Proposal For Written Binding Opinions By Elections Canada

The Fair Elections Act bill proposes that, if a chief agent of a registered party asks, the Chief Electoral Officer must provide the chief agent with a written opinion on the application of the Canada Elections Act to an activity or practice in which the registered party (or one of its registered associations, candidates, nomination contestants, or leadership contestants) proposes to engage (FEA clause 5, section 16.2). (The bill’s proposed section 16.1 imposes a similar duty on the Chief Electoral Officer to issue non-binding interpretations and guidelines but this posting does not deal with that related provision.)

Once a registered party requests an opinion, Elections Canada has no discretion in the matter. It must provide the chief agent with the requested written opinion. Once issued the opinion will bind the Chief Electoral Officer and the Commissioner (which effectively binds the DPP as the DPP can only act on receiving a recommendation by the Commissioner) as long as:

i) all of the material facts given by the chief agent to the Chief Electoral Officer are accurate;

ii) the material facts on which the opinion was based remain substantially unchanged, the activity or practice is carried out substantially as proposed; and

iii) Elections Canada does not subsequently issue a contrary interpretation note or guideline or give another contrary written opinion.

Evaluation

As will be discussed below, the bill’s provision for the giving of binding written opinions is unduly party centric as it makes provision only for input by the parties (which input one can expect will reflect party interests) with no input by the Commissioner of Canada Elections or the DPP or the public generally; has imperative timelines which are unduly rigid and short which will clearly lead to poor opinions that may negatively impact on the public interest; contains no reasonable means to control workload or frivolous and vexatious requests or requests made in bad faith and is ambiguous as to its operation. With no explanation as to the problem sought to be addressed or the value to be gained the concerns raised by the provision make it difficult to justify.

What Is The Problem Or Value Sought To Be Achieved?

Unfortunately, there has been no explanation in the committee hearings in the Senate and the House of Commons as to the problem that is to be addressed or the benefit to be achieved by legislatively requiring the provision of binding written opinions. Obviously, the intended effect of the provision is that a registered party is to be able to seek a written opinion from Elections Canada respecting a proposed activity. This should leave the party free to engage in the activity in accordance with the opinion free from concerns of being subsequently subjected to complaint or prosecution. But the need for such a right has not been explained or justified.

Application Of Law Or Interpretation Of Law

The proposed section 16.2, on its face, appears to deal with the application of the law to a particular situation. However, it is evident that such opinions will often, if not inevitably, require that the Chief Electoral Officer also interpret the Act in determining how it may apply to any particular activity. There is no requirement in the provision that the Chief Electoral Officer have already issued an interpretation of any relevant provision. Even if he had done so, the earlier proposed section 16.1 expressly states that any such interpretation which the Chief Electoral Officer may have issued is not binding on anyone. Thus, written opinions under section 16.2 may involve far more than the application of the law to facts. They may also involve the provision of interpretations of the Act – interpretations which will be binding at least to the extent of the activity which is the subject of the request.

It may be that section 16.2 is only to deal with situations where the Chief Electoral Officer has already developed and issued an interpretation of a Canada Elections Act provision. In this case the party is only being given the ability to seek an opinion as to how that interpretation will apply to a particular activity. If that is the case the provision should make this clear.

Strict Time Lines

The proposal sets up a timeline for the issuing of these written opinions. The bill’s proposal directs that within 45 days after the day on which chief agent makes the application the Chief Electoral Officer must publish the opinion on his or her internet site. (As will be seen below this does not mean that Elections Canada has 45 days to consider and write the opinion.) The opinion must be kept on the regulator’s web site for 30 days along with a notice that the opinion will be issued at the end of that 30 day period. At the end of the 30 day period the Chief Electoral Officer is required to issue the opinion. This is done by the Chief Electoral Officer registering it to the Elections Canada internet registry which will contain all of Elections’ and opinions. It is presumably at this point that the opinion becomes binding. Overall then, there is a period of 75 days (2 and a half months) from request to issuance. But this does not mean that the Chief Electoral Officer has 75 days, or even 45 days, to actually work on the substance of the opinion. Much of that time will be taken up by other activities.

Thirty days of that period is reserved for the members of the Advisory Committee of Political Parties to provide comments. The bill directs that before a proposed opinion is issued the Chief Electoral Officer must provide a copy of it to the members of Advisory Committee of Political Parties. The Committee has 30 days after the opinion is sent to give its comments, in writing, to the Chief Electoral Officer. One can imagine that not all Committee members may be in agreement respecting the opinion.

The bill makes no provision for comments on the original opinion by the registered party which requested it. Presumably, the right of the requesting party to make comments is encompassed by the notice to the members of the Advisory Committee which will include the requesting party.

Although the proposed bill is published on the internet, the bill does not expressly provide for comments from the public. Nor does it provide that the different members comprising the Advisory Committee have an opportunity to see or comment on any comments which the other members of the Committee may provide to Elections Canada.

The bill also does not provide any leeway or possibility of extension to the above timeline that may be necessitated for efforts by the Chief Electoral Officer to clarify facts or issues provided by a chief agent in the original request or to seek additional facts from the chief agent. The Canada Revenue Agency also gives advance rulings but expressly excludes from its timelines any time necessitated by communication with a taxpayer in seeking or clarifying facts.

As noted above, the bill requires that the opinion be published on the web for 30 days before being issued. Presumably this is to give notice to the public (who nonetheless does not appear to have any right to comment). Under section 12 of the Official Languages Act publication on the web likely require that the opinion be translated into both official languages before it is put up on the net. The opinion would certainly have to be translated before being entered into the registry. No additional time is provided for this translation. Nor does the bill provide any leeway or possibility of extension for any review and reconsideration of an opinion as a result of the comments received from the members of the Advisory Committee. Whatever must be done before an opinion can be issued must be done within the bill’s 75 day (2 ½ months) period.

The bill does provide for the suspension of the timelines on the calling of a general election. It proposes that if the 45 days for publication of the opinion on the net overlaps with the calling of a general election the requirement to publish starts to run after polling day. No provision is made for a by-election which is significant as much of the Chief Electoral Officer’s resources can be diverted in the case of a by-election to that by-election – more so when multiple by-elections are called for the same or overlapping periods. Also, an election suspends the operation of the timeline only if the calling of the election overlaps the initial 45 day period for writing the opinion. The timeline is not suspended if the election is called during the balance of the time period even if that period encompasses the giving and consideration of comments from the members of the Advisory Committee or any redrafting or reconsideration of the opinion as a result of the comments.

In practical terms, it appears to me that Chief Electoral Officer actually only has 30 days to receive a request, clarify any ambiguous facts or situations with the chief agent (who may in turn be required to seek clarification from the emanation of the party which is proposing to carry out the activity), interpret the law, consult within the various directorates of Elections Canada which may be directly impacted by the activity in question such as financing or operations, consider the application of the law to the facts of the request, work out the practical ramifications, and complete any required internal review and approval. I do not believe that this is practical in the realities of a busy administrative agency particularly given the growing complexities of the Act. (I was in Elections Canada at the time the controls on contributions were introduced and can attest to the complexity of some of the questions which came to us as the public prepared for the coming into force of that legislation. In fact, one would expect that requests for written opinions would be focused on very complex matters with significant implications.) The bill does not set out this 30 day practical period. I have arrived at it in considering the various time periods which are specified in the bill. Under the bill, there are 45 days to publish on the net at which point a 30 day period begins to run at the end of which the opinion must be issued. Sometime within this period the Advisory Committee must be given 30 days to review and comment. (The Chief Electoral Officer can hardly continue developing an opinion within this 30 day consultation period although the time may be used for translation assuming no major changes will take place as a result of the Advisory Committee comments.) I assume that the Chief Electoral Officer will not want to have the Advisory Committee consultation to run simultaneously with the 30 day web publication period as that will leave no time to consider the various Committee comments. Thus the CEO must reserve some time to consider and adapt the opinion as a result of comments from the Advisory Committee. For that reason I am guessing that the Chief Electoral Officer will stage the timing so that Elections will use the first 30 days to prepare an original draft which will then be shared with the members of the Advisory Committee and reserve a two week period at the end of the process to consider the Advisory Committee’s comments and reconsider the opinion if necessary. Hence my assumption of a 30 day period for the initial preparation of the opinion.

By means of comparison, the Canada Revenue Agency states that its goal is to issue advance rulings within 60 days of “controllable time” (i.e. time not taken in seeking clarification of facts etc.) and where an interpretation of the Act is involved that period is extended to 90 days. None of these periods involve consultation with other entities such as the Advisory Committee of Political Parties.

The strict and limited timelines proposed by section 16.2 of the FEA bill with no means to extend or suspend other than through a general election makes me suspect that there are going to be a good number of loosey-goosey written opinions coming out of Elections Canada which will, nonetheless, be binding on the Chief Electoral Officer and the Commissioner. Such strict times lines reduces the ability of Elections to delve deeply into the ramifications of any request. It consequently also increases the ability of the unscrupulous to slip matters by the regulator at the cost of the public interest. It is not uncommon in law where legislation sets time limits for authorities to take action for the legislation to give power to the authority to extend those time limits where required. The decision of the Supreme Court of Canada in A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 CarswellAlta 2068, 2011 SCC 61 (S.C.C.), for example, dealt with the authority that had been given to the Alberta Information and Privacy Commissioner to extend the time to complete an inquiry. Better than including a power to extend deadlines would be the removal of the imperative time limits themselves. Written opinions will likely involve complex matters and such time should be taken, in light of all of the circumstances, to issue a proper opinion which one can be confident that all of the ramifications have been considered. The Canada Elections Act deals with public rights -– the right to a fair and informed election and the Chief Electoral Officer should have such time as is necessary in light of all of the circumstances to issue proper opinions. At most,the provision should direct that those who are to have input into the process be given a minimum time to do so without setting a limit as to when an opinion must issue.

No Input From The Commissioner Of Canada Elections Or The DPP

As noted, a written opinion by the Chief Electoral Officer will also bind the Commissioner of Canada Elections and, indirectly, the DPP. Yet there is no provision for input from either of those offices.

Opinion Applies To The Activity And Any Who Carry Out Materially The Same Activity

Who is to be bound by a written opinion? Unfortunately, the bill does not expressly provide whether the written opinion binds the Chief Electoral Officer and the Commissioner only when the activity is carried out by the registered party which requested the opinion (or one of its political emanations) or whether the opinion applies equally to all who carry out materially the same activity in substantially the same circumstances. As discussed below, I read the bill as binding the Chief Electoral Officer and the Commissioner to the activity regardless of who is engaging in that activity and that it applies not only to the political entities engaged in the opinion but also the members of the public as well. I understand that one of the major allegations of the government appears to be that Elections Canada is inconsistent in its application of the law to different parties and candidates. Thus, with a government bill providing for binding written opinions one would expect the effect of those opinions would not be restricted only to the party which requested the opinion.

The bill’s provision for consultation with the Advisory Committee of Political Parties implies that the opinion is likely binding on anyone who proposes to act materially in the same way as the activity which is the subject of the opinion. Otherwise, why require the consultation. If the opinion did not bind the other parties there would be little need to give them advance notice and an opportunity to make comments on it. They could learn of it in the same way as all other members of the public when it is published on the internet.

The fact that under section 16.2(6) the opinion remains valid until contradicted by another interpretation, guideline or opinion issued by the Chief Electoral Officer also supports the view that the opinion is not personal to the party requesting it as this section, very properly, indicates that the drafters of the bill do not want a situation where changing interpretations results in one party being able to legal engage in an activity while another is not.

It would also seem an odd waste of resources if the written opinion only applied to the party who requested it as other parties wishing to take advantage of the opinion would have to ask their own questions and would in doing so trigger another opinion process (with the possibility of a contrary opinion negating the original opinion given).

If I am correct on this, the 30 day period for the members of the Advisory Committee of Political Parties to comment on the opinion does not appear very generous if they are to be able to seek their own legal counsel who will in turn have to wrestle with the sufficiency of the factual situation and the issues of law as the Chief Electoral Officer was required to deal with in preparing the opinion.

Political activities also commonly involve more than simply a registered party or one of its political emanations. Activities can also involve members of the public whose involvement is also regulated by the Canada Elections Act. The simplest example here is contributions – the Canada Elections Act contains offences both for the party which receives money which may be illegal under the Act and for the person who gave it. Thus, presumably an opinion given to a registered party respecting activities which involve actions by members of the public as well as the party will also be binding respecting its application to the actions of the public as it is with respect to the actions of the party. All of this argues for the fact that an opinion is activity based and binds all who act substantially in the same way as the activity dealt with in the opinion.

A written opinion obviously affects the public interest in the interpretation and application of the Canada Elections Act and the operation of electoral events. The interests of individual members of the public may also be affected to the extent that they wish to participate in the activity addressed by the opinion. Yet the bill makes no provision for input of the public. Only the parties have any input into a written opinion (as is the case with the corollary duty in the proposed section 16.1 for Elections Canada to provide non-binding interpretations of the Act). The fact that the parties have a right for input does not address the issue of public input. One can expect that party comments will reflect party interests rather than the public interest. The bill provides for a 30 day web posting of the opinion before issuance but provides no opportunity for public input. Presumably the 30 day public posting is simply either to give the public notice to allow members to arrange their affairs accordingly or bring the opinion to their attention before it disappears into the registry.

Withdrawals Of Requests

There is no provision for the withdrawal of a request for an opinion. If an opinion is to bind the world rather than just the registered party which requested it, one cannot say that it is only the requesting political party which has an interest in a request once asked. The resulting opinion might not suit the party which requested it but do quite nicely for the other parties and the public or some members of the public. Consequently, if an opinion binds the world respecting the activity dealt with in the opinion it is likely that the request for opinion triggers more than a private interest and the chief agent cannot unilaterally withdraw it – at least from the time the proposed opinion is brought to the attention of the other parties or to the public.

Changes In The Law

Section 16.2 deals with the issue of changing facts by providing that an issued opinion is binding only as long as the material facts on which it is based remain unchanged. The opinion will also cease to be binding if the Chief Electoral Officer issues an interpretation, guideline or other opinion that contradicts the earlier opinion (s. 16.2(6)). However, the bill does not expressly deal with changes in the law. One would logically assume that changes to the law upon which an opinion was materially based would undo the binding nature of the opinion, but the bill does not say this and there is room to argue that insofar as section 16.2(6) states that the opinion remains valid until a contrary interpretation, guideline or opinion is issued that a change in the law will not affect the opinion until the Chief Electoral Officer actually issues an interpretation, guideline or opinion respecting that new law. It would likely improve the bill to make the effect of changes in law clear.

Fees

The bill makes no express provision for fees to be charged for these opinions. If the provision of opinions is seen as being in the public interest, it is odd that the public is given no opportunity for input. If the opinion is perceived as being in the interest of the party requesting it, perhaps there should be provision for a fee. Presumably, cost recovery fees could be set by regulation under the Financial Administration Act. The Canada Revenue Agency charges $100 per hour for each of the first 10 hours involved in providing an advance ruling and $155 per hour for each subsequent hour.

No Workload Controls

The bill also makes no provision for the Chief Electoral Officer to refuse to issue an opinion if a request is frivolous or vexatious or made in bad faith. Looking again to the Canada Revenue Agency example, where advance rulings are a matter of administrative discretion and not statutory right, the Agency reserves the ability to refuse to provide an advance ruling and lists thirteen situations in its document IC70-6R5 (dealing with advance income tax rulings) in which it will not issue a requested ruling. These include such cases as when the central issue of the requested ruling is before the courts, or where it was the same in character as a completed transaction by the taxpayer in a past year which is under discussion with the Agency, or where the ruling requires an interpretation of the statute which has not yet been made, and so forth. The Chief Electoral Officer has no such options and is required to respond within the strict timelines to any and all requests for opinions from registered parties.

What Happens If The Chief Electoral Officer Fails To Issue An Opinion On Time

The issuance of these written opinions would be considered a public duty in law. This means that if the Chief Electoral Officer failed to issue an opinion within the time limits of the Act, he or she would not be precluded from doing so later. The lateness of the opinion would not affect its legal validity. (The seminal court decision here goes way back to the beginning of the last century with the decision of the Privy Council in Montreal Street Railway v. Normandin (1917), 33 D.L.R. 195 (P.C.).) However, failure to provide the Advisory Committee with the requisite time to comment would affect the validity of the opinion.

The Chief Electoral Officer would be subject to an order of mandamus from the Federal Court requiring the issuance of an opinion in the event that the Chief Electoral Officer was significantly late in doing so. Also a regular failure to comply with the time requirements of the Act respecting opinions could be a relevant factor in any consideration of the CEO ‘s dismissal for failure to perform his or her mandate properly.

Conclusion

In my view the bill’s provision for the giving of binding written opinions raises more concerns as set out above than it alleviates existing problems. It is not a positive development.