Procedure and House Affairs Committee on April 8th, 2014

[Preston Manning]

I think there's a contract that says I am, but I haven't gotten a cheque and I haven't sent a bill. I have only participated, really, in one teleconference. It would be my intention not to bill Elections Canada for whatever advice I could provide.

On your question, I came at it more from the other angle of functionality rather than independence. I felt that the more the Chief Electoral Officer can focus solely on the administration of the election, it would enhance his function and therefore the separation was a good idea.

If people are worried about the independence of the commissioner under this new arrangement, I do think there are ways and means of strengthening that. As I vaguely recall, in the statute that establishes the function of the Director of Public Prosecutions there are a number of provisions in there to guarantee his independence from the Attorney General. One might look at that statute as a way of increasing independence, if that's desired.

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

Ms. Fraser, your comments....

[Sheila Fraser]

I think the major difficulty that has been raised with respect to putting the commissioner under the Director of Public Prosecutions is on the exchange of information. It is very important that the commissioner work with Elections Canada in order to get all of the information that they need in order to conduct investigations. In the current legislation around privacy, etc., there are no provisions in the act that would allow for that exchange of information.

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

Are you suggesting that the commissioner of elections would not be able to get information from Elections Canada?

[Sheila Fraser]

It is my understanding, yes, that there could be difficulties for the commissioner in obtaining that information from Elections Canada. There are a whole series of legislative requirements within the government about exchanging information between departments. That is certainly something, if the committee continues with this move, that they look at.

I'd like to make the point that it is generally accepted in regulatory agencies that the administration and the investigation go together. That is the case in the Canada Revenue Agency and it is the case at the Ontario Securities Commission, which actually goes much further and into adjudication.

If I could read you an excerpt from the annual report of the Public Prosecution Service. It says:

The PPSC prosecutes charges of violating federal law laid following an investigation by a law enforcement agency. The PPSC is not an investigative agency and does not conduct investigations. The separation of law enforcement from the prosecution function is a well-established principle of the Canadian criminal justice system.

This would be something new for them.

If there are concerns about the independence of the commissioner vis-à-vis the Chief Electoral Officer, some of the provisions that are being put in around appointment and tenure could certainly be put into that act to strengthen that independence.

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

The independence factor is something that I think is extremely important because, as I said before, right now—from my seat, at least—I don't see any independence that the commissioner of elections has only because everything is controlled by Elections Canada.

Hypothetically, what would happen if, for example, the commissioner of elections was called upon to investigate Elections Canada itself, or an individual within Elections Canada? I think that's a huge conflict right now because, as I said in my opening remarks, the Chief Electoral Officer not only can direct an investigation to begin—whether or not the commissioner of elections wants to commence an investigation, he would be compelled to—but the CEO of Elections Canada can stop an investigation.

I think that's a conflict, at least from a perception standpoint. That shouldn't be allowed to occur.

[Sheila Fraser]

I don't know all the specifics of the act. I've certainly not seen anything in the Elections Act that would allow the Chief Electoral Officer to stop an investigation. I can only rely on the testimony of the commissioner who indicated very clearly that he had the necessary operational independence.

If I could just add that if you talk about a question of perception, I don't know that it's any better to have the perception that the commissioner will indirectly report to a minister of the crown.

[The Chair, Conservative, Joe Preston]

Mr. Christopherson, you have seven minutes.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much, Chair, and thank you all for being here.

I have to say, Ms. Fraser, seeing you at the end of the committee table is like looking up at the ridge and seeing the cavalry coming over to save the day. I really appreciate your stepping forward.

[Voices]

Oh, oh!

[David Christopherson, NDP, Hamilton Centre, ON]

Anybody who spends time with Sheila Fraser is having a good life. Come on.

I very much appreciate your being here because, in my view, you're probably the most trusted Canadian in the country. I think a lot of people rely on you to give them the straight goods.

I want to pick up on some very straightforward questioning. I'm sure you've been following the hearings at least somewhat. I have been finding it very troubling to see the way that the Chief Electoral Officer is being portrayed, at the very best as just a stakeholder and at worst as an enemy or opponent of the best electoral laws we have. Yet that position is equal to the one that you held as Auditor General in terms of being an agent of Parliament.

I'd like you to comment on the importance of the Chief Electoral Officer being seen in the same way that you were when you were the Auditor General—and that we currently see Mr. Ferguson—as a champion of the Canadian people, and not just some stakeholder who's trying to grab as much as they can out of it for themselves, which is the way the government is portraying the Chief Electoral Officer of Canada. Just your thoughts, Madam....

[Sheila Fraser]

As I said in my opening remarks, the officers of Parliament really do play a very important role in our democracy. We don't take these jobs to win popularity contests. We do our work with objectivity. I know that there are certain audits that created—I don't quite know how to phrase it, but I'm sure I was not on the Christmas card list of certain people after certain audits. We do our work. We respect our mandates and we do so in an objective and fair way. It troubles me greatly and I would say it disturbs me greatly to see comments that were made—and I will be quite blunt—by the minister today in committee, attacking personally the Chief Electoral Officer. This serves none of us well. It undermines the credibility of these institutions, and at the end of the day, if this continues, we will all pay because no one will have faith in government, in chief electoral officers, or in a democratic system.

We can have differences of opinion. That's what a democracy is for, to be able to express freely our differences of opinion. The officers of Parliament should be able to come to Parliament and explain issues that they see in proposed legislation. I am sure that if the legislation goes through, the Chief Electoral Officer will respect and follow it. But to actually attack him for bringing forward his concerns, I think is totally inappropriate.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, madam.

I don't think that point could be made any better, more emphatically, or with more credibility than it has been coming from you. Thank you for that.

I'll move on to some of the details now.

One of the concerns you raised in your remarks was the need now for the Chief Electoral Officer to get approvals from Treasury Board. That's something, again to go back to the Auditor General to use the comparison, that you never had to go through.

Could you expand a bit on the comments you've made here, please?

[Sheila Fraser]

In the administrative policies of government, if we go back, previously the officers of Parliament were included with all the other departments and agencies. The administrative policies all applied to us with no recognition of the independence that was needed for officers of Parliament in the management of their offices.

We began discussions with the Treasury Board Secretariat about this, and we said there were some provisions that were really inappropriate and that didn't recognize the independence that was required. The secretariat was actually very cooperative and worked very diligently with us. A large number of policies were changed on things like requiring approval of ministers or approval, for example, of central agencies on contracting and communications.

I'm sure the member might recall that we appeared before the public accounts committee on the question of the communications policy and that technically all of the news releases of the Auditor General had to be approved by the Privy Council Office. Well, that wasn't going to happen. They had never asked us for it, but that was what the administrative policy was. We worked through all that, and all of those policies were amended. It is very clear now in the contracting policy that the agents of Parliament do not have to have Treasury Board approval.

[David Christopherson, NDP, Hamilton Centre, ON]

I remember the threat that was there, too, Sheila. That had a lot to do with it.

I have only a little over a minute.

We spent a lot of years together on public accounts dealing with your reports and your findings. You spent a lot of time on proper process and proper procedures, and you recognized the importance of doing things the right way. Given the fact that the Chief Electoral Officer was not consulted, and the commissioner of elections was not consulted, and none of the opposition parties were consulted, and the Canadian people were not consulted...in fact, nobody outside of the Conservative Party of Canada was consulted on this bill before it was tabled in the House, can we have your thoughts on bringing in a complete change to the electoral act as we've seen here with the unfair elections act without any of that consultation at all? I would like your thoughts on that as a process in terms of the public interest.

[Sheila Fraser]

Chair, I can really base this only on my experience. When I was Auditor General, we had amendments to the Auditor General Act three or four times. Certainly, each time we were consulted. Our views were sought. We were asked if there were any unintended consequences that could result from that and whether this amendment would really achieve what we were all wanting it to do. I always thought it was a very good process. I would have thought with something as important as the Elections Act that there would have been broad consultation.

[David Christopherson, NDP, Hamilton Centre, ON]

That is no understatement.

Thank you, Madam.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Mr. Simms, you have seven minutes.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Thank you, Chair.

I just want to read something in for the record. This is from a blog from a gentleman named James Sprague, who had several positions, especially through Elections Canada. Here is what he said, which may dispel some of the myths:

Currently the only legal authority that the Chief Electoral Officer has respecting the exercise of the Commissioner’s investigative and prosecutorial discretion is to be able to require that the Commissioner undertake an investigation in five situations that go to significant aspects of the conduct of an election. This authority does not extend to directing how such an investigation, once started, is conducted nor does it extend to stopping an investigation once underway.

That's the impression we got from Mr. Corbett, as well as from Mr. Côté, commissioners past and present.

I do believe that the exchange of information is one that is essential in this particular situation. To be honest with you, I think this is more an exercise in isolation than it is in independence. I think the independence could have been achieved within the confines of Elections Canada.

If there is one sympathetic view of the separation that I've heard, it may have been from Mr. Manning, who talked about the functions of it. But at the same time there seems to be much of a disconnect between the CEO and the commissioner, such that I don't think it's particularly onerous on the CEO to get too involved in that situation.

We even had one Conservative MP who, in the media tonight, said that it had more to do with the leaks. That was from Mr. Jay Aspin, in The Hill Times , as to why they put it to a separate office.

Nevertheless, I put this to you because if you want to comment on that, please do so. But in Senate hearings today there was some confusion over whether you had, in your office as Auditor, the power to compel testimony.

[Sheila Fraser]

The Auditor General has the powers of a commissioner, under the Inquiries Act, which in fact means that the Auditor General can compel testimony. He doesn't have to go to a court to order it. The Auditor General can order it himself.

I don't know that it has ever actually been used, but it is a provision. I think it's section 13—I'll have to look it up tonight—that does have that power to compel testimony.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Would it be fair to say that you didn't have to use it because it was the hammer that everybody knew you had?

[Sheila Fraser]

I'm not sure about that. I have a feeling that often reporting publicly that someone did not talk to us was perhaps more damaging than actually talking to us.

[Voices]

Oh, oh!

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Understood.

Mr. Manning, I'm sorry, I used some of your testimony there. Would you like to comment on that?

In particular, I'd like to know your thoughts about the power to compel testimony as was requested by the CEO and commissioner.

[Preston Manning]

I can just repeat what I said before.

My angle on that division is more trying to enable the Chief Electoral Officer to focus solely on the administrative aspects of the election. I don't see the big problem in making the separation that others do. Frankly, I don't think it's as big a problem as is being made out.