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Refusal to disclose past rulings illegal, and raises question of whether Chief Electoral Officer will keep commitment to disclose rulings on more than 1,300 robocall complaints – full public inquiry needed More than 44,000 messages have been sent by Canadians through

Democracy Watch’s letter-writing drive calling for disclosure of election complaint rulings, and other fair election enforcement measures

Monday, November 19, 2012

OTTAWA – Today, Democracy Watch released Elections Canada’s preliminary refusal and final refusal to disclose its rulings on more than 3,000 complaints filed by Canadians in the past 15 years, which Democracy Watch requested under the federal Access to Information Act initially last March.

Elections Canada’s main reason for refusing to disclose the rulings is that the rulings could make the Commissioner of Elections look bad – which is a bizarre reason given that Elections Canada has sent a ruling letter to each of the complainants, and all Democracy Watch has requested are copies of those already public letters.

By deciding to keep its complete past record of enforcement of the Canada Elections Act secret, Elections Canada also raises serious doubts about whether it will actually disclose the rulings the Commissioner makes after investigating the 1,300 robocall complaints filed during and after the 2011 election.  It is completely contradictory and hypocritical for Elections Canada to commit to disclosing its rulings on every robocall complaint while at the same time refusing to disclose its rulings on past complaints.

More than 44,000 messages have been sent by Canadians to key politicians through Democracy Watch’s national letter-writing drive calling for clear requirements to disclose election complaint rulings, and for passage of other fair election and strong enforcement measures.

“Elections Canada raises serious questions about its commitment to transparency and accountability by refusing to disclose its rulings on more than 2,000 complaints filed during elections since 1997, on an unknown number of complaints filed in-between elections since 1997, and on more than 1,000 complaints filed during the 2011 election, even though the Access to Information Act allows the rulings to be disclosed, even though the Canada Elections Act requires that most of the rulings be disclosed, and even though the rulings have been publicly  disclosed in letters to almost all the complainants over the past 15 years”  said Democracy Watch Coordinator Tyler Sommers.  “This is more evidence that a full public inquiry is needed into how Elections Canada has been enforcing the law for the past several elections, because if it is allowed to keep its rulings secret it can hide a biased, unfair or ineffective enforcement record.”

Democracy Watch will continue to seek the information from Elections Canada as the public has a clear right to see the rulings that any law enforcement agency makes on any complaint.  If this information is kept secret, it is a recipe for abuse and corruption as it can allow any agency to hide a biased, unfair, discriminatory, ineffective or otherwise improper enforcement record.

Last March, Democracy Watch submitted an access to information request about a total of 2,982 complaints people have filed during elections since 1997, requesting the ruling letters Elections Canada has sent to the complainants.  Democracy Watch also requested the ruling letters Elections Canada has sent to an unknown number of people who filed complaints in-between elections (the total is unknown because Elections Canada does not disclose any information about complaints it receives in-between elections).

Democracy Watch was seeking the rulings on complaints about possible violations of the Canada Elections Act over the past 15 years, with the personal information removed, in order to determine whether Elections Canada has been fairly, properly, and effectively enforcing the Canada Elections Act since 1997.  Democracy Watch has serious questions about the effectiveness of Elections Canada’s enforcement given a very questionable ruling Elections Canada made in July (the complainant sent the ruling to Democracy Watch).

In a preliminary letter and then final letter responding to Democracy Watch’s Access to Information request, Elections Canada invoked a blanket exemption in the Access to Information Act, section 16.3 (SEE below) which allows the Chief Electoral officer to refuse any record that contains information “created by or on behalf of a person who conducts an investigation, examination or review in the performance of their functions under the Canada Elections Act.”  In using this exemption, Elections Canada stated that the reason was:

… there is a very [real] risk that if all the responses to complainants were released, precisely because they are drafted in a summary way and because they do not provide the full background to any decision, erroneous or wrong conclusions could be drawn with respect to particular cases or to classes of cases, which could negatively affect the Commissioner in the discharge of his mandate.

This, as with the other excuses Elections Canada is using to refuse to disclose its past rulings, is an invalid concern.  Democracy Watch was only requesting the final ruling letter sent to each complainant, not information about the investigations, examinations or reviews of the complaints.  As well, if all past rulings have been legally correct and proper, Elections Canada will have no difficulty at all convincing the public that it has been fairly, properly, and effectively enforcing the Canada Elections Act.

In addition, section 16.3 of the Access to Information Act is restricted by section 541.(1) of the Canada Elections Act (SEE sections set out below) which explicitly states that correspondence and other reports of this nature, specifically “all decisions or rulings” by the Chief Electoral Officer (CEO) “are public records and may be inspected by any person on request during business hours.”  It is very likely that most of the complaints were ruled on by the CEO as most would be about minor disputes and problems that would not have been referred to the Commissioner of Canada Elections for investigation and/or possible prosecution.

Also, Elections Canada has sent a letter with its ruling to each complainant, so it has already made each ruling public, and in doing so it has made it clear that it is comfortable with members of the public seeing the rulings.

Elections Canada is also trying to use the excuse that the ruling letters contain private personal information (such as the name of the complainant) – but Democracy Watch made it clear in its request that it was fine with that information being kept secret and redacted from the rulings.

Democracy Watch will continue to push Elections Canada to disclose all its past rulings since 1997 to ensure the public has the evidence it needs to determine whether Elections Canada’s enforcement record over the past 15 years has been fair and effective.

 

 

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16.3 Access to Information Act

Subject to section 541 of the Canada Elections Act, the Chief Electoral Officer may refuse to disclose any record requested under this Act that contains information that was obtained or created by or on behalf of a person who conducts an investigation, examination or review in the performance of their functions under the Canada Elections Act.

541.(1) Canada Elections Act:

Inspection of instructions, correspondence and other reports

541.(1) All documents referred to in section 403.35, 424, 429, 435.3, 435.35, 451, 455, 478.23 or 478.3, all other reports or statements, other than election documents received from election officers, all instructions issued by the Chief Electoral Officer under this Act, all decisions or rulings by him or her on points arising under this Act and all correspondence with election officers or others in relation to an election are public records and may be inspected by any person on request during business hours.

19.(1) Access to Information Act

Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined by section 3 of the Privacy Act.