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Canada Elections Act (S.C. 2000, c. 9)

Full Document:  

Act current to 2022-09-11 and last amended on 2021-06-29. Previous Versions

PART 19Enforcement (continued)

Prosecutions (continued)

Marginal note:Director’s consent required

  •  (1) No prosecution for an offence under this Act may be instituted by a person, other than the Commissioner or a person acting under his or her direction, without the prior written consent of the Director of Public Prosecutions provided after consultation with the Commissioner.

  • Marginal note:Exception

    (2) Subsection (1) does not apply to an offence in relation to which an election officer has taken measures under subsection 479(3).

  • Marginal note:Proof of consent

    (3) Every document purporting to be the Director’s consent under subsection (1) is deemed to be that consent unless it is called into question by the Director or by someone acting for the Director or for Her Majesty.

 [Repealed, 2018, c. 31, s. 362]

Marginal note:Limitation period

  •  (1) Proceedings in respect of an offence under a provision set out in subsection 500(1) may be commenced at any time within, but not later than, six years after the day on which the subject-matter of the proceedings arose.

  • Marginal note:Exception

    (2) Despite subsection (1), if a prosecution cannot be instituted because the offender has left the jurisdiction of the court, the prosecution may be instituted within one year after the offender’s return.

  • Marginal note:No limitation period

    (3) Proceedings in respect of an offence under a provision set out in any of subsections 500(2) to (5) may be commenced at any time.

  • 2000, c. 9, s. 514
  • 2003, c. 19, s. 63
  • 2006, c. 9, s. 59
  • 2014, c. 12, s. 109

Marginal note:Allowance of costs

  •  (1) Any court of criminal jurisdiction before which a private prosecution is instituted for an offence against this Act may order payment by the defendant to the prosecutor of such costs and expenses as appear to the court to have been reasonably incurred in and about the conduct of the prosecution.

  • Marginal note:Prior recognizance required

    (2) A court shall not make an order under subsection (1) unless the prosecutor, before or on the laying of the information, enters into a recognizance with two sufficient sureties, in the amount of $500, and to the satisfaction of the court, to conduct the prosecution with effect and to pay the defendant’s costs in case of acquittal.

  • Marginal note:Costs of defendant

    (3) In case of an information by a private prosecutor for an offence against this Act, if judgment is given for the defendant, the defendant is entitled to recover from the prosecutor the costs incurred by the defendant by reason of the proceedings, which costs shall be taxed by the proper officer of the court in which the judgment is given.

Injunctions

Marginal note:Application for injunction

  •  (1) If the Commissioner has reasonable grounds to believe that a person has committed, is about to commit or is likely to commit an act or omission that is contrary to this Act, the Commissioner may, during an election period, after taking into account the nature and seriousness of the act or omission, the need to ensure fairness of the electoral process and the public interest, apply to a competent court described in subsection 525(1) for an injunction described in subsection (2).

  • Marginal note:Injunction

    (2) If the court, on application by the Commissioner under subsection (1), is satisfied that there are reasonable grounds to believe that a person has committed, is about to commit or is likely to commit an act or omission that is contrary to this Act, and that the nature and seriousness of the act or omission, the need to ensure fairness of the electoral process and the public interest justify the issuing of an injunction, the court may issue an injunction ordering any person named in the application to do one or both of the following:

    • (a) refrain from committing any act that it appears to the court is contrary to this Act; and

    • (b) do any act that it appears to the court is required by this Act.

  • Marginal note:Notice

    (3) No injunction may be issued under subsection (2) unless at least 48 hours notice is given to each person named in the application or the urgency of the situation is such that service of notice would not be in the public interest.

Compliance Agreements

Marginal note:Power to enter into compliance agreement

  •  (1) Subject to subsection (7), if the Commissioner believes on reasonable grounds that a person or entity has committed, is about to commit or is likely to commit an act or omission that could constitute an offence under this Act, the Commissioner may enter into a compliance agreement, aimed at ensuring compliance with this Act, with the person or entity (in this section and sections 518 to 521 called the “contracting party”).

  • Marginal note:Terms and conditions

    (2) A compliance agreement may contain any terms and conditions that the Commissioner considers necessary, including a requirement that the contracting party pay a specified amount.

  • Marginal note:Obligations of Commissioner

    (3) Before entering into a compliance agreement, the Commissioner shall

    • (a) advise the prospective contracting party of the right to be represented by counsel and give it an opportunity to obtain counsel; and

    • (b) obtain the consent of the prospective contracting party to the publication of the agreement under section 521.

  • Marginal note:Admission of responsibility

    (4) A compliance agreement may include a statement by the contracting party in which it admits responsibility for the act or omission that constitutes the offence.

  • Marginal note:Inadmissible in evidence

    (5) The fact that a compliance agreement was entered into, and any statement referred to in subsection (4), is not admissible in evidence against the contracting party in any civil or criminal proceedings.

  • (6) [Repealed, 2018, c. 31, s. 363]

  • Marginal note:Remittal of matter despite institution of prosecution

    (7) If a prosecution has been instituted, the Director of Public Prosecutions may — if, after consultation with the Commissioner, the Director considers that a compliance agreement would better serve the public interest — suspend the prosecution and remit the matter back to the Commissioner so that it may be dealt with in that way.

  • Marginal note:Effect of compliance agreement

    (8) When a compliance agreement is entered into,

    • (a) no prosecution may be instituted against the contracting party for an act or omission that led to the agreement unless there is non-compliance with it; and

    • (b) any prosecution of the contracting party instituted before the agreement was entered into for an act or omission that led to the agreement is suspended unless there is non-compliance with the agreement.

  • Marginal note:Renegotiation

    (9) The Commissioner and the contracting party may renegotiate the terms of the compliance agreement at the request of the Commissioner or contracting party at any time before it is fully executed.

  • Marginal note:Copy

    (10) The Commissioner shall provide the contracting party with a copy of the compliance agreement, without delay after it is entered into or renegotiated under subsection (9). The Commissioner shall also provide a copy of the compliance agreement to the Director of Public Prosecutions if a prosecution of the contracting party had been instituted before the agreement was entered into.

Marginal note:If agreement complied with

  •  (1) If the Commissioner is of the opinion that the compliance agreement has been complied with, the Commissioner shall cause a notice to that effect to be served on the contracting party. The Commissioner shall also provide a copy of the notice to the Director of Public Prosecutions if a prosecution of the contracting party for an act or omission that led to the agreement had been instituted before the agreement was entered into.

  • Marginal note:Effect of service

    (2) Service of the notice terminates any prosecution of the contracting party that is based on the act or omission in question and prevents the institution of any prosecution of the contracting party for the act or omission.

Marginal note:If agreement not complied with

  •  (1) If the Commissioner is of the opinion that a contracting party has not complied with a provision of a compliance agreement, the Commissioner shall cause a notice of default to be served on the contracting party, informing it that, as the case may be,

    • (a) a notice of violation may be served on the contracting party as a result of the failure to comply with the provision of the compliance agreement;

    • (b) a prosecution may be instituted against the contracting party in respect of any act or omission that led to the agreement; or

    • (c) if a prosecution in respect of any act or omission that led to the agreement was suspended by virtue of subsection 517(8), it may be resumed.

  • Marginal note:Copy to Director of Public Prosecutions

    (2) The Commissioner shall also provide a copy of the notice to the Director of Public Prosecutions if a prosecution in respect of any act or omission that led to the agreement had been instituted before the agreement was entered into.

Marginal note:Dismissal of proceedings

 The court shall dismiss proceedings against a contracting party if it is satisfied on a balance of probabilities that the contracting party has totally complied with the compliance agreement or, in the case of partial compliance and taking into account the contracting party’s performance with respect to the agreement, is of the opinion that the proceedings would be unfair.

Marginal note:Publication

 The Commissioner shall publish, in the manner and form that he or she considers appropriate, a notice that sets out the contracting party’s name, the act or omission in question and the text of the compliance agreement, other than the signatures of the individuals who signed it.

Deregistration

Marginal note:Notice to party

  •  (1) If the Commissioner has reasonable grounds to suspect that a registered party does not have as one of its fundamental purposes participating in public affairs by endorsing one or more of its members as candidates and supporting their election, the Commissioner shall, in writing, notify the party that it is required to show that that is one of its fundamental purposes.

  • Marginal note:Court application

    (2) If, after giving the party a reasonable opportunity to show what its fundamental purposes are, the Commissioner still has reasonable grounds to suspect that the party does not have as one of its fundamental purposes the purpose described in subsection (1), the Commissioner may apply to a court described in subsection 525(1) for an order described in subsection (3).

  • Marginal note:Order

    (3) If the court is satisfied that the party does not have as one of its fundamental purposes the purpose described in subsection (1), the court shall, by order, direct the Chief Electoral Officer to deregister the party and it may

    • (a) direct the chief agent — or another person specified by the court — to liquidate the party’s assets; and

    • (b) if it directs liquidation under paragraph (a), direct the financial agent of each registered association — or another person specified by the court — to liquidate the registered association’s assets.

  • Marginal note:Onus on party

    (4) The onus of satisfying the court that one of its fundamental purposes is the purpose described in subsection (1) is on the party.

  • Marginal note:Factors

    (5) In making its decision, the court shall consider all of the factors relevant to determining the party’s purposes, including, as applicable, the following:

    • (a) the party’s constitution, articles of incorporation, letters patent or by-laws or any other information that may indicate those purposes;

    • (b) the party’s political program, annual report to members, fundraising plan, advertising material and policy statements;

    • (c) the nature and extent of the activities of the party and its registered associations and candidates, including the nature and extent of their involvement in electoral campaigns and any of their public statements in support of another political party or a candidate of another political party;

    • (d) the funds received by the party and its registered associations and candidates, their sources and how they are used by the party, including as election expenses;

    • (e) interactions of the party with other entities that are not recognized political parties under the laws of any province that may indicate that it is under the control, direct or indirect, of another entity or that the party is using its status as a registered party primarily for the purpose of providing financial assistance to another entity; and

    • (f) whether the party is a non-profit entity.

  • Marginal note:Exemption

    (6) If, in the court’s opinion, the public interest and the need to ensure fairness of the electoral process warrant it, the court may, on application, exempt the party and its registered associations from the application of subsection 127(3.3) of the Income Tax Act. If an exemption is granted, the court may impose any conditions on the activities of the party, registered association or candidate that it considers appropriate.

  • Marginal note:Liquidation

    (7) If a chief agent, a financial agent or a person specified by the court is, under subsection (3), directed to liquidate, they shall carry out the liquidation in accordance with subsections 501(4) to (7).

  • 2004, c. 24, s. 23

Proceedings in Respect of a Violation

Notice of Violation

Marginal note:Issuance of notice of violation

  •  (1) If the Commissioner believes on reasonable grounds that a person or entity has committed a violation, the Commissioner may issue, and shall cause to be served on the person or entity, a notice of violation that

    • (a) sets out the person or entity’s name;

    • (b) identifies the provision of this Act that was contravened or the requirement, or the provision of the compliance agreement or undertaking, that was not complied with;

    • (c) identifies the act or omission to which the violation relates;

    • (d) sets out the amount of the administrative monetary penalty for the violation;

    • (e) sets out the particulars concerning the manner of payment;

    • (f) informs the person or entity of their right to request a review by the Chief Electoral Officer or the Commissioner, as the case may be, of the alleged violation or proposed penalty, and sets out the manner for doing so;

    • (g) informs the person or entity that if they provide an undertaking that is accepted by the Commissioner, the proceedings commenced by the notice will be ended; and

    • (h) informs the person or entity of the consequences of failing to pay the penalty, request a review or provide the Commissioner with an undertaking.

  • Marginal note:Approval of manner of requesting review

    (2) The manner for requesting a review by the Chief Electoral Officer that is set out in the notice of violation requires the Chief Electoral Officer’s prior approval.

  • Marginal note:Correction or cancellation of notice of violation

    (3) At any time before a request for a review in respect of the notice of violation is received by the Chief Electoral Officer or the Commissioner, as the case may be, the Commissioner may cancel the notice of violation or correct an error in it.

 
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