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.

Colbert For King of Canada

Canadians to Rally for First Elected Head of State

Ottawa (July 28, 2013) – Heading into Canada Day, Democracy Watch announces a satirical campaign calling on all Canadians to sign a petition to elect Stephen Colbert as King of Canada.

The goal is to rally at least 100,000 Canadians to visit www.colbertforking.ca, sign a petition and persuade Stephen Colbert to come to Ottawa later this summer to be crowned the King of Canada on Parliament Hill.

Behind this fun, provocative “Colbert For King” campaign is a more serious issue – namely, the need for an elected Canadian Head of State. The mass appeal campaign seeks to engage Canadians in rethinking the current system and question the British monarchy as our Head of State. It rallies for an elected Head of State who can challenge the government and enforce the Canadian Constitution.

“Queen Elizabeth and her representatives are purely symbolic officials who don’t have the legitimate democratic power needed to stop abuses of power and lead our country,” says Tyler Sommers, Coordinator of Democracy Watch. “We need Canadians to come together in support of an elected Head of State who has the democratic authority to enforce the constitution and uphold the public interest. Calling on Stephen Colbert to be elected as King of Canada is a spirited way to get attention and spark discussion.”

The majority of Canadians agree with the need for an elected Head of State. A survey of 2,024 Canadians conducted by Harris-Decima in May 2012 shows that a majority of Canadians (55%) want to “change it up” and move towards an elected Canadian Head of State, while only 34% want to continue with a member of the British royal family.

Democracy Watch invites Canadians to visit www.colbertforking.ca and sign the petition to elect Stephen Colbert as King of Canada. The hope is to raise awareness and start a new conversation towards change.

About Democracy Watch

Democracy Watch is a national non-profit, non-partisan organization, and Canada’s leading citizen group advocating democratic reform, government accountability and corporate responsibility. Since it opened its doors in fall 1993 – it has won more than 110 changes to federal and provincial good government and corporate responsibility laws, many of which are world-leading. Visit www.democracywatch.ca for further details.

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For more information, or to schedule an interview, please contact:

Martha Grant – 416.302.4957, [email protected]

Tyler Sommers – 613.241.5179, [email protected]

Please Like and Share this page with everyone you know. Canadians deserve to know that their election rules are being enforced effectively.

For the past year, Democracy Watch has been trying to get Elections Canada to tell Canadians how they’ve handled the thousands of complaints they’ve received from Canadians. This information is important for Canadians because it will show whether Elections Canada is an effective democracy watchdog or an ineffective lapdog.

Unfortunately Elections Canada has only provided details on a handful of complaints and has used a sweeping discretionary exemption to keep all other information hidden from the public (for details click here)

To get around Elections Canada’s secrecy, Democracy Watch is asking you, if you filed a complaint with Elections Canada since 1997 and received a response letter or email, to send in a copy of any letters/emails you received from the Commissioner of Elections or Elections Canada by mail to P.O. Box 821, Stn. B, Ottawa K1P 5P9, by email to: [email protected] or by fax to: 613-241-4758.

If you would like to submit the letter you received from the Commissioner of Elections or Elections Canada anonymously, either let us know when you send it and we will be sure to keep your identity confidential, or cover up your name and address etc. in the letter, make a copy and send the letter to Democracy Watch by fax or email through a fax number or email address that does not identify you.

If you have not filed a complaint with Elections Canada, but are concerned with secrecy at Elections Canada and would like to send key politicians an email, please fill out to the form to the right and send your email to key politicians!

Please Like and Share this page with everyone you know. Canadians deserve to know that their election rules are being enforced effectively.

And please help Democracy Watch keep this campaign going until all election laws across the country are effectively enforced to ensure fair elections – please donate now here.

Thank you very much!

For the past year, Democracy Watch has been trying to get Elections Canada to tell Canadians how they’ve handled the thousands of complaints they’ve received from Canadians.  This information is important for Canadians because it will show whether Elections Canada is an effective democracy watchdog or an ineffective lapdog.

Unfortunately Elections Canada has only provided details on a handful of complaints and has used a sweeping discretionary exemption to keep all other information hidden from the public (for details click here)

To get around Elections Canada’s secrecy, Democracy Watch is asking you, if you filed a complaint with Elections Canada since 1997 and received a response letter or email, to send in a copy of any letters/emails you received from the Commissioner of Elections or Elections Canada by mail to P.O. Box 821, Stn. B, Ottawa K1P 5P9, by email to: [email protected] or by fax to: 613-241-4758.

If you would like to submit the letter you received from the Commissioner of Elections or Elections Canada anonymously, either let us know when you send it and we will be sure to keep your identity confidential, or cover up your name and address etc. in the letter, make a copy and send the letter to Democracy Watch by fax or email through a fax number or email address that does not identify you.

 

Please share this page with everyone you know.  Canadians deserve to know that their election rules are being enforced effectively.

Background

Five Complaints from 2001-2004 Finally Ruled On in 2011-2012

 

Five Complaints from 2001-2004 Finally Ruled on in 2011-2012

In December 2002, Democracy Watch applied to the Federal Court of Canada for a review of federal Ethics Counsellor Howard Wilson’s bias and failure to uphold legal duties because of the delay in ruling on 8 complaints Democracy Watch had filed with the Ethics Counsellor.

In 7 of the 8 complaints, the complaint was based upon activities of a lobbyist which Democracy Watch believed violated Rule 8 of the Lobbyists’ Code of Conduct which prevents lobbyists from undertaking any activity that constitutes improper influence and puts a federal public office holder in a conflict of interest situation.  The eighth complaint, filed on April 12, 2001 and concerning John Dossetor, alleged that Dossetor violated the Lobbyists’ Code of Conduct by failing to register as a lobbyist.

Rule 8 is as follows:

“8. Improper Influence
Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.”

In response to Democracy Watch’s December 2002 court application, Ethics Counsellor Howard Wilson in January 2003 issued an interpretation bulletin of Rule 8 (that Wilson backdated to September 2002) of the Lobbyists’ Code of Conduct that stated that in order to violate Rule 8 a lobbyist would, among other things, have to “interfere with the decision, judgment or action” of a federal politician or federal government official in a way that amounts to “a wrongful constraint whereby the will of the public office holder was overpowered . . . and induced to do or forbear an act which he or she would not do if left to act freely” involving “a misuse of position of confidence” or taking “advantage of a public office holder’s weakness, infirmity or distress”.

Ethics Counsellor Howard Wilson’s interpretation bulletin essentially states that a lobbyist only violates Rule 8 if the lobbyist enslaves a federal politician or other federal government official or extorts them, thereby forcing them to do something they would not do if they had a free will.  In other words, the Ethics Counsellor ruled that in order to violate Rule 8, a lobbyist would also have to violate the Criminal Code of Canada measures that outlaw enslavement and extortion.

At the same time, according to Ethics Counsellor Howard Wilson’s interpretation of Rule 8, a lobbyist could violate the Criminal Code of Canada measures that outlaw bribery without violating Rule 8 (because bribery would not force a federal politician or other federal government official to do something they would not do if they had a free will, as they would take the bribe willingly).

Using this ridiculous interpretation of Rule 8, Ethics Counsellor Howard Wilson proceeded through March 2003 to rule on 4 of Democracy Watch’s 8 complaints about lobbyists violating Rule 8.  As none of the complaints were about a lobbyist enslaving or extorting a federal politician or other federal government official, the Ethics Counsellor ruled that none of the lobbyists had violated Rule 8.

In April and May 2003, Democracy Watch filed applications in the Federal Court of Canada for a judicial review of the 4 rulings by the Ethics Counsellor (May 23, 2003 news release about the judicial review court applications).

On Thursday, May 13, 2004, with the hearing of Democracy Watch’s applications scheduled for Monday, May 17th, the federal government had the gall to file a motion with the Federal Court for dismissal of Democracy Watch’s applications, on the basis that the federal Cabinet proclaimed Bill C-4 into law on May 10, 2004.

Bill C-4 eliminated the Ethics Counsellor position and created the new positions of Ethics Commissioner (to enforce the then-in-force Public Office Holders Code and other ethics rules established by the Prime Minister), and the MPs Code that first came into force in October 2004) and the position of Registrar of Lobbyists (to enforce the Lobbyists Registration Act and the Lobbyists’ Code).  The federal government’s argument was that since the Ethics Counsellor position had ceased to exist, the issues raised by the judicial review applications were moot (meaning no longer relevant) and therefore Democracy Watch could no longer challenge the Ethics Counsellor in court.

On May 17, 2004 the Federal Court dismissed the federal government’s motion, ruling that the applications were not moot, and that even if the issues raised in the applications were moot, there were still issues raised by the treatment of Democracy Watch’s complaints by the Ethics Counsellor, and there were still issues of national importance that warranted rulings by the court. Federal Court 2004 ruling (See especially paragraphs 25-31 in the ruling).

On July 9, 2004, the Federal Court ruled that the Ethics Counsellor was institutionally biased (because of his lack of independence from the Prime Minister) and also specifically biased against Democracy Watch (because of his delay in dealing with Democracy Watch’s complaints).   The Federal Court in effect ordered that Democracy Watch’s 8 complaints must be re-considered by the new Ethics Commissioner and the new Registrar for Lobbyists. Federal Court 2004 ruling

The new Ethics Commissioner, Bernard Shapiro, refused to rule on any of the complaints.  For this reason, and other completely negligent and weak enforcement actions by Shapiro, Democracy Watch filed a complaint with the Ethics Commissioner on June 29, 2005 alleging that the Ethics Commissioner himself was violating the federal Public Office Holders Code and calling on Commissioner Shapiro to arrange an independent review of his actions and statements. Link to June 29, 2005 news release

In early August, Ethics Commissioner Shapiro responded to Democracy Watch’s complaint, refusing to ensure an independent review of his actions and statements.

Unfortunately, the new Registrar of Lobbyists position was structured in a similar way as the former Ethics Counsellor position.  The former Ethics Counsellor had no independence from the Prime Minister, while the new Registrar had no independence initially from the Industry Minister, and after September 2005 from the Treasury Board minister.  As a result, Democracy Watch’s position was that the Registrar was also biased and incapable of fairly and impartially upholding the Lobbyists Registration Act and Lobbyists’ Code.

As a result of the biased actions and statements of federal Ethics Commissioner Bernard Shapiro, and the biased structure of the Office of the Registrar of Lobbyists, Democracy Watch launched a court challenge in September 2005 of the bias and incompetence of Commissioner Shapiro and Registrar Nelson. Link to September 29, 2005 news release

As a result of Democracy Watch’s September 2005 court challenge of Ethics Commissioner Shapiro and Registrar Michael Nelson, the federal government changed (through the so-called “Federal Accountability Act” (FAA)) the Commissioner position into the Conflict of Interest and Ethics Commissioner, and the Public Office Holders Code into the Conflict of Interest Act, and the Registrar of Lobbyists position into the Commissioner of Lobbying, and Lobbyist Registration Act into the Lobbying Act. To see the details about the FAA changes, click here.

As a result of Democracy Watch’s lawsuit and the passage of the FAA, Bernard Shapiro resigned as Ethics Commissioner, and the new Conflict of Interest and Ethics Commissioner Mary Dawson was appointed on July 9, 2007, and Michael Nelson resigned as Registrar of Lobbyists, and the new Commissioner of Lobbying Karen Shepherd was appointed in November 2008.

However, in October 2006 (just before the Federal Accountability Act became law), Registrar of Lobbyists Michael Nelson finally issued his first ruling on one of Democracy Watch’s 8 outstanding complaints (using Ethics Counsellor Howard Wilson’s September 2002 interpretation of Rule 8 of the Lobbyists’ Code of Conduct (described above)).

Democracy Watch filed a court challenge of the Registrar’s ruling in November 2006 — for details about the court challenge, and to see the Registrar’s ruling, click here.

In addition, Registrar of Lobbyists Michael Nelson issued on May 31, 2007 a new ruling on another of Democracy Watch’s 8 complaints, and issued on September 7, 2007 a ruling on another of the complaints.  For various reasons, Democracy Watch did not challenge either of these rulings in court.

On January 28, 2008, a hearing of Democracy Watch’s court challenge of the Registrar of Lobbyists ruling occurred in the Federal Court of Canada in Toronto.  On February 19, 2008 (just three weeks after the court hearing), Deputy Judge Frenette issued his ruling upholding the Registrar of Lobbyists’ ruling and ordering Democracy Watch to pay the costs of the other parties.

In March 2008, Democracy Watch filed an appeal of Deputy Judge Frenette’s ruling, and the Federal Court of Appeal hearing of the appeal was on January 12, 2009 — To see details about Frenette’s ruling and Democracy Watch’s appeal of the ruling, click here.

On March 12, 2009, the Federal Court of Appeal overturned Deputy Judge Frenette’s ruling in every way, and rejected the Ethics Counsellor’s/Registrar’s interpretation of Rule 8 of the Lobbyists Code as “deeply flawed” — To see details, click here.

Five Complaints from 2001-2004 Finally Ruled on in 2011-2012

As of spring 2011, Democracy Watch was still waiting for rulings from the Commissioner of Lobbying on the following 5 of its original 8 complaints.

Thankfully, on November 6, 2009 the Commissioner of Lobbying complied with the March 2009 Federal Court of Appeal ruling Democracy Watch had won, and issued a new, mostly legally correct and effective Guideline for Rule 8 of the Lobbyists’ Code of Conduct.

However, Commissioner of Lobbying Karen Shepherd failed to apply the Guideline properly when she finally ruled on the following 5 complaints in late 2011-early 2012:

1. On March 27, 2001, Democracy Watch petitioned the Ethics Counsellor to investigate René Fugère, who was investigated by the RCMP for failing to register as a lobbyist.  Fugère was not charged even though clear evidence existed that Fugère was lobbying.  Given that Fugère is an unpaid aide to Prime Minister Jean Chrétien, and that the Prime Minister’s office was involved in at least one of the same grant decisions, Democracy Watch also believes that Fugère’s lobbying activities put the Prime Minister in a conflict of interest. RULING:  On November 1, 2011, the Commissioner of Lobbying finally issued a ruling (PDF) finding Fugère guilty of violating the Lobbyists’ Code in one case.  Concerning another situation, the Commissioner issued a ruling (PDF) that Fugère was not in violation of the Code.
2. On June 17, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders’ Code and the Lobbyists’ Code arising from activities of nine particular lobbyists who have worked with either the Prime Minister, a Cabinet minister or opposition MP while also lobbying the federal government.  (NOTE: The Ethics Counsellor ruled on this complaint on March 21, 2003; Democracy Watch’s court challenge was filed on April 23, 2003, Federal Court File #T-641-03).  RULING: On August 22, 2011, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.
3. On October 17, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders’ Code and the Lobbyists’ Code arising from secret donations of lobbyists to the leadership campaigns of John Manley, Sheila Copps and Allan Rock. (NOTE: The Ethics Counsellor ruled on this complaint on March 31, 2003; Democracy Watch’s court challenge was filed on May 5, 2003, Federal Court File #T-711-03).  RULING: On January 26, 2012, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.

(NOTE: Ethics Counsellor Howard Wilson ruled on the above 3 complaints, but in July 2004 the Federal Court of Canada rejected all 3 of Wilson’s rulings because he was biased)

4. On September 26, 2002, Democracy Watch petitioned the Ethics Counsellor to investigate possible violations of the Public Office Holders’ Code and the Lobbyists’ Code arising from the activities of numerous lobbyists paying to attend (and paying to golf with Cabinet ministers) at a federal Liberal Party golf tournament  held on August 19, 2002 in Chicoutimi, Quebec.  RULING: On November 8, 2012, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.

5. The complaint was filed against Paul Martin, Sheila Copps, and John Manley, alleging that they had violated the Public Office Holders Code by taking large donations from several corporations registered to lobby them and the federal government, and that the corporations had violated the Lobbyists’ Code by making the donations (January 30, 2004 news release about the ethics complaints).  RULING: On January 26, 2012, the Commissioner of Lobbying finally issued a ruling (PDF) that stated that too much time had passed, and standards had changed, and therefore the Commissioner was refusing to find any of the lobbyists guilty.

Set out below is a letter-to-the-editor by Democracy Watch Coordinator Tyler Sommers which was published in the The Hill Times on August 6, 2012

Re: “Elections Canada already has power to clean up election system, it has an enforcement problem, say experts,” (The Hill Times, July 30, p. 1), should have been entitled, “Elections Canada needs new powers to clean up election system, and has an enforcement problem, say most experts.”

Only one expert quoted in the article said he thought that the Canada Elections Act gives Elections Canada all the powers it needs because, among other sections, Sec. 482 “makes it an offence to attempt to suppress votes.”

However, this is not correct. Because of Elections Canada’s interpretation used in its July 4 ruling on a complaint that Democracy Watch recently released publicly, Sec. 482 and other sections only prohibit actually suppressing votes (or actually getting voters to switch their votes) by providing false information.

While Democracy Watch believes this interpretation is legally incorrect, Elections Canada has essentially made Sec. 482 and other sections unenforceable because it has established that it must prove the improvable—that a person actually switched their vote or didn’t vote due to a false call to the voter or false information provided to the voter.

The other experts quoted in your article essentially say that changes to the Canada Elections Act are needed to help stop this false voter baiting, but some claim that changes to the act won’t make much difference.

I don’t think they are considering what effective changes would mean. If, as the Conservatives should do to comply with the motion passed in March by the House of Commons, they introduce and pass a bill this fall that makes it clear that “attempting to convince” a voter to do something using false information is illegal, and if the bill requires every organization that has phone lines/voice over internet/robocall equipment to register the actual identity of anyone or any organization that books or does a robocall/mass email during an election campaign period, and to keep a copy of the message sent by the call/email, with severe jail terms as the penalty for violators, then it will become relatively easy to identify these people and charge and convict them if their call provides false information to voters.

And if the bill also requires Elections Canada to disclose publicly the rulings it has made on more than 3,000 complaints it has received since 1997, then the enforcement problems it has will likely be corrected and cleaned up.

For more details, go to Democracy Watch’s Voter Rights Campaign

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.