The Conservative government’s Bill C-23, the Fair Elections Act, would move the commissioner of Canada elections, a position currently appointed by the chief electoral officer, out of Elections Canada and into the Office of the Director of Public Prosecutions, which is overseen by the Department of Justice.
Minister of State for Democratic Reform Pierre Poilievre (Nepean-Carleton, Ont.) said last month when he introduced the bill that the move would make the commissioner—who investigates potential breaches of the act— independent from the government and from Elections Canada.
“Law enforcement begins with the commissioner of Canada elections. The Fair Elections Act will give him sharper teeth, a longer reach and freer hand,” Mr. Poilievre said at the press conference when he introduced the bill.
Some experts, including Chief Electoral Officer Marc Mayrand, are challenging the claim and pointing to other potential drawbacks of trying to fix a situation they say was never broken.
Speaking at the Procedure and House Affairs Committee last week, Mr. Mayrand said it wasn’t clear to him how moving the commissioner would improve his work or Canadians’ confidence in the position.
“It is important for Parliamentarians as well as for Canadians to understand that, under the current regime, the commissioner enjoys complete independence from the chief electoral officer in deciding whether and how to conduct his investigations,” Mr. Mayrand said.
Three elections experts who have all worked at Elections Canada at various periods in the past 25 years said the commissioner’s office was already independent from the CEO’s.
“They did very much operate as separate entities,” said Leslie Seidle, who was Elections Canada’s director of policy and research from 2002 to 2004, in an interview with The Hill Times. “The argument about enforcement and management being merged in the same office and creating confusion of rules or at least there being a theoretical conflict between administration and enforcement—I think in practice that was not really the case.”
Harry Neufeld, who was Elections Canada’s director of information technology in the early 1990s and later B.C.’s chief electoral officer, said the commissioner’s office was “a separate organization within the organization” when he was there.
“I’ve never ever heard a serious discussion, and I’ve been in this business 33 years, about a lack of independence of the commissioner,” said Mr. Neufeld, now an elections consultant who wrote a compliance review on the role of election officers during the 2011 federal election.
James Sprague, former legal counsel at Elections Canada in both the chief electoral officer’s and commissioner’s offices who retired in 2006, said he didn’t know of any complaints or reasons to believe the commissioner lacked full independence within Elections Canada. But he also doesn’t think moving the position to the Office of the Director of Public Prosecutions will create any new risks to the commissioner’s independence.
The director of public prosecutions would appoint the commissioner under the bill, rather than the chief electoral officer. The director himself is appointed by Cabinet but through a process involving a selection committee with members from law societies, all political parties, the deputy minister of Justice and others, and which also requires approval by a Parliamentary committee.
But because the director’s office reports to the minister of justice and is not an independent officer of Parliament, like the chief electoral officer, some experts worried about the separation from the executive branch of government.
“The concern always, if you get back to the principles of election administration, is independence from executive government,” Mr. Neufeld said. “You don’t want executive government deciding which investigations to pursue and which ones not to, and which ones get resources and which ones don’t. Philosophically that’s the reason this has been done traditionally as part of Elections Canada, which is an office of the Parliament.”
“How do we know that somebody from government isn’t going to say, ‘No, that’s one of ours. Don’t pursue that,’ or ‘Yep, looks like you have a problem there but I’m sorry, we’re doing budget constraints right now and there’s no money for investigations,’ or something along those lines,” he continued. “It’s subtle but that kind of thing erodes away at the very foundations of democracy.”
Mr. Poilievre has said several times that moving the position would make it more independent.
“In fact, the Fair Elections Act will give new independence to the commissioner,” he said in Question Period last week. “The commissioner will have total control over investigations, staff and all the future decisions, which he does not have right now.”
Mr. Sprague said the attorney general would have no authority to issue directives to the commissioner regarding the Canada Elections Act. The Director of Public Prosecutions Act excludes prosecutions under the Canada Elections Act from falling under the attorney general’s authority to issue directives.
Mr. Seidle said since the commissioner position was created in 1974, there’s been some concern about having the enforcement arm within the agency, which Mr. Poilievre highlighted as a problem when introducing the bill.
“You can make a case that somewhat more independent election enforcement might be desirable,” Mr. Seidle said. “However, the option they’ve chosen is a reduction of independence in my view. They removed the appointment from the chief electoral officer but then they bury the commissioner under the director of public prosecutions, who is appointed by the attorney general.”
He said the other option would have been to create another officer of Parliament to ensure the commissioner was independent from both the government and Elections Canada.
“Burying the commissioner in a line department that reports to a Cabinet minister is a recipe for reduced transparency and reduced accountability,” Mr. Seidle said.
Paul Thomas, professor emeritus of political studies at the University of Manitoba, said Canada was one of the first Western democracies to move the management of elections outside a government department to an independent officer of Parliament.
“Placing the crucial investigative/enforcement functions of a national election body back inside a government department has both practical and symbolic implications,” he wrote in a submission to the Procedure and House Affairs Committee that he also sent to some Hill reporters.
“The government’s view seems to be that the present arrangements which combine administrative/support functions and investigative/enforcement functions inside Elections Canada places too much power in the hands of the CEO,” he said.
Mr. Thomas also said the commissioner’s move out of the agency will create coordination and communication challenges. Elections Canada, as a trusted and familiar institution, hears from citizens about voting irregularities and gathers information from political parties.
“The impression left by official pronouncements is that the CEO of Elections Canada has no more status than ordinary Canadians who may observe violations of the Elections Act and bring them to the attention of the commissioner for possible investigation,” he wrote.
That’s included in a government backgrounder on the bill that states “the chief electoral officer, just like any other Canadian, could ask the commissioner to investigate an allegation.”
Mr. Seidle, who’s now a research director at the Institute for Research on Public Policy, said it’s unclear how complaints filed about potential offences will be communicated from Elections Canada to the commissioner. The Elections Act is incredibly detailed in most areas, as is C-23, he said, but this important part of the enforcement is not.
Mr. Mayrand raised the same concern when he testified at the Procedure and House Affairs Committee March 6.
“I also note that Bill C-23, as currently drafted, does not provide any clear authority for the commissioner to obtain information from Elections Canada, either at his request or at the agency’s initiative,” he told the committee. “Such exchanges are, of course, absolutely essential for the enforcement of the Canada Elections Act.”
A document containing the CEO’s recommended amendments to the bill said clear mechanisms for information sharing are required. The CEO should have the power to refer matters, along with all relevant information, to the commissioner that the CEO believes could constitute an offence, the document says.
Mr. Sprague said the only change the bill will trigger in communication between the offices is the medium, with the commissioner physically separated from Elections Canada.
“In the context of the communication of potential offences to the commissioner under the current legislative scheme, the chief electoral officer has the same status as any member of the public and more or less communicates potential issues and supporting documentation to the commissioner in the same way as would any other person—generally by way of a written communication with supporting information,” he said in an email.
When he was at Elections Canada, Mr. Sprague said the political financing directorate would prepare a document explaining a potential offence and pass it on to the commissioner’s office with all the other relevant documentary information from the CEO. If the commissioner decided to investigate, an investigator from that office would then ask for more information from the political financing directorate.
He said he wasn’t aware of any provision in Bill C-23 that would preclude the CEO from providing information necessary for investigations.
“I expect that the same approach would be employed in the future under the provisions of the bill even if the commissioner’s office should be relocated to the Office of the Director of Public Prosecutions in a different building,” he said.
While much has been made of the bill’s “muzzling” of the chief electoral officer, Mr. Seidle and Mr. Mayrand also expressed concerns about the commissioner’s ability to communicate under C-23.
The director of public prosecutions doesn’t report to Parliament like the chief electoral officer does, but instead reports to the attorney general. Bill C-23 would amend the Director of Public Prosecutions Act by requiring the director to report to the attorney general annually on the commissioner’s activities.
There is no stipulation that this report be made public, as the CEO’s are and as the commissioner’s only report, from 2012-13, was, Mr. Seidle said. However, the Director of Public Prosecutions Act says the attorney general must table the director’s report before both Houses of Parliament.
“Independently of what the powers are on paper—any new offences and so on—they have, through the institutional design, probably created a situation where both the public reporting and the overall independence of the commissioner of Canada elections will be considerably less than in present circumstances,” he said.
Mr. Mayrand told the committee the commissioner would only be able to issue reports through the director and would, like the CEO, be “severely limited” in what he could say publicly.
“As a result, it would be difficult for him to explain publicly why charges could not be laid in a particular case because of problems with how a provision of the act is drafted,” he said. “The bill would also restrict his ability to issue a press release or report reassuring Canadians that, having looked into allegations of voter fraud, he found no evidence of improper conduct.”
Mr. Poilievre told the Procedure and House Affairs Committee last month that the commissioner would still be able to seek information from anyone at Elections Canada.
“None of those powers are removed by the Fair Elections Act, nor does the new legislation prevent Elections Canada from providing information to the commissioner. They can have a free line of communication, one to the other,” he said.
Not only would the chief electoral officer no longer appoint the commissioner—it would be prohibited from consulting him on the appointment.
Mr. Poilievre said moving the commissioner would make the position independent from both Elections Canada and the government.
“The referee should not be wearing a team jersey,” he said on Feb. 4.
Mr. Thomas said that provision creates the impression that Elections Canada isn’t neutral, and that the commissioner needs distance to freely investigate the agency.
“This sports metaphor trivializes and misrepresents the role of impartial administrator that Elections Canada has played since 1920,” he said.
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