Procedure and House Affairs Committee on March 6th, 2014

[Marc Mayrand]

On vouching.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

On vouching, yes.

[Marc Mayrand]

It's true, Mr. Neufeld reports, I believe, 50,000 irregularities or errors. I think he calls them serious errors that may constitute irregularities.

Again, I'll point out that this was thoroughly examined by the courts in Etobicoke and the court at the end of the day said that most of these errors go to procedures, bookkeeping, but there was no reason to doubt the quality of electors. Most of the vouching is taking place in some closed facilities, as you mentioned, but even there we have to appreciate that in the 50,000, it is an irregularity for the nurse at the nursing home to vouch for a resident of the nursing home. That would be considered as a serious error in the scheme of Mr. Neufeld. Again, when the court looked at that, they saw no reasons to invalidate the vote.

In many cases what we see is that in the poll book.... It's a rather complex procedure. When a mother comes in with her son who is voting for the first time and the son doesn't have ID, the mother is allowed to vouch for the son, but in the poll book what you will see reflected, after the officer has validated the ID of the mother, is the officer will simply mark “mother” as opposed to the full name. This is considered a serious error because it's not consistent with the requirements of the act. Again, is there any reason to doubt that the mother was properly identified? No. Is there any reason to believe that the son was not eligible to vote? No. Was there an improper recording in the poll book? Yes, but not enough to warrant an invalidation of that vote.

These are the vast majority of situations we are talking about and Mr. Neufeld is talking about when he talks about irregularities. I hope you will call Mr. Neufeld to explain all these provisions.

[The Chair, Conservative, Joe Preston]

We went well past the seven minutes there, so we're going to have to make sure we stay tight.

Mr. Scott, for seven minutes.

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

Mr. Mayrand, thank you for this table, which we have not had a chance to have a good look at. I'm wondering if you would be at all willing to come back, maybe after a lot of other testimony has been heard at this committee, in light of what your officials know and to give us a chance to study this.

[Marc Mayrand]

I would be happy to come back to explain this table and, depending on how the debates go, maybe offer some other advice or approach to deal with some of the serious problems that the committee is trying to address.

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

Thank you.

You mentioned in your brief about the exemption to contact former donors who have given $20 or more in the last five years. Could you explain whether or not you think this is a justifiable provision, keeping in mind that the provision only refers to it must be contacting former donors. It doesn't say “sole” or “only purpose”. Also it refers to $20 or more and donations up to and including $20 can be anonymous.

I'm wondering if you could comment on whether that provision should be there.

[Marc Mayrand]

As I said in my opening statement, it's a new exception for a fundraiser to exclude them from electoral expenses. One of the problems with it is whether it's really deserved or justified. Again, depending on the number of fundraisers or contributors you may be able to spend more than others who have fewer. It creates a bit of a barrier or, as I said, an issue with the level playing field for those who have.... Think of smaller parties that start which would significantly be put at a disadvantage there.

The other aspect of it is I don't know how it can be monitored. You don't know when you receive a call whether it's part of fundraising. You don't know whether this expenditure will be claimed or not and how it will be claimed. Electors or people who receive those calls have no way.... I don't have any way, not having access to documents from the parties or anything of that nature. It's not clear to me how we would be able to monitor this provision, certainly in the context of Bill C-23.

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

You believe there would be a danger, because it can't be monitored in any easy way, that it could be used to make all kinds of other contacts that are not necessarily related to fundraising.

[Marc Mayrand]

What I'm saying is that I could not attest as to whether the calls were properly placed; I wouldn't have access to the information to attest to that. Neither do I believe that the recipients of calls would be able to realize whether there was an issue or not.

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

I believe my colleague Mr. Christopherson will come back to your lack of power to compel documentation, which is at the heart of why you would not be able to monitor this.

I will turn to the question of clause 108, which would put in proposed section 510.1. I'm going to call it a muzzle on the commissioner of Canada Elections, who is prohibited from disclosing “any information relating to an investigation”. The only exception, which the minister points out every now and again, is “information that, in the commissioner's opinion, is necessary to carry out an investigation”.

My reading of this is that once an investigation is closed, there is no way for the commissioner, under this provision, to report on the outlines of the investigation and what was learned, short of a criminal prosecution, for example, or even whether or not there was no fraud.

Are you also concerned with this provision? It seems to be a way to tell the commissioner of Canada Elections that anything you might have found in your current investigations, which you're now going to close the books on because you don't have enough investigative powers, cannot be reported. Are you concerned about that?

[Marc Mayrand]

I think it would prevent the commissioner.... In the past where there were serious issues raised by the investigator, from time to time he would issue either a report or a press release indicating his findings and why. I'm not sure that this will be possible under the new provision in Bill C-23.

Sometimes it's very much to reassure the public that what happened was legitimate. A case that comes to mind is several elections back where there were all sorts of allegations. The commissioner thoroughly reviewed all the allegations and satisfied himself that there was no offence or fraud committed in that election.

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

That's also my reading of it. The moment the investigation is closed, the commissioner will not be able to say anything about it.

[Marc Mayrand]

All the communication under the new regime would be subject to government-wide communication policies, so Treasury Board policy in that regard. I haven't seen any exception in the legislation. You would be subject to those government-wide policies regarding communication.

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

There was a time before the changes in the law, in 2006 or 2007, that it was much easier to vote without ID. People often would show up even on election day and register. Although I have not actually read the report, I understand that at one point under that old regime there were very few constraints on ID. You would think fraud would be rampant based on the premises coming from the other side of the table.

There was at least one investigation by Elections Canada into a riding where there were complaints that about 10,000 people had signed up on election day. Did Elections Canada look into that and discover fraud?

[Marc Mayrand]

That was Trinity—Spadina in 2006.

I believe it was initiated by my predecessor following discussions before this very committee. He commissioned an independent audit to look at all 10,000 cases on polling day registration. There were allegations of people who may have voted twice or were not properly residing in the riding, and all those things.

Navigant was the firm that looked at all 10,000 cases of polling day registration. There were 20 cases where they were not able to trace individuals to a proper address in the riding.

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

That was 20 out of 10,000.

[Marc Mayrand]

Yes, and those 20 cases were referred to the commissioner. Again, there were no charges laid, or compliance agreement laid.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Lamoureux, for seven minutes.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

The expectations Canadians have are that there would be a consequence, in fact, a timely consequence to a violation of an election law. We are disappointed that this was one of the major issues in dealing with this particular legislation and it failed to address that issue.

My understanding from Elections Canada's perspective is that one of the critical needs to reform our Elections Act is to allow Elections Canada to compel witnesses. In terms of priority changes, based on what you think is in the best interests of Canada's electoral legislation, would you say that the need to compel witnesses is one of the most important things that we need to deal with?

[Marc Mayrand]

It's certainly the most important one from the point of view of the commissioner. I would also suggest that providing Elections Canada with access to supporting documents regarding the financial transactions of parties is also quite critical.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I reflect on the in-and-out scandal, robocalls, cheating, and overspending, all of which have been widely broadcast throughout our country. People get frustrated in the sense that they don't feel that things are right here. We're not seeing justice or adequate consequences. If we can't or the commissioner can't or Elections Canada can't compel witnesses, is it safe to say we never receive that timely investigation as a result of not being able to compel witnesses?

[Marc Mayrand]

It certainly hampers investigation. Sometimes it simply delays them. It doesn't stop the commissioner from finally getting through the matter, but it takes extraordinary time and effort. Sometimes it's a wall. You get to a dead end.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Mayrand, is it fair to say that because you don't have that ability, there have been individuals who have been able to, in essence, break the law and get away with it because they don't want to be a witness?

[Marc Mayrand]

We don't know that, given that we can't compel them, so the investigation's basically stalled in some circumstances. I'm saying that the commissioner cannot come to a conclusion because of the limited tools he has available to carry out an investigation.