Monday, June 10, 2013

The Rule of Law - MPs Shelly Glover & James Bezan

Okay - I've tried to resist a boring legal lecture, but the 140 characters of Twitter make it impossible to get through to some people about the rules behind the Election Canada's suspension of MPs Shelly Glover and James Bezan.

The facts briefly are that Chief Electoral Officer Marc Mayrand wrote to House of Commons Speaker Andrew Scheer notifying him that Manitoba Conservative MPs Shelly Glover and James Bezan failed to comply with the Elections Act. Their failure was to file corrected returns from the 2011 election. There have been ongoing discussions and a dispute about the amount and inclusion of various expenses in their campaigns that would put them over their spending limits. As a result, they have refused to file amended returns that show the expenses Elections Canada say should be included. 

They have therefore not filed a return that Elections Canada feels is not false or misleading.

So what's the penalty for this? Section 463(2) of the Canada Elections Act deals specifically with this:

463. (1) No candidate and no official agent of a candidate shall provide the Chief Electoral Officer with a document referred to in subsection 451(1) or 455(1) that
(a) the candidate or the official agent, as the case may be, knows or ought reasonably to know contains a material statement that is false or misleading; or

(b) does not substantially set out the information required by subsection 451(2) or required to be updated under subsection 455(1).

Membership in House of Commons suspended

(2) An elected candidate who fails to provide a document as required by section 451 or 455 or fails to make a correction as requested under subsection 457(2) or authorized by 458(1) shall not continue to sit or vote as a member until they are provided or made, as the case may be.

A little bit of legal education here. The act says "shall not continue to sit..." The shall is what we call mandatory language. There's no wiggle room or arguing it. If there was, the legislation would use words on the penalty like: "may", "including" or "can". But no - it says shall.

"Shall" means must, no ifs, ands or buts. That is statutory interpretation 101 at law school.

The problem is that House of Commons Speaker Scheer did not immediately acknowledge or table those letters from Elections Canada advising him that Conservative MPs Shelly Glover and James Bezan were in fact suspended by operation of section 463(2) of the Canada Elections Act. He has in fact refused to do anything, ignoring the clear requirement of the Canada Elections Act.

Various people have jumped on the "they are entitled to their day in court before being suspended" bandwagon, but that has no basis in law. They say it's unfair for Elections Canada to make such an important decision without putting it before a judge.

That position cannot be supported in law.

The MPs are free to apply to the courts to appeal their suspension (technically it is an application for administrative review to the Federal Court), but that does not invalidate or postpone the suspension. The suspension happens first and it is up to the MPs to convince a judge to try to set it aside.

Here's a simple example to understand how administrative law works.

Let's say you decide to build an extension on your house. You hire someone and almost have it built when a city inspector comes by and discovers you don't have a building permit. You say you don't need a permit, but the inspector (an unelected official empowered by a by-law) issues an order to cease all work on your addition.

You can go to court to lift the inspector's order, but in the meantime the order stands and you can't do any more work. In fact, you may have a tear down order from the city, not just a stop work order, and you would have to ask for a temporary stay of the tear down order while your case was getting to court. Otherwise you are legally obliged to tear down the work making your court hearing moot.

The Elections Canada Act works the same way. The Chief Electoral Officer has the power granted to him under the Act to declare an MP suspended from sitting until they file a satisfactory return. Once that determination is made, he notifies the Speaker that the MP is suspended from sitting under section 463(2).

The Chief Electoral Officer states in his letter to Scheer on May 27th that he "defers" to the Speaker for the enforcement of section 463(2) in the House, recognizing the complex relationship between the law and the "Supremacy of Parliament", and relies on him to enforce the law in the House.

Except Scheer has chosen not to act, meaning the Speaker of the House of Commons is also in violation of the Elections Act, both of which are meant to protect the integrity of the system. 

The Conservatives and surprisingly the NDP say let the courts decide. That's fine, but that's not what the law says about the suspensions. A court can lift the suspensions if the MPs can make out a case, but the suspensions stand until then.

The House of Commons can't just vote to ignore the law, either. That's called tyranny. They can change the law, but not refuse to apply it by a simple vote. The rule of law is our democratic safeguard.

It is very possible that the MPs would get an interim stay of the suspension order based on the traditional legal test of irreparable harm to their constituents and the working of government, but it is up to them to apply for it.

Wishing the law was different or saying it is somehow unfair does not change it, and refusing to apply it as it was clearly intended to be is a serious affront to the integrity of our political system that we should all be afraid of.

Read the letters from Elections Canada here and the suspension letter to Scheer here.