Thursday, 29 March 2012

Centsless: Canada's 2012 Budget

Needless to say there is much in the Jim Flaherty's 2012 budget that should outrage Canadians. A cursory glance raises some problematic prospects for groups already marginalized by the Conservative regime. Obvious targets include seniors waiting longer to retire and the young Canadians who will pay for those benefits without the security of knowing they too will have those same benefits. There are other perennial losers, like the working poor and women. Some measures may have significant long-term ramifications. The relaxing of the environmental regulatory system could have implications for First Nations communities. What will become of the Crown's duty to consult when project approvals are expedited? Given the tone of the budget provisions here, it is likely an already tenuous process could further erode. No doubt though this will be frame as a positive step by the government and for those eager to acquire rights to Aboriginal lands. Yet it the realities of Neoliberal market dictates for these communities could bring far greater dangers than benefits.

Much of the budget could be regarded as death by a thousand cuts. Indeed the media narrative - and most mainstream press agencies are guilty of this - downplayed the cuts made by the government. Given what the Conservatives could have done, we are told, this is a fairly moderate budget. That will be cold comfort to those non-enumerated groups who as a result of budget cuts outside the central bureaucracy will find their jobs under the axe in the weeks and months ahead. The government may not have radically amputated any governmental limbs, but the wounds still have the potential to bleed out. Again, the effects of this budget will not be entirely immediate. It will be a slow, creeping process. The lobster's in the pot and the water is slowly boiling.

Apart from the soothing words from Canada's pundit class that this budget was mild, the central focus seems to be on the elimination of the penny. While this is certainly wise policy - pennies are useless and cost a small fortune to keep in circulation - the change highlights the ideological underpinnings of this government and it's total lack of deference to commonsense or honesty. Penny jars across the country are no doubt full to the brim, the result of a senseless and politically calculating policy (successfully) designed to win the 2006 election. For the average consumer - say, the Tim Hortons Canadian - the policy meant little in the way of benefit apart from (literally) an few extra pennies every cup of coffee. The impact on the treasure was profound, contributing to a structural deficit prior to the onset of the global recession in 2008. The abolition of the  penny has served its purpose, ceasing the initial media spotlight and deflecting attention from some of the more nuanced aspects of the budget.

The budget also represents a not so subtle attack on democracy in this country. First, some measures against charitable organizations and non-profits are likely meant to silence any organization that dissents from the government line. Second, and more fundamentally, the budget also takes aim at Canada's democratic guardians, notably Elections Canada. That organization ill see its budget slashed by about 7%, seriously affecting its ability to fulfill its mandate. As I noted in my previous post, this potentially undermines the independence of Elections Canada, reducing the amount of investigative work it can do. The timing is also suspicious, coming at a time when the agency is actively undertaking investigations which could implicate the government in widespread electoral fraud. It is particularly troubling given that Elections Canada - and, indeed, other Officers of Parliament like the Auditor General - represent a tiny fraction of government expenditures and deliver substantial value for money. Moreover, their role as watchdog is invaluable. These cuts simply exacerbate the growing crisis of Canadian democracy, undercutting Parliaments ability to hold the executive to account. Indeed, these seemingly insignificant cuts nevertheless cut to the heart of our democratic institutions. A Parliament without access to the resources it needs, either internal or external, is one a decreased ability to provide a check on power that has only eroded further since 2006.

Contrary to the pundit class in the country - a class increasingly failing in its own sacred trust to hold governments to account and speak truth to power - this is not a budget that is in anyway moderate. Indeed, while the talking heads praise the government's efforts to balance the budget, it remains to be seen how a budget balanced on the backs of the poor and marginalized in this country can been considered balanced in a wider sense. What is most disappointing is that there is the wealth available in this country to balance the fiscal books and do so while maintaining social programs. Contrary to what it claims and the excuses it makes, the Conservative government has made a conscious decision to implement a budget of massive wealth redistribution. In this case, the wealth flows to those who already posses it. This is a budget designed to dull and distract, to work incrementally. Canada's and its democracy seem set to bleed out slowly over the coming  years.

*Yes, I am aware the pennies in the jar are of the American persuasion.

Officers of Parliament: A Primer

Chief Electoral Officer Marc Mayrand
To most Canadians the term 'Officer of Parliament' (alternatively: Agent of Parliament, Parliamentary Watchdog) likely means very little. Yet given recent high profile scandals, chiefly the recent 'robocall' scandal and, prior to that, the Sponsorship Scandal, many will be familiar with the the personalities, if not the office or general institutional arrangements behind them. Indeed, most Canadians are likely able to name former Auditor General Sheila Fraser, arguably one of the more famous individuals to hold that office. Judging from the public reaction to the robocall scandal, however, it seems that Officers of Parliament are grossly misunderstood and, sadly, being disparaged without caused.

First, a brief historical and institutional overview is required. Broadly speaking, Officers of Parliament, as their name implies, are bodies responsible to Parliament as a whole. They are entirely independent of the executive branch. While the Auditor General has often been the most visible - the office and its work have the broadest possible purview since it deals with government spending - the role of the Chief Electoral Officer has come to the fore. These are two of the oldest officers. The Office of the Auditor General traces its roots to pre-Confederation, but its modern incarnation began to take shape after the 1920s and since then its mandate has changed substantially. The Chief Electoral Officer was the second officer to be created as head of Elections Canada in 1920. Trudeau added a third - the languages commissioner - in 1970 to oversee the implementation of official bilingualism in the federal government. Additional officers were added in the 1980s, but they were substantially modified with the implementation of the Federal Accountability Act in 2006 which instituted the current incarnations of the Privacy, Information, Conflict of Interest/Ethics, Lobbying and Public Sector Integrity commissioners. One may also include the Parliamentary Budget Officer, although its reporting function differs substantially. The function of each obviously varies with their individual mandates - as laid out in statute - as do their effectiveness.

Undue criticism has been hurled at the Chief Electoral Officer for the perception of ineffectiveness in dealing with the robocall scandal. Unfortunately this criticism has degenerated into baseless accusations of political or partisan collusion, that somehow Officers of Parliament are beholden to the party that appointed them. This is patently untrue and inherently problematic as it suggests that many of the institutions most central to Canadian democratic governance, from its elections to its bureaucracy and judiciary are somehow tainted. Populist angst over the scandal has undermined public patience in existing institutions and, as a result, the perceived lack of effectiveness or action taken by each has resulted in these baseless slanders. There are many institutional and practical reasons, however, why Officers of Parliament are not even remotely partisan agents beholden to those who appoint them.

First, they are appointed by Parliament as a whole with cross-party input. Moreover, unlike Senate appointments, qualifications - often laid down in statute - must be met. (In the case of the recent Auditor General appointment it does seem some of these qualifications - the ability to speak French for instance - can easily be overlooked). As such, partisan appointments are eschewed in favour of qualified individuals who are vetted and scrutinized. Indeed, the record of action of past agents immediately counters the claim that they are partisan or politically motivated. Sheila Fraser - appointed under a Liberal majority government - was a constant thorn in the government's side, as is the Parliamentary Budget Officer (indeed, he openly contradicts the executive). The smaller agents have also not shied away from taking on the government as has recently been demonstrated. The question that emerges is not one of impartiality, but effectiveness. This is another matter entirely.

Secondly, officers have by statute a significant degree of independence along a number of important axes. First, they have security of tenure, the length of which varies. For instance, the tenure of an Auditor General is ten years while a Chief Electoral Officer serves until retirement. The corresponding side of tenure - removal - is also strenuous. It requires a joint resolution of Parliament - House and Senate - to remove officers. Any attempt to remove an officer for partisan or political purposes is likely to be met with resistance. Indeed, Ontario Premier McGuinty discovered that even considering not renewing a popular yet outspoken Ombudsman's tenure was ill perceived by the media, opposition and, importantly, the public. In addition to tenure and removal, each officer - and the agencies they run, whether it is Elections Canada or the Auditor General - has significant funds at their disposal to hire staff and conduct their operations fully. Indeed, Elections Canada has substantial powers to spend money under the Canada Elections Act. Moreover, officers have significant powers of investigation and reporting. What is lacking, however, is a mechanism of enforcement. Officers rely on public pressure - they use the media to their advantage - to influence the agenda and force Parliament's hand. In the end, it is Parliament that must act to take recommendations into account. Unfortunately in many cases Parliament simply votes to receive reports rather than put them into effect.

As Dawson (1922) notes, the creation of conditions required to propagate independence are twofold: "The first, which is confined to the methods of obtaining the official; the second, which includes the means that determine his independence after his accession to office" (12-13). Officers of Parliament meet both of these important sets of criteria. Officers are highly professional individuals experience and skills required to supplement Parliament's oversight capacity. They are not partisan lackeys or bagmen. Additionally they are secure in their tenure which facilitates independence and have the resources required to undertake their tasks.

There is a great deal of confusion in the public - and, perhaps among politicians - exactly what officers do and what their limits are. Each confront the limits of their respective empowering statutes, although some - like the Auditor General - have been adept at expanding their mandate and consolidating their fiefdoms. The confusion has been particularly palpable in relation to the Chief Electoral Officer. Indeed, her the limits of the statute are evident. Unfortunately, public misunderstanding has imbued powers upon Elections Canada which are not within its purview, chief among them the ability to invalidate elections. It cannot be reiterated enough that Elections Canada lacks both the statutory power and authority to invalidate elections. As has been repeated endlessly, that power rests with the courts alone. Moreover, it is not the place of Elections Canada to suggest or make that case for invalidating an election. Again, the case must be made by citizens before a judge. The powers of Elections Canada are prescribed and finite. First, it oversees the conduct and facilitates elections. Secondly, it has investigative and legal powers - similar to attorney generals - to enforce the elections act. This is actually a fairly unique and broad provision. These functions, like any public legal function, require evidence to prove beyond a reasonable doubt that a crime has been committed. The same stringent legal standards apply as with any other aspect of Canada's criminal code.

As previous posts have indicated, I have made the case for allowing Elections Canada the time to fulfill its mandate in accordance with the rule of law and principles of fundamental justice. Complex investigations of electoral fraud, like any other crime, require the careful gathering and parsing of evidence in order to build a case. Populist sentiment has already reached its verdict, one that sees a conspiracy reaching to the highest echelons of power in the federal executive. They require no evidence beyond gut feelings and unsubstantiated evidence. Thankfully Elections Canada words within a more clearly defined set of standards and legal principles. Certainly the process may seem slow, but no more than any criminal investigation of this size - hundreds of complaints, across 308 ridings and a massive country - or, for that matter, the time frame of a Royal Commission. I repeat again my call to let Elections Canada complete its investigation.

The role of Officers of Parliament is an important one, albeit one that is not fully defined or, in particular, understood by the public at large. Repairing our damaged democratic institutions will not come from further tearing down the entire structure of governance. The response has been to denigrate the courts and officers, labelling them as biased and politically motivated. This is both unhelpful and entirely incorrect. Officers of Parliament are resolutely independent. Moreover, they jealously guard this independence as it is the hallmark of their legitimacy. Without it their work is undermined and of little value. As Dawson noted almost a century ago: The real democracy demands a subtle combination of election and appointment, of non-expert minds and expert minds, of control and trust, of responsibility and independence" (27). Officers represent the appointed expert side of the equation. To be effective they also require the public's trust and confidence.

*Update* The 2012 Federal budget has slashed the budget for Elections Canada, a severe attack on the independence of the institution

Suggested Reading:

R. MacGregor Dawson (1922). The Principle of Official Independence: With Particular Reference to the Political History of Canada

Wednesday, 14 March 2012

This is What "Democracy" Looks Like?

While disparate in origin, two separate movements are coalescing into similar shapes in this country. In Toronto, dissatisfaction with a highly unpopular mayor, particularly in progressive, circles has results in numerous attempts - many procedural, technical or legal, many outside of council chambers - may soon come to a head as a legal challenge to remove Rob Ford from office will be considered by a judge. At the federal level, populist outrage at at the so-called 'roboscandal' continues to build - again, largely in progressive circles - demanding, most vocally, an immediate Royal Commission or the overturning of the results of the 41st general election. Both are masked in a populist and deeply democratic rhetoric. The reality, however, is that these movements teeter dangerously close to a profoundly anti-democratic precipice. This, of course, sounds entirely counter-intuitive. It is anything but.

Tuesday, 13 March 2012

You Say You Want a Royal Commission?

The fallout from the 'robo-dialing' scandal has brought with it certain demands, some of which are beyond the pale both in terms of feasibility and desirability. First, many protesters have demanded that the entire forty-first federal election be overturned. This is highly unlikely for a few reasons. To begin with, it would require judges overturning 307 (Toronto-Danforth by that time already having had a by-election) individual riding results and necessitating the calling of simultaneous by-elections. The power to null and void an entire election outright is not a power the judiciary possesses and therefore this improbable confluence of events is the only way. The other improbable scenario is the Governor General unilaterally dissolving Parliament. For a number of reasons, this will not happen. Yes, it is technically within his powers, but there are a number of constitutional and practical reasons for doing so. The execution of crown powers occurs usually on advice of the Queen's advisers, in this case the Prime Minister and Cabinet. Additionally, asking the GG to decide such a matter unduly politicizes the office, something with serious ramifications. In short, without the voluntary calling of an election  by the Prime Minister - who still holds the confidence of the House, the cardinal rule of political formation in Canada - Parliament is not going to be dissolved as a whole.

The second of these vocal demands has been the calling of a commission of inquiry, either a Royal Commission or a public inquiry without the luxury of fancy titles. This, it seems, is a somewhat more reasonable demand. From a more populist perspective this makes sense. The public demand to know exactly what transpired and the depth - or heights - to which it extends. Certainly the argument that the people have a right to know is entirely sound. The question remains, however: is this step the appropriate one, particularly at this stage in the game?

The distinction between a Royal Commission and a public (or commission) of inquiry. Is a slight one in terms of powers and ability. Both may call witnesses and compel evidence, possessing a wide array of functions and  jurisdiction. A Royal Commission maintains a heightened sense of importance or urgency. Indeed, it carries with it Her Majesty's royal seal. Yet on a basic level, there is a clear reason not to call a royal commission, even if it is for the sake of semantics. Royal Commissions are tasked with investigating weighty matters which are national in scope - although they may also be called by provinces and thus address urgent provincial matters - and have important bearing on the country as a whole. They tend, with few exceptions, to deal with questions of governance which require greater attention and expert investigation. As such, the most famous commissions have dealt with, among other things the relationship between provinces and territories, Canada's place within the North American continent, the national character and the question of Quebec and the future of Aboriginal Canada. Royal Commissions report to the political executive which is tasked with forging a strategy in response. In many cases, however, little action may be taken, as was the case with the report pertaining to Aboriginal Peoples in 1996. 

Tuesday, 6 March 2012

Moving Beyond 'Apartheid'

I'll be honest. I hate Israeli Apartheid Week (IAW). Not because I disagree with the core message of its proponents but because it brings out the worst imaginable in a so-called public discourse. Indeed, to consider the week a an exercise in discourse is farcical. It's simply a week of two sides talking past one another. Nothing is affirmed and nothing changes. Worse still it is utterly predictable and boring.

Sunday, 4 March 2012

Why the Governor General Won't Save Us

The current Robocall scandal represents a clear challenge to Canada's democracy. It threatens to undermine both the legitimacy of the previous election and the very institutions of governance, particularly Parliament. These are dangerous developments. Irate Canadians have taken to the streets in protest. This is surely a practical and vocal way of communicating dissatisfaction with the government. These protests are, in general, healthy expressions of outrage, yet some of the rhetoric and demands accompany them are unhelpful and troublesomely contradictory.

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.