Procedure and House Affairs Committee on April 1st, 2014

[The Chair, Conservative, Joe Preston]

Let's call this meeting to order, please.

This is meeting number 25 of procedure and House affairs committee, on the study of Bill C-23.

The meeting is in public and televised tonight. We have, to start off with, the commissioner of Canada elections, Monsieur Côté.

Mr. Côté, will you introduce your guest? I understand you have an opening statement.

[Yves Côté, Commissioner of Canada Elections, Elections Canada]

Indeed, sir.

Thank you very much, Mr. Chair.

I would like to thank the committee for giving me the opportunity to testify today regarding the changes proposed by Bill C-23 and their impact on my role as commissioner of Canada Elections.

I am accompanied today by Audrey Nowack, senior counsel, who provides us with legal counsel.

Before discussing the bill itself, I believe it would be useful if I first reminded the committee of why the position of commissioner of Canada Elections was created 40 years ago in 1974 and placed within the Office of the Chief Electoral Officer.

The traditional view of the Department of Justice at the time was that it should not be involved in prosecutions under the Canada Elections Act. Such prosecutions, to quote the attorney general at the time, in 1974, should be the responsibility of the Chief Electoral Officer “whose independent position could not be questioned”. At the same time, the Chief Electoral Officer was concerned that his own involvement in the investigation and prosecution of election offences could be seen to diminish his impartiality. This led to the creation of the position of commissioner of Canada elections, in 1974.

The position was placed within Elections Canada so that it would be fully independent from the government. The mandate of the commissioner initially was confined to offences involving election expenses, but was later broadened, in 1977, to include the enforcement of all election offences, including prosecution. With the creation of the office of the director of public prosecutions, in 2006, election offences are now prosecuted by the DPP.

Let me now turn to my comments on the bill that is currently before you.

The first point I'd like to address has to do with the organizational changes proposed by the bill.

Bill C-23 proposes to go much further than what was done in 2006, by placing the commissioner within the Office of the Director of Public Prosecutions, or DPP.

As you consider this proposal, I think it is important for you to understand the benefits of the current model which, in my view, strikes a proper balance between investigative independence and a coherent and informed application of the Canada Elections Act.

Indeed, I must stress that, as commissioner, I have enjoyed complete and unfettered independence with respect to the conduct of investigations and the choice of enforcement action, including the decision to refer a matter to the DPP.

I have been in the job for almost two years, and there has never been any attempt by the Chief Electoral Officer, or by anyone at Elections Canada, to interfere in any way with the manner in which I and my investigators do our work. In other words, and I think it is important that I state this, I alone as commissioner decide what to investigate, how to conduct my investigations, and what measures are to be taken, including possible referrals to the DPP.

At the same time, my presence within Elections Canada allows me to have direct insight into how the law is administered and also to understand the main challenges faced by Elections Canada with respect to compliance. This informs my interventions and reduces the risks that regulated entities, such as political parties and candidates, are caught between conflicting interpretations of the rules.

The need for such coherence explains why to my knowledge, in the vast majority of regulatory regimes, the administration and enforcement of the rules are vested in the same agency. Examples of this would include the Canada Revenue Agency, the Competition Bureau, Fisheries and Oceans, and the Canada Border Services Agency.

This, by the way, is true even for the CRTC, which under the very terms of Bill C-23 would be granted the mandate to administer and enforce the rules on what is referred to as “voter contact calling services”.

With the separation of the commissioner from Elections Canada, there is, in my view, a danger in the long term of a disconnect between the administration of the rules and their enforcement. To avoid that risk, it is critical that an ongoing relationship between the two entities be preserved and nurtured.

This goes beyond transfers of information in support of investigations—something which, in fact, Bill C-23 does not explicitly provide for and which requires amendment to ensure timely and effective investigations.

It also means that the two entities will need to create structured mechanisms to continue to work in an open and collaborative fashion. For example, a joint committee on regulatory compliance may need to be established to discuss trends or new issues that arise as a result of evolving practices by political parties and candidates.

Moreover, given that under Bill C-23, political parties would be able to request written opinions from the Chief Electoral Officer on the application of the act and that these opinions will be legally binding on the commissioner, there need to be mechanisms for consultation between the commissioner and the Chief Electoral Officer.

In placing the commissioner within the office of the DPP, Bill C-23 would bring under the same roof two functions that are normally, and for good reasons, kept separate.

This structural change raises important questions with respect to the separation of the investigative and prosecutorial functions—a separation that was deemed sufficiently important in 2006 to remove prosecutions from the commissioner. It also raises concerns with respect to at least the perceived independence of the commissioner from the government of the day.

Bill C-23 provides that the commissioner's investigations be conducted independently of the DPP. I do have, of course, every reason to be confident that neither the DPP nor the Attorney General would interfere in my investigations. However, the fact that the commissioner would be placed within the office of the DPP—and that the DPP reports to the Attorney General on the commissioner's activities—does, it seems to me, present challenges, at least in terms of perception.

For all of these reasons, Mr. Chairman, I do not think that the proposed move to the office of the DPP is a step in the right direction.

The second matter that I wish to address relates to the commissioner's investigative powers. The CEO mentioned in his appearance how important it is to have timely and effective enforcement of election laws. It is fair to say that, among Canadians, there is an expectation—and I would say an entirely reasonable one—that significant violations of the rules governing elections will be dealt with swiftly and within a normal four-year electoral cycle.

When the very legitimacy of an elected office is at stake, the need to resolve allegations of electoral wrongdoing is, by definition, a pressing matter. This is why, as I indicated in my annual report, I believe it is essential to give the commissioner the ability to seek a court order to compel testimony.

My experience to date has been that it is not uncommon for individuals who are not directly concerned with an investigation, but who may possess important information, to refuse to co-operate. In a political context, where partisan loyalties are strong, this should probably not come as a surprise. However, this can cause significant delays or even compromise an investigation.

A power to compel testimony in the context of election investigations exists in many provinces and territories, including Quebec, Ontario, New Brunswick, Nova Scotia, Manitoba, Alberta and Yukon. Other regulatory agencies have similar power. The recommendation that both the Chief Electoral Officer and I have made is that this power be given to the commissioner with a number of appropriate safeguards, as exist in the Competition Act. These safeguards include the following.

First, before obtaining a court order, a prior judicial authorization is required, based on affidavit evidence showing that the person likely has information relevant to an investigation of an offence under the Canada Elections Act.

Second, every person has the right to be assisted by counsel and to have counsel present at the interview.

Lastly, and this is extremely important, the person being interviewed under these circumstances would have the right not to have the evidence used against the person who is required to testify.

These safeguards would present, in my view, a balanced approach to ensuring more effective enforcement. Mr. Chair, I want to be absolutely clear: if this amendment is not made, investigations will continue to take time, and in some cases a lot of time. Importantly some investigations will simply be aborted due to our inability to get at the facts.

Bill C-23 should also be amended to improve the regime proposed for voter contact calling services. First, whether it is a live or an automated call, there should be an obligation to identify the source of the call immediately at the start of the message. Second, and most importantly, entities providing automated services or making live calls should be required to preserve a record of the telephone numbers that were contacted and to make that record available to the commissioner through the CRTC. Without telephone numbers, it is difficult to see how the proposed regime can be of much use.

Finally, with respect to the powers of the commissioner, I want to express my deep concern with the limitations imposed by the bill on my ability to inform the public of the results of my investigations. There are certainly excellent reasons to preserve the confidentiality of investigations. These mainly include considerations of privacy and fairness, as well as the need to protect the integrity of ongoing investigations. For this reason, I, like my predecessors, will generally not comment on or disclose information related to investigations—except where necessary in the course of the judicial process.

There are, however, rare but important exceptions to this. Where allegations have been publicly made that cast a doubt on the integrity of an election, and where an investigation shows these allegations to be unfounded, it is important for the commissioner to be able to reassure Canadians by making his findings public, including by providing factual details of what was uncovered. My predecessor has twice done this in recent years, and it is important that my successors and I be able to do the same in the future.

Finally, I'd like to mention the addition of a number of new offences and the proposal to increase fines. The increased fines in particular are a significant and welcome improvement to the regime. However, as I indicated in my annual report, achieving compliance with election rules should not rely primarily on criminal offences and sanctions. The criminal process is inherently slow and heavy-handed. It is ill-suited to the vast majority of instances of non-compliance that we in the commissioner's office encounter, which are of a purely regulatory nature such as, for example, late filings of reports.

Administrative sanctions such as the proposed automatic reduction of reimbursement of election expenses in cases of overspending are generally much better suited to deal with compliance issues related to political financing. In this regard I hope that this measure in Bill C-23 would point the way for future reforms.

In concluding my remarks, I would like to indicate that I fully support the amendments relating to enforcement that the Chief Electoral Officer suggested at his appearance a few weeks ago.

I am aware of the fact that the Minister for Democratic Reform has written to the committee and that he appears to be open to some amendments dealing with the limitation period as well as the threshold to initiate investigations.

And, in closing, I would strongly encourage the committee to also consider the other amendments on enforcement proposed by the Chief Electoral Officer.

Now that I am finished with my introductory remarks, I would be pleased to answer any questions, insofar as they do not relate to the particulars of investigations.

Thank you very much.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Commissioner.

We will proceed to a seven-minute round.

Mr. Lukiwski, you're first.

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

Thank you very much.

And thank you, Mr. Côté, for being with us here today.

I think I want to start my line of questions, or dialogue with you at least, on your role as an independent commissioner. Currently, and correct me if I'm wrong, my understanding is in taking a look at the org chart that you right now are in effect an employee of Elections Canada, are you not? In other words, you report to them. They have the ability if they wish, or the Chief Electoral Officer has the ability, to fire you. Is that correct?

[Yves Côté]

It is not correct, Mr. Chair, in the following sense, that I am not an employee of Elections Canada. I have a special import appointment made pursuant to section 509 of the act, and the act calls for me, as I mentioned in my opening remarks, to see to the enforcement of the Canada Elections Act. And in the exercise of that mandate, I act in a manner that is totally independent from both Elections Canada and the Chief Electoral Officer.

I have been in the job for 20 months and since then there has never been any attempt by the CEO, by elected officials, by political parties to interfere with my investigations or to influence how they unfold.

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

I understand that. I'm just trying to get a sense of the structure, the corporate structure here. So then who has the ability to hire you or dismiss you?

[Yves Côté]

The appointment is made by the CEO.

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

The Chief Electoral Officer?

[Yves Côté]

Yes, indeed, pursuant to section 509 of the act.

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

And dismissal, if that happened?

[Yves Côté]

I think the general principles of law that would apply would be that he who has the power to appoint has the power to dismiss.

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

But even though that is the case, you're saying that he is not in effect your boss. You don't report to him.

[Yves Côté]

Absolutely. It is absolutely clear in my mind—

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

I know, and I'm sorry, but I always gone on the principle that if someone can hire me and fire me, then that person is in effect my boss. But I'll take you at your contention.

Why I'm trying to get at is that Bill C-23 would make you truly independent. In other words, the Chief Electoral Officer now can direct you to investigate a certain case. Bill C-23 would give you full independence. The Chief Electoral Officer, for an example, could request an investigation be conducted, as anyone else could request an investigation, but you would have the full authority to investigate based on your own decision, not a directive from someone else? So I think that increases and enhances your independence, which I would think would be a good thing, particularly—and I don't know if this has ever happened before, I honestly don't, but theoretically, since the Chief Electoral Officer has the ability to appoint and dismiss you, as you've mentioned—in terms of what would happen if in fact there was a case where you felt you had to investigate an employee of Elections Canada. Would you not think there would be a conflict there?

[Yves Côté]

There is a lot in that question, Mr. Chair. I'll try to attack it in bits and pieces.

The Chief Electoral Officer does appoint the commissioner, but in my sense he's not the boss. And an analogy to this would be that the government appoints judges but the government is not the boss of the judges. Once the CEO has appointed the commissioner, then the commissioner is responsible and he alone is responsible for enforcement of the act.

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

Can the Chief Electoral Officer direct you to conduct an investigation?

[Yves Côté]

He could refer a file to me and direct to me that I should investigate it, but then how I do the investigation, how far I go with it, what I do with it, would be entirely within my purview.

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

But it would still be his determination that an investigation be conducted, be initiated, right?

[Yves Côté]

He would say to me, please look into this, investigate this. I would say, thank you very much, and then I would with my director of investigations decide how I was going to investigate that.

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

Would you be able to refuse his request or his directive?

[Yves Côté]

The CEO is an agent of Parliament and my presumption would be that if he refers a file to me for investigation, he probably has good grounds to do that.

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

But under Bill C-23, and this is the distinction I'm trying to make.... I'm certainly not trying to be argumentative here, but I think it's an important distinction. Under Bill C-23, you would not be directed by anyone. It would be your decision and your decision alone if you wished to conduct an investigation. It would be based on a complaint or if someone requested, but it would be your decision. Currently, you're suggesting, or you're saying, to this committee that if the Chief Electoral Officer directs you to conduct an investigation, you will. You may conduct it in your own fashion, that's great, but you have no right to refuse.

[Yves Côté]

Well, there's an act of Parliament that specifies the circumstances in which the Chief Electoral Officer may ask me to conduct an investigation. So Parliament has spoken and has said that this is the way it should be. Again, I think it's very important that, if the CEO does that, then I decide how I'm going to do that, in the same way that if Bill C-23 is passed as it is now, if our office were to move with the office of the DPP, I would decide how investigations are to be conducted.

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

On my question about what would happen in the event that you ended up having to investigate someone in the Chief Electoral Office itself, would there not be a perceived—at least a perceived—conflict there since the Chief Electoral Officer himself, as you admitted, appoints you and can dismiss you?

[Yves Côté]

I don't think that there would be any conflict of interest.

I'll tell you a couple of things—