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Elections Canada and others should clean up problems, not defend them
Set out below is a letter-to-the-editor by Democracy Watch Coordinator Tyler Sommers which was published in the The Edmonton Journal, The National Post, and The Epoch Times, July 12, 2012 and the Hill Times July 23, 2012
In the Supreme Court of Canada case about voting in a Toronto area riding during last May’s federal election, Elections Canada and some provincial elections agencies seem to be arguing that problems are inevitable instead of acknowledging that their current systems have significant weaknesses in ensuring that voters are voting properly at the correct polling station.
The robocall election fraud situation has revealed other weaknesses in fair election enforcement.
And these two situations are likely the tip of the iceberg, as there are more than 3,000 complaints that Elections Canada alone has received since 1997. Unfortunately, Elections Canada continues to refuse to disclose its rulings in those complaints, so the public has no idea whether enforcement of the rules has been proper and effective in the past six federal elections.
[ NOTE: To see info about the 3,000 complaints, go to: this news release — Democracy Watch will soon release details about a recent Elections Canada ruling that raises serious questions about its enforcement standards ]
Rather than defending systems with loopholes, and hiding enforcement records, Elections Canada and the provincial agencies should be disclosing details to prove their enforcement is effective, and pushing for stronger laws and more resources and training to ensure our future elections are fraud-free.
For more details about the changes needed to Elections Canada go to April 16 News release
The Hill Times’ Terrific 25 Staffers Survey should include the ‘most ethical’ too — and huge loopholes in federal ethics rules must be closed, and enforcement strengthened
Set out below is a letter-to-the-editor by Democracy Watch Founder Duff Conacher which was published in the Hill Times, July 23, 2012
TORONTO—The Hill Times’ 12th Annual Terrific 25 Staffers Survey of people involved in federal politics was most revealing because the ranking criteria did not include “most ethical staffer.” If members of the public were surveyed, this would very likely be their most important criteria given that dishonesty, secrecy, unethical activities, lack of representation and waste consistently rank as the Canadians’ top concerns about government.
Instead, according to the survey, political staff are valued for being most discreet (i.e. most secretive), closest to the Prime Minister and most influential (i.e. among other things, most likely to change elected politicians’ decisions (including for lobbyists), and best at spin (i.e. most misleading), along with most knowledgeable and most experienced.
Would Prime Minister Stephen Harper’s chief of staff Nigel Wright be named “most ethical?” The Conflict of Interest Act does not require (archive website) him to recuse himself from any general matter decision-making process even if it will directly affect his personal financial interests, or the interests of his family or friends or the dozens of companies in which his company, Onex, is invested, or the interests of the companies in which the two other private holding companies he owns are invested, or the two dozen or so other companies in which he own shares, or the other investments he placed in his so-called blind trust.
In fact, he has not disclosed any recusals from any decision-making processes in the Public Registry for the Act. That may be because federal Ethics Commissioner Mary Dawson has set up a system of so-called “ethical screens” to hide recusals by Cabinet ministers, staff and appointees, a system that violates Sec. 25 of the Act (which requires public disclosure of the details of all recusals).
What the ethics commissioner did, according to her public testimony by her before House committees, is just arrange for public office holders to recuse themselves from whole areas of decision-making, but not declare it. She has admitted more recently that this is not a correct approach, but is still only requiring disclosure of some of those recusals, again, according to testimony by her before House committees.
But, in any case, isn’t it reasonable to say that an ethical person would recuse him/herself from all decision-making processes that affect their personal financial interests, and would publicly disclose their recusals, even if a flawed law combined with a lapdog ethics commissioner do not require these actions?
As for Andrew MacDougall, director of communications for the Prime Minister, he “helps when he can,” according to Yaroslav Baran, a former Conservative staffer. Does he help everyone equally? Or does he give more help to people who have worked in the past for Prime Minister Harper, Conservative Cabinet ministers, and Conservative Party election campaigns?
If it’s the latter, that sounds very similar to giving preferential treatment which is not allowed under Sec. 7 of the Conflict of Interest Act (as Conservative Cabinet minister Christian Paradis found out recently, although because the act does not include any penalties for violations of its key democratic good government rules, and because Prime Minister Harper regularly ignores the Act and his own rules set out in the Accountable Government guide for ministers, Paradis remains an unpenalized Cabinet minister).
And in case anyone is wondering, these same loopholes and flaws (and others), and weak enforcement (archive website) by Dawson, also undermine the ethical standards set out in the Conflict of Interest Code for Members of the House of Commons, and (even more so), the ethical standards set out in the Senate Ethics Code (in no small part because the Senate Ethics Officer is under the control of a committee of Senators).
And as for all other political staffers, except senior staff in the Opposition Leader’s Office, no ethics rules apply to them, and they are not required to disclose any personal interests (not even financial interests), so who knows how their actions would measure up to ethics criteria if such criteria were included in your definition of a “terrific” staffer.
Maybe they are all acting honestly, ethically, openly, representatively, and preventing waste all of the time. The public has a right to know whether they are acting in these ways (since we pay their salaries), but we won’t know until rules are applied to them requiring them to act properly, with full disclosure requirements, and independent enforcement by a fully-empowered, well-resourced watchdog with a strong enforcement approach (unlike the ethics commissioner), and the power to penalize violators.
Knowing how committed all of the federal politicians are to democratic good government, I am sure that the MPs on the House Procedural Affairs Committee will strongly recommend closing the huge loopholes and correcting the flaws and strengthening enforcement of the MPs’ ethics code when they continue their review of the code after Parliament opens again in September. And I am also sure that the House will make those changes right away.
I am also sure that the House or Senate or joint committee that reviews the Conflict of Interest Act soon (the review is already seven months (archive website) past its legal five-year deadline) will also make strong recommendations to close the loopholes in, and strengthen enforcement of, the act, and that the Conservative Cabinet will introduce a bill that will make those changes that will pass quickly and unanimously.
I am also sure that the Senate will clean up its ethics act sooner than later.
And I am also sure that an ethics law or code will soon be enacted to apply to political staffers, so that you can add it to your survey criteria.
I am so sure of all of these things because I have faith that federal politicians will do the right ethical thing very soon, even though they haven’t for the past 145 years, unfortunately. Better to hope than to despair, as someone said recently.
For more details, go to Democracy Watch’s Government Ethics Campaign
Elections Canada faces serious questions about its enforcement system — must prove it has been enforcing law and holding fair elections by disclosing rulings in 3,000 complaints it has received since 1997
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Prime Minister Harper’s senior adviser takes government relations job with Air Canada, raising serious questions about violations of federal ethics and lobbying laws (Globe and Mail)
Ethics Commissioner Mary Dawson ignores evidence and rules in ruling on Conservative Cabinet Minister Tony Clement
Set out below is a letter-to-the-editor by Democracy Watch Founder Duff Conacher which was published in the iPolitics, The Tyee, and Rabble.ca, July 19, 2012
As has happened almost every time (archive website) she has issued a ruling, federal Ethics Commissioner Mary Dawson has again ignored evidence and rules in her ruling that Cabinet minister Tony Clement did nothing wrong when he endorsed a company in his riding in a promotional video and in two letters.
The Ethics Commissioner ruled in March that Cabinet minister Christian Paradis was guilty (archive website) of giving “preferential treatment” in violation of section 7 the Conflict of Interest Act setting the standard that it is illegal for ministers “to use their positions as ministers to provide greater assistance to their constituents than to other Canadians in relation to their own department or larger portfolio.”
In clear contrast, the Ethics Commissioner only warns Minister Clement not to do this again, instead of finding him guilty.
And in making that ruling about Minister Clement’s appearance in the video, the Ethics Commissioner ignored the letter that Clement also wrote that “encouraged an individual in Dubai to explore working with” the same company. The Ethics Commissioner also failed to disclose the text of that letter, and another promotional letter, that Clement wrote for the company.
In contrast, the Ethics Commissioner found former Minister of State Helena Guergis guilty of violating federal ethics rules for writing a very similar letter.
Given that giving such “preferential treatment” is a violation of the Act, it is by definition “improper” which means that the Ethics Commissioner should have also found Minister Clement of violating section 9 of the Act which prohibits acting in ways that “improperly further another person’s private interests.”
This ruling provides even more evidence that federal government ethics rules will not be properly and effectively enforced as long as Mary Dawson is the Ethics Commissioner.
For more details, go to Democracy Watch’s Government Ethics Campaign
Ruling by Commissioner of Canada Elections much too narrowly interprets key Canada Elections Act measures that prohibit influence of voters by foreigners, and uses invalid excuses for not investigating
News Release
Ruling by Commissioner of Canada Elections much too narrowly interprets key Canada Elections Act measures that prohibit influence of voters by foreigners, and uses invalid excuses for not investigating
Ruling means no foreigner will likely ever be prosecuted, and raises questions about enforcement standard being applied in robocall and many other cases
Public inquiry is clearly now needed to disclose and audit rulings on more than 3,000 complaints filed with the Commissioner since 1997 to ensure past enforcement has been proper and effective, and will be in the future
Thursday, July 12, 2012
OTTAWA – Today, Democracy Watch made public what it believes is a legally incorrect ruling by the Commissioner of Canada Elections on a recent complaint. Democracy Watch received the ruling from the person who filed the complaint. In the ruling, the Commissioner refused to investigate the complaint based upon a much too narrow and restrictive interpretation of a key measure in the Canada Elections Act that prohibits influence of voters by foreigners.
Given this very flawed recent ruling, Democracy Watch called for a public inquiry into the Commissioner’s enforcement standards and practices from the past 15 years.
The Commissioner also refused to investigate the complaint because “some of the relevant information or persons are not within Canada.” These were the same excuses that the Commissioner used in 2008 after failing to investigate fully the complaints about a fraudulent election robocall scheme filed by voters in the B.C. riding of Saanich-Gulf Islands. That failure likely encouraged the people behind the massive fraudulent robocall scheme during the 2011 federal election.
The Commissioner also says in the ruling that “the activity complained of was of very limited duration” – essentially setting a ridiculous enforcement standard that means if what you do to illegally influence voters doesn’t last very long, you will not be prosecuted.
Overall, the ruling indicates clearly that the Commissioner will likely never prosecute a foreigner for illegal influence of voters in Canadian federal elections.
As a result, the ruling calls into question what standards the Commissioner has been using for enforcement for the past several years, and is using in the 2011 fraudulent robocall scheme cases. Democracy Watch recently filed an access-to-information request with the Commissioner after the office refused to disclose the rulings it has made on more than 3,000 complaints from the 1997 election on through the 2011 election.
“Elections Canada’s ruling on this complaint guts enforcement of a key measure aimed at prohibiting foreigners from influencing Canadian voters, and makes it clear that a public inquiry is now needed to disclose and publicly audit the Commissioner’s rulings on the more than 3,000 complaints filed since 1997 to ensure the Commissioner has been enforcing the law properly and effectively, and will do so in the future,” said Tyler Sommers, Coordinator of Democracy Watch.
The complaint was filed on March 19th with Elections Canada about a non-Canadian campaigning for Rick Dykstra and Julian Fantino in their ridings in St. Catharines and Vaughan in Ontario. As set out in the complaint, after flying in from the United States, Front Porch Technologies president Matthew D. Parker tweeted that he was “Knocking on doors for MP Rick Dykstra (St. Catharines)” and was photographed working in the campaign office of Julian Fantino.
Section 331 of the Canada Elections Act states specifically that non-residents who are not Canadian citizens or permanent residents of Canada are prohibited from doing anything during an election period to “in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate.”
In the July 4th ruling, the Commissioner interpreted this measure as meaning that, in order even to investigate, the Commissioner would have to have evidence indicating that a voter “was actually induced or affected in their voting behaviour due to the activity complained of.”
In Democracy Watch’s opinion, the legally correct definition of this measure is that “induce” also includes trying to persuade someone to vote one way or another (or not to vote), especially given that the heading of section 331 reads “Non-Interference by Foreigners” and the sub-heading is “Prohibition – inducements by non-residents”. “Interference” of course includes any act of interfering whether or not it is successful, and “inducement” is defined in the dictionary as: “the act of reasoning or pleading with someone to accept a belief or course of action (e.g. gave up smoking only after prolonged inducement by all the other family members).”
As Democracy Watch does not know whether Matthew Parker is a Canadian citizen or resident, it is not in any way alleging that Mr. Parker violated the Canada Elections Act measures. It is only questioning the Commissioner’s decision not to investigate the situation based upon what it believes is an incorrect interpretation of the Act, and a much too weak enforcement approach.
The Commissioner’s ruling also calls into question what enforcement standards are used for other situations, in particular cases involving alleged violations of section 5 of the Act (which prohibits actions to “induce” a person to vote who is not qualified to vote); section 282 and 482 (which prohibit actions to “compel” voters through “intimidation” or “duress”, or to “induce” voters “by any pretence or contrivance” to vote a certain way or not vote); subsection 549(4) (which prohibits actions to “induce” a person to falsely take an oath), and; subsection 281(h) of the Act (which prohibits actions that “wilfully prevent or endeavour to prevent an elector from voting at an election”). Clearly, prohibitions on illegal influence actions by foreigners must also be extended to cover actions by residents and citizens of Canada.
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FOR MORE INFORMATION, CONTACT:
Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179
[email protected]
Democracy Watch’s Voter’s Rights Campaign
Canada Elections Act (S.C. 2000, c. 9)
NON-INTERFERENCE BY FOREIGNERS
Prohibition — inducements by non-residents
331. No person who does not reside in Canada shall, during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate unless the person is
(a) a Canadian citizen; or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
2000, c. 9, s. 331; 2001, c. 27, s. 211.
Openness and transparency required at Elections Canada – details on thousands of past investigations and complaints needed
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Federal Access to Information Act review by Commissioner is great news
Set out below is a letter-to-the-editor by Democracy Watch Coordinator Tyler Sommers which was published in the National Post July 9, 2012
Federal Information Commissioner Suzanne Legault is taking the great step of being an active good government watchdog by undertaking a review of the federal Access to Information Act. This is not only proper as she is required to report to Parliament about how the law is working, it is also needed.
Under the Act (ss. 75(1)), a House or Senate Committee is supposed to consistently review the Act, but nothing has been done for the past three years, and no past reviews have resulted in any changes to strengthen the law and enforcement.
The federal Conservatives did not include any proposals for changes in their so-called action plan for next three years for the international Open Government Partnership, and broke almost all (archive website) of their 2006 election promises to strengthen the law and enforcement.
Similar past broken promises and ineffective actions by politicians from all parties have resulted in repeated failures to strengthen the law over the past 30 years to help end the excessive, and often illegal, secrecy that is rampant in the federal government.
P.S. Michel Drapeau, quoted in the CP article last Friday-Saturday about the review, is completely incorrect when he claims that the review is outside the legal mandate of the Information Commissioner — please see subsection 39(1) of the Act set out below which gives the Commissioner the clear power to do special reports, in addition to her annual report to Parliament, that contain recommendations to solve problems with the Act and its enforcement.
Access to Information Act (R.S.C., 1985, c. A-1)
Special reports
39. (1) The Information Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 38.
For more details, go to Democracy Watch’s Open Government Campaign
Government whistleblower watchdog fails to deliver after five years and $30 million spent
Major reforms are required, but government is stalling.
Thursday June 28, 2012
OTTAWA – Today, following the release of the fifth annual report by the Public Sector Integrity Commissioner, civil society groups are calling the federal Conservatives’ 5-year old whistleblower regime a failure and calling for major reforms to ensure protection of Canadian whistleblowers.
“After five years of bureaucratic charades, taxpayers have essentially nothing to show for more than 30 million dollars spent on the Integrity Commissioner’s office and the associated Tribunal” said David Hutton, executive director of FAIR, the whistleblower charity. “Not a single wrongdoer has been sanctioned and not a single whistleblower has been protected. It is time for a root and branch reform of this law.”
Integrity Commissioner Mario Dion has thus far uncovered only one case of wrongdoing out of more than 320 complaints submitted over the past 5 years. Due to loopholes in the law, the manager found to have misspent taxpayer’s money could not be disciplined because she had left her job for another outside the public service. Dion declined to use the only remaining sanction available – to name her.
The government has also failed to initiate the five-year review of the Whistleblower Act, as legally required. “More than two months after it was supposed to begin, Minister Clement has still not announced the review or provided information on the format or timing. The earliest date for a review is now the fall, well after it was to begin according to the Act” said Tyler Sommers of Democracy Watch. “If this government wants to protect honest public servants it will launch a comprehensive, open, and transparent review process immediately – and invite experts from other jurisdictions such as the UK, USA, and Australia, that are decades ahead of Canada in protecting truth-tellers.”
“This government rode into town on a white horse of transparency and accountability, with whistleblower protection the centerpiece of its election campaign” said Mr. Hutton. “It’s time to deliver on the ‘ironclad’ protection promised in 2006.”
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FOR MORE INFORMATION, CONTACT:
Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179
David Hutton, Executive Director, FAIR (Federal Accountability Initiative for Reform)
Tel: +44-798-104-6958 OR 01144-798-104-6958
Democracy Watch’s Open Government Campaign