How A Charge Is Laid Under The Canada Elections Act

With all the recent news of election fraud and automated phone calls or robocalls directing voters to the wrong polling station in the last federal election, it is worthwhile to take a walk through the Canada Elections Act and particularly look at the Act’s mechanism for enforcement. In this blog posting, I will explain how a charge is laid under the Canada Elections Act.

According to the Elections Canada website, the Commissioner of Canada Elections, as appointed under the Act by the Chief Electoral Officer of Canada, is an independent, non-partisan, officer whose duty is to ensure that the Canada Elections Act is complied with and enforced.

Who is the Commissioner? Well, presently, Canada Elections is seeking a new Commissioner and the deadline is tomorrow, March 2, 2012. The current Commissioner is William Corbett, who was appointed in 2006.

How is a possible violation investigated? Under s. 510, the Chief Electoral Officer, presently Marc Mayrand, may refer to the Commissioner for an inquiry a violation committed by an election officer or any person who may have committed an offence under sections:

  1. 486(3)(a) - signing nomination papers where ineligible;
  2. 486(3)(d) - publication of false statement of withdrawal of candidate;
  3. 488 - unauthorized printing of ballots;
  4. 489(3)(g) - being a deputy returning officer and placing identifying mark on ballot;
  5. 493 - failure to appear before a returning officer and;
  6. 499(1) - removal of posted election documents.

Additionally, according to s. 511 of the Act, the Commissioner, if he believes on reasonable grounds that an offence under the Act has been committed, may refer the matter to the Director of Public Prosecutions, now Brian Saunders, who will then decide if a prosecution is warranted. If a prosecution is warranted the Director then requests the Commissioner to lay an Information before a Justice of the Peace or a Provincial Court Judge.

An Information is the charging document initiating the prosecution. In order to lay an Information, the Informant, in this case the Commissioner, must swear under oath and in writing, his reasonable and probable grounds for believing an offence has been committed. The Commissioner must also indicate the place and time of the alleged offence.

Once the Justice receives the sworn statement from the Commissioner, the Justice must determine if the sworn statement actually discloses reasonable grounds for the commission of an offence. Although this is the first judicial determination made on an allegation, the Justice is not deciding upon guilt or innocence. The Justice is simply satisfying himself that there is a prima facie case based on the sworn statement. The Justice does not weigh the evidence at this point but takes the evidence contained in the sworn statement at face value, meaning the Justice assumes the truth and integrity of the information. If the information, as presented, fails to satisfy the Justice that there are reasonable grounds for the charge, then no process is issued (as in a summons to court or an arrest warrant) and the charge is not initiated. 

Therefore, in some circumstances, a charge under the Canada Elections Act cannot be laid until a myriad of steps have been fulfilled such as:

  1. The Chief Electoral Officer reviews the alleged violation and if the Chief has reasonable grounds to believe there may be a violation, refers the matter to the Commissioner for inquiry;
  2. The Commissioner then conducts the inquiry and if the Commissioner believes on reasonable grounds a violation may have been committed, he may refer the matter to the Director of Public Prosecutions;
  3. The Director of Public Prosecutions reviews the violation and if prosecution is warranted, the matter is sent back to the Commissioner;
  4. The Commissioner must attend before a Justice of the Peace to lay an Information, the JP, must receive the complaint from the Commissioner, but must only issue process or initiate charges, upon being satisfied there are indeed reasonable grounds for the offence before a charge can be laid under the Canada Elections Act.

In the end, it is much more difficult to lay a charge under the Canada Elections Act, than it is for a charge to be laid under the Criminal Code. Anyone can appear before a Justice and swear an Information that they believe on reasonable grounds that a crime has been committed under the Code. If a Justice is satisfied there are reasonable grounds, then process is issued and a charge is laid.

Considering the right to vote is constitutionally protected under s. 3 of the Charter of Rights and Freedoms, the layers of inquiry required involving three different officials, who all must have reasonable grounds to proceed, seems incongruous. This is particularly puzzling in light of the Supreme Court of Canada’s robust and expansive interpretation of the democratic right to vote as being more than merely the right to cast a ballot. Indeed, the right to vote includes a citizen’s right to play a meaningful role in the electoral process.

There is, therefore, a positive obligation on the government to provide appropriate arrangements for the effective exercise of the right to vote. The government, to fulfill this obligation, must create an electoral apparatus to permit the exercise of this right, including implementing the rules and procedures for ensuring fair elections by providing the protection against violations of that right. The importance of this right cannot be underestimated or taken for granted and should be protected as all rights guaranteed under our Charter are so protected. It remains to be seen if this present "scandal" will effect any changes in order to re-align the actual electoral process more appropriately with our cherished Charter values.