Procedure and House Affairs Committee on April 1st, 2014

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

A perception? You stated in your brief that one of the reasons you don't think it would be appropriate to be housing your office with the DPP is the perception that there might be some conflict. Do you not think the same perception would be created if you were to investigate an action by the electoral officer, as he in effect is the one who can hire or dismiss you?

[Yves Côté]

I'd say at least two things on this.

One is that I certainly would see any cases involving an electoral officer or an employee of Elections Canada where fraud or misbehaviour of some sort was alleged as being a very serious matter. I can assure you that, as commissioner, this is something that I would get to the bottom of with all the energy and all the tools that I have at my disposal. That would be point number one.

Point number two, there are many benefits—as I think I alluded to in my opening remarks—in our being now part of Elections Canada, and it has to do with the day-to-day operations. It's very important for us, as enforcers of the legislation, to understand the priorities, to understand the environment in which decisions that we take have to be taken. We cannot operate in a separate world, on a separate planet. We have to have that access.

More importantly, if Bill C-23 is passed as it is now, there will be serious issues that will come up in terms of what information the CEO may communicate to me as commissioner. Right now, we're both within the same organization so the flow of information is free and it goes quickly. If I am to move into a different organization, which now would be a department of the government, there will be all kinds of issues having to do, for example, with privacy and personal information in terms of whether or not the CEO has the power to disclose and communicate that information to us. Certainly this is an issue that should be addressed because that kind of uncertainty would create no end of problems and headaches.

I would put it to this committee, Mr. Chair, that this is a very important issue. There has to be clarity in the law in terms of what the CEO can communicate to me, if Bill C-23 is passed as it is, and also in terms of what I may request of the CEO.

I would go one step further. It seems to me that there should be a provision in the bill, again if it is passed as it is, that would compel the CEO to respond to any request I make for information and to give me that information. In the same way, Bill C-23 provides—with the new scheme that might be created—that the CRTC would have to disclose to me any information that I requested of them, in terms of the new scheme that is being created for voter contact.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Thank you, Mr. Lukiwski.

We're quite over time again, so let's try to watch where we are.

Mr. Scott, you're up for seven minutes or thereabouts.

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

Thank you, Mr. Chair.

Thank you, Mr. Côté.

I won't even summarize what you've said, but it seems very clear that you've given a whole bunch of reasons why the symbiotic relationship between your office and the rest of Elections Canada is one of the benefits of staying there. You've indicated a number of other dangers of moving to the DPP.

My question is, can you see any problem with the current location of your office within the structure of Elections Canada, any problem that is being solved by moving your office to the office of the DPP?

[Yves Côté]

I do not, but what I would add is this: if the preoccupations about possible conflict of interest in our being within Elections Canada is one that is deemed to be requiring an adjustment or a fix, it seems to me that a much better approach would be to put into the Canada Elections Act the same kind of statutory guarantee to my office and to my tenure as would be made now if we were to move to the DPP.

To me, that would address both issues: my issue about remaining within Elections Canada to have quick access and better understanding of the issues, and at the same time it would address the perception that apparently some people have that there may be a lack of independence or a lack of security of tenure.

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

Apparently some people do have that perception despite all evidence to the contrary.

So basically you're saying for anything done in this act that is a benefit—for example, security of tenure is built into Bill C-23 in a way that it doesn't exist right now for your office—there's no reason that couldn't have been done by keeping your office within Elections Canada, for example.

[Yves Côté]

Indeed.

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

Exactly.

Okay. Thank you.

I'm assuming you were consulted by the minister. Do you have any kind of an insight into truly why he would want to move your office?

[Yves Côté]

I was not consulted by the minister on the bill.

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

You were not consulted.

[Yves Côté]

I was not.

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

Shall we move on to another issue? You and the Chief Electoral Officer have both made very good cases in a couple of reports—you, in your 2012-13 report—concerning the need for a power to apply to a judge to secure a judicial order to compel testimony of witnesses. In your report, you detailed all the different ways in which witnesses do not cooperate and make investigations difficult. Is any of this coming from direct experience of recent investigations with witnesses? For example, with respect to the use of fraudulent calls during 2011, did you encounter any of these problems that have informed your view of the need for the power to compel witnesses?

[Yves Côté]

First, Mr. Chair, as I said, I will not comment on any investigations. However, in answer to the question that was put to me, I will state on the record that there have indeed been cases, a number of them, in which during the performance of our investigative work we have come across people who have had information that was relevant to our investigation and have simply refused to talk to us. That has happened more than once, including for matters of some significance.

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

I commend page 13 of your report to everybody for your overall description of the kinds of problems that are presented by that.

I believe you've emphasized it in a way that cannot be.... You said, “I believe it is essential to give the commissioner the ability to seek a court order to compel testimony”. You talked about the safeguards that would exist with that along the lines of the Competition Act, and you said, “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. And, importantly, some will simply be aborted due to our inability to get at the facts.”

Is it the case that for any investigation—not one in particular—that your office might have had to abort or for which it might have been lacking this power, that this power would help?

[Yves Côté]

This power would greatly help. As I said, we've had a number of instances in which individuals who, in our view, have had information relevant to our investigations have refused to talk. I do think that it is essential. If we are to conduct investigations diligently, know results soon enough, and get to the bottom of things, we simply need this power.

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

Perhaps I could just move on to one other aspect. There are a few things in the act that everybody has heard about. There's the fact that you have a duty to inform people who are being investigated subject to an exception. There's the fact that you can't talk about investigations subject to an exception, but that exception doesn't include when an investigation is closed. When it's closed, you won't be able to say anything. There are a bunch of things that actually seem to be new fetters, such as that you have to have a reasonable ground to suspect an offence has been committed in order to investigate. The minister suggests that was a mistake.

There's another one here, and I'm just wondering what you would have to say about it. Am I right in thinking that at the moment in the structure of Elections Canada, the CEO has delegated to you the signing authority from the consolidated revenue fund so that you can hire temporary investigators, forensic specialists, and that kind of stuff? Is that correct?

[Yves Côté]

I currently have the statutory power, which, by the way, is maintained in this bill, and I welcome that. If the bill is passed as is, I will continue to have access to the CRF.

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

You will, but that will be with the approval of the DPP. Is that correct? Is there any reason we couldn't write into the bill the fact that you alone would have the direct signing authority in order to have access to the statutory fund for temporary investigators?

[Yves Côté]

I think there is some refinement, perhaps, to the way in which the government expense system works that calls for a deputy head, the accounting officer of a department, or, in the case of Elections Canada, the CEO, to have final sign-off. But certainly within the framework as it exists now, when I have had to have recourse to funds from the consolidated revenue fund, it has always gone through without any problems. That's what I would say on that.

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

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Scott.

Mr. Lamoureux, please, for seven minutes.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I have been listening to you, Mr. Côté, and what you do is reinforce in my mind just how bad...how this legislation, Bill C-23, is a destructive force to democracy here in Canada. This is not a step forward. This is a significant step backwards. I feel insulted in regard to the degree in which you weren't even consulted, you said, in regard to your position as the commissioner and having that position transferred out of Elections Canada.

I think you've been exceptionally clear. I had a few questions that I would like get on the record with you.

The in-and-out scandal, robocalls, overspending, and cheating: these are things that the public as a whole feels have taken place in the last election. There is a general feeling of public confidence...of a lack thereof, because of the thousands of phone calls that were made because of the last election. There's this huge expectation that you, as the commissioner, are going to be able to get to the bottom of a lot of these very important issues.

I'm not asking you to comment on any specific issue, but what I'm thinking about is, going forward, if this legislation were to pass without amendments such as compelling a witness, would you clearly state that it would in fact make it more difficult for you to acquire any sort of a prosecution?

[Yves Côté]

Mr. Chair, I don't think I would phrase it in the way it has been stated. What I would say is that the current scheme as it exists should be and must be improved so that we have more tools in our box, and what I find is that in Bill C-23, in spite of the fact that the CEO and I have called for this additional power, I have to of course note that the additional power is not being given to us.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

You're right.

You state on page 7 of the presentation, “And, importantly, some”—you're referring to files—“will simply abort due to our inability to get at the facts.”

[Yves Côté]

Yes, I have said that.