Procedure and House Affairs Committee on Feb. 8th, 2007

[The Chair, Conservative, Gary Goodyear]

Colleagues, let's begin the meeting this morning. First of all, I want to remind members that this meeting will be held in public.

We have invited the Commissioner of Canada Elections to be with us this morning, Mr. Bill Corbett. Mr. Corbett will give a brief presentation. Then we will open the round for questioning. The usual procedure in the past has been, just to remind members, that we will go to an eight-minute round at the beginning, then decrease to five-minute rounds and continue as long as time permits or for as long as the committee needs to hear from the witnesses.

Mr. Corbett, thank you very much for taking time out this morning, and welcome. I wonder if you could take a moment to introduce your colleague, and then the floor is yours.

[William Corbett, Commissioner of Canada Elections, Elections Canada]

Thank you.

With me is Audrey Nowack, who is senior legal counsel with the commissioner's office. She has spent much more time in the office and knows the legislation a lot better than I do.

I'd like to make a presentation in order to identify to you some issues that have changed or developed in the time that I've been there.

This is the first time I have appeared before this committee as Commissioner of Elections Canada. I was appointed Commissioner on September 18. I want to thank you for this opportunity to speak to you about the activities of my office and to answer your questions.

First, I'll talk about the Commissioner's role, the observation processes and enforcement of the Canada Elections Act already in place and of those newly passed.

I will begin by discussing the history of the Commissioner's role.

Before 1974, no federal officer was responsible for enforcing the Canada Elections Act. That year, the position of Commissioner of Election Expenses was therefore created. The Commissioner's mandate was to oversee enforcement of the new financial provisions of the Canada Elections Act, which had been added to the act at the time.

In 1977, the responsibilities of the Commissioner, renamed the Commissioner of Federal Elections, were expanded to cover all provisions of the act, a mandate similar to today's.

In 1993, a national network of investigators retained on contract and trained by my office was set up to carry out the investigations on behalf of the commissioner. Previously these had been done by the RCMP.

There is still a memorandum of understanding in place between the Commissioner of Elections Canada and the Commissioner of the RCMP to provide assistance to the RCMP when needed, assistance, for example, of computer experts, information technologists, forensic accountants. There may be, from time to time, a joint investigation by the RCMP and the commissioner's office.

A chief investigator is located in my office, who is assisted by seven assistant chief investigators. These people coordinate the investigations carried out in the field by 28 investigators across the country, located in the major cities primarily.

To bring fairness and consistency to the process, the rules, the policies, the procedures related to investigations are set out in an investigator's manual, which is available on the Elections Canada website. The manual is currently being updated to reflect changes in legislation enacted by Bill C-2 and other amendments to law.

As commissioner, I have a number of legal advisers at headquarters to assist in the management of the investigations, and as you may know, prosecutions are now to be handled by the new Federal Prosecution Service, headed by the Director of Public Prosecutions. Until December 12, I was responsible for prosecutions under the Canada Elections Act as well. I am now responsible for making referrals from my office to the Director of Public Prosecutions. The office is quite small.

Powers and responsibilities of the commissioner. Section 509 of the act is the main section that creates the duty, the mandate, to ensure the act is complied with and enforced. To accomplish these duties, the commissioner is authorized to take any measures necessary in the public interest, including launching an inquiry, seeking an injunction, entering a compliance agreement, recommending a prosecution.

Complaints are received from a variety of sources. They may come from candidates or their representatives, officials of political parties, concerned members of the public; however, the largest single source of cases by far is the referrals generated by Elections Canada itself. For instance, in the 2004 election, or arising therefrom, 75% of all our casework were referrals from Elections Canada.

[The Chair, Conservative, Gary Goodyear]

Please continue.

[William Corbett]

I'm using two terms here: one “complaints”; and the other “referrals”. For complaints, I'm talking about those that are not from Elections Canada, that casework that comes from other sources. For referrals, I'm using that term to describe cases that come from within.

Concerning the process for compliance and enforcement, as soon as my office receives a complaint or a referral, it is assigned to one of my legal counsel to complete a preliminary assessment. The assessment determines whether or not the conduct that's the subject of the complaint or referral falls within the specific offence provision within the act and what, if any, investigation is required.

As commissioner, I'm authorized under section 513 to start an investigation if it's considered in the public interest to do so. I don't act on mere speculation or assumptions. I look for some objective and reliable indications that a specific breach of the law may have occurred. In that context, we often seek clarification of a complaint, particularly from a member of the public, and further details of the complaint—tombstone data, dates, places, documents, who else might have been a witness to something, basic stuff from which we can make a determination of whether an investigation should take place and to launch an investigation.

After reviewing the information provided, counsel prepares a brief report analyzing the complaint and setting out a course of proposed action. If an investigation is recommended, the report will also set out a plan for that investigation developed with the chief investigator. Many referrals do not require further investigation at all. Many referrals are divergent without investigation or simply closed because they don't merit investigation. At any given time, we have approximately 40 cases under investigation.

I review the report of counsel and decide what action is to be taken and provide some general directions to the investigators. In effect, I approve the plan before it's carried out.

When the investigation is complete, counsel will prepare a second report, which analyzes the results of the investigation to determine whether there's reasonable cause to believe an offence under the act has been committed, and may recommend a disposition of the case. I do receive interim reports from time to time, primarily because I'm nosy and I like to know what's going on.

It's my responsibility to determine whether we should recommend a prosecution, propose a compliance agreement, consider a caution letter or some other communication, or take no action at all. During an election period, an injunction may be considered to stop something or to have something done, set something straight quickly. We've never had to apply for an injunction, but just having the power has an interesting effect.

In every case, at the end of the process we write to a complainant and explain the outcome of the complaint. This isn't necessarily so with the referrals internally from Elections Canada, but for every other complainant, they hear what happened.

Concerning the enforcement tools provided by the act, there are two principal tools that are described carefully in the act; those are compliance agreements and prosecutions. The act, however, recognizes that other measures may be taken.

Compliance agreements are essentially a voluntary agreement between me and the person or organization that is shown to have contravened the act. These were added by Parliament to the legislation in 2000. These have been increasingly used to obtain compliance with the act. They have the advantage of obtaining compliance without resort to the courts, which, as you know, is a costly and time-consuming process. To ensure transparency, a summary of these agreements is published in the Canada Gazette and is found on the Elections Canada website.

In these cases, there's clearly a violation of the act admitted by the responsible person, but it is not thought necessary to prosecute. This provides some greater flexibility in the enforcement of the act, and it supplements, but does not replace, prosecutions.

There are instances in which the public interest warrants prosecution whether the person involved wants a compliance agreement or not. Before a prosecution is recommended to the Director of Public Prosecutions--and as I pointed out, this postdates December 12--the commissioner must be satisfied that there's sufficient evidence to prove an offence beyond a reasonable doubt and a reasonable prospect of conviction at trial. If that is the case, then the second consideration is whether a prosecution is in the public interest, taking account of a number of public interest considerations, such as suitability of alternative modes of enforcement, the degree of seriousness of the alleged offence, and aggravating and mitigating circumstances in the case.

These regulatory offences are in effect like another criminal sanction that flows from a prosecution under the act, so the analysis is just as demanding as if you were taking a criminal prosecution forward and includes the respecting of protections and rights afforded by the Canadian Charter of Rights and Freedoms.

There is a great deal of informal enforcement and compliance, and I say “informal” because the tools we use are not specifically addressed in the act. There are numerous referrals from Elections Canada that involve modest, inadvertent, technical apparent violations of the act. Failing to file a report on time is an example, and those are numerous. We receive a large number of referrals from Elections Canada that involve modest, inadvertent, technical apparent violations of the act. You might wonder why they send them to us. It is because they see it as my responsibility to decide no, not theirs, and that's a responsibility in the legislation.

So there are some complaints of minor violations that don't even warrant a compliance agreement, and certainly not a recommendation for prosecution. In many of these cases a caution to the offending participant is the appropriate response and is likely all that is necessary to obtain compliance in the future. For these cases, I developed something called a commissioner's caution letter. This letter sets out the facts as indicated from the information available to my office. It sets out the prohibition in the legislation. It sets out the offence in the legislation, and the penalty provisions in the legislation. Having brought the offending conduct to the person's attention, the letter then invites the person to contact counsel if the facts are wrong--if we have the facts wrong, get back to us. But if not, the letter requests that the conduct not be repeated.

This is something I developed in September when I first took the job, because it seemed to me we needed another tool to deal to deal with a variety of minor matters that were still violations of the act. In some cases there were so many of them that they needed to be addressed.

Those receiving the caution letter are asked to acknowledge receipt by returning a signed copy of the letter. Since September, 86 caution letters have been sent out for minor violations of the act. For example, we received over 100 referrals-for-nomination contest reports filed late. Some of them were a week late; some of them were six months late. We did a triage and took the more serious ones. But with that number of late reports, obviously there was a problem in the system. So we sent out about 47 caution letters for roughly 150 referrals advising people of the responsibility under the legislation and that it had not been complied with.

The response to these caution letters has been very positive indeed. In addition to people's sending back the acknowledgement letter, I have received lengthy letters from people explaining why they violated the law, how they violated the law, that they wouldn't do it again, apologizing for it. I had one in the Maritimes where a radio station had broadcast in the black period. The response was from the broadcasting organization, indicating they would change their policy. They got it wrong at one station, but they would change their policy and make that known to all the stations within their broadcasting network.

So the response was quite positive. A number of people indicated that they liked the caution instead of something else--most would. A number of these letters came back on party letterhead from official agents or otherwise. Anyway, I was quite pleased that it received such a positive response.

Another tool we may use is this. During an election, informal compliance can be achieved simply by contacting party officials, who will informally rectify conduct that we find may be in violation of the act. This is done simply through a phone call. In other words, the parties will self-regulate. We use that phenomenon or that propensity to set things right. If something that we think is in violation of the act is happening in a particular constituency, we'll contact the party and ask them to fix it. And they do.

In terms of press releases, since taking office I've authorized two press releases that summarized the results of two investigations. The first one dealt with an investigation into allegations of wrongdoing in the vote in Desnethé--Missinippi--Churchill River, Saskatchewan, that huge riding in northern Saskatchewan. The second dealt with alleged voting irregularities in Edmonton Centre. We had received a number of complaints with regard to both of these.

We had done an extensive investigation, which determined that there was no wrongdoing and no significant irregularities in the voting in either electoral district in the 2006 election. However, there had been considerable media coverage at the time of the election, which left the impression, in both of these cases, that there was wrongdoing and that the result of the vote may not have been reliable. In the public interest, I felt this impression needed to be addressed and the public record set straight. A public statement was the only effective way I had of doing this. As for the future use of press releases, it will be a case-by-case matter. It's not something I necessarily hope to do regularly. But in these two cases, I felt strongly that the public was left with the impression that there was something wrong.

Public Prosecution Service of Canada. This is the name of the new prosecution service in the federal government that is responsible for all federal prosecutions, including Canada Elections Act prosecutions. With the enactment of Bill C-2, the prosecution function has been transferred to the Director of Public Prosecutions.

The decision to prosecute and the conduct of the prosecution are now the responsibilities of the DPP. If the decision is made to prosecute, the DPP will instruct me to have the charges laid. That's the way the system works. I make a referral to the DPP after an investigation is made. The decision-making role in relation to investigations remains the same. It's with my office.

Once an investigation has been completed, the principles I have described will be applied in order to determine whether a referral and recommendation to the DPP should be made.

I have met with the Public Prosecution Service and have been assured that our referrals will be given prompt assessment by that office. My concern was in regard to yet more delay in the structure, and I'm doing my best to see that doesn't happen.

My general observation during the course of my work as commissioner is that Canadians, by and large, want to act in accordance with their statutory responsibilities. There's tremendous support for the law here among Canadians in general. Once informed that there's a violation of obligations, many immediately react positively and are quite prepared to ensure conformity with the law. In addition, political parties are often instrumental in ensuring that their own members comply with the law, and they are generally an effective ally in obtaining compliance with the act.

It's important to recall that the commitment of all stakeholders to abide by the rules ensures the harmonious unfolding of an electoral event and the public confidence in the electoral process. My own approach to achieving the goal of compliance with the act is to use mechanisms that will achieve compliance, without the prosecution of charges, wherever possible. The Public Prosecution Service supports this approach, and the courts do as well. Consequently, the prosecution of charges should be reserved for the more serious violations of the act.

Every time I've decided to initiate a prosecution--when I had that responsibility--I asked myself some questions: Is it in the public interest to prosecute? Has there been a wilful violation of the act? Is there an absence of remorse? Is there a refusal to comply? Every time, I ask myself, do we need to prosecute this case?

As you know, I must act independently in the decision-making and maintain the confidentiality of matters under investigation by my office. This reflects my obligation of fairness to anyone dealing with the office and the privacy interests of individuals. So I'm somewhat constrained in responding to certain kinds of questions--matters that are under investigation, for example--because this would have an impact on the ability of my office to carry out its responsibilities. I'm also somewhat reluctant to offer legal advice on hypothetical questions and, for that matter, policy advice, which this committee is much better suited to than I am.

[The Chair, Conservative, Gary Goodyear]

Thank you, Mr. Corbett. Again, I welcome you here and appreciate that you're here, Commissioner.

Colleagues, this is just a reminder. The meeting is being held in public, and we are ready for our first round of eight minutes.

Mr. Owen, you are first.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

My questions relate to your description of the decision-making process following an investigation and the relationship between you and the Director of Public Prosecutions. I think at one point you described your standard for investigation as being reasonable grounds to believe that an offence had been committed, and of course that's the test a police officer would apply when determining whether to swear out information before a justice of the peace.

I may have misunderstood, but I thought I then heard you say that you applied a test in consideration of referring it to the Director of Public Prosecutions, as to first, whether there was a reasonable likelihood of successful conviction, and second, whether it was in the public interest. I wasn't sure whether that was the test you were applying or the test you were describing that the Director of Public Prosecutions would then apply at the second stage.

Just to be clear, in your most recent comments on the public interest, which I think you set out fairly clearly and importantly, I want to ensure that I understood. In the application of that arm of the two-stage test--reasonable likelihood of conviction and in the public interest--the public interest consideration only comes forward after you've made, or the director has made, the decision that there is a reasonable likelihood of conviction, and it would not be appropriate to apply a public interest test to, for instance, prosecute if the decision hadn't first been made that there was a reasonable likelihood of conviction.

[William Corbett]

The first decision is whether there's sufficient evidence to support the prosecution. That's a technical decision, if you will. The second is whether it's in the public interest to prosecute. I apply both, and that's exactly what I expect the DPP will do, as well.

The legislation says that I make a referral to the Director of Public Prosecutions. I've met with that office now and have asked them what they wanted done by way of referral. What do they want it to look like? They want a referral and a recommendation, and they want me to cover off why, for example, other alternatives to prosecution are not appropriate. They want a fulsome opinion when I send one to them. But in the public interest, I may decide not to send it to them, even though there may be sufficient evidence to support a charge. That's what I was getting at in my presentation, and they know that.

I'm the gatekeeper, if you will, to the DPP's consideration, but they're content that I be that, at least for the time being. There is no Director of Public Prosecutions, I should say; there is only an acting one at this time. So once a director is appointed, I'll have a clearer view as to how they want to work out this relationship.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

I want to make sure I understand the standard you apply before referral.

The Elections Canada website printout, under “Prosecutions”, says, “If the Commissioner believes on reasonable grounds that an offence under the Act has been committed...”. You may refer to it.

Reasonable grounds that an offence has been committed is a different standard than reasonable likelihood of conviction. One looks at evidence as it sits in front of you, and the second of course is evidence as it's contested in a trial. I'm wondering which one you apply.

[William Corbett]

Reasonable grounds, as the Supreme Court has called it, is credibly based probability. In other words, it's more probable than not, from your information, that the offence took place and you've looked at whether that evidence is credible. That's the standard.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Without considering, though, any contrary evidence; that is, standing on its own, this evidence could support a conviction.

[William Corbett]

If you had contrary evidence, you might very well consider that, but often you don't.

I don't know if I mentioned it, but before concluding an investigation we will go to the person who is the subject of the complaint and ask them if they wish to give an explanation. Often enough, they do. So not only will I have the evidence for the offence, but I may have the explanation for why it took place. That's very helpful with the public interest consideration.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

[The Chair, Conservative, Gary Goodyear]

You have three minutes left. If anyone else has a question, I would allow three more minutes.

[An hon. member]

Let's keep going.

[The Chair, Conservative, Gary Goodyear]

Keep going? Is everybody okay with that?

Ms. Redman, please.

[Karen Redman, Liberal, Kitchener Centre, ON]

Thank you for your presentation.

The only question I have--and you may have covered it off slightly in your presentation--is what part, if any, of this is made public?

[William Corbett]

The investigator's manual makes a lot of it public. As I say, it needs to be updated with the legislative developments under Bill C-2. Once we have it updated, more of it will be made public. I have a publicly available document on communications with the public and with the complainant. The two press releases are on the website, so there's information there.

I'm trying to think of what isn't available. As far as particular cases go, we maintain confidentiality of the complaint and the investigation until the point we advise the complainant what our disposition is going to be. But that's not publicly available either. The two exceptions were the press releases I put out.

The work is to maintain confidentiality. The principles are all described in publicly available documentation.

[Karen Redman, Liberal, Kitchener Centre, ON]

If I were to make a complaint, all the correspondence between your office and me, as a complainant, would be confidential?

[William Corbett]

Yes.

[Karen Redman, Liberal, Kitchener Centre, ON]

And at no time would they be disclosed?

[William Corbett]

If a charge were laid, it would come out in a prosecution. Otherwise, the preliminary assessment may end your complaint, in which case you would be informed. An investigation may take place and nothing more. You would be informed. A compliance agreement may have been entered into. That would be public, because it's on the website. A caution letter would not be public, but the complainant would be notified.

I hope I have that covered.

[Karen Redman, Liberal, Kitchener Centre, ON]

Thank you.

[The Chair, Conservative, Gary Goodyear]

Thank you.

We'll move to Mr. Reid, please.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Mr. Chair.

Thank you, Commissioner, for being here today.

I want to ask if you would be willing to send us a copy of one of the caution letters you send out--obviously not regarding any specific case--to give the members of the committee a sense of what these things look like. The clerk would be happy to submit them to all of us. That would be helpful.

[William Corbett]

You would like a laundered version of a caution letter?