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Tomorrow, the World Cup gets under way in Brazil. Imagine, if you will, what would happen to all the soccer games if referees were suddenly stripped of their whistles, deprived of their yellow and red cards and told they couldn't replace their soccer cleats because the budget had dried up. How many more cheaters would get away scot free? How many good players would be buried in the mud? How many fans would ever again trust the game?
Well, that's not far off what is going to happen when the Canada Elections Act is amended. Even after all the latest amendments, the new Act will strip the Commissioner of Elections of various tools necessary to undertake his duty as referee to the fullest extent possible. It's important to understand how this might happen, so I'm going to go into some detail here.
As you know, the Canada Elections Act is a long statute (338 pages) that lays out a precisely detailed process which must be followed during and between elections. Overall it imposes on the Chief Electoral Officer (CEO) a duty to run elections fairly. Given that roughly 230,000 people work at some 65,000 polling stations across Canada on a general election day, this task is not without its challenges. In addition, the CEO oversees political parties, riding associations and candidates with respect to registration and financial rules that apply both during and between campaigns. The CEO reports to the House of Commons, not the government (ss. 533 to 537).
To assist him in his duties, the CEO appoints a Commissioner for Elections. The Commissioner is explicitly tasked with the duty “to ensure that this Act is complied with and enforced” (s. 509). Non-compliance with the rules gives rise to a criminal offence. The Commissioner’s job is to ferret out instances of alleged non-compliance, investigate them and take appropriate action. Action includes applying to a judge for injunctions, referring cases to the Director of Public Prosecutions (DPP) for criminal prosecution, and imposing compliance agreements on individuals or organizations to correct non-compliant behaviour. A compliance agreement acts as a stay of prosecution unless its terms are breached.
The Commissioner is given a broad power to carry out his duties. Section 513 allows him “to take any measures, including incurring any expenses, in relation to an inquiry, injunction or compliance agreement” that the Commissioner “considers to be in the public interest”.
Bill C-23 erodes this broad power.
Firstly, the DPP rather than the CEO will appoint the Commissioner, and is explicitly directed not to consult the CEO in doing so. The DPP may also fire the Commissioner for cause. In addition, the DPP is given control of paying the Commissioner’s payroll and other expenses. It’s true that the bill says the Commissioner is to “conduct the investigation independently” of the DPP. But we all know the Golden Rule – he who owns the gold, makes the rules. These arrangements will inevitably place the Commissioner’s independence in question, especially since the DPP reports to a cabinet minister.
Furthermore, these arrangements fly in the face of normal practice. Our justice system goes to some considerable effort to separate investigative powers from prosecutorial powers. That is why, for example, the Chief Commissioner for the RCMP does not report to the DPP. Although the RCMP refers all charges to the DPP who then makes a decision whether or not to prosecute, the RCMP is kept independent of the DPP’s office. The Commissioner for Elections should be dealt with in a similar manner.
Even worse, the Commissioner is subjected to a blanket non-disclosure order while enforcing compliance with the Act. Limited exceptions (including the consent of persons under investigation) do little to alter the general rule although a public interest exception has been added in the latest round of amendments. The general rule appears to be reinforced by clause 146 of the bill which allows the DPP to refuse to disclose investigative information requested under the Access to Information Act. I must say that I’m flabbergasted to think we could even contemplate putting a gag order on investigations that are so important to the free and fair conduct of our democratic institutions.
Many Canadians are asking that the Commissioner be given the power to compel testimony. I myself do not go quite that far. Compelling witnesses to testify is a power reserved for judges, not police officers, and even judges cannot compel a witness to testify against her or himself (Charter of Rights and Freedoms, s. 11). However, investigative authorities typically are given broad powers to search for and seize evidence, with or without warrants, and I certainly would agree that the Commissioner should have this power explicitly spelt out in the Canada Elections Act.
Needless to say, the robocall incidents from the last general election have alarmed many Canadians. The bill contains new sections to address robocalls although they don’t extend very far. Firstly, it sets up a registry of call centres and who hired them, which is lodged with the Canadian Radio-television and Telecommunications Commission (CRTC). Secondly, it requires the call centres to keep a record of scripts and the dates they were used, and to keep those records for three years. Thirdly, it requires the CRTC to give the Commissioner for Elections any information he requests about the scripts and dates used. Obviously, something is missing. If voter suppression is suspected, surely one would want to know whether eligible voters received accurate information via robocall. In order to determine that, one would need to know who received what information. At a minimum, call centres should be required to keep a record of who was called on each date and what information was given on each of those calls.
One final point: Bill C-23 now requires that Elections Canada wait for the PMO and cabinet to ask, before it provides any elections assistance internationally. My question is this: Why would we want to politicize that activity?
For all of these reasons I will not support the bill.