the electoral district for which they have been appointed.
Pursuant to section 24(6) of the CEA, returning officers are prohibited from engaging in certain partisan activities while in office, such as making campaign contributions, becoming a member of or working for a political party or a registered electoral district association.36 The current CEA, however, does not list unregistered associations as one of the entities which a returning officer is prohibited from joining. Clause 14 of the bill addresses this omission.37
The CEO can remove a returning officer under certain grounds, as set out in section 24(7) of the CEA.38 The CEA, however, does not explicitly give the CEO authority to suspend a returning officer. Clause 14 of the bill (new sections 24(8) and 24(9)) allows the CEO to suspend returning officers for the same reasons set out in section 24(7) and establishes the duration of suspensions. Clause 16(1) gives the CEO the power to designate a person to act in the place of a suspended returning officer (new section 28(3.01)).
Section 27 of the CEA enables a returning officer, with the CEO’s prior approval, to delegate many of his or her functions to other election officials working under his or her direction, with several listed exceptions (section 57). Clause 15 amends section 27, removing the reference to section 57 and thus enabling a returning officer to delegate his duties in relation to election writs.
Section 64 of the CEA provides that, when there is more than one candidate nominated in an electoral district, the returning officer must post, within five days of the closing day for nomination, a notice of grant of a poll. This notice contains information on the candidates such as their names, addresses and political affiliations. Clause 24 amends sections 64(2)(a) and 64(2)(b) of the CEA by removing the requirement to include a candidate’s address and the address of his or her official agent in a notice of grant of a poll.
Clause 26 corrects a discrepancy between the English and French versions of the CEA dealing with candidates’ nicknames. The English version of section 66(2)(b) permits a candidate to replace “one or more given names” with a nickname. Clause 26 changes the French “le ou les prénoms” to “un ou plusieurs des prénoms” to accord with the English phrasing.40
The CEA currently does not permit the preliminary lists of electors approved for a by election that has been superseded by a general election to be used in the general election. Clause 33 amends section 96 of the Act to facilitate this use. This amendment is in accordance with amendments recommended by the CEO.42
Section 101 prescribes the contents of the registration form for electors who wish to have their names added to the preliminary list of electors, typically on polling day. Clause 35 adds the requirement that the elector state on the registration form that he or she is qualified as an elector.43
Section 106 requires that the official, or final, list of electors for each polling division be prepared on the third day before polling day. Clause 36 enables the preparation of the official list of electors after the seventh day before polling day, but no later than the third day before polling day.
Clause 37 addresses a concern expressed by the Privacy Commissioner in her 2009 report, Privacy Management Frameworks of Selected Federal Institutions,44 about the inclusion of electors’ dates of birth on the lists of electors used by election officials on polling days. Sections 107(2) and 107(3) of the CEA are amended by replacing “date of birth” with “year of birth.” This amendment was recommended by the Committee.45
Section 110(1) of the CEA restricts the purposes for which lists of electors may be used by registered parties. No restrictions currently apply to electronic lists (section 93(1.1)); clause 38 brings electronic lists within the scope of section 110.46
Clause 39(1) amends section 111 of the CEA to prohibit compelling, inducing or attempting to compel or induce any person to make a false or misleading statement relating to a person’s qualification as an elector, for the purposes of inclusion on a list of electors.
Clause 39(2) amends section 111(f)(i) to subject “eligible parties”47 to the prohibitions described in this section on the use of personal information contained in the lists of electors received by parties.48
Clause 41 amends section 119(1)(g) to ensure that deputy returning officers are provided with a ballot box for polling day and a separate ballot box for each day of advance polling.49 (See also new Schedule 4 [new judicial recount procedures] and clause 60(6) related to custody of ballot boxes, discussed in section 2.3 of this Legislative Summary.)
The amended CEA requires the returning officer, on or before the fifth day before polling day, to send out a notice to electors if there is a change in the address of a polling station (clause 32, amending section 95).
Clause 42 amends section 123(2) of the CEA by decreasing the number of polling stations that a returning officer may group in a central polling place without the CEO’s approval from 15 to 10.
The bill (clause 43) proposes a number of new provisions to deal with the manner in which returning officers are to communicate to candidates and parties about the location of polling stations and any changes to their location.
New section 125.1 of the CEA will require that returning officers inform candidates and registered political parties of the addresses of all polling stations in the electoral district by the later of the 24th day before polling day or the day on which the candidate’s nomination is confirmed. The provision also sets out how changes in any of the addresses of polling stations are to be communicated.
The CEA contains a list of persons who are entitled to be present at a polling station on polling day (section 135(1)). Absent from this list are persons representing the media. Since unfettered media access to polling stations may impinge on certain voters’ rights under the CEA (such as the right to unimpeded access to a polling station and the right to cast a ballot in secrecy), Elections Canada has in place a policy that journalists cannot enter a polling station, but may film from its doorway provided they do not create a disturbance for electors.
Recently, questions have arisen as to whether this prohibition on media access to polling stations is inconsistent with the right to freedom of the press under the Canadian Charter of Rights and Freedoms.
During the 40th general election, the CEO granted the media access, on a trial basis, at polling stations while party leaders and candidates opposing them were casting their ballots. As recommended by the CEO and supported by the Committee,50 the amended CEA expressly permits any media representative who is authorized in writing by the CEO – subject to any condition the CEO considers necessary to protect the integrity of the vote and the privacy of any elector – to be present at a polling station of an electoral district in which a leader is a candidate (new section 135(1)(h)). Additional election officers appointed under new section 32.1 will also have access to polling stations.
Candidates appoint a limited number of representatives to go from one polling site to the next in an electoral district to observe polling operations (section 136 of the CEA). The CEO and the Committee recommended51 that a candidate’s representative need only be sworn in once by the central poll supervisor or by a deputy returning officer and subsequently show a document proving that the oath has been taken, in order to move freely between polling stations. In addition, the CEO and the Committee recommended that the representative be able to move freely between polling stations in the same polling place before or during the counting of the votes, but should a representative leave the polling place after the counting of votes has begun, he or she would not be readmitted. Clauses 44 and 45 give effect to these recommendations.
Clause 45(2) replaces section 136(4) to allow a representative to use a communications device at a polling station provided it does not impede any elector from voting or violate the secrecy of the vote. It also adds that a representative cannot take a photograph or make any audio or video recording at a polling station.
The majority of electors seeking to vote on election day are already registered at their correct address and upon presenting themselves at their designated polling station, they have their identity and address confirmed with a piece or pieces of identification to allow them to vote.52
Individuals who do not possess acceptable identification at the time of voting must undergo an exceptional procedure prescribed in legislation and administered by election officers in order to vote.53 This procedure is known as vouching, a process by which an elector may prove his or her identity and residence by taking an oath, and being accompanied by an elector whose name appears on the list of electors for the same polling division who has the required identification and who vouches for him or her on oath.
Vouching as a mechanism to prove an elector’s identity for voting under section 143 of the CEA has been replaced with attestation to residence through various amendments to the Act.
Amendments were made at the House of Commons committee stage to add a new process that allows electors who have established their identity (but not their residence) through two authorized identification pieces to establish their residence by taking a prescribed oath in writing.
In order to take this written oath, the elector must receive oral advice from the election official administering the oath as to the qualifications for electors, and the penalty that may be imposed under the Act for being found guilty of voting, or attempting to vote, knowing he or she is not qualified as an elector, or for taking a false oath (new section 143.1(1)).
As a result of amendments at the House of Commons committee stage, electors seeking to establish their residence by taking an oath must also be accompanied by another elector whose name appears on the list of electors for the same polling division. This other elector must have proved his or her identity to the deputy returning officer and the poll clerk by using either one piece of identification containing a photograph and the name and address of the elector, or by using two pieces of identification, each of which establishes his or her name, and one of which establishes his or her address (clauses 46(4) and 46(5)).
The other elector must also attest to the residence of the elector who lacks sufficient acceptable identification in a prescribed oath in writing. Prior to being administered the oath, he or she must receive oral advice from the election official administering the oath, as set out in new section 143.1(2), regarding the penalties for electors found guilty of taking a false oath or of the contraventions set out in new clause 46(6): no elector can attest to the residence of more than one elector at an election, and no elector who has had his or her residence attested to may attest to another’s residence at that election.
The written oath must include statements affirming that:
The amended CEA specifies that voter information cards cannot be authorized by the CEO as a type of identification used by an elector whose name and address appear on the list of electors and who is seeking to establish his or her identity and residence (amended section 143(2.1)).
Section 147 of the CEA provides that a person asking for a ballot at a polling station after someone else has voted under his or her name, will not be permitted to vote unless that person takes an oath. This provision will now require that the oath be taken in writing (currently the oath is taken orally). The oath is to be on a form which must indicate the penalty that may be imposed on the elector if he or she were to be found guilty of applying to receive a second ballot.
Similarly, section 148 of the Act is amended to provide that an elector who claims that his or her name was crossed off an official list of electors in error will not be permitted to vote unless either the returning officer verifies that the elector’s name was crossed off in error or the elector takes the oath in writing referred to in section 147.
Currently, an elector whose name is not on the revised list of electors may register in person on election day by taking an oath and being vouched for by another elector. The other elector must appear on the list of electors in the same polling division as the unregistered elector and must have the approved pieces of identification. The elector must also vouch for the unregistered elector on oath and in the prescribed form, which must include a statement as to the residence of both electors.
The bill amends section 161(1) of the CEA, removing vouching as a mechanism for an elector to register in person on election day.54 Amendments were made at the House of Commons committee stage to add a new process to allow electors whose names do not appear on the revised list of electors to register on election day, provided they have established their identity by using two authorized pieces of identification. They may establish their residence using the attestation process described in section 2.3.3.1 of this Legislative Summary (clauses 50(1), 50(5) and 51).
In cases where an elector seeks to register in person on election day, the Act sets out that a registration officer shall permit one representative of each candidate in the electoral district to be present (section 161(3)). The bill adds to this section, granting permission to the representative to examine, but not handle, any piece of identification provided by the elector.
If an unregistered elector satisfies the requirements for establishing his or her identity and residence as required by the CEA, a registration certificate may be completed by a registration officer or deputy returning officer for that elector, permitting him or her to vote (section 161(4)). The bill adds that the registration certificate must include a statement by the elector that he or she is qualified to vote under section 3 of the CEA, which requires that the individual be at least 18 years of age and a Canadian citizen, amending section 161(4).55
A set of prohibitions dealing with registration on election day is added to section 161 of the CEA. The bill creates prohibitions against individuals:
The CEA prescribes a list of duties that a poll clerk must perform (section 162). One of them is providing a candidate’s representative, on request and at intervals of no less than 30 minutes, with a written list on the prescribed form that contains the identity of every elector who has voted on election day, excluding that of electors who registered on election day. The same information must be provided to a candidate’s representative, on request, after the close of an advance polling station.
Poll clerks must now prepare a document (using the prescribed form) which will permit the identification of every elector who has voted that day, at intervals of no less than 30 minutes, regardless of whether it has been requested by a candidate’s representative.56 When requested by that person, it must be provided. Similarly, each day after the close of an advance polling station, a poll clerk must prepare the same document, regardless of whether it has been requested by a candidate’s representative. The document must be given to that person, if requested.
At the House of Commons committee stage, an amendment added new section 164.1 to the CEA. This section provides that for each general election and by-election, the CEO must engage an auditor to audit and report on whether deputy returning officers, poll clerks and registration officers have properly exercised their powers, duties and functions in respect of the oath-taking and attestation process for electors who do not possess sufficient acceptable identification to either establish their identity or register on election day. The clause specifies that the auditor cannot be a member of the staff of the CEO or an election officer, but must have technical or specialized knowledge (clause 53).
Currently, an elector whose name is not on the revised list of electors may register in person before the deputy returning officer at an advanced poll by being vouched for by another elector who fulfills the requirements under the CEA (section 169). The requirements are the same as those for a registered voter obtaining a ballot without identification and for registering to vote on election day. Clause 56(1) of the bill amends the CEA to remove vouching as a mechanism for an elector whose name is not on the revised list of electors to register at an advance polling station (section 169(2)).
Amendments were made at the House of Commons committee stage to add a new process to allow electors whose names do not appear on the revised list of electors to register at an advance polling station, provided they have established their identity by using two authorized identification pieces. They may establish their residence using the attestation process described in section 2.3.3.1 of this Legislative Summary (clauses 54(1.1), 54(4), 55 and 57).The bill adds to section 169(2), granting permission to a candidate’s representative to examine but not handle any piece of identification provided by an elector at an advance poll. As mentioned in section 2.3.4.2 of this Legislative Summary, this right has been accorded under amended section 161 for election day polls.
If an unregistered elector satisfies the requirements for establishing his or her identity and residence as required by the CEA, a registration certificate may be completed by a registration officer or deputy returning officer for that elector, permitting him or her to vote (section 169(3)). The bill adds that the registration certificate must include a statement by the elector that he or she is qualified as an elector.
A set of prohibitions, mirroring those established for registration at regular polls, is added to section 169 of the CEA, dealing with registration of electors at an advance poll. The bill creates a prohibition against individuals:
Several attempts have been made by the government to enact amendments to the CEA to increase the number of advance polling days. The most recent was Bill C-40, the Expanded Voting Opportunities Act (2nd Session, 40th Parliament), which proposed increasing the number of advance polling days from three to five. The added polling days were to be the two Sundays prior to election day (i.e., the eighth day and the day before election day). Bill C-40 died on the Order Paper in December 2009, without having received debate at second reading, when Parliament was prorogued.57 The underlying premise of these bills was to increase voter turnout at general elections. Turnout at general elections has been in decline since 2008,58 while turnout at advance polls has increased since 1997.59
Clause 56 of the bill amends section 171(2) of the CEA to add the eighth day before election day (a Sunday) as a day when advance polling stations will be open. The hours on which advance polls are open, noon to 8:00 p.m., remain the same as under the current legislation. Thus, there will be four advance polling days on the Friday, Saturday, Sunday and Monday, the tenth, ninth, eighth and seventh days before polling day.
Clause 58(1) amends section 175(1), which deals with the process of opening a poll on the first day of advance polling. It requires that the process set out in that section be carried out each of the four days of advance polling. It also adds that a ballot box will be provided for each day of advance polling.
Section 175(2) of the CEA sets out the process for closing an advance poll. Clause 58(2) amends that section to provide that it applies to the first, second and third days of advance polling (and by exclusion, not the fourth day).
In effect, the bill sets out a process which places all valid and spoiled ballots in a sealed box – one box for each day of advance polling – that is not to be opened until it is time to count ballots on election day. Unused ballots and a copy of the record of all electors who have cast their vote are placed in a separate sealed box.
Clause 58(3) retains much of the process for closing an advance poll that is set out under section 175(2): at the closing of an advance poll under the CEA,
The unused ballots and the number of electors who have voted at the advance polling station are also counted; the unused ballots and a copy of the record of votes cast are placed in an envelope and sealed; and this envelope has written on it the number of unused ballots and electors who have voted.
Clause 58(3), however, provides that the two envelopes – one of which contains ballots which are in order, the other spoiled ballots – must be placed in the ballot box and the ballot box sealed. The provision further stipulates that the envelope which contains unused ballots and the copy of the record of votes cast at the advance polling station be placed in a separate box and sealed (both the box and the seal are to be provided by the CEO).
On reopening an advance polling station at noon on the second, third and fourth days of advance polling, election officials are required to open the box that contains the unused ballots and record of votes cast and dispose of the box. A new ballot box is to be opened, sealed and placed in accordance with sections 175(1)(a) to 175(1)(c) of the CEA. That is, the ballot boxes will be placed on a table in full view of all the participants until the close of the advance polling station.
Clause 58(4) replaces the current sections 175(3) to 175(6) of the CEA. A new section 175(3) is added to the Act, setting out the process for closing an advance poll on the fourth day – the last day – of advance polling. The process set out in clause 60(4) for opening the ballot box, counting all ballots (valid, spoiled and unused) and the number of electors who have voted at that advance polling station, placing the ballots and a copy of the record of votes cast in envelopes, sealing the envelopes, signing the envelopes and placing them in the ballot box, following a process similar to that employed under current section 175(2) of the CEA for the closing of the first, second and third days of advance polls.
Current section 175(3) prescribes the placing of the signatures of the deputy returning officer and the poll clerk on the seals affixed to the envelopes. The provision is renumbered 175(4) and added to it is a reference to the separate processes for closing advance polls on days one to three and on day four.
Currently, section 175(5) of the CEA provides that in the interval between the conclusion of voting at advance polling stations and the counting of ballots on election day, the deputy returning officer is charged with keeping the sealed ballot box in his or her custody.
No mechanism exists in the CEA to allow for the recovery of ballot boxes that are in the custody of deputy returning officers in instances where the returning officer or the CEO considers it more appropriate to not leave ballot boxes in their custody. During the course of the Committee’s study of the CEO’s recommendations following the 40th federal general election, the CEO indicated that he had employed his power to adapt during the 40th general election (as set out in section 17(1) of the CEA) to modify section 175 of the Act in order to recover ballot boxes in the custody of deputy returning officers.60
The CEO recommended, and the Committee agreed, that the returning officer ought to be authorized by the CEA to recover ballot boxes left in the custody of a deputy returning officer when instructed by the CEO, in order to better protect the integrity of the vote.61
Clause 58(4) adds a new section 175(7) to the CEA to provide that a returning officer may recover any ballot box that is in a deputy returning officer’s custody if the CEO is of the opinion that such an action is necessary to ensure the integrity of the vote.62
Part 11, Division 4, of the CEA deals with electors residing in Canada seeking to vote by special ballot.
The purpose of special ballots is to allow an elector who cannot or does not wish to vote at a polling station to vote during an election by either mailing in his or her vote or by voting in person at the office of any returning officer.
Clause 60 amends the current process through which an elector can vote by special ballot. Clause 60 adds provisions regarding electors who go to the office of a returning officer to vote (new section 237.1). Prior to receiving a special ballot in person, the elector must prove his or her identity and residence in accordance with section 143(2) of the CEA. The provision also incorporates a number of the processes in place for regular voting, including:
An amendment was made to section 237 at the House of Commons committee stage to incorporate into the special voting rules the new attestation process for voters with insufficient acceptable identification pieces who are seeking to establish their residence (clause 60).
Current section 283(1) enumerates the individuals permitted to be present during the counting of the votes after the close of a polling station. Clause 61(1) amends this section to include the presence of individuals appointed under new section 32.1 (additional election officers appointed by the deputy returning officer) whose duties include being present at the count.
The steps to follow to count votes after the close of a polling station are set out in current section 283(3) of the CEA. Under clause 61(2), in addition to counting the number of electors who voted at the polling station, the deputy returning officer must count the number of electors who voted by completing a registration certificate (new section 161(4)). This number must be stated at the end of the list of electors, which the deputy returning officer signs and places in the official envelope.
Clause 61(3) provides that the deputy returning officer must total the number of electors who voted at the polling station (a total which includes the number who voted by completing a registration certificate) and add this number to the total number of spoiled ballots and unused ballots, to ascertain that all ballots provided have been accounted for.
Current section 288 of the CEA sets out the process the deputy returning officer must follow to enclose and seal all ballots and any other election documents after a polling station closes. New section 288.1 (clause 62) obliges the deputy returning officer to place all documents prepared under new section 162(i.1) in an envelope supplied for that purpose. (New section 162(i.1) requires that documents be prepared at intervals of no less than 30 minutes by a poll clerk using a form prescribed by the CEO which enables the identification of every elector who has voted that day.) Amendments made to section 288 at the House of Commons committee stage (contained in clause 62) oblige the deputy returning officer to place all attestation documents for voters with insufficient voter identification in an envelope supplied for that purpose (new section 288.01).
Clause 64 creates an obligation on the deputy returning officer to include among the election materials that must be sent to the returning officer under section 290(1) of the CEA the registration certificates and, where applicable, the envelope containing all documents prepared under new section 162(i.1).63 An amendment to section 290(1) requires that the documents described in new section 288.01 be included in the election materials to be sent to the returning officer (clause 64).
Clause 65 enables candidates and their representatives to obtain copies of the lists of voters provided to candidates at regular intervals during the election (under new section 162(i.1)) from the returning officer after polling day, in addition to the statement of the vote (amending section 291). An amendment added section 292.1, which stipulates that returning officers must also create a list of the names and addresses of all persons who took an oath in order to prove the residence of an elector with insufficient voter identification (clause 66).
Current section 289(2) provides that the rules delineated in sections 283(1) and 283(2) (counting votes and tally sheets), sections 283(3)(e) and 283(3)(f) (examination of ballots and tallying) and sections 284 and 288 (rejection of ballots, objection to ballots, marked ballots, statement of the vote, etc.) apply with necessary modifications to the counting of the votes of an advance poll. Clause 65 adds to this section exceptions to account for the introduction of multiple ballot boxes as provided for by amendments to advance polling procedures under the bill.
Clause 69 establishes that the current process for counting ballots during a recount as set out in section 304(3) of the CEA is replaced. The judicial recount process is substantially revised by the Schedule to the bill (Schedule 4 of the amended CEA), with the creation of a mini procedural code for the counting of ballots in a judicial recount.
Other amendments to the recount process include clause 67, whereby an individual applying to a judge for a recount must now give the returning officer notice of his or her application (amending section 301(1)).64 As well, the bill enacts a new provision requiring the return of all election materials used in a recount to the applicable returning officer (clause 69).
A new process for recounts is proposed under new Schedule 4 of the CEA. The persons who may be present during a recount, in addition to the judge who oversees the recount process, the returning officer, and the staff of the returning officer, are enumerated (section 1 of new Schedule 4) (clause 68 repeals the current provision in section 303 that sets out who may attend a recount). The judge establishes recount teams to examine and determine whether the ballots in a given ballot box are valid or disputed, and to count and report the number of ballots of either classification, in a report known as the Recount Ballot Box Report (RBBR).
Ballot boxes which have had their ballots examined, classified and reported on are returned to the returning officer. If there are no disputed ballots, the returning officer provides the judge with the RBBR and the original statement of the vote for his or her review and approval. If the judge approves of the report, the ballot box is sealed and placed in a secure location and the RBBR and statement are given to the person responsible for the preparation of the Master Recount Report (MRR). If the judge does not approve of the report, he or she must determine how to proceed with the ballot box (section 17(4) of new Schedule 4).
In the event a ballot box contains disputed ballots, photocopies of any disputed ballot are made for examination by the candidates, their representatives and their legal counsel (section 18(a) of new Schedule 4). Each party is permitted to make representations to the judge concerning a disputed ballot (section 18(c) of new Schedule 4). The judge will determine the classification of a ballot as either valid or invalid and must indicate any such decision in the RBBR. When all disputed ballots are dealt with, the ballot box is sealed and placed in a secure location, and an MRR is prepared by a person designated by the judge. The MRR contains, among other information, the number of valid votes cast for each candidate. Candidates, their representatives and their legal counsel are able to review the MRR and make submissions to the judge with respect to the accuracy of the MRR.
At any time during the recount, the candidates may agree to have the judge conduct the recount by adding the number of votes reported in the statements of the vote, instead of counting ballots (section 6 of new Schedule 4).
Communications with voters during election periods are regulated, for the most part, under Part 16 of the CEA. The CEA, however, only regulates certain aspects of communications. The following are some of the significant aspects of communication that are regulated:
The content of advertising messages, whether communicated by electronic or other means, is not regulated by Elections Canada. There are, however, offences prescribed by the Act that are of general application that may apply to certain types of communications with voters. These prohibitions are generally aimed at communications that might have the effect of undermining voting rights or that might disrupt the voting process. Some examples include:
Clause 72 modifies the definition of “election advertising” found in section 319 of the CEA by adding “the making of telephone calls to electors only to encourage them to vote” to the list of exclusions that do not constitute “election advertising.”
Clause 73 of the bill repeals section 329 of the CEA which prohibits the premature transmission of election results from one electoral district to voters in another electoral district before the polls in that district have closed.
In a case challenging section 329 of the CEA as infringing freedom of expression under the Canadian Charter of Rights and Freedoms,65 the Supreme Court of Canada narrowly upheld the prohibition on premature reporting of vote results.
In her dissenting opinion (concurred in by three other judges), Justice Abella posited that the ban found in section 329 of the CEA “impairs the right both to disseminate and receive election results at a crucial time in the electoral process.” 66 She added that “Canadians are entitled to know, as soon as possible, who their elected representatives are.” 67
Clauses 75 through 77 of the bill create a new Part 16.1 of the CEA called “Voter Contact Calling Services” containing sections 348.01 through 348.19 of the Act. These clauses address some of the concerns raised, and recommendations made, by the CEO in his report to Parliament dated 26 March 2013 on automated and live telephone communications with voters.68 The CEO’s report stemmed from allegations of telephone communications with voters during the 41st general election that falsely claimed to originate from Elections Canada and allegedly misled voters about the location of polling stations. Elections Canada had neither made nor authorized the calls. This issue was also the subject of a proceeding in the Federal Court of Canada seeking to invalidate the elections in seven electoral districts on the basis that the automated calls constituted fraudulent or unlawful acts that may have affected the election results in those electoral districts.69
Clause 75 contains the definitions that apply to new Part 16.1 (in section 348.01, entitled “Division 1”). The new definitions include the following:
Clause 76, through sections 348.02 to 348.05, sets out what must be contained in agreements relating to voter contact calling services and who may enter into such contracts. Under proposed section 348.02, only the following may enter into agreements for voter contact calling services:
Under section 348.03, the person or group entering into the contract with the calling service provider must inform the latter that the agreement is for voter contact calling services, and must provide the calling service provider with their name, contact information, and a copy of a piece of identification approved by the Canadian Radio-television and Telecommunications Commission (CRTC).
New section 348.04 creates an obligation for the calling service provider to obtain their prospective client’s identification information, and to keep a record of such information for one year after the end of the applicable election period.
New section 348.05 obliges the calling service provider to confirm whether the services that it will be providing constitute voter contact calling services. Before a first call is made, the person or body seeking the services must authorize the provision of the voter contact calling services and provide the calling service provider with their name, contact information, and a copy of a piece of identification approved by the CRTC, and the calling service provider is similarly obliged to obtain said identification information, a record of which must be kept for one year after the end of the applicable election period.
Under new section 348.06 of the CEA (contained in clause 76 of the bill), calling service providers providing voter contact calling services must file a registration notice with the CRTC containing the calling service provider’s name, the name of the person or group with whom the calling service provider is contracting, and the type of calls to be made under the agreement.
The person or group entering into an agreement for voter contact calling services with a calling services provider must also file a registration notice with the CRTC, providing information similar to that described above, as well as identification information. Failure to provide the identification information results in the registration notice being deemed to have not been filed (new section 348.07).
New section 348.08 sets out similar obligations for third parties that use internal services to make live voice calls, while new section 348.09 sets out similar obligations for persons or groups who use their own internal services to make automatic dialing-announcing device calls for any purpose relating to an election (including voter contact calling services).
New sections 348.1 through 348.15 (contained in clause 76 of the bill) set out the role of the CRTC. New section 348.1(1) makes the CRTC responsible for administering and enforcing the provisions of the CEA related to voter contact calling services. New section 348.1(2) specifies that the CRTC do so under Part V of the Telecommunications Act, which in turn is amended by clauses 137 through 144 of Bill C-23.
New section 348.11 makes the CRTC responsible for establishing the Voter Contact Registry, which will contain the registration notices required in new sections 348.06 through 348.09 of the CEA. New section 348.12 obliges the CRTC to publish these notices “as soon as feasible after the expiry of 30 days after polling day.”
New section 348.13(1) provides that the CRTC may delegate to a third party the responsibility for establishing the Voter Contact Registry as well as the obligation to publish the regulation notices. Under new section 348.13(2), the CRTC may revoke this delegation.
New section 348.14 allows the CRTC to authorize the types of pieces of identification required to enter into a contract for voter contact calling services and to authorize the provision of these services.
New section 348.15 obliges the CRTC to disclose to the Commissioner of Canada Elections, when requested to do so by the Commissioner, any document or information it receives regarding voter contact calling services that the Commissioner considers necessary to ensure compliance with the CEA, other than the provisions related to the voter contact calling services, which are enforced by the CRTC.
Clauses 137 through 144 amend Part V of the TA, under which, as stated in clause 76, the CRTC is responsible for administering and enforcing the provisions related to voter contact calling services. The amendments relate to inspection, administrative monetary penalties and offences.
Clause 137 amends section 71(1) of the TA to allow the CRTC to designate inspectors to verify compliance with the provisions of the CEA related to voter contact calling services. It also amends section 71(4)(a) of the TA to allow inspectors to enter any place in search of any document, information or thing relevant to the enforcement of the voter contact calling services provisions and finally, amends section 71(6)(b) of the TA to allow a justice to issue a warrant to enter any dwelling-place if necessary for the enforcement of these provisions.
Clause 138 amends section 72.01 of the TA so that a person contravening any provision of the CEA related to voter contact calling services has committed a violation and is liable to an administrative monetary penalty of up to $1,500 in the case of an individual and up to $15,000 in the case of a corporation. Inspectors may issue notices of violation under section 72.07 of the TA.
Clause 139 amends section 72.05 of the TA to allow inspectors to require a person who has information needed to administer the provisions of the CEA related to voter contact calling services to submit the information.
Clause 140(1) amends section 72.06(1)(a) of the TA to allow persons authorized to issue notices of violation to enter any place and examine any document, information or thing or remove it for examination. Clause 140(2) allows a justice to issue a warrant to enter a dwelling-place.72
Section 72.1 of the TA sets out the availability of certain defences for contravention of the legislation. These defences, which include having exercised “due diligence,” and anything that makes a circumstance a justification or an excuse, are common law concepts that have been imported from criminal law into the legislation. Clause 141 amends section 72.1(2) of the TA to extend the common law defence of “justification” and “excuse” to the provisions of the CEA related to voter contact calling services.
Clause 142 amends section 72.14 of the TA to provide that a contravention of the provisions of the CEA related to voter contact calling services can be proceeded with either as a violation (under the administrative monetary penalty regime) or as an offence, but not both. Offences are set out in section 73 of the TA.
Clause 143 amends the TA by adding section 72.16, which specifies that for the purposes of the sections related to administrative monetary penalties, a group as defined in new section 348.01 of the CEA (registered party, registered association, unincorporated trade union, trade association or other group of persons acting together by mutual consent for a common purpose) is considered to be a corporation. The effect of this provision is to deem these entities as “persons” for purposes of the administrative monetary penalty regime.
Clause 144(1) amends section 73(2) of the TA so that a person who contravenes any provision of the CEA related to voter contact calling services is guilty of an offence punishable on summary conviction. Individuals who are found guilty are liable to a maximum fine of $10,000 for a first offence or $25,000 for a subsequent offence. Corporations are liable to a maximum fine of $100,000 for a first offence and $250,000 for a subsequent offence.
Clause 144(2) amends section 73 of the TA by specifying that for the purposes of this section, a group as defined in new section 348.01 of the CEA is considered to be a corporation (see clause 143).
Clause 77 of the bill, creating proposed sections 348.16 to 348.19 of the CEA, adds Division 2 to new Part 16.1 of the Act. In the original version of the bill, these new sections required calling service providers who provide voter contact calling services (section 348.16), as well as the persons or groups who enter into agreements with them (section 348.17) to keep, for one year following the end of the election period, the following information:
As a result of amendments at the House of Commons committee stage, contact calling service providers must keep the information for a period of three years.73
New sections 348.18 and 348.19 create obligations to provide scripts and recordings for persons or groups using their internal services to make calls through automatic dialing-announcing devices, as well as for third parties using internal services to make live voice calls, for any purpose relating to the election (including voter contact calling services) for a period of one year.
Bill C-23 makes a number of significant changes to the campaign financing rules in federal elections. These include:
In addition, a number of changes will affect the way third parties may conduct their election advertising campaigns.
The bill also reorganizes and renumbers Part 18 of the CEA, which serves as a mini code to regulate the financing of political campaigns, and it amends many provisions within Part 18 that affect all political entities (clause 86). A concordance between the existing and new divisions and sections within Part 18 is set out in Table 1.
| Existing Part 18 | New Part 18 |
|---|---|
| Division 2 - General Financial Provisions (sections 404 to 414) | Division 1 - General Financial Provisions (sections 363 to 384) |
| Division 1 - Registration of Political Parties (sections 366 to 403) Division 3 - Financial Administration of Political Parties (sections 415 to 435.02) |
Division 2 - Political Parties (sections 385 to 446) |
| Division 1.1 - Electoral District Associations (sections 403.01 to 403.42) | Division 3 - Electoral District Associations (sections 447 to 475.93) |
| Division 5 - Nomination Contestants (sections 478.01 to 478.42) | Division 4 - Nomination Contestants (sections 476 to 476.94) |
| Division 4 - Candidates (sections 436 to 478) | Division 5 - Candidatesa (sections 477 to 477.95) |
| Division 3.1 - Leadership Contestants (sections 432.03 to 435.47) | Division 6 - Leadership Contestants (sections 478 to 478.97) |
Note: a. Added to this Division are the provisions concerning “Gifts and Other Advantages” currently found in Part 6 of the CEA, dealing with candidates and their obligations, sections 92.1-92.6. The new provisions are now numbered 477.89 to 477.95.
Clause 86 comes into force six months following Royal Assent, or sooner if the CEO determines that his office is ready to implement the necessary changes to bring the provisions into effect. Further provisions affecting campaign finance come into force on different dates, some of which depend upon the coming into force of other provisions. (See the table in Appendix C of this Legislative Summary, which sets out the possible coming-into-force dates of selected campaign finance provisions.)
The CEA permits only individuals to contribute to political campaigns. Corporate and union donations are not permitted. Limits on contributions by individuals are as follows:
The maximum contribution is adjusted annually for inflation (section 405). The current inflation-adjustment maximum contribution in each category is $1,200.
The bill increases the maximum allowable contributions to $1,500 (clauses 80(1) and 87(1)).The amount, however, will not be indexed to inflation, as the provision in the legislation for indexation is repealed (clause 81). Instead, the amount will increase by $25 on 1 January of each year (clause 87(2)).
Clauses 80(1) and 81 come into force on 1 January of the year following the year in which Royal Assent is given to the bill.
Clause 87(1) ($1,500 individual contribution limits) comes into force on 1 January of the year following the year in which clause 86 (the reordered Part 18, campaign finance mini-code) comes into force. As mentioned above, clause 86 comes into force six months following Royal Assent, or sooner if the CEO determines his office is ready to implement the necessary changes to bring the provisions into effect.
Clause 87(2) ($25 annual increase in contribution limits) comes into force on 1 January of the year following the year in which clause 87(1) ($1,500 individual contribution limit) comes into force.
An important change affects leadership contestants and their ability to raise funds for their campaigns. Currently, the $1,000 unindexed limit applies per leadership contest. It means that an individual can make a one-time contribution to a campaign. Amendments to the CEA enable individuals to contribute $1,500 per calendar year to a leadership campaign. This will result in an increased source of funding for leadership contestants, particularly those who obtain loans and must repay them over several calendar years.
This change was recommended by the CEO in his report to Parliament following the 40th general election.75 The proposal was also contained in Bill C-21, The Political Loans Accountability Act.76
Currently, the legislation (section 405(2)) exempts bequests to political entities from the contribution limits. Clause 80(2) amends the CEA to limit the amount that may be contributed by means of a testamentary disposition to the maximum amount that may be made by an individual per calendar year, or $1,500 annually under the new financing regime set out in the bill.
2.5.2.4 Contributions to Own Campaign (Clause 80(3))
Currently, electoral candidates and nomination contestants of a registered party, party leadership contestants and independent candidates may contribute $1,000 of their own funds to their own campaigns or nomination contests over and above the maximum campaign contribution permitted. These amounts are deemed not to be contributions.
Clause 80(3) raises the maximum amount that a candidate and a leadership contestant may contribute to his or her own campaign, without the amount being treated as a contribution, to $5,000 and $25,000 respectively. The contribution limit for nomination contestants remains $1,000. Any contribution over any of these amounts would be subject to the contribution limit for individuals of $1,500.
During its study of the Chief Electoral Officer’s recommendations following the 40th general election, the Committee considered a recommendation to penalize candidates who overspend during an election by reducing the amount by which they are reimbursed for their election expenses. The CEO had recommended a dollar-for-dollar reduction. The Committee wished to go further, developing an increasing scale of reduction based on the percentage by which a candidate’s spending exceeded the spending limit.
The bill implements the Committee’s recommendation and imposes the same scale of penalties on political parties. Thus, political parties (clause 84, amending section 435 and clause 86, new section 444(1)) and candidates (clause 85, amending section 465, and clause 86, new section 477.74(3)) who exceed their spending limits during an election will see their election expense reimbursement reduced according to the scale shown in Table 2.
| Percentage Spending in Excess of the Spending Limit | Reduction of Candidate’s or Party’s Reimbursement |
|---|---|
| Less than 5% | One dollar for each dollar exceeding the limit |
| Between 5% and less than 10% | Two dollars for each dollar exceeding the limit |
| Between 10% and less than 12.5% | Three dollars for each dollar exceeding the limit |
| 12.5% and more | Four dollars for each dollar exceeding the limit |
Currently, under section 350(1), third party spending limits of $150,000 apply during an election period. To ensure third parties do not circumvent the limits on election advertising expenses by incurring expenses prior to the issuance of an election writ, clause 78 amends section 350 to require that the spending limit apply in relation to a general election. As the Committee noted in its report on the CEO’s recommendations following the 40th general election, spending during the pre-writ period in anticipation of an election may be a cause for concern given the fixed-date election provisions of the CEA.77
At the House of Commons committee stage, a number of amendments were made to clause 78. The limits on third-party advertising spending during an election period will increase if the election period exceeds 37 days. The amount shall be increased by 1/37 of the maximum spending amounts in effect – $150,000 in total for an election and $3,000 per electoral district – for each day the election period exceeds 37 days (new section 350(6)).
A new provision, new section 351.1, has been added to the CEA thatrequires third parties, whether individuals, corporations or groups, to establish a sufficient connection to Canada in order to incur election advertising expenses. An individual must be either a Canadian citizen or permanent resident or reside in Canada. A corporation must carry on business in Canada. If the third party is a group, the person “responsible” for the group must be a Canadian citizen or permanent resident or reside in Canada (clause 78.1).
Another new provision in the CEA (new section 351.2), also created by clause 78.1, clarifies “for greater certainty” that if election advertising is transmitted during an election period, it shall be treated as an election advertising expense, regardless of when that expense was incurred. This provision reinforces the purpose behind the amendments to section 350: to regulate spending in relation to an election, rather than spending during an election.
Clause 79 imposes new requirements when third parties wish to register with Elections Canada. Individual third parties must certify that they are Canadian citizens or permanent residents or that they reside in Canada. In the case of corporations and groups, an officer of the corporation must certify that the corporation carries on business in Canada, while a person responsible for a group must certify that he or she is a Canadian citizen or a permanent resident or resides in Canada (amending section 353).
At the House of Commons committee stage, clause 79 was amended to make the mandatory registration provision (when a third party spends more than $500 on election advertising) subject to new section 351.1 of the CEA, requiring third parties to have a connection to Canada. The effect of this provision is that third parties that are not able to establish their connection to Canada in accordance with the new provisions would not be able to register, and thus, not be entitled to spend more than $500 in election advertising.
Loans have become increasingly important sources of campaign financing, particularly in light of the reduced contribution limits and the ban on corporate and union contributions resulting from various legislative reforms.78 Loans to parties, candidates, riding associations, nomination contestants and leadership contestants are permitted under the Act, subject to a number of reporting obligations and approvals by the CEO, and such loans are not treated as contributions to the political entity that receives them. Moreover, there is no limit on the amount that may be loaned to a political entity and no ban on loans by corporations and unions, even though they are prohibited from making political contributions.
Loans are referred to in various sections of the legislation as “unpaid claims.” There is an expectation that loans, like all unpaid claims, will be repaid by the borrowing entity.79
The Act prescribes specified periods within which unpaid claims and loans must be repaid. The dates range from six months after the due date of the claim for electoral district associations and political parties, four months after polling day for candidates and nomination contestants, and 18 months from the date of a leadership contest in the case of leadership contestants. The repayment period may also be extended by the CEO, or failing that, a judge.
The CEA states that claims against a political entity that remain unpaid are deemed to be campaign contributions 18 months after polling day or the date the claim was due. The Act, however, exempts unpaid claims from that provision if the claim:
Among the more significant deficiencies in the current regime are that loans that remain unpaid or are forgiven can serve as a means to circumvent the contribution limits and restrictions. This and other deficiencies in the current regime for political loans were identified by the CEO in a special report on “specific issues of political financing,” prepared for the Committee and presented in 2007.80
More recently, the CEO and the Commissioner of Canada Elections announced that the current mechanisms in the CEA to enforce the loans provisions applying to leadership contestants were ineffective, particularly for sanctioning non-compliance.81 They stated that the offence provisions of the CEA contain significant gaps for dealing with non payment of outstanding claims and loans after the expiry of the 18 month period or an extension to that period, since there is no offence for non payment of claims beyond those periods. In addition, they pointed out that the “deeming” provision, whereby a loan is deemed to be a contribution beyond the statutorily permissible period, cannot be enforced.
Many of the reforms to the regime governing the use of loans in federal political campaigns proposed in Bill C-23 originate from the CEO’s report on specific issues of political financing, mentioned in section 2.5.5.1 of this Legislative Summary.
Among the CEO’s key recommendations were these:
The government introduced legislation to implement many of the CEO’s proposed reforms through Bill C-21, The Political Loans Accountability Act, which died on the Order Paper when Parliament was prorogued in September 2013.82
Bill C-23 imposes limits and other restrictions on loaning money to political entities. Loans from individuals are subject to a limit. Loans in excess of the limit may only be made by registered banks or by political parties and their electoral district associations to each other and their candidates (but not to nomination contestants or leadership contestants) (new section 373).
Individuals who are otherwise entitled under the legislation to make political contributions (citizens and permanent residents) may make loans, or guarantee a loan, to political campaigns which, when combined with any contribution, cannot exceed the contribution limit for individuals. Under the bill, that limit is $1,500 per calendar year. For independent candidates, the limit is per election. Thus, the amount of the loan or guarantee plus any contribution, cannot exceed the limit of $1,500 (new section 373).
Banks, as defined under the Bank Act, may make political loans at market rates without limits on the amount of the loan. The bill does not prescribe any limits on the amount that political parties and their electoral district associations may loan to each other and to their candidates, nor does it impose any conditions, such as repayment periods and whether interest must be charged. However, as discussed in section 2.5.5.6 of this Legislative Summary, a political party or electoral district association may be liable to assume a candidate’s unpaid debts if they are not repaid within a specified period.
The provisions that deem an unpaid claim or loan to be a contribution, found in the divisions of Part 18 applicable to all political entities, are repealed under the new regime.
Finally, a standard three-year period is applied for the repayment of loans, subject to extensions being granted by the CEO or a judge to candidates, nomination contestants and leadership contestants.
| Political Entity | Loan and Unpaid Claim Repayment Periods | |
|---|---|---|
| Existing Regime | New Regime | |
| Political party | Within 6 months after due date of claim (section 418) Extension permitted by the Chief Electoral Officer (CEO) or judge |
Within 3 years after due date of claim (section 428) No extension permitted |
| Electoral district association | Within 6 months after due date of claim (section 403.3) Extension permitted by CEO or judge |
Within 3 years after due date of claim (section 475.2) No extension permitted |
| Nomination contestant | Within 4 months after polling day (section 478.17(1)) Extension permitted by CEO or judge |
Within 3 years after selection day, or polling day if selection day falls during election period (section 476.7) Extension permitted by CEO or judge |
| Candidate | Within 4 months after polling day (section 445(1)) Extension permitted by CEO or judge |
Within 3 years after polling day (section 477.54) Extension permitted by CEO or judge |
| Leadership contestant | Within 18 months after a leadership contest (section 435.24(1)) Extension permitted by CEO or judge |
Within 3 years after a leadership contest (section 478.75) Extension permitted by CEO or judge |
Included in clause 86 of the bill are requirements that any claims for unpaid debts be repaid within three years either of the date on which the debt was due or of the date on which the claimant or lender sent the party an invoice or other document evidencing the claim. A claimant has recourse to the courts if the party’s registered agent refuses to pay the claim or after the end of the three-year period (new sections 427 to 429).
The party must report on its annual financial return a statement of all loans made to the party, including the amount of the loans, the interest rates, the lender and repayment terms. This information must be published by the CEO (new section 432(4)).
With the return the party must provide a statement of unpaid claims that remain unpaid 18 months and 36 months after the date on which they were due. Among other things, the statement must also include (new section 432(7)):
This latter provision (new section 432(7)) is based in part on recommendations made by the CEO in his statutory report to Parliament following the 40th general election. The recommendation was made for candidate and nomination contestant loans, but it appears to have been adapted for political parties.83
The provision that deems an unpaid claim or loan to be a contribution after 18 months (section 423.1(1)) has been repealed. This was also recommended by the CEO.
Under the new offence provisions of the bill, it will be an offence for a chief agent of a political party to fail to pay a debt within 36 months from the date it is due (new sections 428 and 497.1(1)(g)).
The provisions governing loans applicable to electoral district associations mirror those for political parties (new sections 475.1 to 475.4).
The rules on the repayment of loans and unpaid claims for nomination contestants, like the rules applicable to political parties and electoral district associations, require that loans be paid no later than three years from polling day (new section 477.54(1)). Repayment of a loan or unpaid claim after that date requires the approval of the CEO, or where the CEO declines to do so, the approval of a judge (new sections 477.56 and 477.57).
A claimant or lender has recourse to the courts if the nomination contestant (typically through his or her agent) refuses to pay the amount claimed or disputes the amount. A proceeding may also be commenced after the expiry of the three-year period.
The provision that deems an unpaid claim or loan to be a contribution to a nomination contestant’s campaign after 18 months has been repealed (section 478.22(1)), in keeping with the CEO’s recommendation.
The financial reporting obligations have also been revised, with additional requirements on the reporting of loans, identical to the reporting requirements for political parties and electoral district associations (new section 476.75). Reporting requirements of note in relation to loans are:
Under current section 478.03, a person is deemed to be a nomination contestant from the moment he or she accepts a contribution or incurs an election expense. New section 476.2 adds to those conditions that of borrowing money to finance a nomination contest. Being deemed to be a nomination contestant triggers a variety of obligations under the CEA, including the obligation to appoint an agent to accept contributions and to create a campaign bank account.
The new loan regime for candidates is similar to that for nomination contestants. Loans must be repaid no later than three years from polling day unless an extension is obtained from the CEO or, where the CEO does not grant the extension, from a judge (new sections 477.54(2), 477.56 and 477.57).
The financial reporting obligations are similar, with one important difference: a candidate’s loans may be subject to a determination by the CEO that the loan was written off as an uncollectible debt in accordance with the lender’s normal accounting practices. If such a determination is made, the candidate’s political party or electoral district association may become liable to repay the loan as if they had guaranteed the loan (new section 477.6(4)). There is no similar provision for the other political entities within a political party.
The provision that deems an unpaid claim to be a contribution after 18 months following polling day is repealed.
The provision to deem a person to have been a candidate for purposes of the campaign finance provisions of the CEA is continued in revised Part 18 of the CEA. The new provision is expanded and provides that a person is deemed a candidate from the moment he or she accepts a transfer of goods, services or funds, incurs an election expense, accepts a contribution or borrows money to finance an election (new section 477). The predecessor provision, current section 365, deems a person to be a candidate from the moment he or she accepts a contribution or incurs an election expense. Being deemed to be a candidate also triggers various obligations under the campaign finance provisions of the CEA.
For the purposes of the campaign finance provisions of the CEA, a leadership contestant is deemed to be a contestant from the moment he or she accepts a contribution, incurs an expense, or borrows money for the contest (new section 478.2(2)).
Loans must be repaid within three years of the date on which the leadership contest ends (new section 478.75). The repayment period may be extended by the CEO or, where the CEO declines to do so, by a judge. A lender may also apply to a court to have the loan repaid if there is a dispute as to the amount, if the financial agent of the leadership contestant refuses to pay the loan, or at the end of the three-year period or of any extended period (new section 478.79).
In addition to a leadership campaign return, leadership contestants must provide two updates on the amount of unpaid claims, including loans, and their status. These updates are to be provided 18 months and 36 months following the day of the leadership contest (new section 478.8).
Currently, the legislation imposes limits on the amount of money that political parties, nomination contestants and candidates may spend during an election. It also prohibits election advertising expenses by electoral district associations. There are no spending limits on campaigns by leadership contestants. Bill C-23 increases the limits on election spending by political parties, candidates and nomination contestants. It also introduces a change to the definition of election advertising expense in respect of electoral district associations.
Limits on spending by political parties during an election are currently determined by multiplying $0.70 by the number of names on the preliminary list of electors for constituencies in which the party has endorsed a candidate (current section 422 of the CEA).
This means that the spending limit for the various political parties could vary depending upon the number of ridings in which they contest an election. By way of example, during the 41st general election, the Liberal Party’s election expense limit was $21,025,793 after indexation. It contested elections in each of Canada’s 308 ridings. The amount was identical for the New Democratic Party. For the Conservative Party of Canada the spending limit was $20,955,089, because it contested elections in 307 ridings. The Green Party’s limit was $20,765,345, as it endorsed candidates in 304 ridings.84
The bill increases the political party spending limit by raising the multiple to $0.735 if the election period is no longer than 36 days (clause 86, new section 430(1)).
The original bill contained a provision that had the effect of increasing the spending limit if the election period exceeded 36 days. The spending limit would have increased by adding to the amount determined under the formula noted in new section 430(1) 1/36 of that amount for each day in excess of the 36-day period. At the House of Commons committee stage, this provision was amended such that the increase will come into effect if an election period exceeds 37 days; the adjustment factor is 1/37. This change responds to concerns expressed by the CEO that the election period, based on its definition in section 2 of the CEA as beginning with the issue of the writ and ending on polling day, is 37 days.85
The bill also originally contained a provision to enable political parties to exclude certain expenses from the calculation of election expenses. The commercial value of services provided to a political party to solicit contributions would not have been considered an election expense if the solicitation is directed at contributors to the party who contributed more than $20 in the five years prior to polling day for the election for which the services are provided (proposed section 376(3)).
At the House of Commons committee stage, clause 86 was amended to remove proposed section 376(3), thereby eliminating from the spending limit the proposed exemption for fundraising solicitation calls. This measure was recommended by the Standing Senate Committee on Legal and Constitutional Affairs in its Sixth Report following its study of the subject-matter of the bill.86 The CEO had also recommended that this provision not be included in the bill, saying it would be difficult to distinguish fundraising solicitation calls from calls promoting a party or its candidates, and thus make verification extremely difficult.87
New sections 438 and 444(1)(a) in clause 86 require that a political party’s auditors include in an election expense return a so-called “compliance audit” of the party’s election spending. Such an audit must indicate whether the party and the chief agent of the party have complied with the campaign finance requirements in new Part 18, Division 1 (general provisions) and Division 2 (provisions applicable to political parties).88
There are no spending limits prescribed in the legislation for electoral district associations except that the associations are prohibited from incurring advertising expenses during an election (current section 403.04). The bill introduces one change to this provision. If an election is held on a date other than the fixed-date prescribed in sections 56.1 and 56.2, expenses incurred as a result of advertising purchased prior to the issue of the writ and whose transmission cannot be cancelled are not considered election advertising expenses (new section 450(2)). This clause appears to respond in part to concerns raised by the CEO and supported by the Committee.
Current limits on spending by a candidate in an election are $2.07 for each of the first 15,000 electors in the constituency; $1.04 for each of the next 10,000 electors; and $0.52 for each of the remaining electors. This amount is increased if the number of electors per square kilometre of a constituency is fewer than 10 (section 441).
The bill changes the multiples used to arrive at the spending limit for a candidate as follows (new sections 477.5(3) and 477.5(7)):
The bill originally provided that if an election was longer than 36 days, the limit would be increased by adding to the amount calculated to be the spending limit 1/36 of that amount per day exceeding 36 days (new section 477.49). At the House of Commons committee stage, an amendment was made with the following effect: the pro-rated increase to the spending limit will apply if an election is longer than 37 days, with the pro-rating factor increased to 1/37. This change was also proposed by the CEO.
Current limits on spending by nomination contestants are 20% of the spending limit established for electoral candidates (section 478.14). Since the formula for determining a candidate’s spending limit is revised, resulting in a higher spending limit, the nomination contestant spending limit increases accordingly (see section 2.5.6.4 of this Legislative Summary).
The current legislation permits the various entities that make up a political organization to transfer funds between themselves with few restrictions. With some exceptions, these transfers are not considered contributions, and thus are not subject to the contribution limits set out in the CEA.89
The bill enables candidates to transfer money, goods and services from a campaign for a by-election that is cancelled to their campaign in a general election called following the cancelled by-election (new section 364(2)(f)).
Under the current legislation, candidates, nomination contestants and leadership contestants must transfer any surplus electoral funds to the political party with which they are affiliated or to a party’s electoral district association. The CEA is silent with respect to surplus assets purchased during an election campaign, such as computers and office equipment. New section 477.8(2) requires candidates to either transfer the assets to their parties or electoral district associations or sell them and transfer the funds. This was recommended by the CEO and supported by the Committee.90
The bill creates two general offences: impersonation and obstruction.
Impersonation is to falsely represent oneself as the CEO, an election officer or a person authorized to act on behalf of a registered party, a candidate or any other person with a designated function under new section 480.1 of the CEA.
Obstruction is committed if any person obstructs or hinders an inquiry conducted by the Commissioner of Canada Elections or knowingly makes a false or misleading statement (new section 482.1).
These two offences carry the same punishments: a fine of up to $20,000 and/or imprisonment for up to one year on summary conviction, or a fine of up to $50,000 and/or imprisonment for up to five years on conviction on indictment (new section 500(5) of the Act).
A conviction for either impersonating or obstructing the Commissioner of Canada Elections will have more serious consequences than those prescribed in the CEA (clause 102(3) of the bill).
The bill designates these two offences as “corrupt practices” as defined in section 502(2) of the CEA. A conviction for a corrupt practice results in the additional sentence of loss of one’s seat in the House of Commons (if the candidate was elected) and being forbidden from contesting an election to the House of Commons for a period of seven years, as well as being banned for seven years from holding public office that requires an order in council.
Clauses 93(4) and 94 create new offences relating to the new prohibitions created in Part 9 of the CEA (Voting) dealing with registration on polling day and at an advance poll (see sections 2.3.4.4 and 2.3.6.4 of this Legislative Summary). The new provisions for polling day and advance poll registration prohibit, among other things, knowingly applying to be registered on polling day in a name that is not one’s own, knowingly applying to be registered (without authorization) in a polling division in which one is not ordinarily resident, and applying to be registered to vote in an electoral district knowing that one is not qualified to vote or not entitled to vote in that electoral district. These prohibitions are found in new sections 161(5.1) (polling day registration) and 169(4.1) (advance poll registration).
At the House of Commons committee stage, the bill was amended to add two new offences relating to attesting to residence. Clause 93 was amended to prevent an elector from attesting to the residence of more than one elector (sections 143(5), 161(6) and 169(5)) or from attesting to a residence when the elector’s own residence has been attested to (sections 143(6), 161(7) and 169(6)). Similar amendments (new clause 94.1) were made regarding Part 11 of the CEA (special voting rules – see section 2.3.7 of this Legislative Summary).
Clause 96 of the bill creates new offences relating to scripts and recordings used to provide voter contact calling services. The key difference for these new offences is the degree of fault required to obtain a conviction: the offence is classified either as a “strict liability offence” 91 or an “offence requiring intent.”
Anyone who fails to meet the legal obligation to keep, for one year, each script used for live voice calls or the recording of the message conveyed by an automatic dialing-announcing device is guilty of a strict liability offence (new sections 495.1(1) and 495.2(1)) (see section 2.4.3.6 of this Legislative Summary). The maximum punishment for this offence under new section 500(1) is a fine of up to $2,000 and/or imprisonment for up to three months. However, a conviction can be avoided by showing that due diligence had been exercised.
This defence is not permitted for the offences listed in new sections 495.1(2) and 495.2(2) of the CEA. These sections require that the prosecution prove that the accused knowingly contravened their obligations to keep scripts and recordings. Therefore, the maximum punishment under new section 500(5) is harsher: a fine of up to $20,000 and/or imprisonment for up to a year on summary conviction, or a fine of up to $50,000 and/or imprisonment for up to five years on conviction on indictment.
Clause 105 of the bill also specifies that any act done by a member or an official representative of a group is deemed to have been done by the group for the purposes of a prosecution brought under one of the new offences relating to scripts and recordings (new sections 505.1 to 505.4 of the CEA).
The CEO, supported by the Committee, recommended amending section 350(1) of the CEA to ensure third parties do not circumvent the limits on election advertising expenses by incurring expenses prior to the issuance of an election writ. As the Committee noted, spending during the pre-writ period in anticipation of an election will be a cause for concern given the fixed-date election provisions of the CEA.92 As noted in section 2.5.4 of this Legislative Summary, the current wording of the provision indicates that the spending limit applies to expenses incurred during an election period. The amendment to the provision states that the limit applies in relation to a general election. Clause 97 creates an offence for breaching this provision. At the House of Commons committee stage, a new offence was created relating to foreign third parties that exceed the third party spending limits (new section 351.1 of the CEA).
Bill C-23 increases the maximum fines for offences under Part 18 (financial administration) of the CEA, including new sections 497 (general financial provisions), 497.1 (political parties), 497.2 (electoral district associations), 497.3 (nomination contestants), 497.4 (candidates) and 497.5 (leadership candidates). Maximum terms of imprisonment remain the same.
The amendments are made under clause 100 of the bill. Essentially, the bill increases the maximum fines as follows:
The tables in appendices A and B to this Legislative Summary give an overview of the increase in maximum fines payable for offences under Part 18 of the CEA. Specifically, they show offences relating to general financial provisions (new section 497) and political parties (new section 497.1) respectively.
Bill C-23 increases the maximum fines for groups or corporations convicted of an offence under section 353(1) of the CEA, that is, failure to register immediately after having incurred election advertising expenses of $500.
Clause 104 of the bill raises the maximum fine from $10,000 to $50,000 (strict liability offences) and from $25,000 to $100,000 (offences requiring intent) for such groups or corporations (new sections 505(3) and 505(4)).
Under Bill C-23, the Commissioner of Canada Elections is still responsible for investigations of alleged violations of the CEA. However, the bill changes how the Commissioner of Canada Elections is appointed. Currently, the Chief Electoral Officer appoints the Commissioner of Canada Elections (section 509). Clause 108 of the bill establishes that, under the new legislation, the Commissioner is appointed by the Director of Public Prosecutions (DPP) for a non-renewable term of seven years, removable before that time by the DPP only for cause (new section 509(1)). New section 509(2) of the CEA specifies that the DPP cannot consult the Chief Electoral Officer when appointing the Commissioner.
New section 509(3) of the CEA lists the categories of persons not eligible to be appointed as Commissioner, such as a candidate, an employee of a registered party, or the Chief Electoral Officer or a member of his or her staff.
New section 509.1(1) provides that the position of Commissioner of Canada Elections is within the Office of the DPP. For the employees appointed by the Commissioner to enable him or her to exercise the functions, duties and powers of the office, the Commissioner is considered the deputy head for the purpose of human resource management both under sections 11 to 13 of the Financial Administration Act and under the Public Service Employment Act (new sections 509.1(2) and 509.1(3)).94 This enables the Commissioner to hire permanent and term employees (sections 509.3(1) and 509.3(2)).
The Commissioner may authorize DPP employees to help perform his or her functions under the CEA, and the Commissioner may also hire additional temporary employees, including investigators (new sections 509.3 to 509.5).95 Currently, the Commissioner may, through a Memorandum of Understanding with the Royal Canadian Mounted Police, access technical assistance or other support for his or her investigations. If certain additional expenses are required by the Commissioner, funds may be drawn from the Consolidated Revenue Fund, but only on the certificate of the Chief Electoral Officer. Under Bill C-23, the DPP is now responsible for authorizing such payments (new section 509.6).
Clause 152 of the bill provides that the DPP is to report annually on the activities of the Commissioner of Canada Elections (except in relation to the details of investigations) to the Attorney General (this amends section 6(4) of the Director of Public Prosecutions Act). The House of Commons committee amended clause 152 to require that the Commissioner provide the section of the annual report on the Commissioner’s activities prepared in accordance with the CEA.
Currently, if the Chief Electoral Officer believes on reasonable grounds that an offence has been committed, he or she may direct the Commissioner to make any inquiry.96 The Commissioner may also initiate an inquiry on his or her own initiative. The bill originally provided that “the Commissioner, on his or her own initiative or in response to a complaint, may conduct an investigation if he or she believes on reasonable grounds that an offence under [the CEA] has been committed” (clause 108); new section 510(1)). The House of Commons committee amended clause 108 to remove the provision stating that the Commissioner may conduct an investigation only if he or she believes on reasonable grounds that an offence has been committed under the CEA.97 The bill also provides that “the Commissioner is to conduct the investigation independently of the Director of Public Prosecutions” (new section 510(3)).
Subject to the general requirement of notifying the person whose conduct is being investigated (new section 510(2) and certain exceptions enumerated in the new section 510.1(2)), all investigations are confidential. The DPP may refuse to disclose any record requested under the Access to Information Act that contains information that relates to investigations conducted by the Commissioner (clause 146).
Bill C-23 does not change the process for the commencement of proceedings, which is set out in section 511 of the CEA:
If the Commissioner believes on reasonable grounds that an offence under this Act has been committed, the Commissioner may refer the matter to the Director of Public Prosecutions who shall decide whether to initiate a prosecution.
Instead of laying charges for prosecution, the Commissioner may enter into a compliance agreement with a person who the Commissioner believes on reasonable grounds has committed or is about to commit an act that could constitute an offence under the CEA. The compliance agreement is aimed at ensuring compliance with the Act.98 Whereas the Commissioner must currently publish only a summary of the compliance agreement, Bill C-23 requires that the text of the agreement, except the parties’ signatures, be published (new section 521).
At the House of Commons committee stage, clause 108 was further amended to give the Commissioner the authority to disclose information to the public that, in the Commissioner’s opinion, is in the public interest (new section 510.1(2)(g)).99 In making such a disclosure, the Commissioner must take into account the privacy rights of the person who is the subject of the disclosure, the presumption of innocence and public confidence in the fairness of the electoral process.
The current limitation period on commencement of proceedings is set out in section 514. This section provides for a general limitation period of five years from the date on which the Commissioner becomes aware of the facts giving rise to the prosecution, with an absolute limitation period of 10 years from the date on which the offence was committed. This provision is amended with the following effects: for strict liability offences (set out in section 500(1)) the limitation period is six years from the date on which the subject-matter of the proceedings arose (clause 109; new section 514(1)). The House of Commons committee amendment to clause 109 clarifies that there is no limitation period for offences requiring intent (new section 514(3)). Proceedings for these types of offences can now be commenced at any time (offences mentioned in sections 500(2) to 500(5)).100
The amendments presented in this section come into force when Bill C-23 receives Royal Assent.
The amendments in the following clauses deal primarily with the office of the CEO:
The following clauses concern preparation for the vote and voting procedures:
The amendments in the following clauses deal with campaign finance (see the table in Appendix C of this Legislative Summary, which sets out the possible coming-into-force dates of selected campaign finance provisions):
The amendments in the following clauses affect the offences and punishments provisions of the CEA:
The amendments in these clauses deal with the office of the CEO, the repeal of the current transitional provisions in the CEA and the coming into force of the coordinating amendments:
The amendments in these clauses, which mainly affect the office of the Commissioner of Canada Elections, come into force on a day or days to be fixed by order of the Governor in Council:
A significant number of amendments will come into force six months after the day on which the bill receives Royal Assent unless, prior to that date, the CEO publishes a notice in the Canada Gazette that the necessary preparations for the bringing into operation of those provisions have been made and that they may come into force accordingly, in which case they come into force on the day on which the notice is published.
The following provisions affect the office and powers of the CEO:
The amendments contained in the following clauses deal with preparation for the vote and voting procedures:
These provisions affect communications with voters:
Clause 86 will result in the renumbering and reorganization of Part 18 of the CEA, functioning as a code within the CEA to govern most aspects of campaign finance. (See the table in Appendix C of this Legislative Summary, which sets out the possible coming-into-force dates of selected campaign finance provisions.)
This group of provisions will affect the enforcement of the CEA:
The following amendments deal with the CEO’s reporting obligations:
The following are largely technical provisions:
The following provisions come into force on the day on which Parliament is next dissolved or, if that day occurs less than six months after the day on which Bill C-23 receives Royal Assent, these sections come into force six months after the day on which Parliament is next dissolved:
Clause 75 (interpretation of voter contact calling services) comes into force on the day on which clause 76 (voter contact calling services) or clause 77 (communications – scripts and recordings) comes into force, whichever comes first.
The following provisions come into force on 1 January of the year following the year in which Bill C-23 receives Royal Assent (see the table in Appendix C of this Legislative Summary, which sets out the possible coming-into-force dates of selected campaign finance provisions):
Clause 87(1) ($1,500 individual contribution limit) comes into force on 1 January of the year following the year in which clause 86 (the reordered Part 18, campaign finance mini-code) comes into force. Clause 86 comes into force six months following Royal Assent or sooner if the CEO determines his or her office is ready to implement the necessary changes to bring the provisions into effect.
Clause 87(2) ($25 annual increase in contribution limits) comes into force on 1 January of the year following the year in which clause 87(1) ($1,500 individual contribution limit) comes into force. The coming into force of clause 87(1) is dependent upon the coming into force of clause 86 (see the table in Appendix C of this Legislative Summary, which sets out the possible coming-into-force dates of selected campaign finance provisions).
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
** This Legislative Summary was prepared by the following authors:
The Chief Electoral Officer may remove from office any returning officer who
(a) is incapable, by reason of illness, physical or mental disability or otherwise, of satisfactorily performing his or her duties under this Act;
(b) fails to discharge competently a duty of a returning officer under this Act or to comply with an instruction of the Chief Electoral Officer described in paragraph 16(c);
(c) fails to complete the revision of the boundaries of the polling divisions in their electoral district as instructed by the Chief Electoral Officer under subsection 538(3); or
(d) contravenes subsection (6), whether or not the contravention occurs in the exercise of his or her duties under this Act. [ Return to text ]
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. [ Return to text ]
| Offence (New Sections, CEA) | Current Punishment | Punishment Under Bill C-23 | ||
|---|---|---|---|---|
| Strict Liability | Requiring Intent | Strict Liability | Requiring Intent | |
| Contribution made by an ineligible person or entity (363(1), 497(1) and 497(2)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Failure to return contributions from ineligible contributors (363(2) and 497(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Prohibited transfers (365, 497(1) and 497(2)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Failure to issue a receipt (366, 497(1) and 497(2)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Making contributions that exceed contribution limits (367 and 497(2)) |
1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Circumventing contribution limits (368(1), 497(1) and 497(2)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Concealing the identity of the source of a contribution (368(2), 497(1) and 497(2)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Knowingly accepting excessive contributions (368(3) and 497(2)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Entering into a prohibited agreement (368(4) and 497(2)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Soliciting or accepting contributions (369(1) and 497(2)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Collusion (369(2) and 497(2)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Making indirect contributions (370, 497(1) and 497(2)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Exceeding the limit on cash contributions (371 and 497(2)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Failure to return contributions (372, 497(1) and 497(2)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Ineligible lenders, guarantors and borrowers (373, 497(1) and 497(2)) | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Making indirect loans (374, 497(1) and 497(2)) | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Failure to keep evidence of payment (380 and 497(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Failure to provide a statement and evidence of payment for petty expenses (381(3) and 497(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Paying petty expenses in excess of the maximum amount authorized to pay (381(4) and 497(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Offence (New Sections, CEA) | Current Punishment | Punishment Under Bill C-23 | ||
|---|---|---|---|---|
| Strict Liability | Requiring Intent | Strict Liability | Requiring Intent | |
| Failure to provide the statement of assets and liabilities or a related document (392, 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Failure to meet the requirements set out for officers, the chief agent, registered agents and the auditor (395, 396, 399, 400, 401 and 497.1(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Ineligible person acting as an officer, chief agent, registered agent or auditor of a registered party or an eligible party (403 and 497.1(3)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Officer knows the party is not a political party (404 and 497.1(3)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Failure to report changes in party information (405 and 497.1(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Failure to provide a statement confirming the validity of information concerning the party (407 and 497.1(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Providing false or misleading information (408 and 497.1(3)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Making a false or misleading declaration (408 and 497.1(3)) | 1 year and/or $2,000 or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Failure to provide the financial transactions return, the election expenses return or a related document (420, 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000a | 1 year and/or $20,000b or 5 years and/or $50,000 |
| Failure to provide the financial transactions return for merging parties or a related document (424, 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Failure to pay invoices within three years (428 and 497.1(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Incurring more than the maximum amount of election expenses (431(1), 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000c | 1 year and/or $20,000d or 5 years and/or $50,000 |
| Acting in collusion to circumvent the maximum amount of election expenses of a registered party (431(2), 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000e | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Failure to provide the financial transactions return of a registered party or a related report or document (432, 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000f | 1 year and/or $20,000g or 5 years and/or $50,000 |
| Failure to provide a quarterly return (433, 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 |
| Failure to forward contributions a registered party cannot keep (434, 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000h | 1 year and/or $20,000i or 5 years and/or $50,000 |
| Providing an incomplete document (436(b), 439(b) and 497.1(1)) | 3 months and/or $1,000 | 3 months and/or $2,000j | ||
| Providing a document with false or misleading information (436(a), 439(a) and 497.1(3)) | 1 year and/or $2,000k or 5 years and/or $5,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Failure to provide an election expenses return or a related document (437, 497.1(1) and 497.1(3)) | 3 months and/or $1,000 | 1 year and/or $2,000 or 5 years and/or $5,000 | 3 months and/or $2,000l | 1 year and/or $20,000m or 5 years and/or $50,000 |
| Failure to provide a corrected or revised version of the document within the specified period (440, 497.1(1) and 497.1(3)) | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Failure to provide the corrected or revised version of the document within 30 days or any authorized extension (442, 497.1(1) and 497.1(3)) | 3 months and/or $2,000 | 1 year and/or $20,000 or 5 years and/or $50,000 | ||
| Failure to report changes in information (446 and 497.1(1)) | 3 months and/or $1,000 | 3 months and/or $2,000 | ||
| Paying or incurring expenses on behalf of a registered party (426(1), 426(2) and 497.1(2)) | 6 months and/or $2,000 | 6 months and/or $5,000 | ||
| Accepting contributions or borrowing without authorization (426(3) and 497.1(2)) | 6 months and/or $2,000 | 6 months and/or $5,000 | ||
| Accepting a provision of goods or services, or a transfer of funds, or providing goods or services, or transfer funds, without authorization (426(4) and 497.1(2)) | 6 months and/or $5,000 | |||
Notes:
| Measure | Royal Assent (19 June 2014) |
Six Months After Royal Assent (19 December 2014 or sooner if the CEO so determines) |
1 January of the Year Following Royal Assent (1 January 2015) |
1 January of the Year That Is Six Months After Royal Assent (1 January 2015 or sooner if the CEO so determines) |
1 January of the Year Following the Coming into Force of Clause 87(1) (1 January 2016) |
|---|---|---|---|---|---|
| Contribution limits | $1,200 No change: $1,000 + inflation = $1,200 |
$1,200 Clause 86: new section 367 in new Part 18 of the Canada Elections Act |
$1,500 Clause 80(1), amending section 405(1) of the Canada Elections Act; clause 86: new section 367 in new Part 18 Repeal of inflation indexation Clause 81 |
$1,500 Clause 87(1): amending new section 367 of the Canada Elections Act |
$25 annual increase to $1,500 contribution limit Clause 87(2): amending new section 367 of the Canada Elections Act |
| Contributions to own campaign | Candidates: $5,000 Leadership contestants: $25,000 Clause 80(3), amending section 405(4) of the Canada Elections Act Current section 405(4) becomes sections 367(5) to 367(8) upon clause 86 coming into force six months after Royal Assent |
||||
| Political party spending limits | $0.70 per voter in each electoral district in which party endorses a candidate No change |
If 37-day election period: $0.735 per voter in each electoral district in which party endorses a candidate If election period longer than 37 days: $0.735 × (1 + 1/37) per day exceeding 37 days Clause 86: New section 430(1) in new Part 18 of the Canada Elections Act |
|||
| Limits on contributions through testamentary dispositions | Set to individual contribution limit of $1,200 Clause 80(2) amending section 405(2) of the Canada Elections Act |
Set to individual contribution limit of $1,200 Clause 86, new section 367(2) |
Set to individual contribution limit of $1,500 Clause 86, new section 367(2) |
||
| Reduction of reimbursement of election expenses for exceeding the spending limit | For candidates and political parties. Scale of reduction based on percentage by which spending exceeds the limit Clauses 84 and 85, amending new sections 435 and 465 of the Canada Elections Act |
Same Clause 86: new sections 444(1) and 477.74(3) in new Part 18 of the Canada Elections Act |
Source: Table prepared by the Library of Parliament.
© Library of Parliament
