Principles in Respect of Investigations and the Prosecution of Offences under the Canada Elections Act

The Commissioner of Canada Elections and the Director of Public Prosecutions

Table of Contents

1. Purpose

In order to ensure effective enforcement of the Canada Elections Act (the "Act"), the parties have agreed to the following principles regarding the working arrangements between the Commissioner of Canada Elections (the "Commissioner") and the Director of Public Prosecutions (the "Director") in respect of investigations and prosecutions under the Act.  The parties recognize that the same principles will apply, with any required changes, to the working arrangements between the Commissioner and the Director in respect of investigations and prosecutions under the Referendum Act.

Changes to the Act adopted by Parliament in June 2014 through Bill C-23, now S.C. 2014, c. 12 (hereinafter, "Bill C-23"), provide that the Commissioner is appointed by the Director for a seven-year term, and that the Commissioner occupies a position within the office of the Director. This new statutory framework requires that principles be agreed upon to reflect the need for the Commissioner and the Director to continue to exercise their statutory duties independently from each other. The principles set out below reflect the fact that the investigative and prosecutorial functions continue to be separate and distinct despite the fact that the Commissioner and the Director now operate within the same organization.

2. Authorities and Responsibilities With Respect To Enforcement

2.1.  Principle

Effective enforcement is carried out by investigative agencies that conduct investigations of alleged offences and lay charges, and prosecution services that provide prosecution services in relation to those investigations and charges, both exercising their respective roles independently, but co-operatively.

Throughout this document, the word "Commissioner" is used to refer to the Commissioner and his staff, unless the reference is to a power or duty of the Commissioner that must be exercised or performed by the Commissioner himself by virtue of the Act.

With changes adopted with Bill C-23, the Public Prosecution Service of Canada (PPSC) now includes the Commissioner and his staff. For the purposes of the present document, however, a reference to the PPSC excludes this part of the organization, which is responsible for investigating potential offences under electoral law.

2.2. Commissioner – Investigative Responsibility

The Commissioner's duty pursuant to section 509.2 is to ensure that the Act is complied with and enforced. Accordingly, the Commissioner is responsible for the investigation of offences and the laying of charges under the Act.  He exercises this mandate in accordance with the Act, other relevant statutory and constitutional law, as well as applicable internal practices and policies.

Although subsection 509.1(1) of the Act provides that the position of the Commissioner is within the Office of the Director, subsection 510(3) provides that the Commissioner conducts his investigations and makes all decisions regarding investigations independently of the Director.

2.3 PPSC – Sole Prosecutorial Responsibility

The PPSC is responsible for the provision of prosecution services in relation to the enforcement of the Act on behalf of the federal Crown. These services are set out in the Director of Public Prosecutions Act (the DPPA), which, in subsection 3(8), empowers the Director to act independently in respect of prosecutions of federal electoral cases. The Director, and the prosecutors who act on behalf of the Director, exercise these duties in accordance with the DPPA, and the constitutional imperative to act independently and in the public interest. The Attorney General of Canada cannot issue a directive or assume the conduct of a prosecution under the DPPA, since electoral offence prosecutions are excluded from what constitutes a "prosecution" under section 2 of the DPPA. The PPSC provides prosecution services to investigative agencies in accordance with the PPSC Service Standards attached as Annex A.

2.4. Investigative Stage

2.4.1 Conducting the Investigation

The Commissioner is solely responsible for the conduct of investigations of offences under the Act. As such, the Commissioner:

2.4.2 Legal Advice

  1. When requested by the Commissioner, the PPSC provides legal advice in respect of prosecutions generally and in respect of investigations that may lead to prosecutions.  In performing its advisory role during the investigative stage, the PPSC is not in any manner assuming direction of an investigation, and the Commissioner continues to have sole discretion over its conduct. Requests for PPSC advice may be co-ordinated between the designated officials or through such other means as agreed to by the parties, and in accordance with PPSC policies including the PPSC Deskbook.
  2. If, in the context of advice requested under paragraph (a), an investigative tool or procedure is proposed by the Commissioner and the PPSC recommends against its use, the PPSC provides reasons for that recommendation.
  3. The legal counsel who are part of the staff of the Commissioner operate as a Legal Services Unit reporting exclusively to the Commissioner, and not as prosecutors of the PPSC.

2.4.3 Matters That Involve Prosecutors

The PPSC is involved at the investigative stage if statutory obligations or legal proceedings with respect to investigative tools, procedures or other matters require the involvement of a prosecutor, or where the Commissioner requests legal advice in respect of an investigation.

2.4.4 Disclosure

  1. In supporting the Crown in delivering on its disclosure obligations, the Commissioner manages disclosure from the beginning of the investigation and throughout the prosecution of the case until all disclosure requirements are met.  If requested, prosecutors advise the Commissioner's investigators on disclosure issues and on the preparation of the necessary disclosure material as theinvestigation progresses.
  2. The Commissioner compiles and organizes the information and evidence gathered during the course of its investigation in a manner that ensures that the Crown can meet its disclosure obligations under law.  The PPSC provides advice in this regard to the Commissioner upon request.
  3. (ac) The Commissioner also takes note of and identifies to the prosecutor any material that it believes ought not to be disclosed due to privilege, privacy issues, irrelevancy or any other reason.  The PPSC determines whether to disclose this material if charges are laid.

2.5. Charge Approval Stage

2.5.1 When a referral can be made

In accordance with section 511 of the Act, the Commissioner may refer matters to the Director for a decision on whether to initiate a prosecution where the Commissioner believes on reasonable grounds that an offence under the Act has been committed.

2.5.2 Content and Communication of the Referral

A referral contains:

  1. a letter summarizing the case and providing the Commissioner's views regarding the appropriateness of a compliance agreement, signed by the Commissioner and addressed to the Director;
  2. a prosecution report generally in the format of the PPSC "Report to Crown Counsel/Crown Brief," containing the information and describing the evidence  outlined in the Report;
  3. a draft of the recommended charges;
  4. all disclosure up to the date of the referral for review by the Director, including identification of any material that the Commissioner recommends not be disclosed due to privilege, privacy issues, irrelevancy or other reason; and
  5. a description of any aspects of the investigation that are continuing and the nature of the evidence that may be obtained as a result.

2.5.3 Referral to the Director

  1. Upon receipt of a referral, the Director ensures that a prosecutor is assigned to prepare briefing materials, and that the Commissioner is kept informed on the timing of the Director's decision. The assigned prosecutor and representatives of Commissioner may communicate with each other as required in order to ensure that the Director has all information required to enable the Director to render a decision.
  2. If the Director decides that additional information or materials are required before a decision can be taken, the prosecutor makes a recommendation to the Commissioner that sets out what additional information or materials are required.
  3. The Director is ultimately responsible for deciding whether to initiate and conduct a prosecution under the Act.  The decision to prosecute is a core element of the exercise of independent prosecutorial discretion. The Director may also recommend that the Commissioner consider laying charges under other federal legislation where the evidence warrants.
  4. Pursuant to subsection 517(7) of the Act, if, after consultation with the Commissioner, the Director considers that a compliance agreement would better serve the public interest, the Director may remit the matter back to the Commissioner so that it may be so dealt with.
  5. The Director assesses the referral in a timely fashion, informs the Commissioner of the decision, and if requested, provides the Commissioner with an opportunity to discuss it.  The length of time necessary to render the decision depends upon the complexity of the matter and/or the size of the investigation.

2.6. Upon the Laying of Charges

2.6.1 Information

Pursuant to subsection 511(2) of the Act, if the Director decides to initiate a prosecution and requests the laying of charges, the Commissioner shall cause an information to be sworn before a justice.  The PPSC advises the Commissioner of the prosecutor assigned to the prosecution and keeps the Commissioner informed on the progress of the file.

2.6.2 Material required to be sent to the PPSC

As soon as possible after the laying of charges, the Commissioner sends to the PPSC a copy of the charges laid before the court.

2.6.3 Disclosure

  1. The Commissioner finalizes the disclosure package and provides it to the prosecutor assigned to conduct the prosecution, who in turn reviews it and either approves it or provides recommendations regarding its finalization.  The Commissioner's normal practice is to make the disclosure available electronically, unless requested to do so otherwise. If not final upon the laying of charges, the Commissioner ensures that the disclosure package is finalized by the time of the first appearance of the accused. The provisions set out in section 2.4.4  apply.
  2. The Commissioner recognizes that the Crown has an obligation to provide disclosure as soon as reasonably practicable of any additional relevant material obtained by the Commissioner after the laying of charges.  The Commissioner continues to advise the prosecutor of such material and manages such disclosure throughout the prosecution until the final disposition of the case.
  3. The Commissioner undertakes to advise the PPSC of all information pertaining to the credibility or reliability of potential witnesses and all misconduct information for all individuals involved in the investigation of offences under the Act in accordance with the requirements on investigative agencies, as set out in the decision of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3.
  4. The Commissioner collects and organizes all disclosure continuously throughout an investigation in a manner that will enable the Crown to meet its disclosure obligations if charges are laid.

2.7. Prosecution Stage

2.7.1 Role of the PPSC

  1. The prosecutor's role during a prosecution is not to obtain a conviction at all costs but to lay before the trier of fact credible evidence relevant to the alleged offence. The prosecution must be done fairly, vigorously and to the best of the prosecutor's ability, with due regard to the law, ethics and the overriding obligation to act objectively and fairly in the public interest.  It is understood that prosecutors continue to exercise their discretion independently throughout the prosecution and in line with the PPSC's "Decision to Prosecute" policy.
  2. All decisions regarding the prosecution reside with the PPSC. Prosecutors consult with and inform the Commissioner of decisions made in relation to the prosecution. Prosecutors consult with the Commissioner on any proposed agreed statement of facts.

2.7.2 Role of the Commissioner

  1. The Commissioner's role continues beyond the referral of a case to the PPSC.  The Commissioner's investigators:
    1. assist the prosecutor until the prosecution is completed;
    2. continue to provide all relevant reports and briefs throughout the prosecution phase;
    3. may carry out additional investigative steps if the PPSC is of the view that these are reasonably required to ensure the effective presentation of a case and fulfillment of duties;
    4. when required, attend and participate in interviews of prospective Crown witnesses by a prosecutor and maintain notes of such interviews for disclosure purposes;
    5. be available to review with prosecutors the facts of a case and disclosure issues after referral and prior to preliminary hearing or trial;
    6. when required to testify, bring with them all notes and evidence in their possession relevant to their anticipated testimony;
    7. make arrangements for the attendance of all Crown witnesses in court, including issuance and service of subpoenas; and
    8. prepare or assist in the preparation of agreed statements of facts to reduce the length of the trial or in contemplation of a guilty plea.
  2. PPSC prosecutors provide advice as needed to assist the Commissioner's investigators in the performance of the Commissioner's functions under paragraph (a).

3. Financial Issues

3.1.  Cost recovery

3.1.1 PPSC Funding Model

The PPSC recovers from the Commissioner its costs for the provision of prosecution services.  These costs include those related to FTEs that provide prosecution services, disbursements, and private sector barristers and advocates acting as federal prosecutors.

3.1.2 Prosecution Services Rates

The PPSC recovery rates for its prosecution services will reflect the actual salary costs of FTEs providing such prosecution services and their related disbursements, and the hourly rates of private sector barristers and advocates acting as federal prosecutors, and their related disbursements.

3.1.3 Disbursements

Disbursements are non-FTE related costs paid by the PPSC or private sector barristers/advocates as a result of the provision of prosecution services. These costs may include: court fees, witness (including expert) fees, transcript fees, interpretation services, photocopying, printing, disclosure-related costs, expenses and on-line research fees.

3.1.4 PPSC Invoices

The Commissioner will be invoiced for PPSC's costs on the basis of the hours recorded for performing prosecution services by PPSC personnel in iCase.  These iCase reports, which are reviewed by PPSC management, will be sent to the Commissioner's office for validation. Once agreed to by the Commissioner, the PPSC will invoice the Commissioner based on the rates mentioned in section 3.1.2  above. Payment will be done through a journal voucher between the respective cost centres of the PPSC and the Commissioner. Any disbursements related to cases for the Commissioner will be similarly invoiced, and the PPSC may decide to create an internal order number to keep track of these disbursements.

3.1.5 Certification of Commissioner's expenses

The process for certification by the DPP of the payment of the Commissioner's expenses out of the Consolidated Revenue Fund takes into account that the Commissioner conducts investigations independently of the DPP, but also takes into account that such payment includes expenses invoiced to the Commissioner by the DPP for prosecution services. PPSC personnel who record hours worked on a file are not involved in the payment certification process.

4. External Communications

4.1. Before Charges Are Laid

  1. Except when a matter relates to actions of the PPSC, the Commissioner is responsible for all communications with the media before charges are laid under the Act.  This includes any communications, or communications decision, regarding:
    1. pre-investigative matters, including the receipt of a complaint or the substance of the complaint;
    2. the investigation, whether or not the PPSC is providing advice, or assistance regarding any investigative step, tool or procedure;
    3. a Commissioner referral to the PPSC;
    4. the examination of a Commissioner referral by the PPSC;
    5. a PPSC referral of the matter back to the Commissioner for any reason, including the entering into of a compliance agreement or other action; and
    6. the PPSC acceptance of a referral and request to the Commissioner to cause an information to be laid.
  2. Should the PPSC receive media or other inquiries during this time, the PPSC directs these to the Commissioner.
  3. The Commissioner conducts all external communications.  The Commissioner may consult the PPSC as he considers necessary.  It is recognized that the PPSC Director of Communications and the Commissioner's media officials may communicate directly with each other.
  4. When the PPSC is involved in pre-charge court proceedings, the PPSC may, in consultation with the Commissioner, communicate with the media in respect of those proceedings.
  5. If the Director decides, following a referral from the Commissioner, against the initiation of a prosecution, the PPSC may communicate with the media in respect of that decision but before doing so, consults with the Commissioner on whether the media should be informed of that decision and that a referral by the Commissioner was made.  Any release of information to the media in such a situation is prepared by the PPSC, in consultation with the Commissioner, and is released through the PPSC Director of Communications.

4.2 After Charges Are Laid

  1. Once charges have been laid, the Commissioner may, after consultation with the PPSC, inform the media of the initiation of a prosecution against an accused.  The Commissioner and PPSC consult regarding the timing, manner and content of this release of information to the media.  This communication is released to the media through the Commissioner's media officials.
  2. Following the laying of charges, and apart from paragraph (a), the PPSC is the point of contact for all media inquiries.
  3. Once the case is completed, the disposition may be posted on the web site of the Commissioner.  The PPSC may also post information about the case on its web site in accordance with its policies.
  4. As a component of the independence of their operations, the PPSC and the Commissioner each have their own media relations and communication officials. Neither communicates on behalf of the other. These officials communicate with each other as necessary to carry out their functions.

5. Confidentiality and Security of Information

5.1.  Information confidential

Information received by one party from the other is treated as confidential and is only used and disclosed in accordance with the laws of Canada and, in particular, with section 510.1 of the Act.

6.  Twelve-Month Review

The parties will meet in the year following the adoption of this document and annually thereafter to review and discuss any required adjustments to these principles.

______________________________
Brian Saunders, Q.C.
Director of Public Prosecutions
October   , 2014

______________________________
Yves Côté, Q.C.
Commissioner of Canada Elections
October   , 2014

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