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Canada’s former chief electoral officers eager for successor, laud proposed electoral legislative changes

By Laura Ryckewaert      

Jean-Pierre Kingsley says he’s ‘disappointed’ the government has yet to name new chief electoral officer, despite knowing since June that they would need one.

Former chief electoral officers Marc Mayrand, left, and Jean-Pierre Kingsley say changes proposed in Bill C-33 are positive, and both say they hope a new chief electoral officer is appointed soon. The Hill Times photographs by Sam Garcia and Jake Wright
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Canada’s former chief electoral officers Marc Mayrand and Jean-Pierre Kingsley are lauding changes proposed in new legislation, including moving the elections commissioner back under the authority of Elections Canada and removing restrictions on who can apply for the job of commissioner.

But they also say there are other issues to be addressed, and with only an acting chief electoral officer in place since Mr. Mayrand stepped down at the end of December, both say they’re eager to see a new permanent chief electoral officer of Canada named.

“I don’t think it’s desirable to have too long of an interim in those positions [officers of Parliament]. I think these positions require people who have a firm ground and can make the difficult decision that they have to make from time to time,” Mr. Mayrand told The Hill Times in an interview last week. “There are other bills that I understand are coming forward and it’s important to have somebody in the position [of chief electoral officer] who can steer the organization.”

Having given notice of his plans to retire in June, Mr. Mayrand, who officially exited the role on Dec. 28, said, “It seems to be a long process, to say the least.”

The Liberal government will select its nominee to become the next chief electoral officer “in a manner consistent with the merit-based appointments process,” which the government has put in place, John O’Leary, communications director to Democratic Institutions Minister Karina Gould (Burlington, Ont.), said in an email.

That process involves advertising for open positions on a government appointments website, among other things.

“I haven’t seen any advertisement for the position,” said Mr. Mayrand in a telephone interview last week with The Hill Times. He said from his experience, once a candidate has been identified, the process “unfolds very quickly.” However, finding the right candidate can be “hard to do,” he noted, given the knowledge and skills required for the job.

Since Mr. Mayrand retired on Dec. 28, deputy chief electoral officer Stéphane Perrault has been the acting chief electoral officer.

Former chief electoral officer Jean-Pierre Kingsley held the job for 17 years until Feb. 17, 2007 and was succeeded by Mr. Mayrand days later on Feb. 21 after the House of Commons unanimously approved his appointment.

“I am disappointed because there is no reason why the government did not initiate staffing action immediately when Mr. Mayrand announced that he was retiring [in June]. … At that very time, they should have set the ball in motion, and we would have a chief electoral officer as I speak. Acting appointments in the officers of Parliament positions is a very bad process,” said Mr. Kingsley.

The Liberal government is currently faced with a backlog of hundreds of unfilled appointments.

Mr. O’Leary said finding a new chief electoral officer “is a priority for Minister Gould, and we will have more to say about this in due course.”

Paul Thomas, a professor emeritus of political science at the University of Manitoba, said he thinks there’s a “very small community of professionals” in Canada with the expertise needed for the job of chief electoral officer.

“Election law is not the simple, straightforward thing of the past,” he said.

Prof. Thomas noted the next federal election in 2019 is “not that far away now, and it would be better if we had a permanent CEO with all the status and authority and confidence of the government and Parliament presiding over the administration of that election.”

NDP MP Nathan Cullen (Skeena-Bulkley Valley, B.C.), his party’s democratic reform critic, said he hopes the government will have an open conversation about what it’s looking for in choosing a candidate for chief electoral officer, and that it’s important a new one is appointed soon.

“We’re running byelections right now,” he said. “Elections Canada continues to work, and the sooner you can get somebody in, the better. It means they’re fully aware of the file, they know exactly how to put the next election forward.”

Along with proposed changes to voting through Bill C-33, the government has indicated further plans for change, including increasing the transparency of fundraising activities, and there are five federal by-elections slated to take place on April 3.

Bill C-33, introduced in November, proposes seven measures to amend the Canada Elections Act and is aimed at increasing voter turnout. It currently sits at second reading in the House of Commons and has not yet been brought up for debate.

Along with proposing the creation of a new register of future electors, the bill seeks to reverse a handful of changes made under the previous Conservative government’s Fair Elections Act—a 242-page package that included more than a hundred changes and passed in 2014.

Bill C-33 would: remove limits on the chief electoral officer’s ability to conduct public education and information activities with all Canadians; remove limits imposed on voting by non-resident Canadian electors introduced under the previous government; would authorize the use of voter information cards as ID for voting; and would restore the option for vouching for identity and residence for voting.

As well, the bill would “relocate” the commissioner of Canada elections back within the office of the chief electoral officer, having been moved under the director of public prosecutions in 2014. It would once again have the commissioner appointed by the chief electoral officer after consultation with the Director of Public Prosecutions. The DPP reports to Parliament through the Justice minister.

Bill C-33 would also remove two of the five limits imposed in 2014 on who is eligible to be appointed commissioner. If passed, it would mean former chief electoral officers, members of their staff and people whose services they have engaged, and former election officers would become eligible.

The commissioner of Canada elections is responsible for ensuring compliance with the Canada Elections Act and investigates complaints of wrongdoing.

When the Fair Elections Act came into effect, the commissioner was not only organizationally separated from Elections Canada, but was also physically moved into new, separate office space.

Moving the commissioner back within Elections Canada and under the chief electoral officer “will enhance the integrity of the election system,” said Mr. O’Leary. However, the changes proposed in Bill C-33 will not “involve a physical office relocation,” he said.

Mr. Mayrand said moving the commissioner out of Elections Canada “made communication between the commissioner and the chief electoral officer a little bit more complicated, so that the exchange of information is not as smooth as it used to be.”

As a result of the change, a memorandum of understanding had to be drafted and signed between the two to share necessary information.

“The system worked well before, so I never understood why this was a particular concern,” said Mr. Mayrand.

Removing some of the limits on who can be appointed is “useful to expand the pool of candidates and make sure we include those who have expertise,” he said, adding, “election law is highly specialized.”

Overall, Bill C-33 includes “quite well thought out” recommendations, said Mr. Mayrand, but “one piece missing is allowing the commissioner to lay charges on his own.”

Mr. Kingsley said he’s “very pleased” that, under Bill C-33, the chief electoral officer will once again appoint the elections commissioner.

While some raised concerns about possible influence on the elections commissioner by the Justice minister, Mr. Kingsley said he thinks “everyone acted independently,” but the change back helps put an end to any questions.

Still, he said separating the commissioner from Elections Canada was a “very awkward arrangement.”

Mr. Kingsley also lauded the proposed removal of limits on who can be appointed commissioner, saying it “can only be for the good.”

However, Mr. Kingsley also said further changes need to be made, including giving the commissioner the authority to compel testimony after seeking a court order, and allowing the commissioner to levy charges directly to the courts (thereby making it public), rather than the director of public prosecutions, who would continue to be responsible for this. Currently, the commissioner privately recommends charges to the prosecutions director, who then decides whether or not to act.

“This is essential for us to know what’s going on between those two separate offices. … We would know then if there’s unnecessary delays in the decision. We would know if a decision not to proceed is made,” Mr. Kingsley said.

Prof. Thomas also agrees with the proposal to move the commissioner back under Elections Canada, and said the previous 2014 change “was a solution to a problem that didn’t exist and it reflected an ongoing feud between the Conservative Party of Canada and the chief electoral officer.”

The change made work more complicated, he said, as Canadians continued to direct complaints related to elections laws to Elections Canada, requiring agreements to be drafted to share those with the commissioner in his new home under the prosecutions director. It also affected the appearance of independence, he said, though adding he believes everyone acted as “consummate professionals.”

Asked why Bill C-33 doesn’t tackle further called-for changes, such as granting the commissioner the power to compel testimony, Mr. O’Leary noted that the Procedure and House Affairs Committee is currently studying the chief electoral officer’s report on the last election, which includes 132 recommendations for change (some of which overlap with Bill C-33).

“We are looking forward to review the standing committee’s report and consider its recommendations carefully,” he said.

Mr. Mayrand said he’s “looking forward to what will come out of” the committee’s study of his final report as chief electoral officer.

Asked which of his 132 recommendations he’d rank as most important, Mr. Mayrand said it’s “always difficulty to say,” but that “certainly the recommendations around public education and making our system accessible to those who are facing barriers are, in my mind, the most important.”

In a press release last fall after the bill was tabled, the Council of Canadians with Disabilities said it was “pleased with some aspects” of Bill C-33, in particular around vouching and the chief electoral officer’s ability to educate the public. However, it said it falls short on key recommendations to make it easier for Canadians with disabilities to vote. For example, it did not require campaign literature to be provided in “alternate formats and plain language.”

Based on work progress to date and the House of Commons calendar, the House Affairs Committee’s study of the chief electoral officer’s report seems not likely to be complete before the House rises in June.

Mr. Cullen said when Bill C-33 does make it to committee, the NDP will be asking about the impact of having moved the commissioner out of Elections Canada, and while reversing that measure is a good step, it’s only “10 per cent of the job.” Giving the commissioner the power to compel testimony is “where the rubber hits the road,” he said.

“The big fish to catch was this one,” said Mr. Cullen, suggesting it’s a change his party will recommend to the bill.


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