Monday, 24 March 2014

The Spectacularly Fraudulent Pretense of Fair Elections Act

Pierre Poilievre has left no stone unturned in his search for false pretense to justify his entirely unnecessary and deeply undemocratic Fair Elections Act. Apart from the minister himself and his party’s loyal coterie, there is no support for this legislation. Indeed, the response has been nothing short of damning. Canada, once a world leader in forward thinking election law – from the establishment of Elections Canada in 1920 (the first agency of its kind) to subsequent changes to party financing (including the establishment of the Commissioner of Canada Elections in 1974) – has, in what is surely an unprecedented turn for this country, been roundly condemned not only by its own leading intellectuals but by a raft of international observers worried about what the changes portent for Canadian democracy.

The two sides are hardly balanced. There is, frankly, no thinking argument to be made for these changes. On one side stands Poilievre – the champion of democracy hiding behind cabinet confidences to keep his transition binder secret for two decades – while on the other stands a massive inventory of Canada’s leading political scientists and academics (a list, I might add, that is not yet exhaustive), opposition parties (all of them), much of the pundit class and media elite, and even the intellectual forebearer of the Conservative movement, Preston Manning. The real marker of this one-sided battle, however, is not the number of the bill’s opponents but the sheer lack of any vocal support for it. Here the so-called Minister of Democratic Reform stands alone, week after week, trotting out the same tired defences of his pathetic bill.

There is not a single argument he has made that hasn’t yet been refuted. He has misinterpreted the very report he cites as evidence for the need to restrict vouching and his case for repent voter fraud is based upon a single falsified claim (perhaps we need a law against false reporting?) which has since been very publicly debunked. For example, Poilievre again cites the Neufeld Report to suggest that there is a widespread problem with voter irregularities. He notes: “Further, Mr. Neufeld noted that the sorts of vouching errors that occurred in the riding of Etobicoke Centre “could contribute to a court overturning an election””, completely ignoring the text that had come prior. As Neufeld noted:
“First, it is necessary to show that a statutory safeguard associated with establishing entitlement to vote was not properly administered. Second, the judge must decide, based on all evidence before the court, whether a person who voted was not entitled to.”
The circumstances which could lead to an overturning of an election are, in fact, quite narrow and would require a concerted confluence of deliberate fraud (of which there are few, if any, documented cased). While there were administrative errors in the vouching process it is important to remember that a massive post-election audit (involving tracking down thousands of voters in Toronto’s Trinity-Spadina riding) found that, while errors were made, no one voted who was not properly eligible to do so. Put bluntly, there was no electoral fraud and thus the circumstances which could lead to a court overturning the results of a vote do not apply.

Again, Poilievre tries to contort the facts to suit his narrative:
“Rules exist for a reason. They are the “legal safeguards, in place to ensure each elector is actually eligible to vote” and their systematic violation is serious enough for a court to overturn an election result or invalidate a vote, according to the report.”
In more direct language, the minister is arguing that it is better to disenfranchise thousands of Canadians (often those Canadians who are the most marginalized) rather than allow the mere possibility (again, a statistical and factual anomaly) that someone voted who is ineligible. It cannot be stressed enough this point: this bill is a solution in search of a problem. Indeed, the bill is the problem.

Credit where credit is due: the minister has been remarkably steadfast in his unbending position in the face of reality’s opposition. Much of the critique has focused, as I have done above, on the pernicious effects of the bill on the voting rights of Canadians and the integrity of the electoral system. While some attention has been given to the punitive muzzling of the Chief Electoral Officer (who heads Elections Canada), it is important to unpack much about what is assumed in Poilievre’s account of that agency that has yet to be discussed. It is to these false pretenses about the role of the Chief Electoral Officer and the Commissioner of Canada elections that I turn now.

First, Mr. Poilievre proceeds as if the Chief Electoral Officer (CEO) has been a constant impediment to the Commissioner of Canada Elections (CCE) and to the conduct of investigations of fraud. This is certainly untrue and the working relationship between the two has, by all accounts, been sound and supportive. What has been lost in large part is the nature of the two offices. The reason the CCE was embedded inside the existing agency of Elections Canada was precisely because the CCE exercises power and authority that would otherwise have gone to the CEO. However, such a workload for a single individual would have been a detrimental burden on operations. The establishment of the office of the Commissioner solved this problem but allowed the CEO to retain administrative accountability for the conduct of the office as well as management. The authority is, ultimately, that of the Chief Electoral Officer who reports directly to the House of Commons and retains responsibility for the entire scope of his office.

Second, Poilievre again attempts to solve a problem that does not exist. He notes:
“There are 34 offences in the Canada Elections Act that deal with conduct by the CEO’s staff. How could a commissioner ever investigate the CEO’s staff, when he is one of them?”
Poilievre obviously intends this to be a rhetorical question, but it isn’t. In fact, it reflects more on the mindset of the government (one of cover-ups and questionable responsibility) than it does about Elections Canada. The answer to the question is quite simple: with great ease. The Commissioner is not a regular employee of Elections Canada and already exerts considerable independence. Moreover, one could equally ask how the RCMP is able to dispassionately investigate the government of the day when its own enabling legislation states that “the Commissioner of the Royal Canadian Mounted Police, who, under the direction of the Minister, has the control and management of the Force and all matters connected therewith.

The answer, put simply, is that agencies and institutions of government exercise authority that is, quite frankly, somewhat higher in aim that than of a minister like Poilievre. Why would the head of Elections Canada actively work to rid his agency of anyone suspected of violating the Canada Elections Act? Because even the intimation of wrongdoing within his organization undermines the credibility of his office and, with it, the credibility of Canada’s elections. It is in his own interest to root out any wrongdoing and to empower the Commissioner to this end. Indeed, it is a responsibility and role that the Chief Electoral Officer takes far more seriously than this government.

Let’s assume, however, the Poilievre is correct in his assessment that the Chief Electoral Officer is thwarting attempts to enforce the country’s electoral law and handcuffing the Commissioner of Canada Elections. Even if we buy into this premise, it is difficult to see how the shift from Elections Canada (part of the legislative branch, a watchdog established by and for the House of Commons) to the Director of Public Prosecutions (an arm of the Attorney General and part of the executive) genuinely guarantees independence.

First, it is the decision of the Director of Public Prosecutions to proceed with a case. The power of the CCE to prosecute independently was stripped (by this Government) almost a decade ago. This doesn’t square with the narrative. If the aim is to liberate the CCE in the prosecution of offences, why not free him entirely by restoring this power?

Second, this shift plays out, as indicated in Poilievre’s editorial, not as an attempt to effectively prosecute violations of electoral law broadly but rather it is aimed, once again, at the imaginary violations occurring within Elections Canada itself. The move to another agency only makes sense in light of Poilivre’s assessment that the CCE cannot prosecute crimes within his own organization.

Third, I fail to see how accountability and independence are truly enhanced by allowing an unelected and marginally accountable public figure such as the Director of Public Prosecutions (again, acting on behalf of the Attorney General) to select the Commissioner of Canada Elections. Allowing the Chief Electoral Officer to appoint this position made much more sense on two counts. First, as noted, the position is an extension of the role and responsibilities of the Chief Electoral Officer and thus he is responsible for the conduct of the office. Second, the Chief Electoral Officer is appointed directly by the House of Commons and reports directly to that chamber. The Director of Public Prosecutions is selected in a more convoluted fashion in which there is an appearance of parliamentary approval for a process that is heavily dominated by the Attorney General. In short, Parliament here has only a marginal role and the DPP reports primarily to the Attorney General (who must then table the report in Parliament). This is not a direct accountability relationship with Parliament.

Fourth, Poilievre argues that “the commissioner will have a fixed term, he cannot be fired without cause, and, for the first time, he will control his staffing and investigations. That is real independence”.  Again, this assumes that a problem of independence existed prior to these changes. There is no evidence of this. Additionally, as noted above, it falls entirely short. In essence, the Commissioner can investigate what he likes but the ultimate result of those investigations rests with the Director of Public Prosecutions. Nothing here substantially alters the independence of the office itself.

Moreover, gaining control over staffing once again solves a non-existent problem. Resources have hardly been a problem for the office. Again, the Chief Electoral Officer benefits from enabling the Commissioner to carry out his work. What is missing is perhaps the single-most important tool that remains outside the power of the office: the power to compel testimony. It is the absence of this mechanism which has slowed the pace and efficacy of the Commissioner’s investigations, not his ability to appoint his own staff.

Fifth, if Poilievre was genuinely concerned about the independence of the Commissioner, all he need do is insert a simple clause into the existing Canada Elections Act removing the Chief Electoral Officer's power to vet complaints. Packing up and moving the office is wholly unnecessary. (Moreover, having CEO vet complaints actually serves a purpose. It allows the Commissioner to focus on investigations rather than filtering through thousands of minor administrative complaints).

In short, like his rationale for changes to vouching and voter ID, Poilievre’s changes to the powers of the Chief Electoral Officer and the Commissioner of Canada Elections are based on non-existent and fictitious problems. None of these changes truly enhance the independence of the Commissioner and are based almost entirely on the premise that the single largest barrier to the proper functioning of the electoral system is the office that, for nine decades, has been the guardian of that system.

Poilievre’s callus and smug dismissal of the overwhelming opposition to this bill as ‘hysteria’ is indicative of his disregard for actually ensuring fairness and integrity in the electoral system. Moreover, it is entirely emblematic of attempts made by regimes and parties on the wane from Republican voter ID laws in the United States to the PQ claims of Anglophone-led voter fraud. Worse yet, Poilievre has ignored the need for broad-based support in order to legitimate electoral laws. Unlike normal public policy, electoral law cuts to the core of the polity and requires the utmost popular support. Changes made in such an intransigent fashion hardly ensure fairness. All the minister has to defend himself is selective reading of a report (a reading continuously and unambiguously rejected), falsified evidence and an almost theatrical insistence that one of the most secure and fair electoral systems in the democratic world is on the cusp of a massive wave of deliberate and concerted voter fraud. None of it is true and none of these changes will secure the vote for Canadians, increase turnout or enhance the legitimacy of elections.

Quite the opposite.  The only electoral fraud to be found here is in the Fair Elections Act itself.

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