Party of One (14 page)

The government appeared to be listening. On February 2, 2014, the Conservatives announced they would introduce the Fair Elections Act (Bill C-23), which would reorganize how electoral fraud was investigated and prosecuted. When the opposition and the public actually saw the piece of legislation, it was quickly dubbed the “Unfair Elections Act.” The minister responsible for
democratic reform, Pierre Poilievre, tweeted repeatedly about the program, promising to give law enforcement “sharper teeth, longer reach and a freer hand.” Arthur Finkelstein would have approved. Poilievre repeated the bumper-sticker phrase three times in his announcement. The bill had initially been promised at the height of the robocalls scandal in March 2012. It was to have been tabled in April 2013, but was withdrawn after being presented to the Conservative caucus in a closed-door meeting.

The legislation did anything but what the minister had promised. Elections Canada was stunned by the provisions of Bill C-23. Instead of gaining new powers, Canada’s chief electoral officer saw his authority seriously diminished. Not only was there no new power of subpoena to assist Elections Canada investigators, but Mark Mayrand was muzzled under the proposed legislation. He would henceforth be prevented from communicating anything but the most fundamental voting information to Canadians. Whether he wanted to advertise a campaign to promote greater election turnout, or, remarkably, even issue a warning to the public about a fraud like robocalls, he was silenced under the provisions of Bill C-23.

The bill also cut off Elections Canada’s investigative arm, which would now report straight to the director of public prosecutions (DPP) instead of the chief electoral officer. While it is true that both the commissioner of Elections Canada and the DPP are cabinet appointments, many experts saw the change as damaging. Steven Shrybman, the lawyer who handled the Council of Canadians case on robocalls, said that the legislation would move Elections Canada investigations from a position of neutrality to one under political control. It was only after the news stories about alleged voter fraud broke that people realized that what had happened to them were not innocent mistakes. Shrybman pointed out, “What you [have to] remember is no one knew this had happened in May 2011.”

According to Harry Neufeld, British Columbia’s former chief electoral officer, section 44 of the government’s new legislation would actually increase the potential for partisan abuse at polling stations. In an interview with the CBC’s Rosemary Barton, Neufeld criticized the provision allowing a riding’s incumbent candidate or the candidate’s party to appoint all central polling supervisors. Currently, Elections Canada appoints the polling supervisors. By essentially making the positions party appointments, Neufeld warned, officials would be given greater scope for making mistakes at polling stations for partisan reasons.

Postmedia reporter Stephen Maher raised another serious weakness related to a clause in the new bill. Elections Canada could, according to one of its former lawyers, be prevented from reporting on the outcome of its investigation into robocalls. Previously Marc Mayrand provided information about Elections Canada’s investigations in three ways: at parliamentary committees, in a public report, and to the news media. That line of reporting would be closed once the new bill passed. And unless an investigation resulted in charges, absolutely no reporting would be done by the elections commissioner under the new legislation.

According to Elections Canada officials, Bill C-23 would diminish rather than enhance voter participation by ending vouching as a means of legitimizing a citizen not on the voters list, and by refusing to accept voter information cards as a legitimate form of identification. The Harper government was following the lead of Republican politicians in the United States who tried to make voter suppression palatable by dressing it up as anti-voting fraud measures. As in the United States, Harper government claims of massive vote fraud were false, just like the reports from Tory MPs and a senator that they had actually witnessed cheaters in action.

The Conservatives’ bill also included a self-serving change to the financial rules. An exemption would be built in for fundraising
costs associated with previous donors who had contributed at least $20 in the last five years to a party association, nomination contestant, or candidate. Elections Canada would now have no practical way of distinguishing a fundraising mail-out from advertising. The exemption was simply a way of expanding spending limits during an election, which Stephen Harper had religiously advocated for since his days at the NCC and his doomed trip to the Supreme Court of Canada.

The bill also allowed for an increase in the personal donation limit to $1,500, which would benefit wealthier people since those with more disposable income will not experience financial strain by contributing extra money. Assuming wealthier people contribute to the Conservatives, this gives the party a fundraising edge over people with lower wages who may want to contribute to the NDP, Liberals, or Greens. The bill increased the overall campaign spending limit for national parties by about $1 million. Parties will be able to spend $22 million in 2015, an increase that could change the way elections are waged. Further, instead of relying on volunteers, parties flush with cash could hire professional companies to reach voters by micro-targeting. Unlimited third-party spending, long a goal of Stephen Harper both in and out of politics, is bound to become an issue both before and during the 2015 election. The Conservatives will have the clear financial advantage. As former Harper mentor Tom Flanagan told the
Hill Times
on March 3, 2014, “All this legislation . . . probably gives the Conservatives a relative advantage in this election cycle. The Conservatives are going to be extremely well funded in this election campaign. They have far more money than they could ever spend in the writ period, so they will be able to have a very well-funded pre-writ campaign.”

On March 6, 2014, an embattled Marc Mayrand addressed Parliament, laying out how measures in the new elections act undermined its stated purpose. He said election day “may be the
only time, when all Canadians can claim to be perfectly equal in power and influence, regardless of their income, health or social circumstances.” By creating an exception for certain fundraising expenses, the proposed legislation could compromise that level playing field. A case could be made that a vindictive Stephen Harper was merely trying to even the score with an old adversary. After he become prime minister, his Conservative Party of Canada and Elections Canada had had a momentous clash.

The Tories objected to the in-and-out investigation by Elections Canada into illegal campaign spending. They liked it even less in February 2011 when the director of public prosecutions, Brian Saunders, recommended that charges under the Elections Act be laid against the Conservative Party of Canada and four senior officials—Senator Doug Finley, former national party director Michael Donison, former interim executive director Susan Kehoe, and Senator Irving Gerstein. After a six-year legal marathon, the charges were ultimately withdrawn on November 10, 2011, following a plea bargain agreement. The Conservative Party agreed to plead guilty to exceeding spending limits in the 2006 election, and to pay the maximum fine of $52,000 and repay a further $230,198.

The settlement came just as the robocalls investigation was about to heat up. In November 2011, Matt Meier, the proprietor of RackNine, was given thirty days to produce his telephone data and documents. The Conservative guilty plea came six months after the May 2011 election, and the agreement netted out in the party’s favour. Even taking into account the fines and paybacks, the party had spent $700,000 more than it was allowed in the 2006 election—and right at the end of a tight election, when it meant the most.

The Harper government had ridden roughshod over the opposition and experts on many occasions, earning the reputation as champions of policy-based facts rather than fact-based policies.
As dictatorial as the government had been on issues such as the closure of scientific facilities, the pursuit of the F-35 fighter jet, and democracy-busting omnibus legislation, the Fair Elections Act was a new low-watermark—and an example of utter hypocrisy. In the mid-nineties, when the Liberals made changes to the Elections Canada Act, Reform Party MP Stephen Harper preached about the need to build a consensus to make such important changes to legislation. He also expressed his abhorrence at the government using time allocation to force its reforms through. At the time, he said that the government’s tactics better suited a “third world” country than they did Canada.

Once in power, Harper and his government went much further than slamming their critics. Pierre Poilievre flatly misrepresented research used to support Bill C-23. When he was rebuked over the misuse of information by the author of a report he was citing, the minister continued to insist he was right and the author was wrong. Facing a wall of opposition, Minister Poilievre ignored all expert advice, jeered at the opposition’s demands for amendments, and didn’t bother to even consult with Elections Canada about the profound and highly dubious changes the government was proposing to how Canadians elect their parliament.

Without either reason or evidence on his side, Poilievre resorted to the one thing he indisputably possessed: power. Instead of answering Marc Mayrand’s points, he attacked his reputation. The Harper government even tried smearing former auditor general Sheila Fraser, suggesting she was criticizing Bill C-23 because she was in the pay of Elections Canada. (She was paid $2,450 for her role as an advisor.) The allegation was ludicrous and shabby. As
National Post
columnist Andrew Coyne put it, “. . . when you start to believe your own rhetoric, your brains turn to mush.”

The spectacle of the government’s effort to ram through a seriously flawed piece of legislation led to a remarkable occurrence
at the 2014 Manning Networking Conference. Prominent Conservatives used the event to speak out against the PM’s political judgment, issues management, and style. Preston Manning, the man who laid the foundations for Harper’s political career, urged the PM to restore democracy and amend the Fair Elections Act. In his keynote speech, Manning called on “. . . Conservative governments, Conservative opposition parties, and the Conservative Movement . . . to constantly affirm and reaffirm their commitment to extending rather than limiting democratic expression.” Manning, like virtually everyone else outside Stephen Harper’s caucus, wanted to see the new legislation amended “to strengthen, rather than reducing, the role of Elections Canada and the chief electoral officer with respect to promotional and educational activities designed to increase voter participation in Canada’s elections.” As Sheila Fraser told me, “This bill is so bad, I haven’t seen anyone support it yet.”

On April 15, 2014, a Senate committee proposed amendments to the government’s controversial election legislation. The Senate was the “last chance” for opponents to voice their concerns before the legislation passed. Despite attacking Marc Mayrand during an appearance at the Senate hearings, given the near-unanimous opposition to the bill across the country, Poilievre finally backed down and said he was open to “ways we can make a great bill even better.” The decision to amend the bill was understood to have come from Harper himself.
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It was one thing to pass legislation disenfranchising students and people living on reserves, but the party was beginning to hear from its rural voters that they could be disenfranchised because their driver’s licence had a post-officebox address rather than a street address, and identification with a street address was necessary to vote.

On June 12, 2014, after four months of controversy, Bill C-23, which is at the core of our democratic system, passed the third and
final reading in the Senate. The bill eliminates vouching, but if a voter with ID has insufficient proof of address, the amended bill allows another voter to vouch for his or her residency.
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Elections Canada is now banned from campaigning to boost voter turnout. The position of elections commissioner has been moved from Elections Canada to the office of Canada’s director of public prosecutions. Tellingly, the new law does not change the rules to ensure that people are required to cooperate with Elections Canada investigations. With royal assent, the bill is now law.

W
HILE
THE
SYSTEM
was grappling with the impact of technology on electoral politics and what to do about it, a startling development occurred in the Guelph robocalls case. On January 15, 2014, Stephen Maher reported that former Guelph Conservative campaign worker Andrew Prescott had been granted immunity and had agreed to give evidence to Elections Canada. Prescott,
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who for two years had insisted he knew nothing about dirty tricks in the Burke campaign, agreed to give “full and complete testimony” about what he knew. Prescott, like Sona a born-again Christian, added another name to the mix—the campaign manager in Guelph, Ken Morgan.
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Michael Sona continued to deny Prescott’s allegations against him and to assert his innocence. “I don’t know what’s going to happen to me, Michael,” he confided to me. “But I think this situation is bigger than me and my troubles.”

According to Elections Canada, it wasn’t. On April 24, 2014, elections commissioner Yves Côté published his summary investigation report on robocalls. After a three-year investigation, no charges would be laid outside the electoral district of Guelph, and according to the report, no proof could be found of a conspiracy to steal the election. Elections Canada’s investigation was doomed from the very beginning not to get to the bottom of robocalls. In normal criminal investigations, officers conduct
their inquiries on an independent basis. In the national robocalls investigation done by Elections Canada, investigators had to rely on the cooperation of the Conservative Party and its telemarketers, even though both were potential subjects of the investigation. As Côté reported, some telemarketers and telephone service providers simply refused to cooperate. Why? Because they don’t have to; Elections Canada has no power to compel evidence. Conservative Party officials were also not particularly forthcoming. According to Côté, it sometimes took several months for investigators to gain access to their information or for interviews to be arranged. “In one instance,” Côté reported, “a person who investigators believed could have provided very relevant information declined to be interviewed.”