Thursday, 10 April 2014

The Belated Vindication of Marc Mayrand

At the height of the furor over the robo-call scandal a few years ago, I used this blog [In Defence of Elections Canada] as an outlet to defend Elections Canada's conduct of that investigation and, in particular, the conduct of Marc Mayrand, the Chief Electoral Officer. At that time I was taken aback by some of the arguments being made in the pres and, in particular, by those nominally deemed progressives attacking Mr. Mayrand. 

I noted that the attacks were, first of all, baseless. Elections Canada faces numerous challenges in conducting investigations, challenges that have now become even more apparent as the Commissioner of Canada Elections has noted in his committee testimony. His office's inability to compel witnesses to cooperate with his office has made it incredibly difficult to uncover the evidence required to hold those violating the Canada Elections Act accountable. 

This was compounded by the reticence of the party involved (the Conservative Party) to cooperate or admit it has violated the act. Consider, for example, the argument made by the so-called Minister of Democratic Reform (Pierre Poilievre) introducing the Fair Elections Act that the administrator of the electoral system should not wear a 'team jersey'. The appearance that the Conservatives had been singled out or had been treated differently from other parties was entirely the creation of the Conservative Party itself. Unlike New Democrat and Liberal candidates who cooperated and, ultimately, admitted wrongdoing thus avoiding harsher penalties, the Conservatives dug in their heels. By failing to cooperate they were responsible for Election Canada's subsequent escalation (a step that, in most cases, whether involving a party or private citizen, it avoids).

Second, I noted that attacking Mr. Mayrand on the basis of the nature of his appointment is problematic on several counts. While the power of the Prime Minister to make appointments is extensive, a clear distinction needs to be drawn between patronage appointments and those Governor-in-Council (GiC) appointments that are not. The Chief Electoral Officer (like that of the Auditor General and other Officers of Parliament) is not a patronage appointment. Despite the selection of the 'candidate' by the Privy Council Office and the Prime Minister, the process is not partisan and, as the list of incumbents to office since 1920 demonstrate, the primary consideration is aptitude.

The argument that because the Prime Minister retains much of the appointment power, even over Officers of Parliament, renders those appointments as somehow tainted, is beyond simplistic. In the case of Mr. Mayrand, his appointment required the approval of the House of Commons (in 2007, the opposition could have blocked the appointment) and, like all his predecessors, his confirmation was unanimous. This simply reflects what, at the time, was a clear convention that on the appointment of such an important officer, all-party agreement was incredibly important. It is clear that Mayrand was not beholden to the Prime Minister who put him in office.

More problematic, I argued, attacking the organization responsible for overseeing the fair and impartial conduct of elections could have far more deleterious effects. In undermining the integrity of the organization and its head, those who were unhappy with the conduct of the investigation were also undermining the integrity of Canadian democracy itself. If Elections Canada is somehow in the pocket of the government then certainly there is no integrity in the system. 

The arguments made in 2011-12 point to a sharp tendency to disparage any organization or agency that does not conform to ones desired outcomes and expectations. There are numerous examples here. The first Parliamentary Budget Officer (Kevin Page) has been hailed as a hero for speaking truth to power in much the same way former Auditor General Sheila Fraser had been hailed as a folk hero for uncovering the Adscam. Yet if we extend the logic of the argument that was used against Mr. Mayrand after 2011, Page would have been nothing more than a puppet. Unlike the Chief Electoral Officer, the tenure of the PBO is not secured from removal. Rather the incumbent serves at pleasure of the Prime Minister. Despite this the office famously became a thorn in the side of the government yet Page was not removed from office.

Other examples relate to the ongoing investigation of corruption in the Senate. For instance, Democracy Watch consistently undermines the work of the Conflict of Interest and Integrity Commissioner and the Senate Ethics Officer because the organization does not understand the role these offices play. It has attacked both offices for failing to hold corrupt Senators to account and to assertively condemn their actions. As with the early attacks on Mr. Mayrand, those individuals and groups whose political proclivities are decidedly not Conservative have echoed these sentiments. The problem, however, is that the two aforementioned offices are not designed to be punitive nor are they empowered by statute to sanction public officer holders. Their role is to help prevent abuses by offering advice to public officer holders. The role of punishing or holding Members of Parliament and Senators to account remains the prerogative of the two houses, not these two Officers of Parliament. In essence, both offices have been falsely condemned for not exercising powers they do not have.

The attacks on Mr. Mayrand and Elections Canada two years ago were troubling. What seems to be lost now, however, is that the same rhetoric being utilized then by those opposing the Conservatives has now been picked up by Conservatives. The Conservatives now arguing that the Chief Electoral Officer is biased in favour of the opposition parties, that it has failed in its job and acts in a manner unfitting of its neutral and non-partisan position. The reversal is startling. 

The introduction of the Fair Elections Act has united the bulk of non-Conservative Canada (or at least its active element, if not the wider public) in solidarity with the Chief Electoral Officer despite the somewhat widespread baying for blood against him in the recent past. Two years ago the rhetoric was of an office partial to the Conservatives and slow to move against robo-fraud. Now Mr. Mayrand is portrayed as a dedicated, neutral and non-partisan public servant who is being unfairly vilified by a government once too often chided by his office. 

The lesson here is not about Elections Canada or Mr. Mayrand. He and the organization he runs have effectively guarded Canadian democracy for nearly 100 years. Like his fellow Officers of Parliament, his office has a largely unblemished track record in contradistinction to many other public officer holders. Indeed, only the judiciary can arguably be said to have such a longstanding reputation. 

The lesson is, rather, about a widespread knee-jerk reaction on all sides of the political spectrum to attack and vilify those vitally important institutions when they fail to produce the preferences and expectations of those with explicit political or partisan leanings. In short, the non-partisan nature of these agencies exacerbates both sides of the spectrum equally. The Chief Electoral Officer is a conscientious watchdog, except when he is too slow to punish Conservatives. Decisions of the Supreme Court are entirely legitimate, until it renders decisions offensive to one's ideological preferences. The list is endless. 

The vitriol and personal attacks directed at Mr. Mayrand are entirely unwarranted. They are harmful and will only serve to undermine the electoral system rather than bolster it. The assertion that the attacks are unprecedented, however, is untrue. One need only look to the withering attacked on Elections Canada following robo-gate. In attacking Elections Canada, no side is innocent, but at last Marc Mayrand is finally vindicated, if belatedly. Apologies, I suspect, will not be forthcoming from any side. 

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