Wednesday, 5 February 2014

The Complicated Accountability of the 'New' Commissioner of Canada Elections

Justice Minister Peter MacKay signals how
much more accountability the Fair Elections Act will bring
The recently tabled Fair Elections Act contains a number of provisions which will, in theory, strengthen the Canada Elections Act but these changes are likely little more than a heavy spoon of sugar designed to sweeten the fatal dose of poison it just administered to Elections Canada. That Act will fundamentally restructure that organization, effectively marginalizing it and, with it, Parliament's oversight of Canadian elections. By relocating the office of the Commissioner of Canada Elections to -- inexplicably -- the office of the Director of Public Prosecutions, the Conservatives are simultaneously weakening the existing chain of accountability and potentially weakening prosecutions. More problematic, the relocation brings the new incarnation of the office uncomfortably close to the political executive. The independence of the new office, despite the trappings of a fixed term and a secure mandate, is somewhat precarious.

While there are some doubts as to the genuine accountability of Officers of Parliament to Parliament, there was at least a clear accountability chain between these institutions. The Chief Electoral Officer is appointed by the House of Commons (with broad cross-party support and a legitimate mandate) establishing a direct linkage between the House and Elections Canada. Under this same authority the Chief Electoral Officer would appoint the Commissioner of Canada Elections (CCE). The relationship is somewhat analogous to a minister-deputy minister relationship although imperfectly so. The relationship looked something like this:
Parliament < > Chief Electoral Officer < > Commissioner of Canada Elections
For adherents to an idealized understanding of responsible government, the new arrangement actually strengthens accountability because a minister is drawn into the loop that is – theoretically – ultimately accountable to Parliament for the conduct of those under him. The relationship may look something like this:
Parliament < > Minister of Justice (Attorney General) < > Director of Public Prosecutions < > Commissioner of Canada Elections
The problem with this Act is that it fails to establish in law any clear linkages and further convolutes these by stipulating quite clearly that the CCE is entirely independent of the Director of Public Prosecutions (DPP) and not accountable to that office. In short, it is unclear how the new office is actually accountable to anyone, let alone to Parliament.

It should be clear that independence does not negate accountability. Parliament now utilizes a wide range of officers – from the Auditor General to the Public Integrity Commissioner – which are fully independent of the government and the legislature but nevertheless remain accountable before Parliament. They table reports, appear before committee and submit estimates through the Treasury Boards (except Elections Canada which draws funds directly from the consolidated revenue fund by statute). Independence is weighted by an equal measure of responsibility and answerability.  

The new office has no such requirement to answer for its conduct. As the Act stands, the DPP reports on the operations of the CCE and submits these to the minister. There is no obligation on the part of the minister to table the report in Parliament. Moreover, the CCE has no requirement to be answerable either to the minister or to the DPP. 

It is a strange statutory twilight zone. The commissioner is housed within the office of the Director of Public Prosecutions, but not subordinate to it. As part of the executive arm of government (the DPP exercises the legal responsibilities of the Attorney General in a neutral way) the office would, theoretically, fall within the scope of ministerial responsibility but this is not the case. The minister of justice is technically the responsible minister for public prosecutions, but this exists at arm’s length rendering the commissioner two arm’s lengths apart.

A lack of accountability – which the new configuration of the office will now exacerbate – is not synonymous with independence. Consider this: the Commissioner of Canada elections now has unquestioned latitude in deciding who and what to investigate. Whether this is a capacity that was ever seriously in doubt while the office was held within Elections Canada is seriously doubtful. The problem remains that the Director of Public Prosecutions (essentially an extension of the Department of Justice) retains a veto over the prosecution of violations under the Act. The commissioner can investigate all he likes, but another office decides which complaints warrant legal action.

This is not independence. If coupled with the existing legislation governing the conduct of prosecutions, this becomes all the more clear. Under that Act the Attorney General for Canada is legally allowed to intervene in the conduct of prosecutions, providing a written directive is published in the Canada Gazette. In short, arm’s length remains firmly within the reach of the government. The Minister of Justice could, in theory, act to prevent the DPP from moving forward with violations of the Canada Elections Act and do so completely within the law.

Here the Act does little more than shuffle the furniture and, in doing so, obfuscates and obliterates any semblance of a clear chain of accountability. The independence of the Commissioner of Canada elections, never in doubt at Elections Canada, is now drawn closer to the government of the day and to the executive. The investigation of violations of the act is no longer a legislative prerogative conducted under the aegis of an Officer of Parliament but is now housed within a division of the Department of Justice, marginalizing the legislature and rendering the conduct of the office even more opaque.

If the Act was truly about the independent investigation of electoral violations, certainly there were better options available to the government. Instead, the legislation strips Elections Canada of important oversight capacity and does so in the language of independence and transparency and accountability. It provides neither and, in the case of the latter, provides no clear mechanism for ensuring it. Had this been truly been about protecting the Commissioner of Canada Elections all the bill needed to do was insert two innocuous clauses into the existing Canada Elections Act, the same clauses added to the Director of Public Prosecutions Act. The first: establish a clear mandate and tenure. The second: include a clear indication that the officer operated free of interference. These simple fixes would have avoided a massive restructuring of electoral administration on the fly that was neither warranted nor necessary. 

Moreover, how appointment by the DPP -- whose appointment involves Parliament but is not responsible directly to it -- is superior to appointment by an Officer of Parliament is unclear given that statute could easily have made responsibility for investigating complaints a power of the Chief Electoral Officer in the first place. Consider that most of the other Officers of Parliament subdivide and delegate powers to subordinates without undermining the work they do (the Auditor General cannot possibly conduct all investigation himself). The government has also not made the case for why the Chief Electoral Office should not be involved in the investigation of complains. 

The point of departure should be not be an assumption that the office is somehow biased in its actions or, as the Conservative put it, "wearing a team jersey". The entire premise on which the amendments are being made is faulty. Indeed, the vendetta against the Chief Electoral Officer exists precisely because he has ensured the fair conduct and investigations, investigations that have ensnared the Conservative party and its operatives. No proof has been offered that complaints have been quashed by the Chief Electoral Officer or that he has acted in any respect in a manner that is not above board and highly honourable.

The most troubling aspect of the Act is the intended marginalization of Parliament and its role in the oversight of the conduct of elections. Elections Canada no longer has an active and positive role to play; instead it now simply hires the staff and counts the ballots. Parliament has not been asked for input into this vital area and has been shut out entirely. Why task the appointment of the office to another unelected entity (apparently a major problem when it was the job of the Chief Electoral Officer) when the position could be filled and legitimated by a vote in the Commons? Worse yet, a member of the government is now theoretically responsible for the conduct of the office tasked with, in part, regulating the membership of the House of Commons. This alone should give Canadians pause. When coupled with the nature of the current government, it should give them cause of alarm.

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