Backgrounder: An Independent Commissioner: sharper teeth, a longer reach and a freer hand

The Fair Elections Act empowers law enforcement with sharper teeth, a longer reach and a freer hand. “Sharper teeth” means tougher penalties for existing offences. “Longer reach” means empowering the Commissioner with more than a dozen new offences to combat big money, rogue calls and fraudulent voting. Finally, a “freer hand” means the Commissioner will have full independence, with control of his or her staff and investigations, and a fixed-term of seven years, so he or she cannot be fired without cause.

Toughening Penalties: Sharper Teeth

The Fair Elections Act proposes tougher criminal penalties for election offences:

  • Set a maximum fine of $20,000 on summary conviction or imprisonment for up to one year and $50,000 on indictment or imprisonment for up to five years for the following offences: obstructing an election officer, voting more than once, offering a bribe, making false statements to have a person deleted from the Register of Electors, or applying for a ballot under a false name.  Candidates and official agents convicted of these offences would be prohibited from being a Member of the House of Commons or holding any office in the nomination of the Crown or of the Governor in Council for seven years
  • Increase the maximum fines for the more serious elections offences, such as taking a false oath or making a false or erroneous declaration to elections officials, from $2,000 to $20,000 on summary conviction and from $5,000 to $50,000 on indictment.
  • Increase the maximum fine for all strict liability offences, such as failure to appoint an agent or auditor, from $1,000 to $2,000 and summary conviction offences from $2,000 to $5,000.
  • Increase the maximum fine for third parties that are groups or corporations that fail to register as a third party to a maximum fine of $50,000 for strict liability and to a maximum fine of $100,000 for intent.
  • Increase the maximum fines for offences applying primarily to broadcasting corporations, such as transmitting advertising during a blackout, from $25,000 to $50,000.
  • Increase the maximum fine for parties from $25,000 to $50,000 on summary conviction for the political financing offences that do not require intent and from $25,000 to $100,000 on summary conviction for the political financing offences that require intent, such as failure to provide a quarterly return or a financial transactions return.

Limitation period

  • Longer reach also means the Commissioner can go back further in time to catch deliberate lawbreaking. The Fair Elections Act will eliminate the limitation period for offenses requiring intent. The limit for offences committed without intent would now be six years.

New Offences: Longer Reach

The Fair Elections Act provides for more than a dozen new offences, making it easier for the Commissioner to combat big money, rogue calls and fraudulent voting.

To start with, the Fair Elections Act will make it an offence for anyone to provide false information in the course of an investigation or obstruct a person conducting an investigation.

The Fair Elections Act would create new election offences:

  • Relating to registration on the lists of electors, including at an ordinary or advance poll, such as compelling, inducing or attempting to compel or induce any other person to make a false or misleading statement relating to their qualification as an elector;
  • Relating to political financing rules, such as knowingly making indirect loans;
  • Relating to registration on polling day and at an advance polling, such as registering when not qualified; and
  • Relating to non-compliance with the proposed voter contact registry, such as failing to keep scripts and recordings used in the provision of voter contact calling services.
  • Relating to voter deception: There are no provisions in the current Act that make it an offence to impersonate political agents or election officials. The bill would amend the Canada Elections Act to add the offence of impersonating or causing another person to impersonate a candidate, a candidate’s representative, a representative of a registered party or registered association, the Chief Electoral Officer, a member of the Chief Electoral Officer’s staff, an election officer or a person authorized to act on the Chief Electoral Officer or an election officer’s behalf.

Independent Commissioner of Canada Elections: Freer Hand

Consistent with separating the administration of an election from the enforcement of election law, the Fair Elections Act proposes to house the Commissioner within the office of the Director of Public Prosecutions.

The Commissioner would maintain his powers and functions but gain status as a deputy head for the purposes of managing human resources, allowing him to make his own staffing decisions and direct his investigations independently of the Director of Public Prosecution and Elections Canada. 

Although the investigation and prosecution functions with respect to enforcing the Canada Elections Act would be housed in the same office, the Director of Public Prosecutions would have no role in the Commissioner’s investigations.

Future appointees would hold the position for a non-renewable 7 year fixed term. To maintain the integrity of the position, those individuals who have previously been a candidate, an employee of a registered party, exempt staff of a Minister or staff of a Member of Parliament, or an employee of Elections Canada would not be eligible to be appointed Commissioner. The Director of Public Prosecutions could not consult the Chief Electoral Officer with respect to the appointment.

The Fair Elections Act proposes that the current Commissioner of Canada Elections remain in his role. This will allow for all current investigations to continue uninterrupted.

The Commissioner would be responsible for ensuring the Canada Elections Act is complied with and enforced, including:

  • recommending prosecutions to the Director of Public Prosecution;
  • entering into compliance agreements with an offender that will be made public;
  • taking measures in relation to an investigation, injunction or compliance agreement under electoral legislation that he or she considers to be in the public interest, such as requesting documents or information from the new Voter Contact Registry maintained by the Canadian Radio-television and Telecommunications Commission.

The bill would repeal the section of the current Act that provides for the Chief Electoral Officer to direct the Commissioner to carry out certain investigations. The Chief Electoral Officer, just like any other Canadian, could ask the Commissioner to investigate an allegation. The Commissioner would have the ability to initiate his own investigations against all those bound by the Canada Elections Act, including Elections Canada officials, and investigate any matter if he believes there has been a possible violation of the law.

The bill would also establish procedural safeguards for investigations undertaken by the Commissioner. There are currently no rules outlined in the Canada Elections Act for the conduct of investigations. The Commissioner would have to ensure that the subject of the investigation is notified, unless the Commissioner believes that to do so would compromise or impede the investigation.  The Fair Elections Act also requires confidentiality of any investigation.  This brings the Commissioner into line with confidentiality and notification provisions applying to other Agents of Parliament in their investigative capacity.