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A lot has been written about the “robocall” scandal in the last few weeks. Topics have ranged from what sections of the Canada Elections Act may have been breached, to how electors can challenge an election.

In addition to calling for a public inquiry into the scandal, opposition parties have demanded expanding the investigative powers of Elections Canada. On March 8, 2012, the NDP brought a motion that requires the following: that the government table amendments to the Act to ensure that Elections Canada’s investigative capabilities be strengthened, including giving the Chief Electoral Officer the power to request all necessary documents from political parties to ensure compliance with the Act; that all telecommunication companies that provide voter contact services during a general election register with Elections Canada; and that all clients of telecommunication companies during a general election have their identity registered and verified.

The motion passed unanimously.

Under the Act, the Chief Electoral Officer must appoint a Commissioner of Elections Canada. The Commissioner’s job is to ensure that the Act is complied with and enforced (For a detailed explanation of the process at Elections Canada upon the receipt of a complaint, see here).

If the Commissioner believes “on reasonable grounds” that an offence has occurred, then the matter may be referred to the Director of Public Prosecutions. The Director decides whether to initiate a prosecution.

By reference to the Criminal Code, the Act only grants the power of search and seizure (upon obtaining a warrant). No other investigative powers are given. Investigators are able to talk to anyone willing to talk to them, but they cannot compel anyone to give a statement. But then, under the Charter of Rights and Freedoms, individuals suspected of committing offences can invoke their right to silence under section 7.

In the context of a public inquiry, though, individuals can be compelled to testify. That testimony may mean they provide incriminating evidence against themselves. Under the Canada Evidence Act, while witnesses are not excused from answering questions on the basis that it may incriminate them, the answer given by a witness cannot be used against him or her in any criminal trial or proceeding thereafter.

The Commissioner, investigators, and members of the public also have access to the substantial number of documents that are collected under the Act. Once “certified,” this can be used as evidence in court. That is, they need not be proven in court under oath through a witness.

With regard to audit powers, the NDP motion seeks to expand those significantly. Prior to the motion being tabled, the Chief Electoral Officer commented on the additional audit powers that his office sought. In his report, Responding to Changing Needs, the Chief Electoral Officer recommended that his office should be able to request that registered political parties provide any documents and information that may, in the Chief Electoral Officer’s opinion, be necessary to verify that a party and its chief agent have complied with the requirements of the Act with respect to the election expenses returns (The primary concern here is that when it comes to the election expenses returns, parties may obtain reimbursement for their expenses. Unlike candidates and other regulated entities, political parties are not required to provide evidence to support their returns. After the 40th general election, almost $30 million was paid to the five parties that qualified for this requirement. The Chief Electoral Officer was seeking to be able to better verify reimbursement requests.).

This is different than the NDP motion which seeks to give “the Chief Electoral Officer the power to request all necessary documents from political parties to ensure compliance with the Act;” that is, the entire Act.

An important issue around audit powers is that they cannot be used where the predominant purpose of the inquiry is to determine penal liability.

In 2002, in Jarvis v. Her Majesty the Queen, the Supreme Court of Canada ruled on when evidence obtained through an audit could be used in a prosecution under the Income Tax Act.

The question in Jarvis was whether the transfer of the auditor’s file to investigators violated the taxpayer’s section 7 and 8 Charter rights. The upshot of that decision is that if, during an audit, the predominant purpose is to determine penal liability, then Charter rights are triggered; the person being “audited” must be cautioned about his or her right to silence. However, documents obtained during an audit could be transferred to investigators, prior to an investigation being instituted, as there is a low privacy expectation in those documents.

Not all Charter rights apply to registered parties. For example, section 8 of the Charter, but not section 7, applies to corporations. To the extent Charter rights apply to corporations, they likely also apply to parties and registered associations who are subject to investigations and prosecutions under the Act.

Perhaps the power to compel witnesses to give statements would be more useful than extremely broad audit powers. Given the broad wording of the NDP motion, that may well be one of the proposed amendments.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.

Paula Boutis

Paula Boutis

Paula Boutis is a contributor to rabble’s Pro Bono column. Boutis has practiced law for over a decade. She has a special interest in public interest environmental law, and practiced environmental...