Tuesday, 13 March 2012

You Say You Want a Royal Commission?

The fallout from the 'robo-dialing' scandal has brought with it certain demands, some of which are beyond the pale both in terms of feasibility and desirability. First, many protesters have demanded that the entire forty-first federal election be overturned. This is highly unlikely for a few reasons. To begin with, it would require judges overturning 307 (Toronto-Danforth by that time already having had a by-election) individual riding results and necessitating the calling of simultaneous by-elections. The power to null and void an entire election outright is not a power the judiciary possesses and therefore this improbable confluence of events is the only way. The other improbable scenario is the Governor General unilaterally dissolving Parliament. For a number of reasons, this will not happen. Yes, it is technically within his powers, but there are a number of constitutional and practical reasons for doing so. The execution of crown powers occurs usually on advice of the Queen's advisers, in this case the Prime Minister and Cabinet. Additionally, asking the GG to decide such a matter unduly politicizes the office, something with serious ramifications. In short, without the voluntary calling of an election  by the Prime Minister - who still holds the confidence of the House, the cardinal rule of political formation in Canada - Parliament is not going to be dissolved as a whole.

The second of these vocal demands has been the calling of a commission of inquiry, either a Royal Commission or a public inquiry without the luxury of fancy titles. This, it seems, is a somewhat more reasonable demand. From a more populist perspective this makes sense. The public demand to know exactly what transpired and the depth - or heights - to which it extends. Certainly the argument that the people have a right to know is entirely sound. The question remains, however: is this step the appropriate one, particularly at this stage in the game?

The distinction between a Royal Commission and a public (or commission) of inquiry. Is a slight one in terms of powers and ability. Both may call witnesses and compel evidence, possessing a wide array of functions and  jurisdiction. A Royal Commission maintains a heightened sense of importance or urgency. Indeed, it carries with it Her Majesty's royal seal. Yet on a basic level, there is a clear reason not to call a royal commission, even if it is for the sake of semantics. Royal Commissions are tasked with investigating weighty matters which are national in scope - although they may also be called by provinces and thus address urgent provincial matters - and have important bearing on the country as a whole. They tend, with few exceptions, to deal with questions of governance which require greater attention and expert investigation. As such, the most famous commissions have dealt with, among other things the relationship between provinces and territories, Canada's place within the North American continent, the national character and the question of Quebec and the future of Aboriginal Canada. Royal Commissions report to the political executive which is tasked with forging a strategy in response. In many cases, however, little action may be taken, as was the case with the report pertaining to Aboriginal Peoples in 1996. 


Commissions of inquiry, conversely, tend to deal with more isolated events - although there are exceptions, notably Air India and Gomery - or criminal wrongdoing. While the current scandal does hint at a legitimacy crisis for the current government and is, as it continues to expand, a national problem, it lacks the calibre to demand the royal prefix. The fundamentals of Canada's electoral regime are sound. While the robocalls may have been systematic - in that they were deliberately planned and widespread - they are not systemic in the sense of an overarching pathology. As such, there is nothing inherent in the system itself which warrants in-depth or sustained attention. Indeed, there are already safeguards built in to the legislation governing elections which outlaw misleading voters and electoral fraud. Moreover, despite the complaints the machinery of accountability is already in motion. As is often the case with populist demands, however, the pace of the investigation is far too slow to meet public expectations. It is worth recalling that when it looks like the machinery has failed - for instance the "Billion Dollar Boondoggle" - it is actually fully functional. The demands of modern publics and the speed of information no doubt enhance the perception of an inept and useless mechanism, in this case at Elections Canada.

There is also a question of what an inquiry will uncover and, importantly, what recommendations it could possibly make. At the very least the Elections Canada investigation should be allowed to come to completion and, at that time, the RCMP and the legal system should be brought to bear on the case. Until the scope is understood - and allegations verified - a commission of inquiry is simply jumping the gun. It is important to note that commissions of inquiry are less about finding personal guilt or responsibility and more about identifying institutional weak points and failures. As notes above, there is nothing inherent in the electoral system which gives rise to this behaviour - unless one counts the nature of the Conservative party - and, as such, there would be few recommendations to be made in order to prevent this from happening again. It is likely that a commission would identify wrongdoing, indicate that the system responded appropriately and that no statutory changes are required. 

As an aside - albeit a significant one - is important not to confuse and conflate a lack of confidence in the government with a lack of confidence in the electoral system and mechanisms for voting. To actively attempt to cast doubt upon the system does a grave disservice to democracy and unnecessarily questions institutional legitimacy. Moreover, it is equally important to avoid conflating the need for an inquiry with the political - and partisan - expediency in making that call. These calls are public relations gold for opposition parties. If an inquiry is called the government tacitly admits there is a broader problem that requires redress. If the government refuses, the opposition simply paints an image of a government trying to hide or, worse yet, cover up widespread misconduct. In short, calls for an inquiry must not be viewed through rose coloured glasses and instead be seen, at least in part, as politically driven attempts to further undermine the government. They're merely a down payment on 2015's electoral strategy.

The demand for a public inquiry is understandable. Canadians need to have faith in their institutions and, importantly, confidence in their government. This scandal tests both. Regardless, key questions need to be asked before resorting reflexively to a public inquiry. Context is important. Indeed, it is worth remembering that calls for inquires by governments - when dealing with criminal events - have been somewhat politically motivated. Paul Martin's call for an inquiry was driven by a desire to clear the air but ended up only fuelling the opposition. Stephen Harper's decision to call the Air India inquiry in 2006, despite many positive motives, was no doubt predicated on the fact that his government would bear no fallout whatever the findings. It was politically safe to do so. In this instance that is not the case, making an inquiry unlikely. 

First, have existing avenues of investigation and due process been followed and exhausted? At present, neither criteria have been met. Elections Canada has yet to conclude its investigation nor have the RCMP been tasked with investigating criminal matters. Second, is this a matter which requires extensive investigation and learned individuals to conduct it? As indicated above, at present there is no sense that this is systemic in a way that meets the more national requirements of a Royal Commission or even the requirements of an inquiry. Third, is there anything that can be learned from an investigation which would prevent such abuses from happening again? Again, this is not an institutional failing, rather it is the result of coordinated and criminal activities. Forth, is the cost of the inquiry relative to its gains efficient use of public funds? Commissions of inquiry are both time and cost intensive. Unless there is some substantive outcome that cannot be achieved by recourse to the courts such a move is unwarranted (however, there is an argument to be made that restoring public confidence would be worth the cost). Finally, is a commission going to result in substantial changes or hold the perpetrators to account? Since Royal Commissions report to the political executive and not Parliament as a whole, it is the executive - an executive attached to the guilty party - which would be tasked with implementing recommendations. 

Knee-jerk populist calls for a public inquiry, while understandable, need to be considered thoroughly. At best they are premature while the initial investigation is still underway. Indeed, since a Royal Commission may take years to report, the demand for one coupled with the denigration of Elections Canada as slow and ineffective are entirely contradictory. How anyone on one hand can decry Elections Canada's slow pace of investigation while demanding an even slower more painstaking method on the other is beyond consistency. Moreover, solutions have already emerged as the House of Commons has backed a motion to give Elections Canada greater powers of scrutiny and oversight. Outrage needs to be tempered by commonsense and forethought. Should the process already underway fail or even greater evidence come to light, then an inquiry may be necessary. Demanding an inquest seems to have become the Canadian way, but it is not something suited for all problems. 

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