Evidence of meeting #49 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.
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
As I've indicated, I haven't seen Mr. Walsh's opinion.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Let me just read a couple of things he says. I respect the fact that you're going to make a decision; that's not my issue here. It's just that we have the law clerk, who sent a letter to our chair indicating that:
A witness' position in court is not affected by what is said before a committee, as such testimony cannot be used, directly or indirectly, in such proceedings.
He then goes on to say:
As you know, this convention is an informal rule of practice and not a formal rule of procedure, and applies only to Members of Parliament speaking in the course of parliamentary proceeding, whether in the House or in committee.
So I'm just not quite sure where this line in the sand was drawn. It's great to have you here. You were created because of the Accountability Act, and it's good to have someone who obviously...once you pass legislation, we can see the results of that legislation and why you're here to do the job you're doing. But it's very difficult, other than hearing the outline of your position and what your responsibilities are, to find out exactly what your thoughts are with respect to the issue we're dealing with here.
For example, I would like to know how the warrant was executed and why so many people were aware of the fact that a warrant had been executed, almost in fact before it was public. Why would that procedure in respect to Elections Canada have been so public versus, I'm sure, other cases you deal with that remain so private?
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
To deal with your questions in sequence, in terms of the passage that you just read from Mr. Walsh's letter, I think there's an important distinction between someone who appears before this committee and is a potential witness in a subsequent proceeding and someone like Mr. Beardall and me who appear before this committee but in fact are almost certainly not going to be witnesses should there ever be a subsequent criminal proceeding.
Our claim of privilege is based on entirely different considerations. There's a public interest involved in the protection of ongoing investigations, and we have an ethical and moral obligation to uphold that. We are also bound by the Supreme Court of Canada's decision to respect the solicitor-client privilege that attaches to our advice. So while I do understand Mr. Walsh's letter, our issues are different.
Conservative
Rick Dykstra Conservative St. Catharines, ON
He says this, in fact: “Subject to a decision otherwise by the committee, the sub judice convention does not give a witness the right to not answer questions”—unless the committee decides that you don't have to answer the questions.
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
Again, I'm not an expert on the sub judice convention, but I can indicate that it is not the basis on which we're relying to respectfully decline certain questions that are put to us. The convention, as I understand it, covers matters where a witness is asked to testify in these proceedings about matters that may be raised in subsequent court proceedings or may in fact be pending before the court at the time the questions are asked.
Conservative
Rick Dykstra Conservative St. Catharines, ON
You're pretty clear on the motion that's before the committee in terms of what the committee is going to investigate. At the time you were asked to come here, didn't you wonder why you would be making a presentation on something you can't comment on?
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
We did have concerns when we learned that the committee had asked for our appearance, and we wanted to be quite clear about the limits of the assistance we can provide to the committee.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Based on the fact that you made the committee aware of those significant and severe limitations, the committee still wanted you to come here.
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
That's my understanding.
Conservative
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
I'm happy to assist the committee in any way that I can within the limits of our ability.
Conservative
Rick Dykstra Conservative St. Catharines, ON
But your abilities are significantly and severely limited. Has it been useful for the committee to hear what you've had to say?
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
I guess that's up to the committee, frankly.
Liberal
The Chair Liberal Paul Szabo
Sir, I regret, but your time is up.
Mr. Beardall and Madame Proulx, as has been the practice with other witnesses, we have offered you a brief closing comment or statement to the committee. If you care to correct anything that was said, or to amplify, stress, or cover something that was not done, this might be a good opportunity. If you wish, you have an opportunity now to make a final comment to the committee.
Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada
Perhaps just by way of correction in response to one of the last questions posed, and that Mr. Beardall answered, about the number of instances of Canada Elections Act files upon which we have been consulted, I echo Mr. Beardall's evidence that there have been few.
My previous response, that there were numerous occasions, related to a question I was asked about how many contacts we'd had with Elections Canada. I'm not aware of every contact a prosecutor may have had, and there probably have been several.
Liberal
The Chair Liberal Paul Szabo
Thank you kindly.
The witnesses are excused.
I would call Mr. Mayrand, please, to come to the witness table.
As I indicated to members, Mr. Mayrand has no opening remarks, and I understand from members that there may not be very many questions for him. So we could excuse him as well before we break.
Welcome back, Mr. Mayrand and Mr. Bernier.
Mr. Bernier is counsel for Elections Canada, and Mr. Mayrand is here because, as you know, the committee had requested five personnel from Elections Canada who are participating in the investigation. In a letter from Mr. Mayrand, and in a discussion with him, he laid out the reasons why he felt it was not proper for those five persons directly involved in an ongoing investigation that has emerging developments to appear. But he agreed to come, as the Chief Electoral Officer responsible for Elections Canada, in lieu of those five persons should there be any further questions.
I understand that he has no opening statement to make, and he's available to answer any member's questions.
Go ahead, Madam Redman.
Liberal
Karen Redman Liberal Kitchener Centre, ON
Thank you, Mr. Chair.
And welcome back, Mr. Mayrand.
I want to touch on an affidavit by a Geoff Donald, who is currently a Conservative staffer but who was involved in the 2006 election campaign. In an affidavit he purports that all parties did exactly the same thing as this in-and-out scheme the Conservatives are now trying to defend.
Are you familiar with that affidavit?
Marc Mayrand Chief Electoral Officer, Elections Canada
I'm aware of the affidavit.
Liberal
Karen Redman Liberal Kitchener Centre, ON
I'm wondering if at any time, in your capacity, you've come across anything equivalent to the media buy by the Conservatives that is now commonly called the in-and-out scheme. Can you think of any other examples equivalent to the issue we're now dealing with before this committee?
Chief Electoral Officer, Elections Canada
As I indicated in my previous testimony, I believe I said that there were no similar matters. I have since provided information to the committee under the undertakings, and I indicated that there have been four situations identified in which there were questions about expenses incurred.
Liberal
Chief Electoral Officer, Elections Canada
Again, I won't comment on specific files.
Liberal
Karen Redman Liberal Kitchener Centre, ON
Obviously all of us around this table have run as candidates, obviously successfully. We're here. We have official agents. We take the rules of Elections Canada very seriously. Can you talk to us for a minute about what, from your perspective, constitutes authorization by an official agent for an expenditure?
Chief Electoral Officer, Elections Canada
It has to be a proper expense, as I described, again, in a previous appearance. It has to be authorized by the agent; if not by the agent, it has to be authorized by another person who is herself or himself authorized in writing.
Liberal
Karen Redman Liberal Kitchener Centre, ON
Is there any expectation that somebody on the campaign, or indeed the official agent, may have seen a copy of this, seen this ad on a tape, or approved the transcript in any way?