Procedure and House Affairs Committee on April 28th, 2014

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Scott.

We'll go to Mr. Lamoureux for seven minutes, please.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

Mr. Saunders, welcome to the committee.

I want to pick up on the point that to the very best of your knowledge, you had no sense or understanding of being consulted in any fashion prior to the introduction of Bill C-23. Is that correct?

[Brian J. Saunders]

That is correct. I was not consulted.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

When you look at what your office is now being asked to do, you emphasize how important it is that we take into consideration the issue of perception. You made reference to the whole issue of hiring and dismissing. How would you suggest to the committee that specific aspect be best dealt with? How would you plan, if this legislation were to pass unamended, to hire a future commissioner?

[Brian J. Saunders]

I indicated in response to a previous question that we are at the early stages of considering how best to address this bill, but one proposal would be that we conduct a national open competition where Canadians with the experience in enforcement in elections could apply and a board selection could be struck to consider the candidates and select the candidate who best meets the criteria.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

In terms of the power of dismissal, would you like to add anything to the idea of what it would take for you to be able to dismiss a commissioner?

[Brian J. Saunders]

In terms of dismissal, again my thinking is that if we had concerns regarding the work of the commissioner of elections, we could retain respected outside authority to examine our concerns and prepare a report. We could make our decision based upon that report, and we could be transparent with Canadians by giving a public statement if our decision were to dismiss the commissioner, or, given the fact that there was something that was publicly known, to retain the commissioner.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

On the current process of hiring and dismissal, I for one am not all that familiar with it, but I'm wondering if you could give us any indication of whether or not you find it adequate or inadequate.

[Brian J. Saunders]

The existing one?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes, if you can.

[Brian J. Saunders]

I'm not familiar enough with the existing procedure to be able to answer that question.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

All right.

When you take a look at the current commissioner, the CEO, and the former CEO, you see that everyone seemed to be of the opinion that the commissioner should stay within Elections Canada. I was really taken aback when the commissioner himself in his presentation made it very clear that he feels completely independent.

He has absolutely no problems whatsoever in terms of being able to deal with the issues that he believes are important to Canadians. What value is your office going to be able to provide the commissioner that he currently doesn't have today?

[Brian J. Saunders]

We will continue to respect the independence of the investigative function. We respect it now, and we will respect it if this bill is passed.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes, but is there anything specific you can think of that is going to empower our commissioner to be able to do anything at all differently through your office versus the Elections Canada office?

[Brian J. Saunders]

I'm not familiar with all the aspects of the bill. I have focused on those provisions that touch upon our operations. I don't know if there's something in the bill that enhances his powers, he being the Commissioner of Canada Elections.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

My understanding is that when we had the commission originally set up—I believe it was during the seventies—it was actually outside of Elections Canada, and then it was brought into Elections Canada. It was felt that this was where it would be best held. Are you able to provide any sort of insight or opinion or a thought in regard to that?

[Brian J. Saunders]

No. I'm not familiar with the history of the establishment of the Office of the Commissioner of Canada Elections. I just know that when we were established in December of 2006 the DPP was given authority to initiate prosecutions under the Canada Elections Act. That was a new authority for us.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Right.

You emphasize the importance of perception and how important that issue is in terms of public confidence. Do you believe that having the commissioner working out of your office is going to enhance the public perception of the independence of the commissioner?

[Brian J. Saunders]

Well, in my opening, I gave you the protections that I think the bill proposes and the other protections that will continue to exist. I mentioned that for the law the bill makes it very clear that the commissioner is to conduct his investigations independently of the DPP. We have our principle of prosecutorial independence that is part of our culture and is reflected in all our policy documents, which, I might add, also indicate that we should respect the independence of investigators.

In my mind, although there is the potential for a perception problem, when you look at the entire package, a well-informed person looking at this realistically and practically and thinking the matter through—which is the test for whether there is a perception problem—would conclude that we will be able to fulfill our prosecutorial function independently of the investigative influence.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Now, if the commissioner wants to be able to investigate something such as a future robocall or something of that nature, for any needs for financing would he be obligated to go through you, Mr. Saunders, or your department? How does he get funnelled those resources?

[Brian J. Saunders]

Under one of the provisions of the bill, he in fact has direct access to the consolidated revenue fund for certain resources he requires. The requirement that's been imposed on the DPP by the bill would be that the DPP certify that the expense is appropriate. Now, that gave rise to the perception problem that I mentioned earlier. That could be seen as giving the DPP some control over the investigations.

But when you read that clause in conjunction with the clause that says the commissioner is to conduct his investigations independently, that leads me to conclude that my role in certifying is simply to say, “Was that expense incurred in relation to an investigation?” My role is not to examine whether it was a worthwhile expense incurred in the course of the investigation, but only if it was incurred in the course of the investigation. It's up to him to conduct his investigation, which means that he has to decide how to investigate, who to investigate, and what charges to investigate for. That's not the role of the DPP.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

That's if he has the money for it.

[The Chair, Conservative, Joe Preston]

We'll go to Mr. O'Toole.

It's good to see you.

[Erin O'Toole, Conservative, Durham, ON]

Thank you, Mr. Chair. It's good to see you as well. I missed most of the committee, although Mr. Scott and I had the good fortune of seeing a lot of each other over the break, which was maybe good for me but not for him.

Mr. Saunders, thank you for appearing. I think one of the benefits of this televised proceeding is that a lot of Canadians will understand better what the Director of Public Prosecutions does and what the Public Prosecution Service of Canada does. In many ways, you're the federal prosecutor dealing with fisheries, environment, transport, finance—a range of issues. For some provinces, you handle prosecutions with respect to controlled drugs. So would it be fair to describe the overall department as a federal prosecutor?

[Brian J. Saunders]

Yes.