Thursday, February 06, 2014

Bill C-23: The Theft Of Democracy Part III

I continue my analysis of Bill C-23 in depth, largely out of the same horror and curiosity that goes with looking at a traffic accident.  Except in this case, it more to shed light upon the various little poison pills and land mines that The Harper Government is slipping into this 240 page monolith.

Today's topic is the appointment of the Commissioner of Canada Elections.  This would be the head of the body responsible for investigating electoral irregularities.

In the pre C-23 legislation, this is a fairly simple piece:

509. The Chief Electoral Officer shall ap- point a Commissioner of Canada Elections, whose duty is to ensure that this Act is com- plied with and enforced. 
C-23 replaces this simple declaration, with the following piece of baroque thinking:
509. (1) The Commissioner of Canada Elections shall be appointed by the Director of Public Prosecutions to hold office during good behaviour for a term of seven years and may be removed by the Director of Public Prosecutions for cause. 
No consultation(2) The Director of Public Prosecutions shall not consult the Chief Electoral Officer with respect to the appointment of the Commissioner. 
Ineligibility(3) A person is not eligible to be appointed as Commissioner if the person is or has been(a) a candidate;(b) an employee of a registered party or a person whose services have been engaged by the registered party to support its electoral or political financing activities;(c) a member of the staff referred to in any of paragraphs 4(2)(a) to (f) of the Parliamentary Employment and Staff Relations Act or a person referred to in paragraph 4(2)(g) of that Act;(d) the Chief Electoral Officer, a member of his or her staff or a person whose services have been engaged under subsection 20(1); or(e) an election officer referred to in paragraph 22(1)(a) or (b). 
No re-appointment(4) A person who has served as Commissioner is not eligible for re-appointment to that office. 
Position within Office of the Director of Public Prosecutions509.1 (1) The position of Commissioner of Canada Elections is within the Office of the Director of Public Prosecutions.
This is interesting in several dimensions that I find troubling.

First, disconnecting the Chief Electoral Officer entirely from the Commissioner's appointment seems to me one which blatantly neuters the ability of the Chief Electoral Officer to influence the investigation of any electoral irregularities that they become aware of.  Further, it makes very little sense to move the position of the Commissioner under the auspices of the Director of Public Prosecutions.  While this is not guaranteed to fail, I suspect that the complexities of additional lines of communication that will be required are intended to impede the ability to investigate irregularities.

The list of exclusions is even more concerning.  Depending upon how one reads this, anyone who has ever run for public office, and anyone who worked on those campaigns is automatically excluded from being eligible for this position.  It seems to me that while the Conservatives will claim that this is intended to stop patronage appointments to "old political friends" from happening, what it really does is ensure that anyone who has been burned by electoral misdoing on the part of other parties doesn't get anywhere near a place where they could actually prosecute it.

Section 510 is all the more troubling:

Investigation by Commissioner510. (1) The Commissioner, on his or her own initiative or in response to a complaint, may conduct an investigation if he or she believes on reasonable grounds that an offence under this Act has been committed.Notice(2) As soon as feasible after beginning an investigation, the Commissioner shall give written notice of the investigation to the person whose conduct is being investigated. The notice is not to be given if, in the Commissioner’s opinion, to do so might compromise or hinder the investigation or any other investigation. 
Independence(3) The Commissioner is to conduct the investigation independently of the Director of Public Prosecutions. 
Confidentiality510.1 (1) Subject to subsection (2), neither the Commissioner nor any person acting under his or her direction shall disclose any information relating to an investigation that comes to their knowledge in the exercise of their powers or the performance of their duties and functions under this Act, including information that reveals or from which may be inferred the name of the complainant, if any, the person whose conduct is being investigated or any witness. 
Disclosure authorized(2) The Commissioner may disclose or may authorize any person acting under his or her direction to disclose(a) with the consent of the person in question, the name of any of the following: the complainant, if any, the person whose conduct is being investigated and any witness;(b) information that, in the Commissioner’s opinion, is necessary to carry out an investigation;(c) when a matter is referred to the Director of Public Prosecutions under subsection 511(1), information that the Director of Public Prosecutions requires;(d) information that is required to be disclosed in the course of a prosecution for an offence under this Act;(e) information that is required to be disclosed under any other Act of Parliament; and(f) information that, in the Commissioner’s opinion, is necessary in order to enter into or renegotiate a compliance agreement.
This entire section is written in such a way as to guarantee that an investigation of electoral wrongdoing never sees the light of day as far as the public is concerned.  Even worse, it sets up whoever lodges a complaint to be subject to retaliation from the party that is being investigated.

Canadians have a right to be aware of investigations into electoral wrongdoing and the outcomes of those investigations.  With the way that this has been structured (and no doubt given the rules of the office of Public Prosecutions), there is no way that these investigations will see the light of day.  Of course, this suits Harper just fine, because it enables his MPs to break all the electoral rules they want, and unless something ends up on the public record (e.g. charges filed in a court), there is no way that the public will hear a peep about what is going on.

All this from the party that ran on a platform of being "more open and accountable" not so long ago.

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