Tuesday, 4 February 2014

Fair Elections and the Commissioner of Canada Elections - A New Collar and a Shorter Leash

Reading the first draft of the Fair Elections Act is a maddening experience. If the aim of the Act is to ensure the proper conduct of elections or enhance accountability and transparency, it is difficult to see how this piece of legislation will accomplish it. In fact, the bill is likely to to have the opposite effect because it effectively marginalizes Parliament and brings the conduct of elections close to the centre of government. Indeed, the provisions of the bill relating to Elections Canada run counter to the purpose of the Canada Elections Act (previously the Dominion Elections Act) for nearly a century by allowing the executive in through the backdoor.

Of particular concern are the changes made to the office of the Commissioner of Canada elections. The changes are being sold as means to ensuring the independence of the office. The reality is that this independence liberates the office from one political master and renders it subject to another. Under the current process the House of Commons votes to appoint a Chief Electoral Officer (an Officer of Parliament) as head of Elections Canada. It should be noted that every Chief Electoral Officer has been unanimously appointed signifying the confidence of the Commons in his role and conduct. As part of his mandate, the Chief Electoral Officer appoints a commissioner to investigate violations of the Canadian Elections Act. The commissioner is accountable to Parliament through the Chief Electoral Officer and reports to Parliament on the conduct of his office.

Since 2007, however, the government has soured considerably on Elections Canada and, in particular, on the office of the Chief Electoral Officer and its incumbent Marc Mayrand. The Conservatives have made little secret of their contempt for Elections Canada deigning to enforce that Act against the party. The Fair Elections Act contains numerous provisions to strip Elections Canada of its traditional role as guardian of the electoral process and turn it into little more than an administrative agency with few responsibilities. Most heinous are the changes which divide Elections Canada from the process of investigating electoral malfeasance. 

The Act removes the office of the commissioner and, rather than creating an independent agency, places it in the office of the Director of Public Prosecutions (DPP). Beyond this, it gives the DPP the authority to appoint the commissioner: 
509. (1) The Commissioner of Canada Elections shall be appointed by the Director of Public Prosecutions to hold office during good behaviour for a term of seven years and may be removed by the Director of Public Prosecutions for cause
This is curious because it places the Director of Public Prosecutions in a conflict. The role of the DPP is to conduct prosecutions of federal law in accordance with the responsibilities of the Attorney General of Canada. For practical reasons -- the Attorney General being a politician and a partisan -- these activities have been hived off and delegated to the office in order to ensure impartiality of the legal process and the administration of the law. The DPP does not investigate it merely vets and prosecutes. How it can maintain its neutrality when it is essentially the master of an investigatory unit is unclear. 

The second and far more consequential problem is that the Director of Public Prosecutions is appointed by Cabinet on the recommendation of the Attorney General. Parliament is not involved as it is with the Chief Electoral Officer. As a result the link with Parliament is lessened. Even more problematic, this brings the executive a step closer to the prosecution of election law violations, jettisoning the political (and partisan neutrality) of election investigations. 

There is also an extreme irony in the appointment process given the Conservative reaction to the recent actions of Liberal leader Justin Trudeau's Senate reforms. Pierre Poilievre -- the minister responsible for this bill -- has vocally derided Trudeau's pledge to appoint a panel to consider Senate selections yet this legislation provides for the kind of appointment process he claims is undemocratic: an unelected Director of Public Prosecutions is tasked with appointing an unelected Commissioner of Canada Elections.

The next clause provides ample evidence that the decision-making process was tainted by a desire to side-line and marginalize Elections Canada. It reads:
509. (2) The Director of Public Prosecutions shall not consult the Chief Electoral Officer with respect to the appointment of the Commissioner
This is extraordinary and punitive language and serves no genuine statutory purpose other than to ensure that Elections Canada is excised from any role in the selection of an office is appointed for four decades. The Act goes further:
509. (3) A person is ineligible to be appointed as Commissioner if the person is or has been (d) the Chief Electoral Officer, a member of his staff or a person whose services have been engaged under subsection 20(1) 
While is makes sense that the office should not be held by a former candidate or employee of a political party, barring Elections Canada workers is irrational and vindictive. This is a piece of legislation actively giving the finger to an enemy of the government.

The Act also places a further barrier between Parliament and the Commissioner of Canada elections by altering the reporting procedure. 
16. (1) The Director shall, not later than June 30 of each year, report to the Attorney General in respect to the activities of the office of the Director and the activities of the Commissioner of Canada Elections under the Canada Elections Act -- except in relation to the details of any investigation -- in the immediately proceeding fiscal year
In short, reports will now be mediated through a cabinet minister and, rather than being tabled in Parliament, are to be directed to the Attorney General. These fundamentally alters the relationship with Parliament, converting the Commissioner of Canada Elections into an executive agency, independent and unaccountable to Parliament and subject to ministerial discretion. This procedure is a massive backward step as it cuts the House of Commons out of the electoral loop in regard to violations of the act and is no longer immediately privy to the Commissioners reports as is currently the case. The government has even avoided inserting a clause stating that a minister shall cause a report to be laid before the House of Commons.

Part of the virtue of housing the Commissioner of Canada Elections within Elections Canada was the direct relationship of Parliament -- particularly the House of Commons -- with that agency. The appointment procedure ensured that there could be no hint of partiality in the investigation of election law violations. This Act reverses the practice of transparency and places the investigation of elections uncomfortably close to the minister. That the reports of the Commissioner are not -- as the draft stands -- statutorily available to Parliament should raise alarm bells.

The provisions related to the Chief Electoral Officer are abrasive and the language unquestionably negative. Consider an excerpt from the legislative summary:
The enactment also modifies the Chief Electoral Officer's power under section 17 of the Act so that the power may only be exercised to allow electors to exercise their right to vote or to allow votes to be counted. It also limits the Chief Electoral Officer's power to provide information to the public.
This is populist nonsense and is a direct challenge to the Chief Electoral Officer solely because he dared to cross the governing Conservatives. Ensuring that elections are conducted in a fair way includes ensuring compliance with spending limits and guidelines. Mayrand at no time interfered with the will of electors. 

The latter sentence is entirely in line with the ethos of the governing Conservatives. Only in Harperland could votes with less information about the electoral process and their rights as citizens be considered a good thing for democracy. 

The Act also contains various miscellany relating to the office of the Chief Electoral Officer. New provisions include limiting the term of the office to ten years (non-renewable) placing the office on similar footing to that of the Auditor General. It is unclear what the government hopes to gain by limiting the terms of the Chief Electoral Officer and Commissioner of Canada Elections (7 years, non-renewable) apart for providing a convenient way to avoid a meddlesome officer from being reappointed.

There are other questionable provisions. For example, the Chief Electoral Officer is faced with restrictions in extending polling hours (your vote only counts if you're in before 8!) and, as noted in the legislative summary, the act strictly outlines how and why Elections Canada can talk to Canadians. The Act also creates an "advisory committee of political parties" (21.1(1)), of which the Chief Electoral Officer is a member, to provide the office with "advice and recommendations relating to elections and political financing" a move that seems pointless given that the office is in no position to affect whatever would be recommended. Also, Elections Canada may not call you if the call is unsolicited (23.1). 

These are wide ranging changes which effectively overturn the process in place to investigate violations of election law for the past forty years and, more broadly, strike at the institution of Elections Canada which has acted as the guardian of electoral rights for nearly a century. For all its delay, the Act remains half-baked and contradictory. It purports to liberate the Commissioner of Canada Elections while making it more dependent on cabinet. It undermines the role of Parliament in supervising elections to a minuscule one by side-lining an Officer of Parliament. It is vindictive, vitriolic and reflects the cynical disposition of the governing party.

The most troubling aspect of the bill, as far as the conduct of elections, is reflected in the separation of the Commissioner of Canada Elections from Elections Canada and, as a result, from more immediately parliamentary supervision and legitimacy. Rather than creating a truly independent office (or a new Officer of Parliament) it has created a dependent entity that is part of the executive, closely tied to cabinet and is considered independent solely because it can only be fired by cause. 

No parliamentary resolution is required to appoint the commissioner and no parliamentary resolution is required to remove him from office. Moreover, the hypocrisy from the Minister of State for Democratic Reform is palpable. The control of the investigation of electoral violations is now in the hands of an unelected official appointed by an unelected official appointed by the cabinet. As the law stands, Parliament is not entitled to the reports of the office nor is the Attorney General required by law to table such reports and, while the Attorney General appoints the appointer, the mechanism of responsibility is far from clear. All these changes, changes with questionable and problematic outcomes, so that the Conservative can flip Marc Maryand the middle finger. 

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