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Harper's election reform menu has too many poison pills

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Democratic Reform Minister Pierre Poilievre's new, self-styled "Fair Elections Act" does contain at least a few positive changes.

Even Opposition Critics such as the NDP's Craig Scott recognize that.

The Act would create a registry of "voter contact" calls, for instance, although records will only be maintained for a year, and it would put those "contact" activities under the supervision of the CRTC.

The Act also introduces prison terms for impersonating an Elections Canada official, and increased penalties for the use of deception to prevent people from voting.

It increases fines for such offenses as overspending, although it limits maximum fines, for the most part, to $50,000. (Political financing offenses committed "intentionally" are subject to a maximum $100,000 fine.)

An earlier NDP Bill had recommended maximum fines of up to $500,000, and, for election overspending, former Chief Electoral Officer Jean-Pierre Kingsley recommends a fine of twice the amount by which a party has overspent.

Kingsley points out that there has been overspending in the recent past of well over one million dollars. In those cases, a $50,000 fine is just a cost of doing business. Paying a two million dollar fine would have real deterrent value, Kingsley argues.

Poilievre's proposed reform also creates the new offenses of obstructing an investigation and providing false information to an investigator.

That's the good part.

What the new legislation does not do is give powers to the people who investigate abuses that the Chief Electoral Officer, Marc Mayrand, says are absolutely necessary.

In the current robocall case the investigators have been stymied by the stonewalling of people who quite likely have important information. Mayrand has recommended that the chief elections investigator, the Elections Commissioner, have the capacity to compel such people to answer questions.

It is not surprising Poilievre ignored that recommendation.

Most of those who are currently making themselves unavailable to investigators are associated with the 2011 Conservative election campaign.

Weakening the investigation role

But Poilievre has gone further. He plans to weaken the capacity of investigators.

The official responsible for all election related investigations is the Elections Commissioner, who is currently appointed by the head of Elections Canada, the Chief Electoral officer.

Now, Poilievre wants to separate the Commissioner, and his/her investigating functions, from Elections Canada and house it in the office of the Public Prosecutor.

Kingsley wanted to be charitable when commenting on this idea, which, to anyone who has followed this issue, seems to come out of thin air. Nobody has ever proposed such a move.

The former Chief Electoral Officer told one interviewer that Poilievre's proposal for the Commissioner "could work; but I doubt that it will."

Opposition MPs have had stronger words.

They point out that the principal elections investigator's office will now be separated from the source of evidence and information about possible election abuse.

This new arrangement will make it more difficult to look into cases of fraud and voter suppression. It will turn the Commissioner into what one critic called a "passive player."

And the Conservatives probably want it that way.

Accusing Elections Canada of bias

Poilievre claims the Commissioner has to be independent both of political parties and of the non-partisan, neutral body, Elections Canada -- an agency that, as Liberal Leader Justin Trudeau noted, is respected around the world.

The Conservative Democratic Reform Minister goes on to justify the separation of the Commissioner from Elections Canada by the strange argument that the "referee should not be wearing a team jersey" -- suggesting that Elections Canada is somehow a partisan entity.

Those are pretty strong words, and based on no facts or evidence whatsoever.

This bizarre rationalization from the Minister supports the view of many that what Poilievre is doing is as much about payback for Mayrand -- who has had the gall to pursue the Conservatives for a series of abuses -- as it is about fairer elections.

What is even more worrying than the petulant and vindictive nature of Poilievre's scheme is the degree to which the new system will be much less effective than what it would replace.

Overall, Poilievre's reform is the equivalent of a government creating a series of new criminal offenses (although without commensurately serious sanctions), but then severely hobbling the power of the police to investigate them.

That would hardly be a recipe for reducing crime.

Allowing more money into the system and a great big loophole

And there is yet more.

For some inexplicable reason, the Conservatives think there is not enough money floating around in Canada's electoral system. So the new legislation would up the amount Canadians could contribute to political parties, and increase the amount parties could spend on campaigns.

At the same time, Poilievre's proposed new law would take away all of the Chief Electoral Officer's public education powers. Elections Canada will be severely curtailed in its ability to share the neutral and non-partisan information with Canadians.

Poilievre then adds in what may be the weirdest provision of all: he would exempt from campaign spending limits money parties spend on reaching out to donors. In other words, most fundraising activities would be not be subject to any spending limits.

The Minister makes the superficially plausible argument that raising money is one thing, spending it on a campaign is something else.

However, anyone who has witnessed how the Conservatives (and other parties) raise money knows Poilievre's claim is utter sophistry.

When parties reach out to potential donors, they don't just ask them for money; they rally their troops' enthusiasm with political messages. In reality, fundraising and political campaigning are intricately linked and cannot be cleanly separated.

Poilievre's proposed loophole -- and that is what it is -- would almost certainly become a huge gap in the rules. Exempting parties' so-called "fundraising" expenditures from spending limits would allow massive, unregulated campaign spending for parties that had the cash to pay for it -- all under the guise that they weren't, technically, campaigning, merely "fundraising."

If that provision passes Parliament back room operators across the land will be rubbing their hands with glee.

There are, in the end, a number of provisions in Poilievre's bill that all parties could support. But for this reform to really be a reform -- and not a disguised step backwards -- the proposed legislation would have to be amended in many major ways.

This Conservative government's record on allowing serious consideration and amendment of legislation is not a good one.

Whenever their legislation is vigorously contested Harper's government brings down the hammer, in the form of time allocation, and forces it through the House.

To force such a fundamental reform as Poilievre's proposed new Act through Parliament without even considering reasonable improvements would be a sign that Harper and his troops really have scant respect for democracy.

We'll see how it all works out.

The "Fair Elections Act" is now before the House.

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