Tuesday, April 29, 2008

Call in the UN Election Observers

Maybe it's best to just treat opposition motions as meaningless stunts but, at the same time, it's hard to see the governing party voting non-confidence in the body tasked with organizing fair elections as inconsequential.

For starters, William Corbett and other top officials are going to have to resign or be Keened. The government can't say it doesn't trust elections officials and then not replace them. So that alone means it's gonna get messy.

As for the talk about this hurting Elections Canada's credibility abroad...well, I doubt many Canadians will even know this has happened, never mind many Haitians (then again, I'm sure those with a satellite dish always tune into Don Newman). Domestically, the Tories are going to have to clarify their position because, with an election around the corner, this leaves things in a bit of an awkward position.

In short, I don't think this feud is going to go away anytime soon...


UPDATE: Via a very knowledgeable anonymous poster in the comments section, clarification on how this whole thing works:

There's an important distinction between the positions of the Chief Electoral Office and the Commissioner of Canadian Elections and the positions of a member of the CNSC and the president of the CNSC.

Linda Keen is a permanent member of the CNSC appointed by the Governor in Council under s. 10(1) of the Nuclear Safety and Control Act. She was formerly designated the president of the CNSC by the Governor in Council pursuant to s. 10(3). A permanent member may only be removed by the Governor in Council for cause (s. 10(5)).

It appears that the government received legal advice that it had no cause to remove Keen from the Commission. Instead, it stripped her of her designation as president. She remains a member of the CNSC.

Contrast that with the positions of the Chief Electoral Officer and the Commissioner of Canada Elections, who are actually even more protected against reprisal by the government.

Under s. 13 of the Canada Elections Act, the House of Commons appoints the Chief Electoral Officer by resolution. The CEO may only be removed for cause by the Governor General on address of the Senate and House of Commons. In other words, the Governor in Council has no power to remove the CEO, for cause or otherwise. Only the Governor General, on the advice of Parliament, has that power.

The Commissioner is appointed by the CEO pursuant to s. 509 of the Canada Elections Act. As it is the role of the Commissioner to ensure the Act is enforced, I doubt anyone other than the CEO could remove the Commissioner, and then only for cause.

So, it is irrelevant insofar as the CEO or Commissioner's security of tenure is concerned that the government has voted no confidence. What is important is that the CEO retains the confidence of Parliament, which he has.

So, I'm not too concerned about Elections Canada. They're protected against reprisals, and even if the Conservatives did damage the institution's reputation, I think Canadian democracy will survive.

The really interesting question is where we go from here.

What happens if and when the Conservative lose a court case on this. What happens if their judicial review application gets dismissed? What happens if the Conservative Fund or the Conservative Party gets charged with and convicted of an offence? Will they then vote no confidence in the courts?

It is one thing for the government to vote no confidence in the institution that runs elections.

It is another thing entirely for the government to essentially deny the legitimacy of the institution that enforces the constitution and the rule of law. Enough wingnut Reform types have muttered about "activist judges" and "out of control courts" in the past that I would not dismiss this eventuality out of hand if a court has to make a decision on "in and out".

And that's when I'll get concerned.

10 Comments:

  • CG,

    There's an important distinction between the positions of the Chief Electoral Office and the Commissioner of Canadian Elections and the positions of a member of the CNSC and the president of the CNSC.

    Linda Keen is a permanent member of the CNSC appointed by the Governor in Council under s. 10(1) of the Nuclear Safety and Control Act. She was formerly designated the president of the CNSC by the Governor in Council pursuant to s. 10(3). A permanent member may only be removed by the Governor in Council for cause (s. 10(5)).

    It appears that the government received legal advice that it had no cause to remove Keen from the Commission. Instead, it stripped her of her designation as president. She remains a member of the CNSC.

    Contrast that with the positions of the Chief Electoral Officer and the Commissioner of Canada Elections, who are actually even more protected against reprisal by the government.

    Under s. 13 of the Canada Elections Act, the House of Commons appoints the Chief Electoral Officer by resolution. The CEO may only be removed for cause by the Governor General on address of the Senate and House of Commons. In other words, the Governor in Council has no power to remove the CEO, for cause or otherwise. Only the Governor General, on the advice of Parliament, has that power.

    The Commissioner is appointed by the CEO pursuant to s. 509 of the Canada Elections Act. As it is the role of the Commissioner to ensure the Act is enforced, I doubt anyone other than the CEO could remove the Commissioner, and then only for cause.

    So, it is irrelevant insofar as the CEO or Commissioner's security of tenure is concerned that the government has voted no confidence. What is important is that the CEO retains the confidence of Parliament, which he has.

    So, I'm not too concerned about Elections Canada. They're protected against reprisals, and even if the Conservatives did damage the institution's reputation, I think Canadian democracy will survive.

    The really interesting question is where we go from here.

    What happens if and when the Conservative lose a court case on this. What happens if their judicial review application gets dismissed? What happens if the Conservative Fund or the Conservative Party gets charged with and convicted of an offence? Will they then vote no confidence in the courts?

    It is one thing for the government to vote no confidence in the institution that runs elections.

    It is another thing entirely for the government to essentially deny the legitimacy of the institution that enforces the constitution and the rule of law. Enough wingnut Reform types have muttered about "activist judges" and "out of control courts" in the past that I would not dismiss this eventuality out of hand if a court has to make a decision on "in and out".

    And that's when I'll get concerned.

    By Anonymous Anonymous, at 12:46 AM  

  • If the following article is correct, the Bloc started this whole In-and-Out thing:

    http://www.bluelikeyou.com/2008/04/29/bloc-the-original-in-and-outers-thompson/

    And didn't the Liberals just finish up a suit against Elections Canada on a similar issue?

    Liar, all of them

    By Blogger burpnrun, at 9:35 AM  

  • yeah this "scandal" is going to last all of "air" Don Newman can milk.

    and the rest of us get on with our lives.

    next election October 2009.

    will Dion still be Leader?

    By Blogger art, at 10:16 AM  

  • There has to be a point -presumably in the next few months-- where if things dont get better fast, the Cons are going to start calling for their leaders resignation.

    Who would have thought it would come to this?

    By Blogger BenParsons, at 10:29 AM  

  • anon - thanks for that clarification!

    By Blogger calgarygrit, at 10:47 AM  

  • BenParsons: Only in your dreams. Good joke, wrong party.

    By Blogger burpnrun, at 12:04 PM  

  • Anonymous has some excellent points about the role of Elections Canada. I would only add an equally troubling question: what if the Conservatives are right? If so, Elections Canada's actions in this matter would have to be reviewed. Either way a national institution or national political party is going to be damaged and that is not good for Canada.

    By Anonymous Anonymous, at 1:23 PM  

  • "I would only add an equally troubling question: what if the Conservatives are right?"

    Geez, yeah! What if they WIN their court case and what if it is shown that EC DOES discriminate between the parties and what if it is shown that EC failed to follow their own procedures in getting a warrant to search? What if? You guys are so sure EC will win, in fact too sure by half. Why are you guys so sure? Hmmm. What if you're so certain because you know that EC, the courts, and the public service DO have a Liberal bias? What if?

    By Blogger The Rat, at 1:48 PM  

  • The "winner" of the court case will not determine whether or not EC is biased.

    The case turns on the interpretation of a loophole. If the CPC win it is because they successfully exploited a loophole. That does not necessarily mean that EC were biased for investigating them.

    If the court finds bias that is another thing, but in order to do so the CPC are going to have to bring forward some actual evidence - which they have not done so far.

    By Blogger Gayle, at 3:59 PM  

  • Gayle, actual evidence of bias?

    No courts can draw inferences on such things as:

    ignoring one party's similar or identical conduct, while taking extraordinary steps to prosecute another,

    recognizing that the purpose of elections laws are to ensure fairness, and if they're only enforced against one of the parties, not only is that wrong, and corrupt, it's the most improper breach of power one can imagine in the circumstances:

    using an institution designed for election fairness, to unfairly prejudice one party, ostensibly for political purposes.

    A taste of what's yet to come: when confronted in the House as to the notion that they too were engaging in similar election tactics, the Libs response is "that's not the point".

    Of course, that's precisely the point. Isn't it?

    By Blogger biff, at 11:01 PM  

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