Refusal to disclose past rulings illegal, and raises question of whether Chief Electoral Officer will keep commitment to disclose rulings on more than 1,300 robocall complaints – full public inquiry needed

More than 44,000 messages have been sent by Canadians through Democracy Watch’s letter-writing drive calling for disclosure of election complaint rulings, and other fair election enforcement measures

Monday, November 19, 2012

OTTAWA – Today, Democracy Watch released Elections Canada’s preliminary refusal and final refusal to disclose its rulings on more than 3,000 complaints filed by Canadians in the past 15 years, which Democracy Watch requested under the federal Access to Information Act initially last March.

Elections Canada’s main reason for refusing to disclose the rulings is that the rulings could make the Commissioner of Elections look bad – which is a bizarre reason given that Elections Canada has sent a ruling letter to each of the complainants, and all Democracy Watch has requested are copies of those already public letters.

By deciding to keep its complete past record of enforcement of the Canada Elections Act secret, Elections Canada also raises serious doubts about whether it will actually disclose the rulings the Commissioner makes after investigating the 1,300 robocall complaints filed during and after the 2011 election.  It is completely contradictory and hypocritical for Elections Canada to commit to disclosing its rulings on every robocall complaint while at the same time refusing to disclose its rulings on past complaints.

More than 44,000 messages have been sent by Canadians to key politicians through Democracy Watch’s national letter-writing drive calling for clear requirements to disclose election complaint rulings, and for passage of other fair election and strong enforcement measures.

“Elections Canada raises serious questions about its commitment to transparency and accountability by refusing to disclose its rulings on more than 2,000 complaints filed during elections since 1997, on an unknown number of complaints filed in-between elections since 1997, and on more than 1,000 complaints filed during the 2011 election, even though the Access to Information Act allows the rulings to be disclosed, even though the Canada Elections Act requires that most of the rulings be disclosed, and even though the rulings have been publicly  disclosed in letters to almost all the complainants over the past 15 years”  said Democracy Watch Coordinator Tyler Sommers.  “This is more evidence that a full public inquiry is needed into how Elections Canada has been enforcing the law for the past several elections, because if it is allowed to keep its rulings secret it can hide a biased, unfair or ineffective enforcement record.”

Democracy Watch will continue to seek the information from Elections Canada as the public has a clear right to see the rulings that any law enforcement agency makes on any complaint.  If this information is kept secret, it is a recipe for abuse and corruption as it can allow any agency to hide a biased, unfair, discriminatory, ineffective or otherwise improper enforcement record.

Last March, Democracy Watch submitted an access to information request about a total of 2,982 complaints people have filed during elections since 1997, requesting the ruling letters Elections Canada has sent to the complainants.  Democracy Watch also requested the ruling letters Elections Canada has sent to an unknown number of people who filed complaints in-between elections (the total is unknown because Elections Canada does not disclose any information about complaints it receives in-between elections).

Democracy Watch was seeking the rulings on complaints about possible violations of the Canada Elections Act over the past 15 years, with the personal information removed, in order to determine whether Elections Canada has been fairly, properly, and effectively enforcing the Canada Elections Act since 1997.  Democracy Watch has serious questions about the effectiveness of Elections Canada’s enforcement given a very questionable ruling Elections Canada made in July (the complainant sent the ruling to Democracy Watch).

In a preliminary letter and then final letter responding to Democracy Watch’s Access to Information request, Elections Canada invoked a blanket exemption in the Access to Information Act, section 16.3 (SEE below) which allows the Chief Electoral officer to refuse any record that contains information “created by or on behalf of a person who conducts an investigation, examination or review in the performance of their functions under the Canada Elections Act.”  In using this exemption, Elections Canada stated that the reason was:

… there is a very [real] risk that if all the responses to complainants were released, precisely because they are drafted in a summary way and because they do not provide the full background to any decision, erroneous or wrong conclusions could be drawn with respect to particular cases or to classes of cases, which could negatively affect the Commissioner in the discharge of his mandate.

This, as with the other excuses Elections Canada is using to refuse to disclose its past rulings, is an invalid concern.  Democracy Watch was only requesting the final ruling letter sent to each complainant, not information about the investigations, examinations or reviews of the complaints.  As well, if all past rulings have been legally correct and proper, Elections Canada will have no difficulty at all convincing the public that it has been fairly, properly, and effectively enforcing the Canada Elections Act.

In addition, section 16.3 of the Access to Information Act is restricted by section 541.(1) of the Canada Elections Act (SEE sections set out below) which explicitly states that correspondence and other reports of this nature, specifically “all decisions or rulings” by the Chief Electoral Officer (CEO) “are public records and may be inspected by any person on request during business hours.”  It is very likely that most of the complaints were ruled on by the CEO as most would be about minor disputes and problems that would not have been referred to the Commissioner of Canada Elections for investigation and/or possible prosecution.

Also, Elections Canada has sent a letter with its ruling to each complainant, so it has already made each ruling public, and in doing so it has made it clear that it is comfortable with members of the public seeing the rulings.

Elections Canada is also trying to use the excuse that the ruling letters contain private personal information (such as the name of the complainant) – but Democracy Watch made it clear in its request that it was fine with that information being kept secret and redacted from the rulings.

Democracy Watch will continue to push Elections Canada to disclose all its past rulings since 1997 to ensure the public has the evidence it needs to determine whether Elections Canada’s enforcement record over the past 15 years has been fair and effective.

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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

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16.3 Access to Information Act

Subject to section 541 of the Canada Elections Act, the Chief Electoral Officer may refuse to disclose any record requested under this Act that contains information that was obtained or created by or on behalf of a person who conducts an investigation, examination or review in the performance of their functions under the Canada Elections Act.

541.(1) Canada Elections Act:

Inspection of instructions, correspondence and other reports

541.(1) All documents referred to in section 403.35, 424, 429, 435.3, 435.35, 451, 455, 478.23 or 478.3, all other reports or statements, other than election documents received from election officers, all instructions issued by the Chief Electoral Officer under this Act, all decisions or rulings by him or her on points arising under this Act and all correspondence with election officers or others in relation to an election are public records and may be inspected by any person on request during business hours.

19.(1) Access to Information Act

Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined by section 3 of the Privacy Act.

NDP introduces anti-robocall bill – Conservatives continue to break promise to introduce government bill banning false robocalls

Thursday, November 15, 2012

OTTAWA – Today, Democracy Watch called on the federal Conservatives to introduce the bill to ban false election robocalls and strengthen election law enforcement that they promised to introduce by the end of September under a resolution passed unanimously last March by federal politicians.

Democracy Watch’s national letter-writing and petition drive has resulted in more than 27,000 messages being sent to politicians across Canada calling on them to pass effective laws to stop election fraud robocalls, and to strengthen enforcement of election laws.

To their credit, the federal NDP recently introduced private member bill C-453, sponsored by Democratic Reform Critic MP Craig Scott, that would, if enacted, make changes to prohibit false robocalls during federal elections and strengthen enforcement in ways that match most of Democracy Watch’s recommended changes.

In contrast, the federal Conservatives continue to fail to introduce their promised bill.

“Canadians have heard the federal Conservatives talk the talk about concerns over false election robocalls and weak enforcement of election laws, but the Conservatives continue to fail to walk the walk and introduce a bill to ban false robocalls and strengthen enforcement,” said Tyler Sommers, Coordinator for Democracy Watch. “Clearly the Conservatives and politicians in the provinces and territories need to be pushed and so Democracy Watch will continue its letter-writing drive that makes it easy for people across the country to call on key politicians across Canada to make the changes needed to clean up and ensure our elections are fair.” 

False robocalls were received by tens of thousands of voters in more than 230 ridings during the spring 2011 federal election, and were also used to mislead voters in some provincial elections

Measures to make false robocalls illegal and essentially impossible will help, but there are also enforcement problems.  Elections Canada is investigating the false robocalls from the 2011 federal election, but there are serious questions about its enforcement.

Elections Canada has failed to disclose the rulings it has made on more than 2,000 complaints it received from 1997 to 2010, and more than 1,000 complaints it received during the 2011 federal election.  It has also recently made some very questionable rulings.

Elections Canada must be required to disclose every ruling it makes to ensure that it proves it is enforcing the law fairly and properly (and election agencies across Canada must also be required to disclose all their rulings)

Democracy Watch is calling on Canadians to send a letter and to sign the petition that both call not only on federal politicians to introduce and pass a law to stop false election robocalls and strengthen enforcement, but also for politicians in every province and territory to pass similar laws that apply to their provincial, territorial and municipal elections.

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FOR MORE INFORMATION, CONTACT:

Tyler Sommers, Coordinator of Democracy Watch

Tel: 613-241-5179

Email: [email protected]

Internet: http://democracywatch.ca

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

November 9, 2012

OTTAWA – Today, Democracy Watch launched a national letter-writing and petition drive calling for federal, provincial and territorial politicians to pass laws to end secret, unlimited donations and loans to Canadian political parties and politicians to get big money out of Canadians politics, and for other changes to make the political finance system democratic.

“We don’t allow hockey players to give donations to referees, so why is this legal in politics?  Politicians are the referees who decide what is in the public interest, so it makes no sense at all to allow wealthy interests to buy influence with large donations and gifts to candidates and political parties, including secret donations,” said Tyler Sommers Coordinator of Democracy Watch and Chairperson of the nation-wide Money in Politics Coalition.

“The scandals involving a federal Cabinet minister’s questionable donations and campaign spending in the last election, executives and family members from the same company donating hundreds of thousands of dollars to an Alberta political party, and corruption in Quebec have highlighted Canada’s  weak and loophole-filled restrictions on money in politics,” said Sommers,  “So Democracy Watch is launching a national letter-writing and petition drive that makes it easy for people across Canada to send a clear message to key politicians calling for strong laws to end the influence of big money in politics by strictly limiting and disclosing all donations, and increasing enforcement powers and penalties.”

“While the corrupting, democracy-undermining influence of secret money and bribes can unfortunately never be stopped, governments across Canada continue to be negligent by leaving open loopholes that allow for secret, unlimited donations and loans that wealthy interests can use to buy influence with political candidates, politicians and governments,” said Sommers.

While the Federal Accountability Act made historic changes to Canada’s 33-year-old political fundraising rules, it left open huge loopholes which allow corporations and other organizations to provide unreported “volunteer labour” through giving employees paid time off to participate in nomination races, allow nomination and party leadership candidates to take secret donations and gifts, and allow riding associations and political parties to keep secret trust funds.  These same loopholes are open in all the provinces and territories.

A Liberal Senator recently said that federal politicians are under pressure “all the time” to take “brown paper bags with cash in it.”  Italian police have said that Ontario has a mafia corruption problem in the construction industry even worse than in Quebec.  And because donors don’t have to disclose their employer or affiliations with organizations, the scandals in Quebec, and also situations like this and this, show that it is easy for corporations and other organizations to funnel donations through their employees.

Other than federally and in Manitoba and Quebec, donation limits are much too high, and corporations and unions and other organizations are allowed to donate, and other than at the federal level and in Ontario donation disclosure rules are much too weak (and even those jurisdictions have loopholes in the rules, and donation limits that are still too high).

And across the country, election agencies either lack investigation and auditing powers, or are failing to do regular audits, and penalties are too weak, all of which encourages violations.

Democracy Watch and its nation-wide Money in Politics Coalition, made up of 50 citizen groups with a total membership of 3 million Canadians, will continue pushing until all laws across Canada prevent the undue influence of money in politics, and the key democratic principle of one person, one vote is upheld in our political finance system.

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FOR MORE INFORMATION, CONTACT:

Tyler Sommers, Coordinator of Democracy Watch

Tel: 613-241-5179

Email: [email protected]

Internet: http://democracywatch.ca

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For more details, go to Democracy Watch’s Money in Politics Campaign

The province’s sky-high political contribution limits are under attack following the controversy over thousands of dollars in donations flowing to the governing Progressive Conservative party from billionaire Daryl Katz, his colleagues and his family.

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To see a related Ottawa Citizen article, click here

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Tuesday, October 23, 2012

OTTAWA – Today, Democracy Watch and Canadians for Accountability announced that they have resigned from the Advisory Committee for the federal Integrity Commissioner (PSIC) because Integrity Commissioner Mario Dion kicked a member off the Committee for no good reason and has refused to reinstate him.

Commissioner Dion removed David Hutton, Executive Director of  Federal Accountability Initiative for Reform (FAIR), from the Committee last week in response to a critical letter by him published in the Ottawa Citizen on October 13^th.  In the letter, Hutton referred to a recent Federal Court ruling which stated that PSIC’s handling of a case had so many mistakes it was “a clear breach of the common law duty of procedural fairness”.  Hutton argued that this was not an isolated case and that FAIR had heard from more than 30 whistleblowers who expressed difficulties in dealing with PSIC.

“Democracy Watch is resigning from the advisory committee because the Integrity Commissioner’s decision is unfair and shows he is trying to use the committee to keep criticism of his office secret and behind closed doors,” said Tyler Sommers Coordinator of Democracy Watch.

“We cannot support an environment where openness, transparency and good governance are not respected,” said Allan Cutler of Canadians for Accountability.  “Further, we will not be muzzled. We had originally believed that membership on the Advisory Committee was an obligation, not something that was granted by the Commissioner and which could be removed by him at a whim.”

Democracy Watch, FAIR, and Canadians for Accountability originally raised questions (archive website) about the integrity commissioner’s appointment when the appointment of Mario Dion was rammed through committee without consultation with key groups interested in ensuring protection for whistleblowers.  Dr. Edward Keyserlingk, the former Public Sector Integrity Officer (who was charged with protecting whistleblowers before PSIC was created, but with very limited powers) also called the appointment of a senior bureaucrat ‘disastrous’ in a multi-page letter to committee chair Pat Martin.

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Contact Information:

Tyler Sommers, Coordinator of Democracy Watch and Chair of the Open Government Coalition: (613) 241-5179

 Allan Cutler, President, Canadians for Accountability: (613) 863-4671

Ian Bron, Managing Director, Canadians for Accountability: (613) 304-8049

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For more details, go to Democracy Watch’s Open Government Campaign

For more information on the Federal Court ruling click here

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Set out below is a letter-to-the-editor by Democracy Watch Board Member Duff Conacher which was published in the Hill Times on October 22, 2012

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As many commentators do, your editorial about the Parliamentary budget officer (PBO) proposes that the solution to the problems Kevin Page has been having doing his job is to make him “clearly independent,” (“PBO fights for House, make it independent,” The Hill Times, Oct. 15, p. 8).

While it is important to make the PBO a fully independent officer of Parliament, appointed with the approval of all political parties, with a fixed term of office and control over his budget and staff, recent stonewalling by the Conservatives have made it very clear that isn’t enough to make the PBO effective.

An independent PBO could still face a government like the current Conservative government that claims the PBO is making illegal requests for information, claims the information will be available so there is no need to provide it now, and delays in providing information or never disclosing it making it impossible for the PBO to determine the actual cost of any government initiative.

Delay is a very effective way to thwart accountability, especially when an election is approaching as a government tries to hide scandalous information to keep voters in the dark about its actual governing record.

The auditor general and information commissioner have been dealing with secrecy and delays like this for decades, delays that have allowed dozens of Cabinet ministers and government officials to escape accountability dozens of times.

So, to have an effective PBO, the PBO must be given the power to order the release of information (as the information commissioners have in British Columbia, Ontario, and Quebec).  The PBO must also be given the power to fine government officials who refuse to comply with disclosure orders, with both the PBO and the government having the right to a quick reference appeal to court to settle disagreements (an appeal that must be fast-tracked, again to avoid undue delays).

If the PBO is made fully independent, but these changes are not made, the PBO will be independent, but continue to be ineffective.

And these powers should also be given to the federal information commissioner (the Conservatives promised in the 2006 election they would give the information commissioner the power to order the release of records), and the auditor general, to make them fully effective watchdogs.

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