07/19/2012 04:30 EDT | Updated 09/17/2012 05:12 EDT

Vic Toews Campaign Event Mimicking Funding Announcement Raises Questions About Rules

OTTAWA - A campaign event in Public Safety Minister Vic Toews' riding last year had all the trappings of a funding announcement, raising eyebrows among bureaucrats who thought such activities were on hold until votes were cast.

The long-standing practice in Canada has traditionally been for the incumbent government to put off any announcements until after the campaign is over, so as not to exercise undue advantage over the opposition parties.

But Canada still does not have a modern, publicly accessible cabinet manual that outlines what is acceptable or not acceptable in the lead-up to an election and during the campaign.

Canadian constitutional experts say it's high time that Prime Minister Stephen Harper draft one.

"The strong tradition in Canada has never been to make any spending announcements or to make any major appointments during an election campaign, that's been the unwritten rule forever," said David Zussman, director of the University of Ottawa's Graduate School of Public and International Affairs and a former wheel inside the Privy Council Office.

"But, since it's not written down, and it's not a policy, it's not a law, it's not a regulation, people are free basically to do what they feel is appropriate."

Toews' campaign stop during the 2011 election falls into something of a grey zone. Should announcements be made when it's clear the government is about to fall? Where is the line drawn after the writ is dropped?

On March 22, 2011 — one day after a committee found the government in contempt of Parliament and the same day NDP Leader Jack Layton said he would not support the federal budget — Toews put out a press release outlining $160,000 in funding for programs in his riding under the New Horizons for Seniors Program (NHSP).

The government fell three days later, following a motion of non-confidence related to the contempt of Parliament finding.

A few days later, in full campaign mode, Toews appeared at a seniors' centre in Whitemouth, Man., to sing the praises of the new funding.

"These facilities are very important in small communities," Toews said during an event that included local politicians.

The president of the Pioneer Club of Lac Du Bonnet elsewhere in the riding told the local newspaper that she heard the news about the funding for the first time on March 29. The funding manager at the community centre in Dugald, Man., said she got a call from Toews that same week.

Local media appeared to use quotes and communications material that had been produced by Human Resources and Skills Development for MPs and ministers — a package referred to as a "message in a box."

Inside the department, puzzled bureaucrats sent around copies of the local news coverage to one another. The documents were released to The Canadian Press under the Access to Information Act.

"It appears that MPs (or at least one) are using our NHSP (New Horizons for Seniors Program) message in a box that was finalized a couple of weeks ago to make project announcements," wrote one public servant.

"Is there any issue with this? Can MPs make announcements during an election period if they do so without the department's support?"

A senior bureaucrat responded, "No announcements are supposed to be made...PCO (Privy Council Office) has been advised." The Privy Council Office is the prime minister's department.

Julie Carmichael, a spokeswoman for Toews, emphasized that the actual announcement occurred before the election had been called.

"During the last election, Minister Toews highlighted the accomplishments of our government. In this case, it was a campaign stop at a seniors centre," said Carmichael.

"Clearly, those who attended liked what they heard. In Provencher, and all across Canada, our Conservative government received a mandate for a strong, stable, national majority Conservative government."

What might have given the bureaucrats pause within Human Resources was a general understanding that government events are put on hold until following an election.

A 1968 "Manual of Official Procedure of the Government of Canada," only released to The Canadian Press under the Access to Information Act, includes a section describing cases of "restraint" on government business.

That includes situations where the government is facing censure in the Commons — a motion of non-confidence, for example.

"In addition to defeat in Parliament or at the polls other situations may indicate that some measure of restraint might be desirable at least until the Government's position is clarified," reads the document.

But the manual has not been updated in nearly a half-century. The United Kingdom, New Zealand and Australia have all produced new public "cabinet manuals" including so-called "caretaker" conventions about how governments should act during elections and other times of uncertainty.

Mel Cappe, the former Clerk of the Privy Council, said a Canadian manual would include guiding principles that are neither too restrictive or too permissive and would require a judgment call.

"But if (an announcement) could be used for political purpose, it should be on hold. And if it's not urgent, it should be on hold," said Cappe, a professor in the School of Public Policy and Governance at the University of Toronto.

"If there's some consequence to not proceeding, then go ahead and make the announcement. But by consequence I mean substantive consequence, not political consequence, and of course if it's political consequence, do not proceed."

Peter Russell, one of Canada's leading constitutional experts, is another voice lobbying for Prime Minister Stephen Harper to draft a new manual.

"The public service administers the caretaker convention, and we're in this bad situation where I really think maybe 99 per cent of the public don't even know about the caretaker convention," said Russell, professor emeritus of political science at the University of Toronto.

"There's nothing to refer to, except people like me, and that's not satisfactory. Because Canada has not moved ahead with a UK-style cabinet convention, that sets out the principles and policies that apply in a caretaker period, we're handicapped in assessing these situations."

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