While Election Day is behind us, the work of the Commissioner of Canada Elections (the "Commissioner"), who is responsible for ensuring that the Canada Elections Act (the "Act") is complied with and enforced, is ongoing.
As the Commissioner investigates whether election activities were compliant with the Act, it is not only political actors who may come into contact with the Commissioner in the exercise of these new investigation powers. In the context of election advertising, the Commissioner may seek information from service providers and the sellers of ad space, whether in print, online, or otherwise, to carry out its investigations into violations or potential violations of the Act.
The amendments made to the Act modified the position of the Commissioner within the governmental structure and considerably broadened its powers, notably in terms of investigation and prosecution measures.
Borrowed from the Criminal Code, if the Commissioner has a reasonable belief that the Act has been violated (or is about to be violated) and that an individual has (or is likely to have) information providing evidence of the violation, the Commissioner may apply to a Court for a production order. This production order requires a person or company to produce a copy of a document or to prepare and produce a document containing data that will provide evidence of the violation, as long as the document or data is in the person's control or possession when they receive the order.
The Commissioner can also obtain an order under the Act compelling testimony in connection with a violation or potential violation of the Act. Here, a person is ordered to be deposed on oath by the Commissioner or one of its representatives on any matter that is relevant to the violation. Alternatively, the order may also force a person to make and deliver a written return under oath showing in detail the information that is required by the order.
A failure to comply with these orders could result in contempt of Court proceedings.
These powers of the Commissioner have only existed since the coming into force this year of the new amended version of the Act and are exercised for the first time in connection with this election.
To complement these broadened investigation powers and ready access to the Court, the Commissioner can also now initiate prosecutions itself, rather than having to refer the matter to the Director of Public Prosecutions (the "DPP").
Under the amended Act, the Commissioner, upon reasonable belief that an offence was committed, can institute a prosecution or cause one to be instituted before the Courts. The available sanctions for violations of the Act include fines and even imprisonment.
The amended Act has also created a new power that allows the Commissioner to impose directly administrative monetary penalties on those who are believed to have violated the Act without having recourse to the Courts.
As outlined in this article, the investigation powers of the Commissioner have broadened with the coming into force of the new version of the Act and should not be taken lightly. As many of the new restrictions and measures under the amended Act, these changes can have an impact on non-political actors. Indeed, if a company interacts with political actors, particularly through the sale of advertising space for regulated or potentially regulated election content,1 it could be called upon, compelled even, to cooperate with the Commissioner in connection to a violation or potential violation of the Act by a third party.
The same applies to the new enforcement powers of the Commissioner. Given that there are a wide variety of restrictions that could capture even the unwitting or unintentional actors in this modernized election framework, the more an organization knows about the extent of the new powers granted to the Commissioner, the better.
1 See our earlier article in relation to issues arising with regulated election content: https://langlois.ca/name-transparency-modernization-canada-elections-act
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