Returning officers have profound powers over the democratic process, but their main role is to enhance our democratic institution.
By Lorenzo Somma
Published April 18, 2011
Society must take every means at its disposal to defend itself against the emergence of a parallel power which defies the elected power.
-- Pierre Elliott Trudeau
A close inspection of the our election system and the process of running for office in Canada has brought me to draw some conclusions about the recent rejection of Hamilton Central Green Party Candidate Karen Burson. When you actually sit down and look at the role that Elections Canada and its members play on how our democratic process works, you begin to see many holes. The only remedy is a more informed and engaged public.
A recent article published in the Hamilton Spectator provides a basic breakdown of the story. The following questions still need to be answered: Who a Returning Officer (RO) is; and what role they have in governing our elections. This entire situation seems to be more about paperwork than about principles, and that is where we all lose out.
When you look at the complete job description of a Returning Officer, you begin to understand how important and powerful their position is in our democracy. The position's main role is summarized in its Key Activities:
These seem straightforward enough, but each requires a myriad of actions and resources. According to the profile of an RO the duties are:
The primary duty of returning officers is to run electoral events in their electoral districts. In addition to those many and varied tasks, during an electoral period, they must allow public inspection, on request, of a confirmed candidate's nomination papers. Following an election, they must also allow public inspection, on request, of candidates' election expenses reports for the six months after they become available.
Returning officers must also be free to participate in a variety of activities between electoral events. They receive briefings on any new legislation and training in new procedures. They also participate in special projects and consultations, as required by the Chief Electoral Officer, to help ensure better access to the electoral system for all electors.
Now here is where we begin to see the complexities of what a Returning Officer really does. While the job description and profile are only two pages long, the actual roles and responsibilities of a Returning Officer are staggering.
This is compounded by the short amount of time for which a Returning Officer has to fulfil their role. (an election from start to finish can take place is under 36 days.) Just how much needs to be done in this time? Take a gander at the Returning Officer Manual [PDF link] issued by Elections Canada.
This 838 page document out lines everything that is required for a Returning Officer to set up and break down an election. Needless to say, a Returning Officer has a lot on their plate. On top of needing to fill the roles outlined here, they also need to be intimately familiar with the Elections Canada Act and Referendum Act.
This position requires a vast amount of information and operational procedure - and final authority falls on the shoulders of a single person. When you examine all these sources, you will find that the RO authority is far-reaching, with many specific mandates mixed with broader principals making for a very complicated position.
When everything else fails, people in positions as powerful as this need to give into the spirit of their role: leadership trumps management. Specifically, the spirit of the Returning Officer role includes:
There are rules pertaining to a Candidate's eligibility, and for Karen Burson these rules are being followed to the letter.
9.2.5 Detailed Verification Process
The RO must thoroughly verify each Nomination Paper received within 48 hours after its receipt. Refer to the Nomination of Candidates: Detailed Verification Checklist on page 20-27. Use a new checklist for each Nomination Paper submitted by a candidate.
Follow each step in the process and note any problems on the checklist. Attach the checklist to the nomination documents. If the nomination documents are re-verified, a new checklist is required.
Clerical assistants should conduct the verification of all supporting electors on pages 13 to 28 of the Nomination Paper. For this purpose, hours are allocated in the office clerk budget. Begin the verification process after the receipt of the nomination documents and continue until:
- 100 electors (50 electors in EDs in Schedule 3 of the CEA) are confirmed as supporting the nomination; or
- 48 hours have elapsed and the required amount of electors is not confirmed.
ROs should plan this exercise when they have an idea of the number of potential candidates likely to run in the ED and when the candidates are going to submit their nomination documents.
I would like to highlight the last statement in this process:
During the verification process, inform the candidate of the progress on a regular basis (for example every 4 hours). Potential candidates must have sufficient opportunities to correct their Nomination Paper before the deadline. Do not wait until the 48 hours have expired to notify a potential candidate of problems encountered in the verification process.
When you examine the facts as they have been presented, you begin to see that this situation warrants further attention.
First of all, once you look at everything a RO needs to do, you see that they may simply have too much on their plate - take a look at a RO per-candidate registered date checklist. On top of everything, The RO has to go through the large requirements of all potential candidates: maintaining operations, and communicating back and forth with all key players.
This may be too much work in too little time. Examine the "Nature of the Work" and you find something is not adding up.
The work of returning officers is extremely demanding during an election or referendum. Returning officers work long hours, seven days a week, during the minimum 36-day electoral period (that is, from the date the writ ordering the election is issued until polling day) and for several days after polling day. A returning officer must be available all day, every day, during that time. Between electoral events, returning officers must be free to carry out intermittent or part-time tasks, such as pre-event planning assignments, and to attend training or briefing sessions, etc.
According to the Spectator article published prior to Hamilton Centre Returning Officer James Winn's decision to exclude the Green Party:
[Green Party spokesperson Kieran] Green said "from our perspective" the party had fulfilled "our obligations" in making Burson its Hamilton Centre candidate after its first candidate Megan Byrne dropped out earlier this month.
Green said Burson and a representative went and saw Winn April 8 with her candidate documents. He said letters from the party's auditor and leader Elizabeth May were couriered down from Ottawa.
"Our candidate had brought in all her paperwork. She had brought in her deposit. The returning officer claimed he had the auditor's letter, but he did not have the endorsement letter. Those two items were coursed together."
Green said the party produced a second endorsement letter. "On Friday, when he said he did not have the endorsement letter, he handed the entire package of materials back to them and said 'Take them away."
Green did admit there was an error in the deposit as the money order was made out to Elections Canada rather than the receiver general, but it was easily corrected.
"They tried to contact the returning officer to bring the documents back in and he told them, 'It was premature.' He would not let them come in and see him. They waited to hear from him. They waited and waited and they did not hear from him until the cut off time (Monday at 2 p.m.) and he told them 'It is now too late."
Remember that the "Nature of the Work" of an RO specifies: "A returning officer must be available all day, every day" during an election. Now look at the greater principles of Elections Canada and you will see that sometimes you need to know when to value principles over procedures:
Ensuring that Canadians can exercise their democratic rights to vote and be a candidate.
Elections Canada is an independent, non-partisan agency that reports directly to Parliament. We must be prepared at all times to conduct a federal general election, by-election or referendum, administer the political financing provisions of the Canada Elections Act, monitor compliance and enforce electoral legislation. Elections Canada is also mandated to conduct voter education and information programs, and provide support to the independent boundaries commissions in charge of adjusting the boundaries of federal electoral districts following each decennial census. Finally, Elections Canada may carry out studies on alternative voting methods and, with the approval of Parliament, test electronic voting processes for future use during electoral events.
Our day-to-day activities and decision making are guided by the following key values:
- a knowledgeable and professional workforce
- transparency in everything we do
- responsiveness to the needs of Canadians involved in the electoral process
- cohesiveness and consistency in administering the Canada Elections Act
- continuously earning and maintaining the public's trust
- stewardship and accountability in how we manage our resource
An organization's Mission Statement should be the default position that any high-ranking official takes when the heat is on and the right choices need to be made. All of the Values presented are crucial to our democracy and I emphasized the three main ones that matter for this case.
An organization's Values should act as a lens from which all members look through when making decisions. Regardless of the pantheon of tasks the need doing, the integrity of any organization requires a commitment to their Mission and Values.
The rest is procedures and help get the job done - but without principles, it is all for naught.
According to the Returning Officers Manual, there is room for individual Returning Officers to make judgement calls to ensure the integrity of our democratic system is maintained:
While this code, as an instruction, is comprehensive and stands alone, it should be read in conjunction with the applicable provisions of the law, namely the Canada Elections Act and the Referendum Act, and the procedures set out in the Returning Officer's Manual. Where election administrators need professional advice to interpret the Canada Elections Act or this code, election administrators should consult with appropriate officials at Elections Canada.
For all the reasons presented here and more, the Returning Officer can and should use their power to maintain the spirit of our democracy. The power to allow our democracy to function properly rests solely in the hands of the Returning Officer. In this case, they are well within their rights to make an exception, and since the principles of Judicial Precedent do not apply to the Returning Officer, there should be no worry of compromising our system.
The Green Party is a Major party and their star is in ascendance. Let them run, let them work and let Canadians decide who they want to represent them.
This issue of the powers of the Returning Officer are not new. Indeed, a review was conducted by elections Canada in 2001. Many of the same problems Hamilton Central's Green Party candidate faces have been noticed by others.
In the Elections Canada report on the subject, solutions were outlined to ensure every Canadian that wishes to run for office can do so. The report outlines how concepts such as the required nomination papers are an archaic principle based on laws put forth in 1874, and how such requirements hamper our democracy.
The report provides solutions that I encourage all who read this to look into, as they will improve our system.
Mr. Winn's power over the democratic process is profound, but his main role is to enhance our democratic institution. Can we honestly say the decision he made to exclude a candidate from running in the 2011 federal election serves the best interest of the institution he serves?
Mr. Winn, you have the power to allow the Green Party to run in this election: to allow the voice of thousands of Canadian citizens to be heard, to ensure our electoral process remains the envy of the world. Do what is right for the City of Hamilton, for the people of Canada and for all citizens who value the principles of democracy above all others. Accept Karen Burson's application.
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