Backgrounder Part I on Bill C-23, the proposed so-called Fair Elections Act

by Democracy Watch
back to Monday, March 17, 2014 news release

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A. The two measures in Bill C-23, the (Fair Elections Act) that are not what some critics have claimed they are

1. The Chief Electoral Officer will not be muzzled or gagged

Section 7 of the Bill C-23, the proposed Fair Elections Act (which changes section 18 of the Canada Elections Act (CEA)) has been much criticized.  The section could be clarified but it doesn’t “muzzle” or “gag” the Chief Electoral Officer (CEO) as some have claimed.  It does say the CEO can only “provide” the public with information about how, when and where to become a candidate and to vote.

However, that rule does not in any way prevent Elections Canada from providing this information in imaginative ways and places – including high school mock-votes or other voter turnout public education programs.

The CEO should do an ad campaign during the next election with the headline “Voting is so dangerous we are not allowed to encourage you to do it!” and information about how to vote below.  That would likely be as effective at increasing voting by youth than any ad Elections Canada has run in the past.  If the Conservatives actually try to stop Elections Canada from doing such ads or programs it would cause a public backlash that will seriously hurt their re-election chances.

The changes in section 7 of Bill C-23 to section 18 of the CEA also do not, in any way, prohibit Elections Canada from doing surveys — he has the clear power under clause 16(d) of the CEA to do those surveys or anything else he feels he needs to do to “exercise the powers and perform the duties and functions that are necessary for the administration of this Act.”  Section 8 of Bill C-23 (which amends section 18.1 of the CEA) also makes it clear that the CEO can undertake “studies on voting”.

The changes also do not, in any way, prohibit Elections Canada from reporting on those surveys, or talking to reporters about what measures in the CEA mean.  In fact, section 5 of Bill C-23 (which adds a new section 16.1 to the CEA) will expand the Chief Electoral Officer’s (CEO) powers, and give the CEO a clear mandate, to disclose public Elections Canada’s interpretations of the CEA.

And Bill C-23 does not, in any way, prohibit the CEO from reporting on any other investigations or findings of Elections Canada — the CEO has the clear power to do that under section 16, and under the reporting sections 533 to 537 of the CEA (for example, clause 533(b) allows the CEO to include in his require post-election or by-election report “any other information that the Chief Electoral Officer considers relevant” and clause 534(1)(a) allows the CEO to include in any post-election report “any matter or event that has arisen or occurred in connection with the administration of the Chief Electoral Officer’s office since the last report under this section and that he or she considers should be brought to the attention of the House of Commons” and clause 534(2)(a) gives him the same power for post-by-election reports).

However, to be clear, some people have missed the point that, currently, Elections Canada does not investigate violations of the CEA — the Commissioner of Canada Elections does.

Bill C-23 adds some very bad restrictions on what the Commissioner can disclose about investigations under section 108 of Bill C-23 which adds a new confidentiality section 510.1 to the CEA that prohibits the Commissioner essentially from disclosing the results of investigations unless the Commissioner does a compliance agreement, or the Director of Public Prosecutions prosecutes.

However, that section doesn’t apply to the CEO or Elections Canada — so if someone sent Elections Canada information alleging a violation of the CEA, Elections Canada could disclose that information in its annual estimates report to Parliament, or in its post-election or post by-election reports (filed under sections 533 to 537 of the CEA), or just through testimony before a parliamentary committee (as all testimony is protected by privilege and immunity) or in an interview with the media (in addition, there are no restrictions at all in Bill C-23 on the CEO sharing that information with the Commissioner of Canada Elections).

2. The Commissioner of Canada Elections will not be less independent (but the independence of him, the CEO and the DPP must be strengthened, along with their public accountability)

(a) The Commissioner will not be less independent (but should be made more independent)
Changing the Commissioner of Canada Elections from a Chief Electoral Officer (CEO) appointee to a Director of Public Prosecutions (DPP) appointee will not reduce the Commissioner’s independence from the government, and his effectiveness.  The DPP is no more or less independent from Cabinet than the CEO, and the Commissioner already submits evidence to the DPP after each investigation, and the DPP already decides whether to prosecute.

A real problem with Bill C-23 is that the DPP is chosen by Cabinet just like the CEO is, and so both lack independence from the government.  The solution is to strengthen the appointment process for the DPP, and all the officers of Parliament including the CEO (and the Commissioner), and all Cabinet appointees, by establishing the Public Appointments Commission that the Conservatives promised in 2006, and by requiring that a majority of opposition party leaders approve the appointment of all of these key democratic good government watchdogs.

Some may claim that the CEO is more independent than the DPP because he is supposedly chosen by Parliament.  However, there is no real difference in their independence, especially when there is a majority government.  The CEO is actually chosen by the Prime Minister and Cabinet (through some secret process that is not specified in the CEA) with his appointment only confirmed by a resolution passed in the House of Commons (which the ruling party can easily pass whenever they have a majority).

Both the CEO and the DPP have fixed terms of office; can only be dismissed for cause (again with a resolution passed by the House of Commons (and also the Senate for the CEO); both have to submit their annual budget to the government, and; both submit an annual report to Parliament.

At least the DPP’s selection process is known as it is set out in the law that governs the DPP.  Minister of Democratic Reform Pierre Poilievre claimed on February 10, 2014 that “the Director of Public Prosecutions is appointed on the recommendation of an independent panel that is chosen members by all political parties as well as the law society.”

This is not fully true.  Under subsection 4(2) of the Director of Public Prosecutions Act the Attorney General (AG) submits a list of up to 10 nominees to the panel.  As a result, the AG actually chooses the DPP because the panel can only recommend from people from among the AG’s nominees.

As well, if you add it up, the panel members are four people chosen by the ruling party (one chosen by the party, the two Deputy ministers, and the person chosen by the Attorney General), and three people chosen by others (one each chosen by Liberals and NDP, and one chosen by the Federation of Law Societies of Canada).  That gives the ruling party a majority on the panel currently (if another party wins enough seats in the next election to become a recognized party in the House, then the ruling party will choose four out of eight members of the committee).

To ensure an actually fully independent Commissioner, the law should be changed in the following ways:

  • the Public Appointments Commission (PAC) that the Conservatives promised in the 2006 election should be established (with the approval of all parties in the House required for the appointment of all the members of the PAC);
  • the PAC should be required to conduct a merit-based, open, public search for candidates for the DPP, and for candidates for the Commissioner position;
  • the PAC should submit a short list of candidates for DPP, and for Commissioner, and the approval of all party leaders in the House should be required for the people appointed as DPP and Commissioner.

Every officer of Parliament, including the CEO, as well as all other good government watchdogs such as the Parliamentary Budget Officer (PBO, who should be made into an officer of Parliament), should be appointed the same way.

(b) Require disclosure of rulings and decisions to increase public accountability
A second real problem is that no one would even be able to tell if the Commissioner’s enforcement record worsened because the Commissioner is currently not required to disclose details about his record (and doesn’t do so voluntarily).  In refusing to disclose his rulings on more than 3,000 complaints he received since 1997 when Democracy Watch requested them in April 2012, the Commissioner gave the unjustifiable reason that the rulings might make him look bad.

One of the past rulings that points to why the accountability of the Commissioner needs to be increased is the ruling on complaints about fraud robocalls in the 2008 federal election in the B.C. riding of Saanich-Gulf Islands.  Essentially, the Commissioner gave up on that investigation, laying the basis for the much greater fraud robocall scam in the 2011 federal election.  The Commissioner’s weak enforcement actions only became public because the complainants disclosed the letters they received from the Commissioner.

Bill C-23 gags the Commissioner (under section 108 of Bill C-23 which adds a new confidentiality section 510.1 to the CEA, and under section 146 which adds new section 16.31 to the Access to Information Act, and under section 152 which changes subsection (16(1) of the Director of Public Prosecutions Act) by adding a new measure that prohibits the Commissioner and the Director of Public Prosecutions (DPP) from disclosing the results of investigations and the Commissioner’s rulings on complaints unless, essentially, the Commissioner does a compliance agreement with the violator, or if the DPP prosecutes the violator.

It is important to note that this measure does not apply to the CEO – he would still be able to disclose a summary of the information complainants submit to him alleging violations of the CEA through his annual and post-election reports to Parliament, and in testimony before parliamentary committees or interviews with the media.

The DPP is also not required to publish their reasons whenever they decide not to prosecute, and whenever they decide to agree to a plea deal (as they did, very questionably, when they had clear evidence that Doug Finley and Irving Gerstein deliberately executed the in-and-out advertising funding scheme that the Conservatives used in the 2006 federal election).

So to ensure actually fair and proper election law enforcement, Bill C-23 must be changed to require the Commissioner to disclose his rulings on all complaints (after he has completed his investigation).  As well, Bill C-23 must be changed to require the DPP to explain publicly whenever he decides not to prosecute.

Every officer of Parliament, including the CEO, as well as all other good government watchdogs such as the Parliamentary Budget Officer (PBO, who should be made into an officer of Parliament), should also be required to disclose all their rulings and decisions.  As long as they are not required to do this, no one will be able to tell whether they are making unfair, biased and improper rulings.