Elections Canada vs. two Tory MPs

John Geddes on questions raised by an unusual clash

The legal battle that has erupted this week between Elections Canada and two Conservative MPs from Manitoba over their campaign spending puts some awfully strange scenarios into play.

The oddest, it seems to me, is that those MPs might ultimately be found to have violated the law requiring proper disclosure of election expenses, and yet still be allowed to continue to hold office, even if they were no longer permitted to actually vote in the House.

To see how that improbably weird possibility emerges, we have to recap what’s happened so far.  After each federal election, the campaign expense return of every candidate is audited by Elections Canada. In the cases of the two Manitoba Tories, MP Shelly Glover and MP James Bezan, the auditors found gaps after the 2011 election in the way they accounted for spending on things like roadside signs and websites.

After many letters back and forth between the elections watchdog and the Conservatives’ lawyers, Elections Canada finally concluded last month that the MPs were not going to bring their returns into compliance with the rules. The reason is likely that they realized how making the changes Elections Canada was ordering would mean they had overshot the allowed spending limits, which would open up a whole new set of legal problems for them.

Having reached an impasse, Chief Electoral Officer Marc Mayrand did what the Canada Elections Act says he must. Mayrand wrote to Andrew Scheer, the Speaker of the House, and told him where things stand, pointing out that the act states clearly that Glover and Bezan “may not continue to sit or vote as a member” until they fix their campaign returns.

But Scheer chose not to immediately suspend the two. Instead, taking into account the fact that Glover and Bezan are both challenging Elections Canada’s interpretation of the rules in court, Scheer decided to wait and see what decisions the judges hand down. The Liberals have formally contested Scheer’s right to allow the MPs to keep sitting in the House while the matter is before the courts. Scheer will have to rule on that sometime soon.

It’s possible Scheer will change his mind and suspend Glover and Bezan while their cases are being heard. Even if he decides to let them keep serving in the House for the time being, he would still have to suspend them if, in the end, the judges find Elections Canada knows its stuff. Either way, we face the unusual prospect of MPs remaining MPs, but not being allowed to do their jobs in the Commons.

So I asked Elections Canada at what point, should Glover and Bezan finally fail to persuade a judge to overrule Mayrand, would they either have to correct their campaign returns or be ousted as MPs, forcing by-elections in their ridings. The unexpected answer: never.

“The reality is that this breach does not cause somebody to be removed from office,” Elections Canada spokesman John Enright told me this afternoon. “Nor does to it prevent them from seeking reelection. That’s what it is.”

For clarity’s sake, I asked him if there is anything in the Canada Elections Act that might lead to an MP losing his or her seat for refusing to fix an election spending return deemed incomplete. Even if the courts side with Elections Canada, he repeated, “There’s no offence here that would entail removal from office.”

The penalty, Enright explained, might be a fine or perhaps even a jail sentence imposed upon, not the MP, but the MP’s official agent from the last election campaign. As for being suspended from the House, that could go on indefinitely, at least in theory, without the MP ever ceasing to be the MP.

It sounds crazy, of course. You’d think we could look to past cases of this sort for a sense of what would really happen. So far, however, nobody at Elections Canada—including veterans like Enright, who’s been there a quarter century—can recall any dispute remotely like this.

While there have been many, many cases of Elections Canada auditors challenging all sorts of aspects of campaign spending returns, those clashes have always been settled without the Chief Electoral Officer having to resort to informing the Speaker that an MP has refused to sort out a problem.

It seems the stormy relationship between the Conservative party and Elections Canada is leading us down strange new paths.