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AN ACT TO RENEW LOCAL DEMOCRACY IN ALBERTA

AN ACT TO RENEW LOCAL
DEMOCRACY IN ALBERTA

Chapter 23

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Amends RSA 2000 cL‑21

1   The Local Authorities Election Act is amended by this Act.



 

56   The following is added after section 161:

Part 9
Election Commissioner

Interpretation

190(1)  In this Part, “Election Commissioner” means the Election Commissioner appointed under the Election Act.

(2)  The definitions in Parts 5.1 and 8 apply to this Part.

Duties and powers of the Election Commissioner

191(1)  The Election Commissioner may, on the Election Commissioner’s own initiative or at the request of another person or organization, conduct an investigation into any matter that might constitute an offence under Part 5.1 or 8.

(2)  For the purpose of conducting an investigation under this Act, the Election Commissioner has all the powers of a commissioner under the Public Inquiries Act as though the investigation were an inquiry under that Act.

(3)  For the purpose of conducting an investigation under this Act, a representative of the Election Commissioner, on production of the representative’s authorization from the Election Commissioner, may at any reasonable time enter any premises referred to in the authorization in which books or documents of a candidate or third party relevant to the subject‑matter of the investigation are kept and may examine and make copies of the books or documents or remove them temporarily for the purpose of making copies.

(4)  Before entering a private dwelling or a part of premises used as a private dwelling to carry out the powers described in subsection (3), a representative of the Election Commissioner shall

                             (a)    obtain the consent of the occupant or the legal representative of the occupant of the private dwelling or the part of the premises used as a private dwelling, or

                             (b)    obtain an order from the Court.

(5)  A candidate or third party shall, within 30 days after receiving a written request from the Election Commissioner or within an extended period that the Election Commissioner may determine, provide any information with respect to the affairs of the candidate or third party that is reasonably required by the Election Commissioner in the course of the Election Commissioner’s duties under this Act.

Notice of investigation and conclusion

192(1)  At any time before completing an investigation referred to in section 191(1), the Election Commissioner shall notify any person or organization who is the subject of an investigation that the person or organization is being investigated and the nature of the matter being investigated before completing the investigation, unless the Election Commissioner believes that notification would compromise or impede the investigation.

(2)  The Election Commissioner may refuse to conduct an investigation, or may cease an investigation, if the Election Commissioner believes that

                             (a)    the matter is frivolous or vexatious, or

                             (b)    there are no or insufficient grounds to warrant an investigation or the continuation of an investigation.

(3)  The Election Commissioner shall not make an adverse finding against a person or organization unless that person or organization has had reasonable notice of the substance of the allegations and a reasonable opportunity to present his or her or its views.

(4)  If the Election Commissioner refuses to conduct or ceases an investigation under subsection (2) or determines that no offence was committed, the Election Commissioner

                             (a)    shall provide notice of that decision to

                                     (i)    every person or organization who

                                         (A)    is the subject of the investigation, or

                                         (B)    would have been the subject of an investigation if the Election Commissioner had not refused to conduct an investigation,

                                       and

                                    (ii)    every person or organization who requested an investigation, if any,

                                 and

                             (b)    may, as the Election Commissioner considers to be appropriate, provide notice of that decision to any other person or organization involved in the matter referred to in section 191(1).

Administrative penalties

193(1)  In subsections (2) and (3) and section 195, “individual or entity” means the individual, corporation, trade union, employee organization, prohibited organization, prohibited corporation, local jurisdiction or third party, as the case may be, on whom a notice of administrative penalty or letter of reprimand is served under this section.

(2)  If the Election Commissioner is of the opinion that

                             (a)    an individual has made one or more contributions in excess of a limit prescribed by section 147.2(3),

                             (b)    a prohibited individual or entity has made a contribution in contravention of section 147.2(1) or (2),

                             (c)    an individual or a third party fails to comply with a direction of the Election Commissioner,

                             (d)    a prohibited corporation, an individual ordinarily resident outside Alberta or a trade union or employee organization that is not an Alberta trade union or Alberta employee organization has made an election advertising contribution in contravention of section 167(3), or

                             (e)    an individual, a prohibited individual or entity or a third party has contravened a provision of Part 5.1 or 8, otherwise than as referred to in clause (a), (b) or (d),

the Election Commissioner may serve on the individual or entity either a notice of administrative penalty requiring the individual or entity to pay to the Crown the amount set out in the notice, or a letter of reprimand.

(3)  A notice of administrative penalty must contain the following information:

                             (a)    the name of the individual or entity required to pay the administrative penalty;

                             (b)    the particulars of the contravention;

                             (c)    the amount of the administrative penalty and the date by which it must be paid;

                             (d)    a statement of the right to appeal the imposition or the amount of the administrative penalty to the Court of Queen’s Bench.

(4)  In determining the amount of an administrative penalty required to be paid or whether a letter of reprimand is to be issued, the Election Commissioner must take into account the following factors:

                             (a)    the severity of the contravention;

                             (b)    the degree of wilfulness or negligence in the contravention;

                             (c)    whether or not there were any mitigating factors relating to the contravention;

                             (d)    whether or not steps have been taken to prevent reoccurrence of the contravention;

                             (e)    whether or not the individual or entity has a history of non‑compliance;

                              (f)    whether or not the individual or entity reported the contravention on discovery of the contravention;

                             (g)    any other factors that, in the opinion of the Election Commissioner, are relevant.

(5)  The amount of an administrative penalty that may be imposed under subsection (2) must not exceed

                             (a)    in the case of a contravention referred to in subsection (2)(a), twice the amount by which the contribution or contributions exceed the limit prescribed by section 147.2(3) and in no case may the amount of the administrative penalty exceed $10 000 for each contravention,

                             (b)    in the case of a contravention of section 147.2(1) or (2) or 167(3), twice the amount that was contributed in contravention of that provision, and in no case may the amount of the administrative penalty exceed $10 000 for each contravention,

                             (c)    in the case of a contravention referred to in section 147.4, $1000,

                             (d)    in the case of a contravention referred to in section 187, 

                                     (i)    $10 000 if the third party is an individual, and

                                    (ii)    $100 000, if the third party is a trade union, employee organization, corporation or other organization,

                                 and

                             (e)    in the case of any other contravention, $10 000.

(6)  An individual or entity who pays an administrative penalty in respect of a contravention shall not be charged under this Act with an offence in respect of the same contravention that is described in the notice of administrative penalty.

(7)  An individual or entity who has been served with a notice of administrative penalty shall pay the amount of the administrative penalty within 30 days from the date of service of the notice.

(8)  Subject to the right to appeal, where an individual or entity fails to pay the administrative penalty in accordance with a notice of administrative penalty, the Election Commissioner may file a copy of the notice of administrative penalty with the clerk of the Court of Queen’s Bench, and on being filed, the notice has the same force and effect and may be enforced as if it were a judgment of the Court.

Time limit

194(1)  A letter of reprimand or a notice of administrative penalty may not be served more than 3 years after the date on which the alleged contravention occurs.

(2)  A disclosure under section 203(3)(a) may be made with respect to an alleged contravention that occurred before the coming into force of this section, but may not be made with respect to an alleged contravention that occurred more than 3 years before the coming into force of this section.

Appeal of administrative penalty

195(1)  An individual or entity who is served with a notice of administrative penalty under section 193 may appeal the Election Commissioner’s decision by filing an application with the Court of Queen’s Bench within 30 days from the date the notice was served.

(2)  The application must be accompanied with a copy of the notice of administrative penalty and state the reasons for the appeal.

(3)  A copy of the application must be served on the Election Commissioner not less than 30 days before the appeal is to be heard.

(4)  The Court of Queen’s Bench may, on application either before or after the time referred to in subsection (1), extend that time if it considers it appropriate to do so.

(5)  On hearing the appeal, the Court of Queen’s Bench may confirm, rescind or vary the amount of the administrative penalty.

Compliance agreements

196(1)  In this Part, “contracting party” means an individual or a local jurisdiction with whom the Election Commissioner enters into a compliance agreement under this Act.

(2)  If the Election Commissioner believes on reasonable grounds that an individual or a local jurisdiction has committed, is about to commit or is likely to commit an act or omission that could constitute a contravention of Part 5.1 or 8, the Election Commissioner may enter into a compliance agreement with that individual or local jurisdiction for the purpose of ensuring compliance with Part 5.1 or 8.

(3)  A compliance agreement may contain any terms and conditions that the Election Commissioner considers necessary to ensure compliance with Part 5.1 or 8.

(4)  Before entering into a compliance agreement, the Election Commissioner shall require the consent of the prospective contracting party to the publication of a notice under section 199.

(5)  A compliance agreement may include a statement by the contracting party that the contracting party admits responsibility for the act or omission that constitutes a contravention of Part 5.1 or 8.

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

(7)  When a compliance agreement is entered into, a prosecution of the contracting party for an act or omission that led to the agreement shall not be instituted and any prosecution already instituted is suspended.

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

Notice of compliance agreement

197(1)  When, in the opinion of the Election Commissioner, the compliance agreement has been complied with, the Election Commissioner shall give a notice to that effect to the contracting party.

(2)  On the giving of a notice under subsection (1), any prosecution of the contracting party that is based on the act or omission in question terminates and no further prosecution shall be instituted based on that act or omission.

Failure to comply

198   If the Election Commissioner is of the opinion that a contracting party

                             (a)    failed to disclose all material facts when the compliance agreement was entered into, or

                             (b)    has failed to comply with a term of the compliance agreement,

the Election Commissioner shall give notice of the failure to the contracting party, informing the contracting party that the Election Commissioner may serve a notice of administrative penalty or a letter of reprimand under section 193, or may consent to a prosecution in respect of the original act or omission or, if a prosecution has been suspended by section 196(7), that those proceedings are no longer suspended.

Publication of notice

199  The Election Commissioner may publish a notice on the Election Commissioner’s website that sets out the contracting party’s name, the act or omission in question and a summary of the compliance agreement.

Application for injunction

200(1)  If the Election Commissioner has reasonable grounds to believe that a person has committed or is likely to commit an act or omission that is contrary to Part 5.1 or 8, the Election Commissioner may, during a campaign period or an election advertising 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 by originating application to the Court for an injunction described in subsection (2).

(2)  If the Court, on application by the Election Commissioner under subsection (1), is satisfied that there are reasonable grounds to believe that a person has committed 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 appears to the Court to be contrary to Part 5.1 or 8;

                             (b)    do any act that appears to the Court to be required by Part 5.1 or 8.

(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.

Election Commissioner’s orders

201(1)  Where a contribution or an advertising contribution has been made or accepted in contravention of this Act, the Election Commissioner may order that the amount of the contribution or advertising contribution that was made or accepted in contravention of this Act be returned to the contributor by a date determined by the Election Commissioner.

(2)  If it cannot be determined who made the contribution or advertising contribution that was made or accepted in contravention of this Act, the amount ordered under subsection (1) must be paid to the local jurisdiction.

(3)  A person who fails to comply with an order of the Election Commissioner made under this section is guilty of an offence and liable to a fine of not more than $5000.

Notice of prosecution

202   No prosecution shall be instituted under Part 5.1 or 8 without the consent of the Election Commissioner.

Disclosure

203(1)  Except as provided in subsection (2), a secretary of a local jurisdiction, a returning officer, the Election Commissioner, any former secretary of a local jurisdiction, any former returning officer, any former Election Commissioner, every person who is or was employed or engaged by a local jurisdiction or a returning officer to carry out the duties of the local jurisdiction or returning officer and every person who is or was employed or engaged by the Office of the Election Commissioner to carry out the duties of the Election Commissioner shall maintain the confidentiality of all information, complaints and allegations that come to their knowledge.

(2)  Information, complaints and allegations to which subsection (1) applies may be

                             (a)    disclosed by a local jurisdiction or a returning officer to the Election Commissioner for the purpose of carrying out the Election Commissioner’s powers, duties and functions under this Act,

                             (b)    disclosed by the Election Commissioner to a local jurisdiction or returning officer for the purposes of carrying out the local jurisdiction or returning officer’s powers, duties and functions under this Act,

                             (c)    disclosed to the person or organization whose conduct is the subject of proceedings under this Act,

                             (d)    disclosed by a person conducting an investigation to the extent necessary to enable that person to obtain information from another person,

                             (e)    disclosed in the course of an application to the Court under this Act,

                              (f)    adduced in evidence at an inquiry, or

                             (g)    disclosed where the Election Commissioner believes on reasonable grounds that the disclosure is necessary for the purpose of advising the Minister of Justice and Solicitor General or a law enforcement agency of an alleged offence under this Act, any other enactment of Alberta, an Act or regulation of Canada or a municipal bylaw or school board bylaw.

(3)  Findings and decisions, and any additional information that the Election Commissioner considers to be appropriate, shall be published on the Election Commissioner’s website in the following circumstances:

                             (a)    subject to section 194(2), if an administrative penalty is imposed or a letter of reprimand is issued under section 193;

                             (b)    if the Election Commissioner has provided notice under section 192(4) and receives a written request for disclosure from a person or organization who received the notice.

Duty to provide documents or information

204(1)  On the request of the Election Commissioner, a local jurisdiction or returning officer shall disclose to the Election Commissioner any document or information that the local jurisdiction or returning officer obtained under this Act that the Election Commissioner considers necessary for the purposes of carrying out his or her powers, duties and functions under this Act.

(2)  On the request of a local jurisdiction or a returning officer, the Election Commissioner shall disclose to the local jurisdiction or returning officer any document or information that the Election Commissioner obtained under this Act that the local jurisdiction or returning officer considers necessary for the purposes of carrying out his or her powers, duties and functions under this Act, unless the Election Commissioner believes that notification would compromise or impede an investigation.

Duty to refer complaints and allegations
and to report acts or omissions

205   A local jurisdiction or returning officer shall, within a reasonable time,

                             (a)    refer any complaint or allegation received by the local jurisdiction or returning officer under Part 5.1 or 8 to the Election Commissioner, and

                             (b)    report any act or omission that in the local jurisdiction or returning officer’s opinion likely constitutes an offence under this Act to the Election Commissioner.

Related Amendments, Transitional
Provisions and Coming into Force

 

61(1)  In this section, “the Bill” means the Bill to enact An Act to Renew Local Democracy in Alberta.

(2)  The following sections are deemed to have come into force on the day the Bill received first reading:

section 51, to the extent that it enacts sections 147.93 to 147.96;
section 56, to the extent that it enacts section 189.

(3)  This Act, except sections 3, 4, 48, 51 and 56, comes into force on January 1, 2019.

(4)  Section 56, to the extent that it enacts Part 9, comes into force on August 1, 2019.

(5)  Definitions contained in section 1 of the Local Authorities Election Act as enacted or amended by section 2 of this Act apply to Parts 5.1 and 8 of the Local Authorities Election Act, as enacted or amended by sections 51 and 56 of this Act, on and after the coming into force of those Parts.