Evidence of meeting #44 for Access to Information, Privacy and Ethics in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was elections.
A recording is available from Parliament.
Liberal
The Chair Liberal Paul Szabo
I have one brief question, Mr. Mayrand, in regard to what transpired there. With regard to the two official agents who have taken this matter to the courts--there are two ridings involved--in your opinion, are they reflective of the general case of the 67? Could they somehow be minor items, or in fact maybe severe items? I don't know how we got just those two and why those two would affect the implications for the balance of the 65.
Chief Electoral Officer, Elections Canada
I am sorry, Mr. Chair, again this is a matter that may come up before the Federal Court. These applicants were selected from the applicants. I assume it was the counsel for the applicants who determined that these two candidate agents should be the ones to pursue the application before the Federal Court.
Liberal
The Chair Liberal Paul Szabo
The only reason I raised it is that your statement to the committee seemed to conclude that the decision in that Federal Court judicial review would, or likely would, apply to all the others. That should probably only be the case if they were fairly reflective of all the others. Would you not agree?
Chief Electoral Officer, Elections Canada
It would depend on what ruling...and again we're into speculation here. My understanding is that the Federal Court is being asked to review the decision of a public official and will determine which tests apply, because there are various tests, and it will assess whether I applied the law correctly. Again, it depends on that judgment—again it's speculative at this point in time—and I do not know yet if that decision will be helpful in all other cases or whether it will be narrowly limited to the two applicants. I'll have to wait to see the decision on that.
Liberal
The Chair Liberal Paul Szabo
Okay. We should not assume that the decision on those two automatically would discharge the other 65.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Thank you, Mr. Chair.
I have just one question of clarification before I proceed with my line of questioning. Can you clarify? Did you say that Elections Canada will not proceed with the prosecution until the Federal Court case is finished?
Chief Electoral Officer, Elections Canada
Not the prosecution. It's two separate processes.
The commissioner is running an investigation, will at some point in time conclude that investigation, will determine if there are reasons to file charges—that he believes there are reasons to file charges—and will refer that to the DPP. They are completely separate processes and the two are not interlinked.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Mr. Mayrand, in my earlier questions I think we agreed that you had established that these five factors were newly published, or newly mentioned by you, and that some of the factors were present in the other parties but not all five factors were there. In fact, you've stated that all five factors are critical for you to make the decision you have in referring this to the commissioner.
Factor number one that you mentioned was that statements made to Elections Canada disclosed a “lack of detailed knowledge” of the regional media buy. I've reviewed the Elections Act, and I've reviewed the deck you took us through today. When I look at slide 9, the duties of the official agent, I don't sense there's any responsibility by the official agents to have a “detailed knowledge” of what's going on in the campaign. That's normally the responsibility of the campaign manager. The official agent has to agree to sign expenses and pay cheques and receive contributions.
For example, when the campaign buys pizza to feed the volunteers, the official agent does not know what the topping on the pizza is; he just knows the cost of the pizza and who to send the cheque to. He doesn't have the detailed knowledge. Can you tell us where in the act the official agent's detailed knowledge is required?
Chief Electoral Officer, Elections Canada
These are things that may be argued before the Federal Court.
Conservative
Chief Electoral Officer, Elections Canada
Relating to the presentation today, I will simply say that the person who signs the return is the official agent. The person who incurs liability on the penal side on account of fines and imprisonment is the official agent. If I were an official agent, I would certainly be making sure I knew what I was signing.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Of course, Mr. Mayrand, but you're telling us that there are these five factors, the first of which is that an official agent has detailed knowledge. But you have yet to tell us where in the act this detailed knowledge is required of the official agent. It sounds to me like it might be reasonable, but if it's not in the act, you can't make it up.
I'm looking at the second of your five factors. You talk about the absence of the documentary evidence of a contract. Well, you've already admitted in your own examples that sometimes parties collectively make purchases—for example, lawn signs. It's common for a party to, let's say, purchase one million lawn signs and then sell 5,000 of those signs to an individual campaign. Like all Canadians, they want to get the best price. They want to purchase in volume, and it makes perfect sense. But in no instance would it be necessary for the candidate to have a contract with the supplier of the signs. They pay the party who pooled the expenses and bought the signs. The candidate doesn't have a contract for the signs.
So why would there be this second requirement of these five factors that each candidate have a contract? Again, I don't see it in the act and I don't see it in the obligations of the official agents. I'm assuming that you're thinking this is reasonable. But we have to stick to what's in the act. If it's not in the act, you have the opportunity to propose amendments and improvements to the act and the House of Commons can consider them, but you can't retroactively or unilaterally apply them.
So when I look at your factors, I think to myself, well, these might be reasonable, but if they're not necessary and if they've never been published before, it's hard to hold parties to account on them.
If these five factors are all critical and all necessary, and if just the two that I've mentioned aren't present, doesn't this whole house of cards come crumbling down? Isn't the five-legged stool now toppling over on its side?
Chief Electoral Officer, Elections Canada
I'm very reluctant. I really don't want to get into the case. I will simply point out that, as I stood at the time of the decision and as I stand today, I still find that it's quite unusual that an agent would not know about an expense that represents 40% of the total expenditure in a campaign. And that will be argued before a court of law.
With respect to documentary evidence, again, we were presented different views or stories regarding the existence of documentation. This will, again, be treated before the court.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
But you said that you have decisions yet to make, and you're relying, as you said this morning, on these five factors, which are newly published. We're hearing these for the first time.
I'm telling you that there's ample evidence to suggest that either some of these factors or maybe more than a few can't be substantiated or aren't even necessary because they're not in the act and they're not even reasonable—for example, the detailed knowledge requirement. I'm not sure where that came from. It's not in the act, from what I can tell, and you haven't referred to any section where it's present.
You make these arguments that these five factors are critical—
Liberal
The Chair Liberal Paul Szabo
You're at six minutes, sir. I'll let you bring it quickly to an end, and if Mr. Mayrand has a response, we'll accept that response as well.
So please wrap it up.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
I will wrap it up.
Mr. Mayrand, it appears to me that you've identified five factors but you haven't established their presence in law, and some of them, if not all of them, are shaky and surely couldn't substantiate or justify the decisions you've brought forward so far.
Chief Electoral Officer, Elections Canada
That's your opinion, which I do not share. I think it's a matter that will be argued and decided by the Federal Court in due course.
Liberal
The Chair Liberal Paul Szabo
Colleagues, that actually is the end of the third round, and I already have another two rounds of questioning. There's no question, the questioning will be picked up tomorrow morning, starting again at 10 o'clock.
Mr. Mayrand, of course, we'll welcome you back again tomorrow morning. As we did with the last set of hearings we did on the Mulroney-Schreiber matter, I offered and I think the committee will also want to offer to you an opportunity to again make any corrections, additions, or changes in matters, answers to questions, or your testimony. We'll give you a chance over the evening to review what was said, to make absolutely sure that what is on the public record is a fair reflection of your knowledge and belief.
We'll give you that opportunity tomorrow and then carry on with questioning by members. I think we're just getting into full flight.
At this point—
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I have a suggestion to make regarding the committee's business.
Chief Electoral Officer, Elections Canada
Mr. Chair, I just want to understand, are we dismissed for the day?
Liberal
The Chair Liberal Paul Szabo
Yes. I was going to say that you are excused for the day and that we look forward to seeing you again tomorrow morning.
We are going to continue now with the—
