Procedure and House Affairs Committee on Dec. 10th, 2013

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

Sure.

Would you care to render an opinion, Monsieur Mayrand, on whether the act as it is written now is satisfactory and whether or not you believe that, say, all legal recourse should be dispensed with before a letter from the Chief Electoral Officer advises the Speaker that the member may be in non-compliance? That's why I asked the original question about the amount. I realize there's a principle here, and one could argue that it doesn't matter if it's $100 or $100,000, but what I'm getting at is if there is a legitimate dispute between a member and Elections Canada, do you have an opinion on whether or not action should be taken to remove a member from his seat immediately, or do you believe it would be appropriate to have all legal appeals exhausted before the final decision to remove that member?

[Marc Mayrand]

There are a few things.

First of all, it does not remove the MP from the seat. It prevents an MP from sitting or voting. They'll still carry out all the functions of an elected representative.

On the matter of whether there could be more clarity in the legislation, maybe. One thing I would point out is that, first of all, these letters are rare. It points to the effectiveness of the mechanism. Again, these don't come as a surprise to the agent or the MP. There's been extensive discussion, several correspondences exchanged with regard to the issue at hand. There's advance notice that if we can't resolve this matter, then that letter to the Speaker would come out.

Again, it's been very effective in ensuring timely and accurate filing of returns.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Scott.

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

Thank you, Mr. Chair, and thank you for coming, Mr. Mayrand.

I think it's important to pick up where you left off. I assume that the decision to invoke subsection 463(2) is not one lightly taken, and that Elections Canada's practice is to work as much as possible before that happens. Is that correct?

[Marc Mayrand]

Absolutely. In all cases, our auditors try to work with official agents to help in providing the most accurate return possible in compliance with the legislation.

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

Because of the way this rolled out in the House of Commons, we believe this may be the first time that the House has seen this form of letter. It comes up against the question of parliamentary privilege. Have letters like this been issued in the past, or is this actually the first time?

[Marc Mayrand]

No, there have been a few others, mostly related to failure to file a return, or in some cases, failure to update a return. There are three situations that occur under 463. It's rare, but there have been a handful of letters over the last two general elections.

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

Right, and those would also have been sent to the Speaker.

[Marc Mayrand]

Yes.

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

Okay, thank you.

I'd like to follow up on Mr. Lukiwski's line of questioning. He's absolutely correct that when it comes to the interaction between what the act says and what we, as parliamentarians, are empowered to do under parliamentary privilege, there can be a bit of a gap.

My reading of the act—I'll put it clearly because this was in my own speech in the House—is that there is no provision to delay or stay the effect of subsection 463(2), but as the Speaker also acknowledged and you have too, it's well within the power of Parliament to decide that, notwithstanding what the act says, we may well consider a delay or a holding in abeyance.

Our concern as parliamentarians is to act as much as possible according to the rule of law so as to support Elections Canada's role in compliance functions, so presumptively, we should do what the act says.

Is it your understanding that the act does not provide for any delay regarding subsection 463(2)?

[Marc Mayrand]

This very matter of privilege is now before this committee. The act does provide a remedy to ask the court to be relieved from a request from the CEO. However, it does not provide for a stay of the whole proceeding, certainly not explicitly in the statute. It's a question to be determined whether a court would entertain a request to stay the effect of 463(2). The court may be also concerned about impeding members' privileges.

The act does provide, from time to time, when there is court remedy available, that it would have the effect of staying. It does not in this case. One thing we haven't had the chance to do is to go back to the history of that provision and find out the intention of parliamentarians at that point.

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

I believe that the Speaker in his own ruling referred to an example elsewhere in the act where the effect of going to court would be to hold things off until the court proceedings were finished, but such a provision wasn't tacked on to this. That's the kind of thing we would have to take into account in deciding a case that would come before us if it ever comes to a vote. It may not, given the evolution of your own discussions with the member.

As to the Standing Orders, the Speaker asked us not just to resolve the case before the House, but also to take a look at how the Standing Orders should be written to clarify what happens when a letter comes from you to the Speaker. At what stage is the House asked to pronounce on whether or not a member should continue to sit or vote? I won't ask you for any details now. I'd simply ask you whether or not you would be available to provide subsequent advice in writing or by testimony if we got to that stage.

[Marc Mayrand]

Yes, I'm always available to assist the committee.

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

I think I'll pass it over to my colleague, the House leader, on the question of—

[The Chair, Conservative, Joe Preston]

You have about a minute and a half.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We'll be getting another round?

[A voice]

You'll get another round.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Welcome, Mr. Mayrand.

Forgive me for a moment, but I think we're going to need some help beyond your expertise on the scope of this particular case. While it applies to one sitting member of Parliament, one could easily imagine a scenario in which there's a dispute between elected MPs and Elections Canada, with that number of MPs being significant enough to determine things like who's the government, determine things like confidence votes. This can have implications that go beyond just one individual member.

I was just reading through this section we keep referring to, subsection 463(2), “Membership in House of Commons Suspended”, “An elected candidate who fails to provide a document...”—it goes into some detail—“...shall not continue to sit or vote as a member...”. Shall be suspended; you're suggesting there's some lack of clarity in that. I read a great deal of clarity in that, that if important documents like this are not provided—as you say, you often seek to settle, to have some sort of arrangement made—they shall be suspended.

Why is there the suggestion that the act is not yet clear enough?

[Marc Mayrand]

Subsection 463(2) is very clear. What is not clear is the mechanism that takes place in the House giving effect to that provision.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I think, Chair, just as a consequence to this, we may seek the parliamentary law clerk to come in, because this was my point, that Mr. Mayrand's expertise brings us to a certain point where he then directs the Speaker in the House that this thing has taken place, that a member under the act should be suspended, but how they get suspended is a question that we don't have a witness for here today.

Is that correct, Mr. Mayrand?

[Marc Mayrand]

I would think so, yes.

[The Chair, Conservative, Joe Preston]

We'll certainly talk about other witnesses under this motion later today.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes, thank you.

[The Chair, Conservative, Joe Preston]

Mr. Lamoureux for seven minutes, please....

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I do want to try to make things as clear as possible. I read your letter and I appreciate the comments that you made. In the letter it states:

Subsection 463(2) of the Act provides that an elected candidate who fails to provide documents required by subsection 457(2) may not continue to sit or vote as a member until the corrections have been made.

Now in listening to your presentation, it was point 10 that I think really came to me as to why that's an important aspect of the legislation. In your point 10 you state:

In the vast majority of cases, our experience has been that subsection 463(2) works as an effective tool for ensuring timely and accurate financial reporting by elected candidates.

From Elections Canada's perspective, that subsection is an important one, because it ensures that you have something that makes sure there's that sense of accountability from elected members.