Procedure and House Affairs Committee on May 28th, 2013

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Based on what you've seen from the information provided to you, or firsthand, are you satisfied that that would be a worthwhile initiative for Elections Canada to pursue?

[Marc Mayrand]

Certainly, it would need to be adapted for the federal context, but it's a promising model, in terms of better service for electors, better compliance at the poll, and more efficient use of resources.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Did you want to try to do a pilot project based on that, or is that a firm recommendation you are making to the committee?

[Marc Mayrand]

I think it would be more prudent to test it in a federal election, either a byelection or even in a few ridings during the 2015 general election.

I think we want to also introduce technology at the polls, and this needs to be fully tested before we ramp it through across the country.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

If there's a byelection, or a series of byelections, prior to the next federal election, would your office be prepared to implement a pilot project?

[Marc Mayrand]

Subject to approval from the committees of both the House and the Senate—timely approval for the pilot—we could be ready to run a pilot for any byelection happening in early 2015, if any are called.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Lukiwski.

Mr. Scott for seven minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

Thank you, Mr. Mayrand, for being with us.

No doubt you're aware of the decision that was released last week by Justice Mosley in the McEwing case and some of the conclusions that were drawn with respect to voter suppression calls, that they have been orchestrated and they were widespread. The judge found fraud to have existed. The judge also signalled the high probability that the Conservative Party's CIMS database was the source of the information used for the voter suppression.

He also observed that the Conservative Party, “...made little effort to assist with the investigation at the outset despite early requests”. He's referring here to Elections Canada investigations.

One last thing he did, to be fair to all individuals, was to find that neither the CPC nor any MPs or individuals were found to have been specific perpetrators. But the judge did say, “...the evidence points to elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made.” I emphasize the word “those”.

Basically the question is, Mr. Mayrand, were these conclusions by the judge in any way a surprise to you? Whether they were or they weren't, is there any way you can help us understand the challenges and the obstacles Elections Canada has been facing in its own efforts to identify the perpetrators of the fraud?

[Marc Mayrand]

I can't speak for the commissioner on these matters. I think I will let everyone draw their own conclusion from the judgment of Justice Mosley, which can speak for itself.

I think in the reports you have before you today there are a number of recommendations that deal with the challenges we're facing during the investigation of the affair referred to as “robocalls”. There is the lack of timely information being accessible to the commissioner or to Elections Canada; the fact that there's no real standard in the industry for the retention of documentation, which is problematic; and the fact that the commissioner has no authority to compel various individuals or parties to testify or provide information. These are three key issues that have been faced by the commissioner, especially in this case. Again, when people don't want to talk to him, he has very few options, even though those people may not be suspect but may have relevant information to the investigation.

I would focus on these three elements.

[Craig Scott, NDP, Toronto—Danforth, ON]

Following along those lines, obviously you're suggesting as well that we need legislative reform for these items to actually be in place.

Now, we know that in March 2012 there was a motion adopted in the House by all parties requiring the government to table legislation by September, which didn't happen. We're eight months later and we still don't see the reform legislation that we're all anticipating. The NDP did deposit our own bill in October in an effort to actually put forward some of the principles you just mentioned.

I have three sub-questions relating to this.

One is, would the investigation likely be more effective or be different if what you're recommending now were in place? Second, if we are able to get this legislation before us—we haven't seen it—and it eventually gets passed, will that still help with the 2011 events? These are procedural investigative powers, and presumably they can apply to events that occurred before. I want to make sure I understand that that's correct. The last question is, how soon do we need to have this legislation?

[Marc Mayrand]

I'l start with the last part of your question. In my opening remarks, I suggested that we need legislation in place with royal assent by spring 2014. The broader the scope of the reform, the more time we need to get ready to implement it. I think we need a bit of leeway before the next GE—general election—in terms of significant legislative reform.

Would the recommendation I put forward make a difference? Definitely. I think it would accelerate the process, and I think we are all concerned by the delays in those investigations and the fact that of course justice delayed is justice denied, as one of your colleagues mentioned. These amendments are designed to improve the timeliness of investigations. It would also improve the ability to gather evidence, which is key for the commissioner and for the DPP.

[Craig Scott, NDP, Toronto—Danforth, ON]

Including evidence relating to 2011...?

[Marc Mayrand]

On that one, I would probably have to see the text of the legislation. There may be transitory provisions in the bill. Without those, it would likely be applicable. The problem we have is that it would be three years after the possible circumstances that led to the investigation and evidence may be long gone.

[Craig Scott, NDP, Toronto—Danforth, ON]

Lastly, because I only have a minute, with respect to the comment by the judge about the lack of cooperation at the outset, despite early requests—and that was reported in the media—I'm wondering if this is public knowledge or whether you can confirm that it took something like three months before the Conservative Party, through their lawyer, actually responded to an investigator's request for access to interview certain people.

Were those media reports accurate, to your knowledge?

[Marc Mayrand]

I think those media reports are based on ITO procedures that were filed in court, where it was pointed out that there were some delays in dealing with the matters. Again, the proposed amendment that I put forward here would alleviate those issues.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Scott.

Monsieur Dion, you have seven minutes, please.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

Thank you, Mr. Chair.

Good morning, Mr. Mayrand. I would like to thank you and your colleagues for being here today.

Let's begin with last week's court decision. Justice Mosley revealed certain things we strongly suspected, that there were orchestrated fraudulent calls across the country targeting Canadians who had let it be known they did not plan to vote for the Conservative Party. The judge told us that the most likely source was the Conservative Party's database. Finally, the judge complained of the fact that the Conservative Party had done everything in its power to delay and complicate the entire process.

The next step is your own investigation. It will include about 50 ridings. Canadians need to know who is responsible for these fraudulent calls.

Do you have the full cooperation of the Conservative Party in this affair?

[Marc Mayrand]

When it comes to these issues, I cannot speak on behalf of the commissioner, nor the investigators. I do know they are having conversations and meetings with the people in question and that the investigation is following its course.

However, in the Guelph case, three persons of interest who may have relevant information have refused to meet with investigators. I believe that fact is in the public domain.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

It is in the public domain. Which leads us to a question I meant to ask you later on, but will ask you now.

Is it possible to refer these three reluctant witnesses to the RCMP?

[Marc Mayrand]

No. Under the current legislation, there is no such provision. For the time being, these are not suspects. They are merely individuals who may possess useful information. Under the current act, the commissioner has no enforcement power over those individuals. As far as I know, they are not committing an offence, at least not under the Elections Act or the Criminal Code.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

And the recommendations you have made would allow for...

[Marc Mayrand]

Yes, with a court's authorization, the commissioner could oblige a person to testify and produce documents.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

Did Minister Uppal consult you this time about the expected bill?

[Marc Mayrand]

No. I was just informed that a bill was being prepared and would be introduced in a few weeks. I was not consulted as to its specific provisions.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

I find that unfortunate. If you were to provide your advice ahead of time, many delays and errors could be avoided.