Friday, 2 March 2012

In Defence of Elections Canada

Patience is a virtue often tossed callously aside by angry mobs. Pitchforks and flaming torches replace commonsense and respect for due process when political events seem to spiral out of control. Anger is the appropriate response in the wake of serious allegations of electoral fraud centring on 'robo-calls' in the previous federal election. Canadians should justifiably demand accountability and a persecution of those involved. Sadly, as has been the pattern since taking office, this is a government loathe to take accountability for its own actions, regardless of the scale. In its place are spin, obfuscation and lies, and, should anyone actually be held to account, it will be a rogue staffer outside the corridors of power tossed under the all too familiar bus.

Andrew Coyne rightly points out that this issue represents a failing of "Canada's Watchmen". While the political opposition and the media deserve to be chastised for their failure to hold the government to account on this issue,  there comes a point where Canadians have to recognize that, despite whatever efforts are made by the opposition, media or civil society, the country is currently governed by a regime that refuses to allow itself to be held to account. There is no pretense to basic conventions of responsible government, no semblance of political ownership. In the absence of any mechanism withing the Conservative party to participate in these mechanisms they are of little use.

If the first step to recovery is admitting one has a problem, the Harper government has yet to take a single move toward accountability. Despite the fanfare behind the 2006 Federal Accountability Act - political theatre, little more - the government  has been reticent to take its own medicine. As with past scandals, the robo-calls scandal illustrates the pathological aversion to so much as acquiescing to reality or facts. In a feat of extraordinary logic bending, Harper - straight faced and sincere - stood in the Commons to blame the Liberals for the torrent of calls. The Liberals, Harper claims, deliberately used robo-calling to target their own supporters, alienate them from the party and thus ruin the election. Is the PM now writing fiction in addition to his long gestating hockey book?

On principles central to the continuance of responsible government, the Conservatives have further tied themselves into knots. This is particularly the case when questions of ministerial responsibility arise. Here they have found a novel way to have their cake and obfuscate it too. With one hand they affirm the existence of such a concept of ministerial responsibility, citing it openly only so far as to claim the privileges that accompany it. This has been used, alternatively and without consistency, to prevent the appearance of political staff before Commons committees. claiming sanctimoniouly that only ministers are accountable before Parliament. While claiming this with one side of its collective mouth, the government has denied it with the other, placing accountability solely on staff and away from ministers. Despite overwhelming breaches of accountability - from MacKay to Oda - only Maxime Bernier had the good sense to resign from Cabinet (for leaving documents at his girl friend's).

Clearly Parliament is not functioning as it should, yet this is not something Canadians should be awakening to now. The past six years alone - excluding previous Liberal abuses and massive centralization of power in the Prime Minister's Office - have witnessed unprecedented levels of disdain for the institutions of Parliament, due process and the law. This extends beyond the most high profile cases - two uses of prorogation to avoid facing the House and a contempt finding - which were merely the most obscene manifestations of disrespect for parliamentary democracy.

Despite the inability of Parliament to curtail the excesses of the Harper government and the complete failure of the mainstream media to report accurately on this recent scandal, one component of governance has been working quietly in the background as it should. Diligently working through the process - and through 1000s of complains - has been Elections Canada, the independent, non-partisan body charged with statutory power to uphold the integrity of the electoral system and, as such by extension, democracy itself. Elections Canada - headed by an Officer of Parliament, the Chief Electoral Officer - reports directly the the House as a body, not the executive. It is fully independent of partisan wrangling or political interference.

Unfortunately, patience has been supplanted by pitchforks and torching and the ire of some Canadians, particularly those within civil society, are now baying for blood at Elections Canada. This does an incredible disservice to democracy. First, the language used undermines the work of a neutral body and introduces a notion of illegitimacy. Undermining the important work this organization does will not ensure accountability, quite the opposition. By challenging the motives and actions of Elections Canada, we mover further from accountability and closer to a lynch mob. Secondly, such language politicizes Elections Canada and drags it into uncertain waters. The purpose and design of a range of institutions - from Elections Canada to the courts - is to remove them from the political process and set them above the partisan fray. By casting aspersions on its political motives, the work being undertaken is further politicized, unduly casting doubt on whatever outcomes may result. Finally, it undermines the political process as a whole, rather than focusing on clear issues of fraud and voter suppression.

The rhetoric of some civil society groups - particularly Democracy Watch - is hyperbolic and dangerous. In most cases, it is purely inaccurate. Democracy Watch is no fan of the Harper government and its pronouncements are broad shots at it. However, they miss the government and merely strike the foundation of governance, eroding confidence and trust. Obviously, given DM's predispositions, this is not unexpected, given that body's predispositions.

What is equally troubling is the complete and total disregard for the rule of law and due process. Like any complex process, investigations take a great deal of time and resources. Moreover, Elections Canada is investigating serious claims which, beyond the integrity of the electoral system, have legal ramifications for individuals. Calls to make the process both more expedient and more 'transparent' are asinine and unthinking. In essence, this is a legal case in which evidence must carefully be uncovered and analyzed. Sloppy or rushed work serves no one's interests. Justice is not served by lack of process. By parallel, police investigations utilizing the full strength of their investigative force are often agonizingly slow and conducted outside of the public eye, yet this does not cast doubt on their integrity. Process is a central component of accountability. A public witch-hunt is neither desirable or helpful, nor does it serve the interests of accountability.

Additionally, what is slowing the pace of the investigation is its scope and size. Elections Canada has a limited staff and for good reason. Typical issues arising from the Elections Act are small acts of vandalism and rarely serious. This scandal is entirely atypical in Canadian politics. In terms of its scope and aim, it is qualitatively and quantitatively different than anything Elections Canada has faced before. It is a systemic, highly planned and professionally executed scheme designed to suppress votes. In short, it is by its very nature something which will take time and effort to unpack. Moreover, given the massive increase in the number of electoral-related complaints, there is much to evidence to be sifted. Elections Canada has and will make use of the RCMP to help conduct investigations into wrongdoing. It has the statutory power required to seize evidence and investigate criminal activity. There is little doubt of its ability to conduct this investigation.

Democracy Watch moves onto a more precarious limb when it accuses Elections Canada of failing in its responsibility to prevent electoral fraud. This is an absolutely moronic assessment, nor more true than chastising the police or Parliament to prevent a premeditated murder. Statutes are not preventative mechanisms that can be positively enforced. On the contrary, they act less as a deterrent and more as a post facto reparative mechanism. To blame Elections Canada for preventing something over which it had absolutely no control - the concerted effort of individuals or parties to break the law - is to push the limits of rationality. If there is an intent to commit fraud, as in this case, there is no preventive mechanism, only a means of rectifying the situation once a crime has occurred.

The Toronto Star has bluntly queried "Does Elections Canada have the clout to enforce laws?" Such a question is ignorant of the political and legal environment in which Elections Canada operates and which also constrains it. Despite the way it has been placed inexplicably above these, Elections Canada is not fully autonomous of these. Elections Canada does not enforce laws, rather it investigates and makes recommendations. Indeed, as The Star points out:
"Another option is to enter into a compliance agreement with anyone the commissioner believes has committed or is about to commit an offence under the Act. The agreement is voluntary and is meant to ensure compliance with the Act. No charges are laid in this case."
This is the extend of the enforcement mechanism without resorting to the legal system and is built largely to address minor violations or the Elections Act, not major conspiracies of fraud. It relies on the legal system to carry forward from there. Indeed, this is consistent with Canadian principles of justice, in which severe matters are subject to the legal system, not to an agent of parliament.

Many calls have already been made demanding that electoral results be overturned due to these allegations of fraud. Indeed, some have made moronic demands to overthrow the results of the forty-first general election entirely. There are many problems with this line of reasoning, none more so than calling for Elections Canada to be the arbiter of democracy in this country, something is was neither designed or intended to be. Moreover, overturning elections is not the prerogative of Elections Canada, rather it is the prerogative of the judicial system. The legislation provides a recourse to overturn elections in the event of fraud. Section 524 (1) (b) of the Canada Elections Act states that an election may be nul and void if "there were irregularities, fraud or corrupt or illegal practices that affected the result of the election." Recourse is sought through the courts.

The nuance of this section is important and, indeed, essential to uphold the integrity of the electoral system. Electoral fraud is not enough on its own to invalidate electoral results. What has to be determined is if the scope of the fraud was enough to affect the outcome of the vote. This is important for two reasons. First, it prevents the unnecessary disruption of the process by accusations or trivial acts of fraud. Second, it balances acts with outcomes. Indeed, the threshold is set quite high, but for good reason. A more lenient standard would encourage a greater politicization of the process itself, leading to a greater number of challenges and undermining faith in the system as a result.

As noted above, the scope of this scandal is beyond normal circumstances in modern Canadian politics and something not seen since Borden's Wartime Elections Act in 1917. The appropriate rectification of this situation is not to invalidate the results in 308 ridings, or in very many ridings at all, but rather expose those responsible and prosecute them in criminal court. It is ultimately in the courts where this drama will unfold and which accountability will be assigned. Calls to overturn entire electoral results and spurious comparisons to failed democracies are hyperbolic and supercilious. Despite these irregularities, Canada is not comparable to Russia or Iran. Unlike those states, we have fair judicial remedies and appropriate investigation processes to expose wrongdoing and hold those responsible to account.

It is a sad irony that, while decrying the criminal abuse of the electoral system, that so many Canadians reactively propound measures to rectify the situation which are fundamentally anti-democratic and contrary to the rule of law. First, by advocating for the wholesale invalidation of electoral results, thus rendering mute the voices of millions. Second, and preposterously, by suggesting that the Governor General, an unelected and unaccountable figurehead who is constrained largely by the advice of the Prime Minister, simply call a by-election in the disputed ridings. How failures of democracy are solved by turning to the most anti-democratic of Canadian institutions escapes logic.

Without a doubt, the robo-call scandal is vitally important and a critical test of Canada's political and legal institutions. So far basic tenets of responsible government have been ignored, met by loud denials and misdirection. This has been aided in part by a lazy media machine that follows anything that moves and prepared to swallow whole any talking points thrown its way. It is beyond doubt too that Canadians are angry, perhaps less so at the disrespect for our political institutions than at the prospect of being personally misdirected. The urge for immediate action is understandable yet overly swift action will not bring about true accountability, only fleeting catharsis. Elections Canada has revealed that it has receive some 31000 complaints in the robo-call scandal, thirty times the normal volume. Accountability calls for more than the rolling of guilty heads. It calls for due-process, diligence and careful deliberation of evidence in accordance with the law. Elections Canada is operating under procedures which exist to ensure the integrity of the system and the protection of complainants, not because it desires obfuscation and secrecy. Transparency is something Canadians could be demanding of their government, not Elections Canada.

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