Democracy Watch's analysis of Elections Canada's enforcement of the Canada Elections Act since 2004 has revealed that the main problem is no one can tell whether Elections Canada has been enforcing the law fairly and properly because it has failed to report details of how it has investigated and ruled on 2,284 complaints about violations of the Act it received in the past seven years.
All federal politicians who have served on the House of Commons committees that have questioned the Chief Electoral Officer of Elections Canada at least once each year since 2004 have been negligent by failing to notice and question this huge gap in Elections Canada's reports.
Fair elections are a cornerstone of democracy, and part of what Canada's veterans fought to guarantee in past wars. But here we are 144 years since Canada became a so-called democracy and no one can tell whether Elections Canada is enforcing the federal election law fairly and properly.
We have just seen Crown prosecutors cut a deal with the federal Conservatives to end the court case against Conservative senators, party officials and the party over the party's advertising spending scheme in the 2006 election. That case is public because charges were filed, and the Party pleaded guilty in the deal, with the charges against individuals dropped.
The Crown should have pursued the case against the individuals, as there was a likelihood of conviction given the evidence that the officials knew what they were doing and that there were issues concerning whether it could be done legally.
The public can form its own opinion about the situation because what Elections Canada has done in investigating and pursuing the case is public -- but with the 2,284 complaint situations, no one knows what Elections Canada has done.
Unfortunately, this is not an unusual situation. Because of the failure of MPs to ask key questions, and the failures of the heads of various federal good government watchdog agencies, former federal Integrity Commissioner Christiane Ouimet hid her negligently weak enforcement record from 2007 to 2010, as did federal Commissioner of Lobbying Karen Shepherd from 2007 to spring 2011 (and her predecessor Michael Nelson from 2004 to 2007). And the federal Conflict of Interest and Ethics Commissioner continues to hide details about her dangerously weak enforcement record because MPs continue to fail to ask her key questions.
In a February 16, 2011 letter sent to the chairs of six House committees and other key Senate and Privy Council and Cabinet officials, seven Officers of Parliament (including Elections Canada's Chief Electoral Officer Marc Mayrand, by not including Ethics Commissioner Mary Dawson) urged House and Senate committees to watch the watchdogs more closely to ensure they are doing their jobs properly.
However, in recent House committee hearings at which the Chief Electoral Officer, federal Ethics Commissioner Dawson, and federal Commissioner of Lobbying Karen Shepherd have appeared, MPs on the committees have failed to ask them key questions about how and whether they are doing their jobs properly.
The details of Democracy Watch's analysis of Elections Canada's reports on the 2004, 2006, 2008 and 2011 elections is as follows:
- Overall, 4,211 complaints were received by Elections Canada since 2004. Elections Canada provides at least a summary in its post-election reports of how 1,927 complaints were resolved (1,874 of these were summarized in Elections Canada's report on the 2011 election, 43 on its Compliance Agreements webpage, and 10 on its Sentencing Digest webpage). However, Elections Canada has not provided any details about how 2,284 complaints received since 2004 were resolved.
- It is likely that Elections Canada has received many other complaints about which it has never issued public reports or rulings, as the above totals are only about election-related complaints;
- A total of 1,334 complaints were filed with Elections Canada in the 2004, 2006, and 2008 federal elections;
- Elections Canada's October 2004 report on the 2004 election (Enforcement section) stated that 505 complaints had been received, 389 had been resolved, and 116 remained open;
- Its May 2006 report on the 2006 election (section 4.2.4 Electoral Law Enforcement) stated that 329 complaints had been received, 231 had been resolved, and 98 remained open;
- However, Elections Canada provided no details in either the 2004 or 2006 report about any of the complaints, whether resolved or still open;
- In both its 2004 and 2006 reports (in the sections cited above), Elections Canada claims that: "As the cases progress, updated statistics on complaints, investigations and prosecutions appear in the Chief Electoral Officer's periodic reports and publications, as well as on the Elections Canada Web site." No updated statistics have appeared in any of the CEO's reports or publications, nor on its website.
- In its February 2009 report on the 2008 election (section 2.10 Electoral Law Enforcement), Elections Canada stated that 500 complaints had been received, but did not provide any details about the number of complaints resolved or still open;
- In its August 2011 report on the 2011 federal election, Elections Canada did better by including a chart that categorized the 1,872 complaints it had received about accessibility problems (Report on accessibility subsection of section 2.4), and summarized how they had been resolved. Elections Canada also provided a summary of two situations about which it had received 2,956 emails (about interference in an advance poll in Guelph, Ontario), and 700 emails (about a radio interview during the blackout period just before election day);
- However, its 2011 report provided no details about 1,003 other complaints Elections Canada received (Electoral law enforcement subsection of section 2.4), nor any details about how they had been investigated or what rulings had been issued.
- On the Compliance Agreements page of its website, Elections Canada lists only 43 compliance agreements reached since 2004, and;
- On the Sentencing Digest page of its website, Elections Canada lists only 10 convictions since 2004.
Hopefully, MPs will hold soon hearings and request details so that Elections Canada's actual enforcement record over the past seven years will be revealed for public scrutiny. And hopefully MPs will soon change their past practices and consistently and regularly hold hearings at which they ask the questions needed to ensure all the federal good government watchdog agencies are doing their jobs well and properly.