Backgrounder: Fair Elections Act – Easy-to-Follow Rules for All

Since the last election, the Commissioner has had to sign 15 different compliance agreements with those who have breached elections law. Some are due to honest mistakes. Members of all parties have noted that the rules can be unclear.

Complicated rules bring unintentional breaches and intimidate everyday people from taking part in democracy. That is why the Fair Elections Act will make the rules for elections clear, predictable and easy-to-follow.

Interpretation powers

In order to follow the rules, parties must know them. The Fair Elections Act would ensure they do, by requiring the Chief Electoral Officer to:

  • Provide a 30-day comment period to members of the Advisory Committee of Political Parties (ACPP) before publishing a proposed guideline or interpretation note. Following the comment period, an additional 30 days would provide notice to all regulated entities of a new interpretation.  After both the comment and notice periods (total of 60 days) the CEO would formally issue the guideline or interpretation note.
  • Publish a proposed advance ruling or written interpretation on any question related to the Canada Elections Act within 45 days of a request from a registered party, and provide a further 30-day notice period before it is formally issued. Advance ruling issued by the CEO would be binding on him and the Commissioner.
  • Maintain an online registry available to the public of the complete text of final guidelines and interpretation notes that have been issued, as well as of the written opinions containing advance rulings that he has issued.

Other Government agencies have well established communications tools that feature consultation and notice to advise regulated entities of how the law applies to them.  These generally take the form of guidelines and interpretation notes or bulletins.  For instance, the Investment Canada Act provides for both advanced rulings and technical interpretations. 

The publication of advance rulings and legal interpretations are also standard practices in other government bodies, such as the Canada Revenue Agency:

“An advance income tax ruling is a written statement given by the Directorate to a taxpayer stating how the CRA will interpret and apply specific provisions of existing Canadian income tax law to a definite transaction or transactions which the taxpayer is contemplating. Accordingly, an advance income tax ruling may be either favourable or unfavourable to the interpretation desired by the taxpayer.”

Adaptation Powers

The Chief Electoral Officer currently has the power to adapt provisions of the Act during emergencies. It is highly unusual to give an unelected agency head the power to re-write any section of an Act of Parliament. The purpose of this adaption power should be limited to protecting the right to vote, even in extraordinary circumstances.

Under the Fair Elections Act, the Chief Electoral Officer would be able to adapt elections laws where necessary to allow electors to vote and for those votes to be counted.

Advisory Committee of Political Parties

To ensure that the laws reflect the realities of the entire electoral process, an Advisory Committee of Political Parties would be created on a statutory basis. The Committee would be comprised of the Chief Electoral Officer and two representatives from each registered political party. The role of the Committee would be to ensure the views of represented parties are taken into account in the management of electoral laws. Its mandate would consist of offering advice and practical input on any administrative or legislative issue related to the Act or the administration of elections by Elections Canada.

The bill sets out that the advice and the recommendations of the Committee are not binding on the Chief Electoral Officer. Elections Canada has the final interpretative power, but the Committee would act as a safeguard for the arms-length administration of elections by reviewing and suggesting improvements for any interpretation by the Chief Electoral Officer. The Committee would be required to meet at least once a year, providing regular input on the administration of elections and the application of the rules.