Thursday, 29 March 2012

Officers of Parliament: A Primer

Chief Electoral Officer Marc Mayrand
To most Canadians the term 'Officer of Parliament' (alternatively: Agent of Parliament, Parliamentary Watchdog) likely means very little. Yet given recent high profile scandals, chiefly the recent 'robocall' scandal and, prior to that, the Sponsorship Scandal, many will be familiar with the the personalities, if not the office or general institutional arrangements behind them. Indeed, most Canadians are likely able to name former Auditor General Sheila Fraser, arguably one of the more famous individuals to hold that office. Judging from the public reaction to the robocall scandal, however, it seems that Officers of Parliament are grossly misunderstood and, sadly, being disparaged without caused.

First, a brief historical and institutional overview is required. Broadly speaking, Officers of Parliament, as their name implies, are bodies responsible to Parliament as a whole. They are entirely independent of the executive branch. While the Auditor General has often been the most visible - the office and its work have the broadest possible purview since it deals with government spending - the role of the Chief Electoral Officer has come to the fore. These are two of the oldest officers. The Office of the Auditor General traces its roots to pre-Confederation, but its modern incarnation began to take shape after the 1920s and since then its mandate has changed substantially. The Chief Electoral Officer was the second officer to be created as head of Elections Canada in 1920. Trudeau added a third - the languages commissioner - in 1970 to oversee the implementation of official bilingualism in the federal government. Additional officers were added in the 1980s, but they were substantially modified with the implementation of the Federal Accountability Act in 2006 which instituted the current incarnations of the Privacy, Information, Conflict of Interest/Ethics, Lobbying and Public Sector Integrity commissioners. One may also include the Parliamentary Budget Officer, although its reporting function differs substantially. The function of each obviously varies with their individual mandates - as laid out in statute - as do their effectiveness.

Undue criticism has been hurled at the Chief Electoral Officer for the perception of ineffectiveness in dealing with the robocall scandal. Unfortunately this criticism has degenerated into baseless accusations of political or partisan collusion, that somehow Officers of Parliament are beholden to the party that appointed them. This is patently untrue and inherently problematic as it suggests that many of the institutions most central to Canadian democratic governance, from its elections to its bureaucracy and judiciary are somehow tainted. Populist angst over the scandal has undermined public patience in existing institutions and, as a result, the perceived lack of effectiveness or action taken by each has resulted in these baseless slanders. There are many institutional and practical reasons, however, why Officers of Parliament are not even remotely partisan agents beholden to those who appoint them.

First, they are appointed by Parliament as a whole with cross-party input. Moreover, unlike Senate appointments, qualifications - often laid down in statute - must be met. (In the case of the recent Auditor General appointment it does seem some of these qualifications - the ability to speak French for instance - can easily be overlooked). As such, partisan appointments are eschewed in favour of qualified individuals who are vetted and scrutinized. Indeed, the record of action of past agents immediately counters the claim that they are partisan or politically motivated. Sheila Fraser - appointed under a Liberal majority government - was a constant thorn in the government's side, as is the Parliamentary Budget Officer (indeed, he openly contradicts the executive). The smaller agents have also not shied away from taking on the government as has recently been demonstrated. The question that emerges is not one of impartiality, but effectiveness. This is another matter entirely.

Secondly, officers have by statute a significant degree of independence along a number of important axes. First, they have security of tenure, the length of which varies. For instance, the tenure of an Auditor General is ten years while a Chief Electoral Officer serves until retirement. The corresponding side of tenure - removal - is also strenuous. It requires a joint resolution of Parliament - House and Senate - to remove officers. Any attempt to remove an officer for partisan or political purposes is likely to be met with resistance. Indeed, Ontario Premier McGuinty discovered that even considering not renewing a popular yet outspoken Ombudsman's tenure was ill perceived by the media, opposition and, importantly, the public. In addition to tenure and removal, each officer - and the agencies they run, whether it is Elections Canada or the Auditor General - has significant funds at their disposal to hire staff and conduct their operations fully. Indeed, Elections Canada has substantial powers to spend money under the Canada Elections Act. Moreover, officers have significant powers of investigation and reporting. What is lacking, however, is a mechanism of enforcement. Officers rely on public pressure - they use the media to their advantage - to influence the agenda and force Parliament's hand. In the end, it is Parliament that must act to take recommendations into account. Unfortunately in many cases Parliament simply votes to receive reports rather than put them into effect.

As Dawson (1922) notes, the creation of conditions required to propagate independence are twofold: "The first, which is confined to the methods of obtaining the official; the second, which includes the means that determine his independence after his accession to office" (12-13). Officers of Parliament meet both of these important sets of criteria. Officers are highly professional individuals experience and skills required to supplement Parliament's oversight capacity. They are not partisan lackeys or bagmen. Additionally they are secure in their tenure which facilitates independence and have the resources required to undertake their tasks.

There is a great deal of confusion in the public - and, perhaps among politicians - exactly what officers do and what their limits are. Each confront the limits of their respective empowering statutes, although some - like the Auditor General - have been adept at expanding their mandate and consolidating their fiefdoms. The confusion has been particularly palpable in relation to the Chief Electoral Officer. Indeed, her the limits of the statute are evident. Unfortunately, public misunderstanding has imbued powers upon Elections Canada which are not within its purview, chief among them the ability to invalidate elections. It cannot be reiterated enough that Elections Canada lacks both the statutory power and authority to invalidate elections. As has been repeated endlessly, that power rests with the courts alone. Moreover, it is not the place of Elections Canada to suggest or make that case for invalidating an election. Again, the case must be made by citizens before a judge. The powers of Elections Canada are prescribed and finite. First, it oversees the conduct and facilitates elections. Secondly, it has investigative and legal powers - similar to attorney generals - to enforce the elections act. This is actually a fairly unique and broad provision. These functions, like any public legal function, require evidence to prove beyond a reasonable doubt that a crime has been committed. The same stringent legal standards apply as with any other aspect of Canada's criminal code.

As previous posts have indicated, I have made the case for allowing Elections Canada the time to fulfill its mandate in accordance with the rule of law and principles of fundamental justice. Complex investigations of electoral fraud, like any other crime, require the careful gathering and parsing of evidence in order to build a case. Populist sentiment has already reached its verdict, one that sees a conspiracy reaching to the highest echelons of power in the federal executive. They require no evidence beyond gut feelings and unsubstantiated evidence. Thankfully Elections Canada words within a more clearly defined set of standards and legal principles. Certainly the process may seem slow, but no more than any criminal investigation of this size - hundreds of complaints, across 308 ridings and a massive country - or, for that matter, the time frame of a Royal Commission. I repeat again my call to let Elections Canada complete its investigation.

The role of Officers of Parliament is an important one, albeit one that is not fully defined or, in particular, understood by the public at large. Repairing our damaged democratic institutions will not come from further tearing down the entire structure of governance. The response has been to denigrate the courts and officers, labelling them as biased and politically motivated. This is both unhelpful and entirely incorrect. Officers of Parliament are resolutely independent. Moreover, they jealously guard this independence as it is the hallmark of their legitimacy. Without it their work is undermined and of little value. As Dawson noted almost a century ago: The real democracy demands a subtle combination of election and appointment, of non-expert minds and expert minds, of control and trust, of responsibility and independence" (27). Officers represent the appointed expert side of the equation. To be effective they also require the public's trust and confidence.

*Update* The 2012 Federal budget has slashed the budget for Elections Canada, a severe attack on the independence of the institution

Suggested Reading:

R. MacGregor Dawson (1922). The Principle of Official Independence: With Particular Reference to the Political History of Canada

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