Tuesday, 4 February 2014

The Fair Elections Act and the Future of Elections Canada (and Canada’s Elections)

As a general rule, if you want to understand the impact of the Conservative government’s legislation, simply look to the short title of the bill in question and assume the opposite of what the title implies. It is doublespeak codified in law, giving rise to bills that purport to free grain farmers while empowering large conglomerates or ‘economic action plans’ that are as sedate as rocks. The so-called Fair Elections Act will likely join its namesake – the Fair Representation Act – as legislation running counter to what it so boldly purports.

Or we could simply read ‘fair’ in any of its other meanings apart from what the Conservatives hope it means (as in ‘free from bias or dishonesty’). Perhaps ‘moderately larger’ (it will likely be a fairly hefty bill) or maybe ‘neither excellent nor poor’ are the true meanings. Whatever the semantics and politics of the title, the bill could have some wide-ranging and deleterious consequences, many of which are directly intended to undermine the office of the Chief Electoral Officer and reduce the role considerably.
The proposed changes are somewhat ironic yet unsurprising. The Conservatives rode to power on a platform that, among other things, vastly expanded the Officer of Parliament regime (of which the Chief Electoral Officer is the third oldest), creating new commissioners for lobbying, whistle-blowing and two ethics offices. These agencies serve Parliament, not the government of the day and, as such, remain outside the control of the government and its ministers. This no doubt rankles a government which values centralization and message control above all else. While the other officers – including the Auditor General – have caused the Harper government considerable frustration, Elections Canada – headed by Marc Mayrand – has perhaps cut closet to the quick.

Created in 1920 at a moment when the franchise had effectively doubled (women were recently enfranchised) and the integrity of the process was in doubt (Prime Minister Borden's two war-time electoral measures distorted the 1917 election in favour of the incumbent government), the new post of Chief Electoral Officer centralized the conduct of elections and separated the machinery of elections from the government of the day in order to ensure the process was entirely above board. Since that time the scope and mandate of Elections Canada has expanded to take on new roles and responsibilities, including enforcement of election laws (in the form of the Commissioner of Canada Elections, created in 1974) and the supervision of political parties and their finances.

The combination of administration and investigation has sat uneasily; however, there have been relatively few insinuations that such a scenario has been unworkable. The robo-call scandal stemming from the 2011 election began to alter this with publics becoming frustrated at the slow pace of the investigation and a lack of charges while the governing Conservatives complained that they had been unfairly targeted by Elections Canada for its (numerous) violations of election laws.

Freer Hand or Bound Hand?

The most far reaching of the changes will likely be the removal of the Commissioner of Canada Elections (appointed by the Chief Electoral Officer in the same way the Auditor General appoints the Commissioner of the Environment and Sustainable Development). The current accountability mechanisms is somewhat problematic, but at least there is a clear lineage (analogous to a minister-deputy minister relationship) in which the Chief Electoral Officer is accountable directly to Parliament (specifically to the Commons) and the Commissioner of Canada Elections is accountable through him to Parliament. The new accountability relationship is likely to be deeply flawed.

The Act will situate the Commissioner of Canada Elections within the office of the Director of Public Prosecutions (DPP). This, the government contends this would give the commissioner a ‘freer hand’, there are some dangers if this change is not handled properly. First of all, the work of the DPP is important and generally beyond reproach. The problem, however, is that while the office conducts itself as a neutral extension of the Attorney General (who also recommends the appointment to the Cabinet) the office is an extension of the government, not Parliament. The danger is that the appointment process will exclude a parliamentary role in the appointment and removal process and substitute control by the Chief Electoral Officer for control (or perceived control). It is the Office of the Chief Electoral Officer who currently protects the integrity and impartiality investigations, something that is put at risk if cabinet becomes more involved.

Sharper Teeth and a Closed Mouth

The Act also suggests it will create ‘tougher criminal penalties’ and ‘sharper teeth’ to tackle violations of electoral law. The problem has not been a lack of penalties – indeed, the fraud conducted during the 2011 was outlawed – but a lack of an enforcement mechanism. The proposed changes keep investigatory teeth securely behind a muzzle. The commissioner needs the ability – like Officers of Parliament – to compel witnesses and testimony. Here the penalties are little more than show with little chance of enforcement. This has been the precise problem in the investigation of robo-calls: individuals are not compelled by law to cooperate. Strict fines are window-dressing if they cannot be applied.

It is unclear what shape the office will take once ‘liberated’ from Elections Canada. Given that the majority of violations under the act have been, frankly, minor infractions (2011 is an exception proving the rule) the necessity of such an office, particularly if compromised by a connection to the government, is questionable. If the government considers violations of the act serious breaches of the law then the task of investigation should fall to the RCMP which has the resources and powers that electoral investigators will continue to lack under the new act.

Minimizing the Role of Elections Canada

Much of the trust of this Act seems to be designed to gut the influence and scope of Elections Canada and reduce its role as a servant of Parliament by reducing it to a common administrative agency. Moreover, the government seems to make a spurious connection between Elections Canada and declining voter turnout. “Since Elections Canada began promotional campaigns in 1993, voter turnout in general has plummeted from 75% in 1988”. These are complex trends and the connection made – suggesting ineffectuality – are troubling. The changes are designed to minimize Elections Canada’s connection with voters and, in essence, fundamentally change the role of the agency. As the government says: “the job of an election agency is to inform citizens of the basics of voting”. Gone is any indication that it should also try to increase civic 

A Robo-Registry

Perhaps the most ironic section of the Act will deal with ‘rogue callers’. The irony is that these so-called rogues were partisan operatives acting on behalf of a political party (the Conservatives). There are also questions about how effective this new layer of bureaucracy will be at actually preventing this kind of misdirection. The proposal to create a ‘registry of voter contact services’ with the CRTC may look good, but it is unclear how such a registry will stop ‘rogues’ register under a false name with disposable cell phones in a deliberate attempt to flout the law.

Voter Fraud! It’s Everywhere!

Certainly voter fraud undermines the integrity of the electoral system and, as a direct result, the health of a democracy. However, the government is likely erring on the wrong side of caution preferring to risk disenfranchisement in order to combat the spectre of fraud. Ending vouching is likely a wise move as is the practice of using the voter information card as identification. The problem, however, is that the government proceeds as if ‘irregularities’ are synonymous with fraud. They aren’t. Perpetuating a myth of mass scale fraud – ironically, when it was likely committed by the governing party! – will simply undermine the integrity of the system further and, by extension, the legitimacy of elections.


The government is scaremongering here by insinuating that political loans have brought ‘big money’ back. These provisions look less like they are designed to protect the integrity of the system than they are designed to target opposition parties.

Premature Transmission

Equity in the electoral process is a core democratic value. In the early days of Confederation elections were held on different days meaning that the results in ridings voting early could impact those voting at a later date. The same is true of premature transmission of results. Broadcasting the results from closed polls in Ontario could impact the decisions of voters in British Columbia. Given social media and other electronic forms of communication such a ban is impractical. A decade after challenging the law in court, Stephen Harper can finally claim victory over these sections of the Canada Elections Act. Hopefully mechanisms can be put in place to avoid voters in Ontario deciding the votes cast in the west.

Parliament, Elections Canada and Canada’s Elections

The perverse irony is that the government is framing the changes to Canada’s election laws as being in the spirit of the Chief Electoral Officer while simultaneously working to gut that office. The press releasing touts that it is putting into force “38 of the Chief Electoral Officer’s past recommendation”. 2011 clearly demonstrated that changes were needed to better enforce the law and safeguard the conduct of elections. It is doubtful whether these changes will actually achieve it. Indeed, it is difficult to separate the government’s view of Elections Canada (and particularly Marc Mayrand) from these changes.

The changes made in relation to penalties and enforcement will likely be, at best, ineffectual. As the Conservatives have often argued (on gun control, for example), criminals are unlikely to follow the rules and register with government. It is difficult to see how the CRTC registry will actually prevent another Pierre Poutine from emerging. If you are intent on voter fraud there is little an agency can do until after the fraud has been committed. Similarly, how is the newly ‘independent’ Commissioner of Canada Elections to enforce a myriad of new laws if it cannot do the most basic of tasks like compel witnesses?

The Fair Elections Act could easily be long-titled “An Act to marginalize Elections Canada and other matters designed to deflect from our record”. Many of these measures are punitive and designed to derail an institution that has done a remarkably good job over nearly a century. The decision to place the Commissioner of Canada Elections in (or adjacent to) the Director of Public Prosecutions runs the risk of bringing that office closer to the government of the day, a move that will simply undermine its legitimacy. It is unclear whether the government will model the agency on the Director of Public Prosecution (and thus remove a vote in parliament as a requisite for appointment) or create (yet another) Officer of Parliament. Either way, they’re fixing a part of the existing structure that wasn’t necessarily broken.

The conduct of elections cuts to the heart of a democracy. While a legislative response to the problems of the 2011 election is overdue, it appears the extra time spent incubating may have produced little more than a goose egg in terms of penalties. The Act portends changes which could have massive implications for the administration and integrity of elections. By marginalizing Elections Canada the government is simply marginalizing Parliament. No doubt this was its intent. The question is whether Stephen Harper is channeling the Robert Borden of 1917 or the Robert Borden of 1920. The future of Canadian elections hangs on the answer.

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