Canada (Chief Electoral Officer) v. Callaghan

Canada (Chief Electoral Officer) v. Callaghan
Court (s) Database
Federal Court of Appeal Decisions
Date
2011-02-28
Neutral citation
2011 FCA 74
File numbers
A-63-10
Notes
Reported Decision
Decision Content
Federal Court of Appeal
Cour d'appel fédérale
Date: 20110228
Docket: A-63-10
Citation: 2011 FCA 74
CORAM: EVANS J.A.
DAWSON J.A.
TRUDEL J.A.
BETWEEN:
THE CHIEF ELECTORAL
OFFICER OF CANADA
Appellant
and
L.G. (GERRY) CALLAGHAN, in his
capacity as official agent for
ROBERT CAMPBELL and
DAVID PALLETT,
in his capacity as official agent
for DAN MAILER
Respondents
Heard at Ottawa, Ontario, on November 23-24, 2010.
Judgment delivered at Ottawa, Ontario, on February 28, 2011.
REASONS FOR JUDGMENT BY: THE COURT
Table of Contents
I INTRODUCTION
[1] - [11]
II CEOC’S APPEAL
Statutory Framework [12] - [23]
CEOC’s Decision [24] – [28]
Federal Court’s Decision [29] – [34]
Issues and Analysis
Issue 1: Does the CEOC have the power to verify election
expenses claimed by candidates? [35] – [78]
Issue 2: Was there sufficient material before the
CEOC on which he could reasonably decline
to state that he was satisfied that the Respondents
had incurred a portion of the cost of the
RMB advertisements which they claimed as
election expenses? [79] – [106]
III RESPONDENTS’ CROSS-APPEAL
Introduction [110] – [112]
Statutory Provisions [113] – [115]
Federal Court’s Decision [116] – [121]
Analysis [122] – [130]
Conclusion [131]
Federal Court of Appeal
Cour d'appel fédérale
Date: 20110228
Docket: A-63-10
Citation: 2011 FCA 74
CORAM: EVANS J.A.
DAWSON J.A.
TRUDEL J.A.
BETWEEN:
THE CHIEF ELECTORAL
OFFICER OF CANADA
Appellant
and
L.G. (GERRY) CALLAGHAN, in his
capacity as official agent for
ROBERT CAMPBELL and
DAVID PALLETT,
in his capacity as official agent
for DAN MAILER
Respondents
REASONS FOR JUDGMENT
THE COURT
I INTRODUCTION
[1] This is an appeal by the Chief Electoral Officer of Canada (CEOC) from a decision of the Federal Court (2010 FC 43). In that decision, Justice Martineau (Judge) granted the application for judicial review brought by the Respondents to this appeal. He ordered the CEOC to certify to the Receiver General that all the election expenses submitted by the Respondents in their capacity as the official agents for two Conservative Party of Canada (Party) candidates at the 2005-2006 general election were eligible for reimbursement.
[2] The Judge held that the CEOC had wrongly refused to certify as election expenses payments made by the Respondents in respect of costs incurred for certain television and radio political advertisements that were broadcast in the Respondents’ electoral districts. The Respondents had made the payments in question to the Party from funds which the Party had provided to them earlier that day for this purpose. The Judge concluded that the CEOC had erred by refusing to state that he was satisfied that the payments by the Respondents were for advertising costs that they had incurred.
[3] The Respondent Callaghan has cross-appealed the Judge’s determination of the amount of the cost of the pooled political advertisements that should be allocated to him as an election expense. The Judge divided the cost equally among candidates in Mr Callaghan’s region who had agreed to pool their resources to contribute to the cost of the advertisements which were broadcast the same number of times in each of their electoral districts.
[4] This litigation arises from a scheme devised by the Party in early December 2005, about a month into the election campaign, when it had already spent close to the maximum amount of the election expenses permitted under the Canada Elections Act, S.C. 2000, c. 9 (Act). Party officials invited Conservative candidates who had not reached their spending limit to contribute, with others in their region, to a pooled “regional media buy” (RMB).
[5] Candidates were asked by Party officials to commit an amount of money, up to their spending limits, for national advertisements produced for the Party, which would be broadcast in their electoral district, with a “tag line” indicating that the advertisement had been authorized by the official agent of the participating candidate. The Party paid into the bank accounts of participating candidates, including the two for whom the Respondents acted as official agents, an amount equal to the amount that each candidate had committed to the RMB. It was a condition of the transfer of these funds that the candidates remit an equivalent amount to the Party to pay for a share of the RMB advertising.
[6] The campaigns participating in this scheme, including those run by the Respondents, duly remitted the money, which they subsequently entered as an election expense, and claimed part of it back from the Receiver General by way of reimbursement. The payment by the candidate to the Party was to be made on the same day that the Party transferred the funds to the candidate. These arrangements are known as “in-and-out” transactions.
[7] On the basis of the documents submitted by the Respondents in support of their election expenses, the CEOC was not satisfied that the payments made to the Party through the in-and-out transactions represented the cost of advertisements that the Respondents, and the other candidates who participated in the in-and-out transactions, had in fact incurred. His concern was that the advertising costs might have been incurred, not by the candidates, but by the Party when it arranged with its advertising agent to have the advertisements broadcast and that, because the Party had almost reached its permitted spending limit, it had merely transferred these costs to participating candidates through the in-and-out transactions. Accordingly, he refused to include these amounts in the certificate that the Respondents needed in order to obtain from the Receiver General reimbursement of election expenses for costs that they had incurred.
[8] On our analysis of the statutory scheme respecting election expenses, this appeal turns on the answer to the following question. Was there sufficient material before the CEOC on which he could reasonably decline to state that he was satisfied that the Respondents had incurred a portion of the cost of the RMB advertisements which they claimed as election expenses in their electoral campaign returns?
[9] With all respect to the Judge, who reached the opposite conclusion, in our view the CEOC’s decision was not unreasonable. Accordingly, the appeal will be allowed and the Respondents’ application for judicial review dismissed.
[10] The Respondent Callaghan’s cross-appeal of the Judge’s allocation of the costs of the pooled advertising among members of the pool will also be allowed. Since we have concluded that it was reasonably open for the CEOC on the information available to him to refuse to certify the disputed election expenses, there are no candidates’ costs with respect to the RMB to allocate. In the absence of a decision by the CEOC on the question, the Judge should not have made his own calculation of the share of the advertising cost attributable to Mr Callaghan’s candidate’s campaign.
[11] This application for judicial review was originally brought by 35 of the 67 official agents whose candidates participated in the in-and-out transactions and claimed the cost of the RMB as an election expense that they had incurred. The particular circumstances of the different participants varied. So, in order to reduce complexity, only the current Respondents proceeded with the application. However, this is a test case, not a representative proceeding.
II CEOC’S APPEAL
Statutory Framework
[12] We set out the provisions of the Canada Elections Act of most immediate relevance to this appeal in our analysis of the issues of statutory interpretation. It is unnecessary to repeat them in this overview of the legislative scheme as it pertains to the appeal. Similarly, the factual background is detailed in our description of the CEOC’s decision and in our analysis of the evidence available to the CEOC when he decided that he was not satisfied on the basis of the documents submitted to him that the cost of the RMB had been incurred by the candidates, rather than by the Party.
[13] The overall objectives of the Act were clearly explained by Justice Bastarache writing for the majority in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, when he said (at para. 62):
First, the State can provide a voice to those who might otherwise not be heard. The Act does so by reimbursing candidates and political parties and by providing broadcast time to political parties. Second, the State can restrict the voices which dominate the political discourse so that others may be heard as well. In Canada, electoral regulation has focussed on the latter by regulating electoral spending through comprehensive election finance provisions. These provisions seek to create
a level playing field for those who wish to engage in the electoral discourse. This in turn, enables voters to be better informed; no one voice is overwhelmed by another.
[emphasis added]
[14] Reimbursement Registered parties and candidates are both entitled to a partial reimbursement of their election expenses from public funds. Candidates who receive more than 10% of the total number of votes cast are entitled to an initial reimbursement of 15% of their election expenses (section 464). On the submission of a candidate’s electoral campaign return, and when satisfied that the candidate has complied with the statutory reporting provisions, the CEOC must provide a certificate setting out the final amount of reimbursement of the candidate’s election expenses, which may not exceed 60% of the expense limit (section 465). Any surplus remaining in a campaign bank account after all debts have been paid, and any reimbursement received, goes to the party or to the electoral district association (sections 471- 472).
[15] Registered parties that receive at least 2% of the total number of votes cast, or at least 5% of the votes cast in the electoral districts where they ran candidates, are entitled to a reimbursement of 50% of their election expenses (section 435).
[16] Spending limits The Act contains formulae for calculating the spending limits of individual candidates (sections 440-441) and registered parties (section 422). It is an offence for candidates (paragraphs 497(1)(s), 497(3)(p) and 502(1)(c)) and parties to exceed these limits (paragraphs 497(1)(l), (3)(g) and section 507).
[17] The spending limits apply to “election expenses” which include (section 407) costs incurred in acquiring goods and services used for directly promoting a registered party, its leader or a candidate during an election period. (Personal expenses are also limited but are not relevant to this appeal.) Non-monetary contributions received by a candidate, and used for similar promotional purposes, also constitute election expenses. The commercial value of non-monetary contributions (defined in section 2) must be reported in a candidate’s electoral campaign return and counts towards the spending limit: paragraph 451(2)(i). Monetary contributions to a campaign are reported separately and are not election expenses for the purpose of the statutory spending limit. However, to the extent that they are used by the candidate for an election-related cost, they are included in his or her election expenses.
[18] Transfers The Act provides separate spending limits for parties and candidates. In order to prevent spending limits from being defeated, a cost incurred by a party must be reported by the party, and included in its total of election expenses. A party may not transfer a cost that it has incurred to a candidate who has room in her or his spending limit. Monetary and non-monetary transfers between candidates are prohibited.
[19] However, the barrier between party and candidate finances is not impermeable, because the Act permits monetary and non-monetary transfers between a candidate and a party or its electoral district association (subsections 404.2(2), (2.1), (2.2) and (3)). Thus, for example, money, goods, or services transferred by a party to a candidate are not included in the party’s election expenses and do not count towards the party’s spending limit. However, when the money is spent by the candidate on an election-related item, that amount is an election expense of the candidate, as is the commercial value of goods and services transferred by a party for use in a candidate’s election campaign.
[20] Official agents A candidate must appoint an official agent before the campaign incurs an election-related cost or accepts a campaign contribution. The official agent acts, in effect, as treasurer of the campaign and is responsible for managing its finances and ensuring compliance with the rules regulating the financial aspects of a campaign (subsection 83(1) and sections 436 - 437). The official agent is responsible for keeping records of contributions and disbursements, and must submit to the CEOC an audited return, with supporting documents, after the election: see sections 451 - 456 for details. In order that campaigns do not accidentally exceed their spending limits, and to ensure proper accountability, only the candidate, the official agent, or a person authorized in writing by the official agent, may incur an expense (subsection 438(5) and paragraph 446(c)).
[21] Similar provisions apply to registered parties. The chief agent of a party is essentially the equivalent for the party of a candidate’s official agent (section 415). The chief agent of the Party is the Conservative Fund Canada.
[22] Chief Electoral Officer of Canada The CEOC has overall responsibility for the conduct of elections in Canada, and exercises the powers and performs the functions and duties necessary for the administration of the Act (section 16). Public confidence in a fair electoral process depends on the actual and perceived neutrality of the office. To underline the importance of the position to the maintenance of democracy in Canada, the CEOC is a Parliamentary officer, who holds office on terms similar to those of a superior court judge (subsection 13(1)), and communicates with the Governor in Council for the purposes of the Act through the designated Minister (subsection 15(4)).
[23] Of particular relevance to the present case, the CEOC receives the electoral campaign returns of candidates and parties. Normally, the CEOC accepts without further inquiry the documents that candidates and parties are required to submit in support of the election expenses claimed. However, when in doubt, the CEOC’s auditors make further inquiries. For this purpose, the CEOC may require the production of documentary evidence to support the audited return (subsection 451(2.2)) and corrections to the documents (section 457). When satisfied that candidates and parties have fulfilled their statutory reporting duties, the CEOC certifies to the Receiver General the amount, if any, of their claimed expenses that are eligible for reimbursement (subsection 465(1)).
Decision of the Chief Electoral Officer of Canada
[24] Having reviewed the electoral campaign return and related documents for Robert A. Campbell, the Conservative candidate in the electoral district of Dartmouth-Cole Harbour, Nova Scotia, the CEOC wrote a letter, dated April 23, 2007, to Mr Callaghan, in his capacity as Mr Campbell’s official agent. The letter stated as follows.
The return includes a claimed election expense of $3,947.07 with the following description: “2005-2006 Candidate share of media advertisement”. Having reviewed the supporting documents evidencing this expense and taking into account the circumstances in which the amount in question was invoiced to and paid for by the campaign, I wish to inform you that I am not satisfied that the documentation submitted establishes the claimed election expense. Accordingly, the amount of $3,947.07 invoiced to the campaign by the Conservative Fund of Canada will be excluded from the amount I will certify to the Receiver General of Canada for the purposes of reimbursement in accordance with section 465 of the Canada Elections Act.
The letter ended by saying that the CEOC would reconsider the decision to exclude the disputed expense if Mr Callaghan submitted further documentary evidence satisfying the CEOC that it was indeed an election expense.
[25] The CEOC sent an identical letter, bearing the same date, to Mr Pallett regarding the electoral campaign return for Dan Mailer, the Conservative candidate in the electoral district of London-Fanshawe, Ontario, and to the other participating campaigns.
[26] On April 25, 2007, the CEOC wrote to Susan Kehoe, Interim Executive Director, Conservative Party of Canada. He amplified as follows the reasons stated in the letter to the agents for refusing to include the disputed expenses in the certificate.
My decision in relation to the “media buy” program was made on the basis of my assessment of the circumstances surrounding that program, which remain unresolved. Among other things, these included the fact that the internal invoicing between the party and the candidates was not adequately supported by third party documents, coupled with the absence of correlation between the various campaigns’ share of the costs for the advertisements and their commercial value with respect to those campaigns. While there may be different ways of assessing the commercial value, the basis upon which it is done must be a reasonable one. Commercial value cannot be solely based on each campaign’s willingness and ability to support a particular amount. This has been in the past, and remains, the position of Elections Canada.
[27] These letters followed a series of communications among the CEOC’s office (including members of his audit team), the official agents for the various campaigns that had participated in the RMB, and Party officials, who assumed primary responsibility for dealing with the CEOC on the in-and-out transactions and the RMB.
[28] The reasons given in the CEOC’s letters for his refusal to certify the RMB costs as election expenses incurred by the candidates are brief. However, as a result of the ongoing discussions with the CEOC’s office, and the requests for further information, the Party was in no doubt about the nature of the CEOC’s concerns. In this appeal, the Respondents do not challenge the adequacy of the CEOC’s reasons.
Decision of the Federal Court
[29] The following is a summary of the Judge’s reasons for granting the Respondents’ application for judicial review of the CEOC’s refusal to certify as election expenses the cost of the RMB advertising that they claimed that they had incurred, and for ordering the CEOC to issue the certificates that would enable the Respondents to obtain reimbursement from the Receiver General of their share of this cost.
[30] First, the Judge found that any question of law involving the interpretation of the Act is reviewable on a standard of correctness. Questions of mixed fact and law in this case are also reviewable for correctness. This is because the record before the Court included significant material that was not before the CEOC when he advised the Respondents and the Party why he was not prepared to certify the disputed election expenses for reimbursement by the Receiver General.
[31] The Judge also applied the correctness standard to questions of mixed fact and law because the principal relief sought by the candidates was an order of mandamus to oblige the CEOC to provide the certificate on being satisfied that they had filed the documents required by the Act. Accordingly, the Judge said, he had to decide de novo, on the basis of the record before the Court, not that before the CEOC, whether the candidates were entitled to the remedy sought.
[32] Second, he held that the CEOC had the authority to examine the documents provided by the official agents in order to determine the accuracy of the information that they contained. In particular, the CEOC could consider whether the candidates had in fact incurred the costs on which their claim for the reimbursement of the disputed election expenses was based, and whether their financial return correctly stated the commercial value of goods and services supplied to them.
[33] Third, on the basis of the material before him, the Judge concluded that the costs of the RMB advertising were properly claimed by the Respondents as their election expenses, because they had incurred the cost of paying for the advertising which, he found, had been supplied to them by the Party. He also said that, even if he had reviewed the CEOC’s decision on a reasonableness standard, he would have concluded that it was unreasonable for the CEOC not to be satisfied that the requirements of the Act had been complied with.
[34] The Judge granted an order of mandamus requiring the CEOC to provide new certificates to the Receiver General that include the disputed advertising expenses claimed by the Respondents, in accordance with his reasons. In addition, he granted an order of certiorari to quash the CEOC’s decision refusing to include the disputed election expenses in the certificate.
Issues and analysis
Issue 1: Does the CEOC have the power to verify election expenses claimed by candidates?
(i) Introduction
[35] The Respondents argue that the CEOC’s statutory function with respect to candidates’ statements of election expenses is narrow in scope. Contrary to the Judge’s conclusion, the Respondents assert that the CEOC is only authorized to review the documents submitted to him pursuant to the Act. His function, they say, is limited to ensuring that all the statutorily required documents have been submitted and, on their face, disclose that a candidate incurred an election expense as defined in the Act.
[36] Once satisfied that an official agent has submitted the required documents, the Respondents argue, the CEOC is under a duty to provide a certificate of compliance to the Receiver General, so that candidates can be paid the final instalment of the reimbursement of their election expenses. The Act confers no audit function on the CEOC with respect to candidates’ electoral campaign returns. Hence, he is not entitled to go behind the documents submitted in order to determine if, for example, candidates have in fact incurred the costs claimed as election expenses, or have correctly stated the commercial value of goods or services provided to them.
[37] The Judge rejected this argument. He held that it is within the discretion of the CEOC to conduct an audit of a candidate’s electoral campaign return as circumstances indicate. The audit may examine the accuracy of the return, including a claim in the return that a particular election expense represented a cost incurred by the candidate to promote his or her candidacy.
[38] In our view, the Judge was correct. We also agree with his conclusion that the CEOC was entitled to no deference on the question of statutory interpretation concerning the role of the CEOC. In any event, since the CEOC appears not to have ruled on the scope of his statutory mandate, there is no decision by the CEOC on this question to review.
(ii) Statutory provisions
[39] The following provisions of the Act are of immediate relevance to determining the scope of the CEOC’s role with respect to election expenses. The starting point is subsection 465(1), which the CEOC relied upon when advising the Respondents that he was not satisfied that the payments that they had made to the Party through the in-and-out transactions were eligible for reimbursement under subsection 465(2) as election expenses of the candidates.
465.(1) On receipt of the documents referred to in subsection 451(1), or an update of them under subsection 455(1), 458(1) or 459(1), from a candidate named in a certificate referred to in subsection 464(1), the Chief Electoral Officer shall provide the Receiver General with a certificate that
(a) states that the Chief Electoral Officer is satisfied that the candidate and his or her official agent have complied with the requirements of subsection 447(2) and sections 451 to 462;
…
(d) sets out the amount of the final instalment of the candidate’s election expenses and personal expenses reimbursement.
(2) The amount referred to in paragraph (1)(d) is the lesser of
(a) 60% of the sum of the candidate’s paid election expenses and paid personal expenses, less the partial reimbursement made under section 464, and
(b) 60% of the election expenses limit provided for in section 440, less the partial reimbursement made under section 464.
465.(1) Dès qu’il reçoit pour un candidat dont le nom figure sur un certificat les documents visés au paragraphe 451(1) ou la version modifiée de tels documents prévue aux paragraphes 455(1), 458(1) ou 459(1), le directeur général des élections remet au receveur général un certificat établissant:
a) sa conviction que le candidat et son agent officiel ont rempli les conditions imposées au titre du paragraphe 447(2) et se sont conformés aux articles 451 à 462;
[…]
d) le montant du dernier versement du remboursement des dépenses électorales et des dépenses personnelles du candidat établi en conformité avec le paragraphe (2).
(2) Le montant visé à l’alinéa (1)d) est le moins élevé des montants suivants :
a) 60 % de la somme des dépenses électorales payées et des dépenses personnelles payées, exposées dans le compte de campagne électorale du candidat, moins le remboursement partiel déjà reçu au titre de l’article 464;
b) 60 % du plafond des dépenses électorales établi pour la circonscription au titre de l’article 440, moins le remboursement partiel déjà reçu au titre de l’article 464.
[40] Of the documents to be submitted pursuant to subsection 465(1), the most relevant for present purposes are those described in paragraphs 451(1)(a), (2)(a), (b) and (i).
451.(1) The official agent of a candidate shall provide the Chief Electoral Officer with the following in respect of an election:
(a) an electoral campaign return, substantially in the prescribed form, on the financing and expenses for the candidate’s electoral campaign;
…
(2) The electoral campaign return shall include the following in respect of the candidate:
(a) a statement of election expenses;
(b) a statement of electoral campaign expenses, other than election expenses;
…
(i) a statement of the commercial value of goods or services provided and of funds transferred by the candidate to a registered party, to a registered association or to himself or herself in his or her capacity as a nomination contestant;
…
451. (1) L’agent officiel d’un candidat produit auprès du directeur général des élections pour une élection :
a) un compte de campagne électorale exposant le financement et les dépenses de campagne du candidat dressé, pour l’essentiel, sur le formulaire prescrit ;
[…]
(2) Le compte comporte les renseignements suivants à l’égard du candidat :
a) un état des dépenses électorales ;
b) un état des dépenses de campagne, autres que les dépenses électorales ;
[…]
i) un état de la valeur commerciale des produits et services fournis et des fonds cédés par le candidat à un parti enregistré, à une association enregistrée ou à sa campagne à titre de candidat à l’investiture ;
[…]
[41] An “electoral campaign expense” is in turn defined in section 406.
406. An electoral campaign expense of a candidate is an expense reasonably incurred as an incidence of the election, including
(a) an election expense;
…
406. Les dépenses de campagne des candidats sont constituées par les dépenses raisonnables entraînées par l’élection, notamment :
a) leurs dépenses électorales;
[…]
[42] “Election expense” is itself a defined term.
407. (1) An election expense includes any cost incurred, or non-monetary contribution received, by a registered party or a candidate, to the extent that the property or service for which the cost was incurred, or the non-monetary contribution received, is used to directly promote or oppose a registered party, its leader or a candidate during an election period.
407. (1) Les dépenses électorales s’entendent des frais engagés par un parti enregistré ou un candidat et des contributions non monétaires qui leur sont apportées, dans la mesure où les biens ou les services faisant l’objet des dépenses ou des contributions servent à favoriser ou à contrecarrer directement un parti enregistré, son chef ou un candidat pendant une période électorale.
(iii) CEOC’s position
[43] Reading these provisions together in the context of the facts of the present case, the CEOC argues that subsection 465(1) requires that, before providing a certificate to enable the Respondents to obtain from the Receiver General a reimbursement of the money transferred by the candidates to the Party under the in-and-out scheme, the CEOC had to be satisfied that it constituted an election expense of the candidates as defined in subsection 407(1).
[44] The CEOC further submits that, to be eligible for reimbursement as an election expense, the expense must fall within the definition in subsection 407(1): “any cost incurred … by a candidate, to the extent that the … service for which the cost was incurred … is used to directly promote ... a registered party, its leader or a candidate during an election period.”
[45] Despite the national nature of the advertisements appearing under the RMB, the CEOC does not now dispute that their purpose was “to directly promote” the candidates in whose electoral districts they were broadcast. Consequently, it is not necessary for us to express an opinion on whether the following underlined words of subsection 407(1), “directly promote ... a registered party, its leader or a candidate …” are conjunctive or disjunctive.
(iv) Respondents’ position
[46] The Respondents advance three arguments to support their contention that subsection 465(1) requires the CEOC merely to “review” the documents submitted pursuant to it, in order to ensure that all the listed documents had been received, and not to look behind them to verify either that the election expenses claimed were for costs actually incurred by the candidates in compliance with the Act, or even that the documents were authentic.
[47] First, the text of subsection 465(1) does not state that the CEOC may only provide a certificate if satisfied that a candidate’s statement of election expenses is accurate and that the candidate has in fact incurred the underlying costs. Rather, the subsection requires that, “on receipt of the documents”, the CEOC “shall provide the Receiver General with a certificate” that states, among other things, that the CEOC is satisfied that the candidates have complied with sections 451 to 462.
[48] For the most part, these latter provisions require a candidate’s official agent to provide the CEOC with specified documents, and prescribe time limits within which they must be provided. Nowhere does the Act empower or require the CEOC to inquire into the accuracy of the statement of election expenses in a candidate’s electoral campaign return. As this Court pointed out in Stevens v. Conservative Party of Canada, 2005 FCA 383, [2006] 2 F.C.R. 315 at para. 25 (Stevens), when the Act intends the CEOC to confirm the accuracy of information provided, it expressly says so (see, for example, section 51, subsection 366(3) and paragraph 368(c)).
[49] Second, the Act expressly provides for the investigation of suspected non-compliance, and for its enforcement. Thus, if the CEOC believes on reasonable grounds that an offence against the Act may have been committed, the CEOC may direct the Commissioner of Canada Elections (Commissioner) to make any inquiry that seems called for in the circumstances, and the Commissioner shall proceed with the inquiry: section 510. And if, after making appropriate inquiries, the Commissioner has reasonable grounds to believe that an offence may have been committed, the Commissioner may refer the matter to the Director of Public Prosecutions (DPP) to consider whether to initiate a prosecution (subsections 511(1) and (2)).
[50] The CEOC instructed the Commissioner to investigate the in-and-out transactions that gave rise to the present litigation, with a view to forming an opinion on whether the Party may have committed an offence by exceeding its spending limit. Counsel advised us at the hearing that the Commissioner had completed the inquiries and that the matter was with the DPP.
[51] Third, the Respondents rely on the following statements in Stevens (at paras. 26-27) where, writing for the Court, Justice Décary said:
The scheme of the Act seems obvious: as a general rule, the Chief Electoral Officer may, and must, accept information provided to him assuming that it is being provided by an authorized person and that it is accurate. It is not up to him to go beyond what is given or to question the mandate of the person giving the information and thus interfere in what can be called internal party, candidate, or elector affairs. It is therefore not surprising that the Act does not confer on the Chief Electoral Officer a specific power to investigate.
It follows that the role of the Chief Electoral Officer, when he is to make a decision on an application submitted to him, is limited, in general, to ensuring that, on the face of the documents submitted by persons duly authorized, the conditions required by the Act are met.
[emphasis added]
(v) Analysis
[52] Despite the apparent attractiveness of the Respondents’ arguments, we, like the Judge, do not accept them. They reduce the role of the CEOC under section 465 in connection with candidates’ statements of their election expenses to a degree that does not fit with the statutory scheme and its objectives. Stevens is distinguishable: the statements quoted above must be read in light of the particular provisions of the Act and the very different issues with which that case was concerned.
[53] Subsection 465(1): text The text of the subsection is compatible with the Respondents’ interpretation; indeed, a literal reading of it lends support to their position for two reasons. First, subsection 465(1) does not make the CEOC’s duty to provide a certificate conditional on his being satisfied that the requirements on the submission of documents have been complied with. It merely provides that on receipt of the documents, the CEOC shall provide a certificate stating that he is satisfied. In contrast, subsection 435(1), the parallel provision dealing with the certification of registered parties’ election expenses for reimbursement, and paragraph 401(1)(b), on the amendment of the registry of parties, require the CEOC to take the actions prescribed by the relevant provisions, if he is satisfied of certain matters.
[54] These differences in the drafting of subsection 465(1) on the one hand, and of subsection 435(1) and paragraph 401(1)(b) on the other, may suggest that Parliament intended to confer a more limited role on the CEOC under subsection 465(1). However, it would be a mistake, in our opinion, to attach determinative significance to what might be regarded as a rather subtle difference.
[55] Second, subsection 465(1) states: “On receipt of the documents … the Chief Electoral Officer shall provide … a certificate that …”. This suggests that the certificate is to be provided more or less as soon as the statutorily required documents are received, which would not give the CEOC enough time to inquire into the accuracy of the information contained in the documents submitted, and the validity of the election expenses claimed.
[56] We agree that it is not clear from a literal reading of the text of subsection 465(1) that Parliament intended to entrust to the CEOC the verification of the transactions underlying the documents submitted by candidates. However, an examination of the words of the text of a statutory provision is only the starting point in interpreting its meaning.
[57] Subsection 465(1): context and objectives In our opinion, an examination of the broader statutory context indicates that subsection 465(1) does not mean what the Respondents say it means. We conclude that Parliament did not intend to circumscribe the CEOC’s role by confining him to the largely clerical function of ensuring that candidates have submitted the documents specified in the Act and, when satisfied that they have, to providing a certificate to enable the Receiver General to reimburse the claimed election expenses.
[58] For the following reasons, it makes no practical sense, and is not consistent with the statutory scheme, to interpret the Act as leaving to the Commissioner sole responsibility for scrutinizing the documents and the supporting evidence in order to identify any offences in connection with statements of election expenses, and for checking that the documents are not forgeries.
[59] First, the CEOC has wide supervisory responsibilities for the conduct of elections, and the powers and functions necessary to administer the Act.
16. The Chief Electoral Officer shall
(a) exercise general direction and supervision over the conduct of elections;
…
(d) exercise the powers and perform the duties and functions that are necessary for the administration of this Act.
16. Le directeur général des élections :
a) dirige et surveille d’une façon générale les opérations électorales;
[…]
d) exerce les pouvoirs et fonctions nécessaires à l’application de la présente loi.
These provisions suggest a broader role under section 465 than a more or less mechanical “review” of the documents submitted against a check list, without regard to their accuracy or whether expenses claimed are in accordance with the Act.
[60] Second, a comparison of sections 465 and 464 is also instructive. Subsection 465 provides for the payment by the Receiver General of the final instalment of the reimbursement of a candidate’s election expenses when the CEOC states that he is satisfied that the official agent has complied with the statutory reporting requirements. However, section 464 provides that the initial instalment of the reimbursement is made after the CEOC has provided a certificate setting out the name of the elected candidate, the name of any candidate who received 10% or more of the valid votes cast, and the amount that is 15% of the spending limit. Unlike section 465, payment under section 464 does not require the CEOC to state that he is satisfied of anything, but simply to provide some simple information.
[61] Third, subsection 451(2.1) requires the official agent of a candidate to supply documents evidencing the election expenses claimed and, if the CEOC is of the opinion that the documents provided by the official agent are not sufficient, subsection 451(2.2) authorizes the CEOC to require further documents necessary to comply with subsection 451(2.1).
451. (2.1) Together with the electoral campaign return, the official agent of a candidate shall provide to the Chief Electoral Officer documents evidencing expenses set out in the return, including bank statements, deposit slips, cancelled cheques and the candidate’s written statement concerning personal expenses referred to in subsection 456(1).
(2.2) If the Chief Electoral Officer is of the opinion that the documents provided under subsection (2.1) are not sufficient, the Chief Electoral Officer may require the official agent to provide by a specified date any additional documents that are necessary to comply with that subsection.
451. (2.1) L’agent official du candidat produit auprès du directeur général des élections, avec le compte de campagne électorale, les pièces justificatives concernant les dépenses exposées dans ce compte, notamment les états de compte bancaires, les bordereaux de dépôt, les chèques annulés ainsi que l’état des dépenses personnelles visé au paragraphe 456(1).
(2.2) Dans le cas où le directeur gé