Information & Ethics Committee on July 16th, 2008

[The Chair, Liberal, Paul Szabo]

I call the meeting to order. Pursuant to Standing Order 108(3)(h)(vi), this is a resumption of the study of the activities of the Conservative Party of Canada during the 2006 election campaign in relation to certain election campaign expenses and the ethical standards of public office holders.

Our witnesses again today are Mr. Marc Mayrand, who is the Chief Electoral Officer of Canada, and Mr. François Bernier, who is the director of legal services for Elections Canada.

We are going to resume questioning by the members. All the presentations have been made. I understand the members still have quite a few questions to ask, and we will continue until the members are at the point where they believe they have exhausted their substantive questions. It is indeterminate when that might be, so we'll just have to work through it.

I want to remind the members that we also have committee business to transact. We will continue this meeting for as long as it takes. Four o'clock may be on the notice, but that's only when the committee wants to adjourn; we have to deal with the future witness names that have been submitted.

A list from each party has been submitted to the clerk. They're being consolidated, and the duplicates will be eliminated. We will circulate to the members, in both official languages, the consolidated list of proposals by the committee for consideration during the rest of the time, until the end of the questioning of Mr. Mayrand. Then we will deal with our approach. Once we excuse Mr. Mayrand, I will suggest possible approaches for us to deal with a very, very large list.

I want to also share with the committee a concern that I have. As you know, in many of the meetings we had, particularly those with the Mulroney-Schreiber hearings, I repeated often that we must always treat all our witnesses with dignity and respect. Those are not just words. They're here at our invitation. I am somewhat concerned that allegations or statements have been made about our witness specifically, and about Elections Canada--characterizing them.

I understand there are some feelings about that, but I think it is getting very close to badgering of witnesses when you make allegations about their motivation or their position. As a member of Parliament, as the chair of this committee, as a colleague, I encourage members to please think twice about the issue of dignity and respect for our witnesses. I would really prefer that those kinds of statements be restricted in this forum and that we deal with the matter before us.

Finally, as I did after yesterday morning, when we started the afternoon session, Mr. Mayrand, I gave you an opportunity to make any statement you felt was necessary to clarify any answers you had given or presentation points you made, or any other information you felt you would like to bring to the attention of the committee. I will give you that opportunity now to address the committee.

[Marc Mayrand, Chief Electoral Officer, Elections Canada]

Thank you, Mr. Chair. I would like to come back to some aspects of what was discussed yesterday and provide some clarifications. In fact, I would like to cover three aspects this morning, if I may.

The first deals with factors that were discussed at length yesterday, and led to my decision, which has been the subject of several discussions at this committee. It seems there is some confusion about those factors. I would first simply like to point out to the committee members that the word "factor" includes the word "fact". Yesterday there was a lot of talk about some of those factors that are not in the Act. I would simply like to point out that the Act requires that the Chief Electoral Officer certify that reimbursement for an expense may legally be made before that happens.

How does the Chief Electoral Officer determine that an expense is eligible? He does this by applying the definitions in the Act that provide that an election expense must be incurred by candidates at fair market value. In this case, it had to be determined whether the expense was actually incurred and whether it was in fact incurred at the commercial value, as the Act requires. I concluded that the expenses as submitted had not been incurred at their fair market value.

The facts that led to that decision are as I stated yesterday. The first fact was the lack of knowledge on the part of the candidates when they were questioned about the nature of the expense. That fact in itself is not sufficient for reaching a conclusion. However, we asked other questions, given the lack of knowledge about the expense. We asked for documentary evidence, for example the existence of contracts or documents that could have established a contractual arrangement between the campaign and the supplier of the service. Once again, the candidates were unable to provide us with that documentary evidence. The absence of sufficient documentary evidence is the second fact I considered.

The third fact was that the Party had made representations stating that all contractual arrangements had been made by the Party and invoices were sent to the Party.

The fourth fact was that the candidates received invoices from the party rather than from the service supplier, and the fact that the money used to pay the expense submitted to us was under the Party's control at all times. And the last fact was that the allocation of costs for the claims submitted to us did not reflect the fair market value.

These facts led me to conclude that, under the Act, the expense had not been incurred by the candidate and in any event did not represent the commercial value. I simply wanted to make these clarifications, in view of what I saw as being confusion yesterday.

The second aspect I would like to raise with the committee today deals with the nature of the questions I was asked yesterday. I tried, in all good faith, to answer the questions put to me as completely as possible. However, I noticed that some of the questions I was asked yesterday had already been asked in Federal Court during the cross-examination of Elections Canada representatives in the court case.

I simply want to point out that Ms. Vézina's testimony in Federal Court represents the position of Elections Canada in this case, that the affidavit of Elections Canada in the case is in the public domain and is part of the Court's record, that Ms. Vézina was cross-examined for nearly four days, and that the transcript of Ms. Vézina's cross-examination is now in the public domain because it has been placed in the Federal Court record.

Once again, I want to assure the committee of my desire to cooperate as fully as possible in its deliberations. However, in view of the fact that there is a case before the Court, I must refuse to answer questions that are now before the Court, out of respect for the courts. I would also not want anyone to accuse me or accuse Elections Canada of using this forum to improve its position in the courts. I would like the committee's assurance that it understands this.

The third aspect I would like to come back to this morning, further to my testimony yesterday, deals with the allegation of a leak in relation to the search that took place in this case. Although I find it hard to see any connection with the committee's terms of reference and the motion before the committee, I confirmed that the allegation made in the media had disturbed me. I also informed the committee that at the time I had quickly done a brief review of the situation and come to the conclusion that, in my opinion, there were no reasonable grounds to believe that there had been any leak originating with Elections Canada.

I understand that there is a motion before the committee that could request me or direct me—it was not entirely clear from what I heard yesterday—to order an independent investigation. Before committing public funds for such an investigation, I would ask, with all due respect, that the committee, if it considers it appropriate, state the considerations that might prompt it to pass such a motion, specify the allegations regarding the leak, and, if possible, specify the sources of the leak. I would also ask that the committee specify as best it can what the ins and outs of the investigation would be, so that the terms of reference for an independent investigator could clearly state the committee's expectations and, if the motion were to be passed, the report could meet the committee's expectations.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Mayrand.

I think for you and me, in our discussions, it was very clear from the beginning, and I know it was reflected in the view of Elections Canada, in your consultation with your executive board, that matters that may either prejudice or compromise the court proceedings are matters that you should not go to. This is the understanding I had with you. And I fully understand, given that you are now identifying that the questions coming out appear to be questions that were already posed to Elections Canada and its representatives at the proceedings, that to give any other answer would not happen. It's the same answer. And since all those questions and answers are on the official record and are available, and I understand that members have them, to repeat them here probably is not going to be additive to the knowledge of the members for our purposes.

So I accept your assessment of this situation with regard to asking questions already asked in the court. I would ask that you so indicate should a question be posed to you that you believe has been answered in the Federal Court proceedings--the judicial review--and we will move on to another question.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

On a point of order, Mr. Chair, there is nothing in the Standing Orders that would forbid a witness from answering a question that might also have been asked in a court. In fact, quite to the contrary, nothing the witness says here can be used in a court proceeding and in no way, then, could be used to interfere with that proceeding.

Finally, it was the decision of this committee, and ruled upon by you, that these hearings could go ahead in spite of the fact that civil proceedings are under way. That decision was made by this committee, despite cautions from Conservative members. Now that the committee has made that decision, we insist, as members of Parliament with privileges that come along with that, that the witness answer our questions and not use the cover of a court proceeding to avoid answering the questions that are posed to him.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Poilievre. It is debate, but I think it's important to deal with it.

First of all, the committee passed a resolution to deal with this matter and at that meeting authorized the chair to arrange for Elections Canada to appear.

That was on the Thursday. On the Friday when I flew home, the first thing I did was to contact Mr. Mayrand, and we entered into some discussions. It was clear right from the outset that Elections Canada had concerns about appearing, since there were proceedings going on. There were concerns about potentially prejudicing or compromising those civil proceedings. It's clear that it's sub judice. It is not mandatory, but it is self-imposed. It is a self-imposed position that Mr. Mayrand has taken. He made those representations to me right at the outset. Under the authorization of the committee, because the committee still wanted to have Mr. Mayrand, I asked him to appear with the understanding that we would not put him in a position in which he might compromise or prejudice other proceedings. That is the deal I made with Mr. Mayrand on behalf of the committee.

Mr. Mayrand has up to this point accommodated us probably beyond where he had imagined we would go. But now he has raised with us—and I guess with me—that this was our understanding. I would also advise the members that I wrote a letter to Mr. Mayrand that outlined this understanding, and it was circulated to all members of Parliament. It dealt with the issue of potential compromise or prejudicial statements with regard to the civil proceedings. So the members were aware of this before these proceedings started.

Notwithstanding, Mr. Poilievre, I made the deal. Mr. Mayrand is imposing upon himself, which is the normal practice, the convention. He has said that he will not be able to answer questions that have already been posed in the federal proceeding and will advise us should those questions be posed again here. If he does so, by imposing that convention, I will accept his declaration, and the question will not need to be answered by him. That is my ruling.

[David Tilson, Conservative, Dufferin—Caledon, ON]

On a point of order, Mr. Chairman, you just made a comment that this is standard practice. I'd like to know what authority says this is standard practice. It is not standard practice. I spent about 45 minutes pointing out to the committee how holding this hearing would prejudice some others. There are three or four different proceedings or investigations going on. Yet the committee insisted that this matter take place. I went through it all. There was a report made by a House of Commons committee a number of years ago on this very point, and yet the committee insisted that we ram this through.

Are you telling us that we're kind of holding a hearing, but then again we're really not? Are you and the witness going to decide which questions are okay and which aren't? That's not the way to hold a hearing in this place. That's not the way we do things. Mr. Poilievre is quite right. The information that he gives in these proceedings cannot be used against him in a court of law.

Quite frankly, everything you're saying about some questions being okay and other questions not being okay is a lot of nonsense. If we're going to continue with this hearing, I say we should be allowed to ask any question we wish. We shouldn't be overruled by you. You shouldn't be telling us that pertinent questions are inappropriate. Sir, if you're going to do your job, do your job.

[The Chair, Liberal, Paul Szabo]

Thank you for your input. That's debate; it's not a point of order.

Order, please.

Mr. Goodyear, could I just take a moment?

Before I go to your point of order, Mr. Goodyear, Mr. Tilson has asked about the sub judice convention and why I think I have interpreted it as incorrect. This is from Marleau and Montpetit, specifically to do with the sub judice convention, and it's page 78 for the members' reference.

It says that it is accepted practice that in the interests of justice and fair play, certain restrictions should be placed on the freedom of MPs to make reference to criminal cases awaiting judicial decisions. The word “convention” is used as no rule exits to prevent Parliament from discussing a matter that is sub judice. The acceptance of a restriction is a voluntary restraint—I referred to it as self-imposed; it's voluntary—to protect an accused person or other party to the court action from suffering any prejudicial effect from public discussion of the issue.

Accordingly, with the reference to parliamentary authority, my decision with regard to Mr. Mayrand's claim and the voluntary imposition of the sub judice convention is that I accept, and we're going to proceed on that basis.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Well, sir, you have opened up, on my point, the issue of Marleau and Montpetit.

[The Chair, Liberal, Paul Szabo]

Order. Order.

[David Tilson, Conservative, Dufferin—Caledon, ON]

You just can't.... Surely you have to hear us on these things. Are you just saying this is the way it is; it doesn't matter what you think or what you say; this is the law? That's absolute nonsense, and I would like to have the opportunity to respond to what you just said. You know, surely in the fairness of parliamentary procedure you should hear all arguments.

And this is a very contentious issue, the issue as to whether witnesses.... I mean, otherwise they could say, “Well, I don't know the answer to this, but I'm not going to answer it because it's before the courts.” Well, that isn't the way it works in this place. So Marleau and Montpetit, at page 863, says—

[The Chair, Liberal, Paul Szabo]

Order, please, Mr. Tilson.

[David Tilson, Conservative, Dufferin—Caledon, ON]

It's only a few short sentences, sir.

[The Chair, Liberal, Paul Szabo]

Order.

[David Tilson, Conservative, Dufferin—Caledon, ON]

There are no specific rules governing the nature of questions which may be put to witnesses appearing before committees, beyond the general requirement of relevance to the issue before the committee.... Particular attention has been paid to the questioning of public servants. The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their ministers.

So I'm saying, sir, that it's fine for you to read that section, but this section makes it quite clear that there are no specific rules governing the nature of questions, as you have suggested.

[The Chair, Liberal, Paul Szabo]

Now, just give me a moment, please. We can unravel this.

Mr. Tilson, you rose on a point of order and I gave you an opportunity to go on. And I ruled that it was not a point of order; it was debate. But during your statements to the committee, you suggested that I can't do that because it's not in the rules. I quoted to you from Marleau and Montpetit, which is incorporated by reference into the way we conduct our business, on the specific matter before us, which is the sub judice convention. I ruled accordingly. I ruled that that was my decision.

At this point, if the members want to overrule the chair, their only opportunity at this point, now that I have made a ruling and said that's my decision, is to challenge the decision of the chair. Okay?

Now, I have a point of order now from Mr. Goodyear. Mr. Goodyear, please.

[Gary Goodyear, Conservative, Cambridge, ON]

Thank you, Mr. Chair.

Just very quickly, I'm going to ask you a question, but the fact is that on June 19 Mr. Tilson spent 45 minutes, and I spent almost an hour, explaining to the committee that we would not get all the answers because of sub judice. And this is exactly what's happened. Despite that, the members opposite chose to spend taxpayers' dollars to have a hearing that can't get the answers.

However, here's my point, Mr. Chair. You did send a letter, on your own accord, telling the witness which questions to answer and which questions not to answer. I have a copy of the letter, and I respect that. Prior to making that comment, Mr. Chair, you stated just a few minutes ago that you contacted committee members to make sure this was the way we would go ahead. Sir, you did not contact me.

I would like a list of the Conservative members you actually contacted. Or was this another unilateral decision made by a chair who has been appointed by the Liberal Party and is in fact a Liberal member?

[The Chair, Liberal, Paul Szabo]

Just for my information, you said that I indicated I had contacted members?

[Gary Goodyear, Conservative, Cambridge, ON]

Members. You contacted the committee.

[The Chair, Liberal, Paul Szabo]

When was that?

[Gary Goodyear, Conservative, Cambridge, ON]

Well, we'll have to get the minutes. It was about seven minutes ago when you were making your statement that you contacted committee members and that we would proceed in this fashion. Then after that, you alluded to the letter you sent to Monsieur Mayrand, which in fact does tell him which questions to answer and which not.

[The Chair, Liberal, Paul Szabo]

Okay. No, I think you misheard me maybe.

[Gary Goodyear, Conservative, Cambridge, ON]

Well, then clarify.

[The Chair, Liberal, Paul Szabo]

That was the meeting on the Thursday, when we took the vote on the motion before us today. And on that Thursday, was that July 14?

[Gary Goodyear, Conservative, Cambridge, ON]

It was July 19.

[The Chair, Liberal, Paul Szabo]

June, sorry, the Thursday. Once we passed it, the committee members authorized the chair to make the necessary arrangements to have Elections Canada appear.