Con Senators hoisted by their own petards

... in which Conservative Senators harangue Elections Canada CEO Marc Mayrand for answers that he is no longer able to deliver because the Con's Fair Elections Act removed Elections Canada's Commissioner from Elections Canada and placed him under the aegis of the Public Prosecutors Office where Mayrand is not privy to its investigations.

Elections Canada CEO Mayrand had barely begun giving the Senate Committee on Legal and Constitutional Affairs his report on the last federal election when the Chair interrupts and asks him to wrap it up because they have many questions - questions propelled, it is explained, by the particular interest of Senator Linda Frum. Oh goodie.

Con Senator Daniel Lang: "Registered third parties. Can you confirm that registered political parties are not allowed to accept money from foreign donors over the course of an election?"

Mayrand : You have to be a Canadian citizen.

Lang : We have now seen that third parties can do much more than political parties, such as raising money from foreign interests in the U.S. and elsewhere to influence public policy and elections in Canada. This past election, registered third parties like Dogwood Initiative and LeadNow have publicly admitted that they receive foreign moneys, run campaigns, even published pushpolls under your interpretation of the act as I understand it. All they can't do is advertise over a set amount during the writ. Can you tell me was it the intention of the Act as interpreted by the Supreme Court to allow third parties to actively campaign prior to and during elections?

Mayrand : Within certain limits and spending caps, third parties, provided they register if they spend more than $500, are allowed to do advertising during the campaign. That is specifically provided for in the legislation. 

Lang : So a registered third party during a political campaign, except for a restricted area, can accept foreign money to help run and be involved in a campaign?

Mayrand : They can.

Lang : It has come to my attention that there are a number of these third party registered organizations, who it would appear have been willfully circumventing the Elections Act or acting as a party to circumvent the Act. Can you tell us up to now how many complaints you have received from Canadians, or have you received complaints from Canadians or from political parties related to third party groups and third party advertising, and if so, how many are you actually investigating?

Mayrand : Complaints would have been directed to the Commissioner of Canada's Elections who is tasked with assuring compliance with those provisions, so I would not be aware of the type of complaints the Commissioner has received. 

Lang : So this wouldn't be discussed with you? Because it seems rather strange it wouldn't be. 

Mayrand : With the separation of the offices, we can no longer have those type of discussions so I am not aware of what type of feedback, comments, or complaints that the Commissioner would have received in this matter. 

Lang : What I don't understand is why you wouldn't be aware this type of thing was occurring. In your report you talk about investigations, you talk about contraventions of the Elections Act ...

Mayrand : These are files that were referred during the election by my office, matters brought to my attention mostly by Canadians during the election - allegations that could potentially be an offence - and in that case I can refer the matter to the Commissioner. But I have no sense what the Commissioner or how he will handle those files. He will handle them according to his own protocols, and I am not aware of complaints that are directly addressed to the Commissioner.

Lang : So when are you made aware?

Mayrand : Only if Canadians bring something to my attention, and if it actually raises a matter of potential offence to the Act, then I will refer it to the Commissioner. It's not a two-way communication process. 

Lang : So for the record you have no knowledge of what I just asked.

Mayrand : Not with respect to what is the Commissioner's.



I imagine that Senator Lang had forgotten all about how their party's 2006 Accountability Act removed Elections Canada's power to compel testimony and documents from witnesses, legislation which I'm guessing would be useful if, say, EC wanted to investigate the alleged registered third party election violations that have Senators Lang and Frum so up in arms. 

The senators also seem to have forgotten that, under the pretence of combatting non-existent voter fraud by electors, the Con's Fair Elections Act moved Elections top cop the Commissioner out of Elections Canada and into the office of the Director of Public Prosecutions, so Mayrand isn't privy to its investigations and consequently can't answer or act on the Senators' questions.

Well played, guys.  

And so it went for an hour and forty minutes with the Conservative Senators led by Linda Frum and Daniel Lang badgering Mayrand for answers and opinions about LeadNow and Dogwood Institute expenses, as well as their funding received outside the writ period and therefore outside his jurisdiction. 

Senator Frum was particularly exercised about "an organization in the US that is against pipelines" providing funding to third parties in Canada to hold rallies and music concerts and tell people not to vote for Harper.  

She then brought up Harper v. Canada, the 2004 Supreme Court challenge launched by Stephen Harper as head of the National Citizens Coalition. He sought to strike down Canada Elections Act's legal spending limits on third party advertising during elections. Harper lost that case and Canada was spared much of what became Citizens United five years later in the US. 

I'm not sure in Senator Frum's party shoes that I would have brought that one up.


This week the Liberals repealed much of the Fair Elections Act but media reports that it is dead are somewhat exaggerated. The Liberals have yet to return to Elections Canada either their former independence or their investigative powers taken away under Harper. 

And finally, several Conservative senators pressed Mayrand to agree that given the 2015 Federal Election had the highest voter turnout in years, that it must mean the Fair Elections Act had done its job. 

Words fail me ...
.