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The Fair Elections Act Is Not Fair at All

02/19/2014 05:07 EST | Updated 04/21/2014 05:59 EDT

Last week, the Harper Conservatives introduced a Bill in Parliament to amend the Canada Elections Act. At first glance the title "Fair Elections Act" implies there is an effort to fix and correct some problems in order to protect the integrity of our electoral system. This Bill, however, is not fair; it is an attempt to provide an advantage to the Conservatives in the upcoming election and it is as an attack on the independence of Elections Canada.

Let's recall the events that transpired over the past two years. Following the 2011 federal election, Canadians from coast to coast expressed significant concern about the behaviour of the Conservative Party of Canada and their all-out effort to win the election at any cost and by any means. The Conservative record includes:

  • In and Out Scandal - The Conservative Party pled guilty to election overspending and submitting inflated election returns, and had to pay the maximum fine under the Elections Act.
  • Fraudulent election Robo-calls - Federal Court Judge Richard Mosely noted that electoral fraud did occur during the 41st General election, and he stated that: "I am satisfied, however, that the most likely source of information used to make the misleading calls was the CIMS database maintained and controlled by the Conservative Party of Canada..."

There are also some individual instances of electoral offences within the Conservative Party. Here are the ones we know about:

  • Conservative Peter Penashue - A former senior Conservative Cabinet Minister who had to resign his seat due to major election overspending in contravention of the clear rules.
  • Conservative MPs from Saint Boniface and Selkirk Interlake - The Chief Electoral Officer wrote to the Speaker of the House of Commons to ask that they be suspended from the House for Election Act violations.
  • Conservative MP from Peterborough - A former Parliamentary Secretary to Prime Minister Harper, who was kicked out of the Conservative caucus after being charged with Elections Canada infractions.

The common link in all of these cases is that Elections Canada held the Conservative Party accountable for breaking the law. The so called "Fair Elections Act", far from being fair, is political pay back -- a form of legislative revenge. There is much to criticise about the Bill, including a serious and deliberate omission.

Following the 2011 federal election, the Chief Electoral Officer of Canada called on Parliament to provide his enforcement arm, the Commissioner of Elections, with the power to compel witnesses to testify during an investigation. This was in response to Canadians expressing concerns about election fraud and cheating. As it currently stands, individuals possibly involved in election fraud cannot be compelled to testify until trial. When Elections Canada sought testimony from Conservative operatives in the course of investigating what took place during the 2011 election, they refused and one individual left the country.

Not only did the Conservatives deliberately exclude the power to compel witnesses in this new "Fair Elections Act," but now the Commissioner of Elections Canada will no longer be appointed by the Chief Electoral Officer. This means that instead of being accountable to Parliament, the Commissioner will be accountable to the Attorney General. This is a direct attack on the independence of the Commissioner.

Instead of strengthening the Commissioner's investigative power, the Conservatives have simply changed the location of his desk. Without the new investigative powers requested by Elections Canada, the Commissioner will not be able to effectively enforce the Canada Elections Act.

The result: Conservatives partisans involved in orchestrated voter suppression techniques will still be allowed to clam up and refuse to talk to Elections Canada investigators.

Meanwhile, Conservatives are busy spinning and distorting. The Conservative Minister leading the charge on the "Fair Election Act," is a fellow name Pierre Poilievre. Here are his talking points which he repeats Ad nauseam.

1. True: The Commissioner has the right to seek a warrant, but a warrant grants access to documentary and physical evidence. A warrant does not empower the Commissioner to get any witness to speak to him. Nobody is obliged to answer questions on the very documents seized during an investigation.

2. True: If there are charges, witnesses can be subpoenaed to testify, but if there are no charges, there can be no subpoena, and when the conspiracy of silence kicks in, the very evidence needed to lay a charge is impossible to obtain.

3. The powers of the Commissioner are equal to those of a police officer investigating heinous crimes.

False: Unlike the Elections Commissioner, police have the additional power to seek an authorisation to intercept private communication -- commonly known as a wiretap in criminal investigations. The Minister is incorrect when he suggests that police officers investigating a crime have the right to compel someone to speak to them. It's not true.

What we need is for Parliament to provide Elections Canada with the same power it gave the Competitions Bureau. The Director of the Competitions Bureau possesses the very power the Chief Electoral Officer is seeking, namely the power to compel witnesses to testify before a charge is laid. This power is found in section 11 of the Competition Act. Interestingly, a wiretap is also available to authorities investigating offences under the Competition Act.

I recently posed this question to a Conservative MP in the House of Commons: Why is it that someone investigating price fixing has greater investigative powers than the current government is prepared to give to Elections Canada in investigating electoral fraud?

I received nothing but silence from the Conservatives.

This post originally appeared on Sean Casey's blog.

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