Evidence of meeting #14 for Procedure and House Affairs 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.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Mr. Chairman, I simply wanted to consult the calendar which is on this cell phone. This cell phone cannot take photos; no photo was taken.
Conservative
The Chair Conservative Gary Goodyear
The member is probably deviating as far as he possibly can from the reality of the situation, but I have no other evidence that the member may want to try to look at a different calendar. Pointing a cell phone across the room is probably a fairly immature way of checking a calendar, but I'll accept that.
Mr. Lukiwski, you have the floor.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you, Chair.
The point I have made fairly consistently in this presentation is that there is this complete inconsistency in the rulings presented by Elections Canada. We have just given two examples of regional media buys from the Liberal Party of Canada. In both cases, a number of Liberal candidates got together to pay for ads that appeared in their local newspapers that were completely national in content. But the money that was transferred from the national party to the candidates was to pay for those ads. So again I point out the obvious that there is certainly an argument to be made that perhaps that shouldn't be allowed.
But the fact of the matter is that it was allowed. For 18 years, from 1988 to 2006, the rules allowed such transfers to be made. They also allowed local candidates to determine whether or not they wished to present, on their behalf, a local campaign ad or a national ad. They determined what would be in their own best interest.
I know we read this into the record before, but I must do it again because it says--and this is right from the Elections Canada published interpretative material from 1988 to 2007:
Interpretation guidelines contained in Elections Canada Candidate Handbooks dating back to 1988 are consistent over time on the issue of candidate advertising, until a sudden drastic change in 2007 (i.e., after the 2006 Election). Until this drastic change, the guidelines were clear that advertising conducted by local campaigns could promote the candidate specifically and/or national party.
Let me point out it also states in Elections Canada's own material--this is absolutely consistent with the Elections Act itself--the national parties have an unrestricted right to transfer funds to local campaigns.
So we have seen time and time again, certainly from the Liberal Party in the 2004 election and in the 2006 election, that local candidates participated in regional media buys. By that I mean that a group of candidates who lived in the same region would all get together, contribute money--probably an equal amount of money from each candidate--and purchase newspaper ads on their collective behalf. But the ads, as I've indicated, were always national in content. They didn't promote the candidacy of the local MP or candidate. In the case of the Liberals, they would promote the national campaign. They would run a picture of the leader of the party, Paul Martin, and say “Vote Liberal”. The only reference to local campaigns was a list of names of all of the candidates at the bottom of the ad.
If that is allowed--and I would argue it was allowed under the guidelines of the day--then why should the Conservative Party, which engaged in similar practices, be found in violation of the act? It makes absolutely no sense to me. I eagerly await the Federal Court case in which we have identified these examples as being inconsistent, and get this matter determined once and for all before a court of law.
But I absolutely wish that we could get this issue dealt with at the committee level, and once and for all put this behind us and be able to demonstrate, without question, that the activities and actions of the Conservative Party of Canada and their candidates who represented that party in the 2006 election were certainly within all acceptable guidelines, as published by Elections Canada, and certainly consistent with the advertising practices of the other political parties.
I don't see, Chair, how there can be any dispute with that fact whatsoever, given the examples that I've already read into the record, but let me also go a little further.
The Elections Canada publication called Election Handbook for Candidates, Their Official Agents and Auditors, Mr. Chair, which was last updated in 1997 and issued by Elections Canada--
Conservative
Conservative
The Chair Conservative Gary Goodyear
Order.
Mr. Lukiwski, I do recall some quotes from that handbook. This will be a different section, I'm hoping.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Absolutely. And because of the complexities of this issue, there are many items contained in that handbook, which, if taken in isolation, may be somewhat confusing, but when you put them together as part of a larger package, they clearly provide evidence that we were fully within our rights to conduct ourselves as we did in the 2006 election.
The quote I'm going to relate to you now is another piece of that massive jigsaw puzzle, if I can characterize it as such. Hopefully people can pick up on this, Chair, in the first reading. I quote:
The Chief Electoral Officer will consider adherence to this handbook as meeting the statutory handbook requirements for issuing certificates for reimbursement purposes.
In other words, what is contained in the handbook is the gospel according the Canada Elections Act—if you want to get a reimbursement, here are the guidelines, here's what you follow. This in 1997.
In other words, Chair, the candidates and official agents and registered political parties, I would add, took this handbook, read it thoroughly, and said, okay, what can we and what can we not do? All parties did the same. And if one complied with the regulations and provisions contained in this handbook, suffice it to say, it would be the most compelling argument that a party or a candidate or an official agent acted in compliance with the act itself. That's why this handbook was published to begin with.
I know that all candidates would agree that it would be pretty difficult if you merely gave candidates and their official agents, many of whom would be doing the duties of an official agent or running as a candidate for the first time, a copy of the Elections Act and said, okay, read it and understand it because these are the rules. That would be difficult for a lot of candidates and official agents who were running or campaigning for the first time. Frankly, it would probably be difficult for a lot of veteran MPs with only a copy of the act and no other supporting documentation to say, yes, okay, I understand it all and I know exactly what it means. No. To try to simplify things there are handbooks—reference materials, in other words—that candidates, official agents, campaign workers, and so on can refer to so everyone knows what is and what is not allowable.
That's what the quote was saying, that the Chief Electoral Officer will consider adherence to this handbook at meeting the statutory requirements of the act. If you do what this handbook says you should do, you'll be okay. You'll be within compliance. That's very important, Mr. Chair. What the handbook states in terms of regional media buys, local campaigns versus national campaigns, transfers between national campaigns and local campaigns—everything that is contained in that handbook—is the procedures that the Conservative Party of Canada followed. So if this handbook states that if you adhere to this you are in compliance, then we were in compliance, without question.
We also have to again look at the definition of advertising and advertisements, because at question we have the findings of the electoral office saying that, if a local candidate received money from the national campaign and ran an ad that was national in scope, then it should be considered, in their opinion, a national ad and go against the party's cap. Let's take a look at how the term “advertising” is defined in the handbook. It states:
Although the term “advertisement” is not specifically defined in the Act, it should be interpreted to include any type of publicity which promotes or opposes a registered party or the election of a candidate. ... material...that promote[s] or oppose[s] a candidate or a registered political party should indicate that it is authorized by the official agent of the candidate.
In other words, this is coming right from the handbook, and we've just heard that if you comply with the guidelines outlined in this handbook, you're in compliance with the act.
This handbook states that if you run an ad that either promotes or opposes a candidate or a national party, as long as you have the proper authorization on it, it is in compliance.
That's why we see, in the examples I have given you most recently about the Liberal Party running regional ad buys, they were found to be in compliance. Because local candidates were promoting the national party, they also received money from the national party to do so, but both of those, as stated in the handbook, are deemed to be compliant. So, clearly, as I've stated many times before, it appears that the Liberal Party, in those two examples, which Mr. LeBlanc was part of, was completely in compliance with the act. However, in the Elections Canada ruling where similar regional media buys were performed by Conservative candidates getting together to pay for an ad that was national in content, Elections Canada said you're non-compliant. How can that be? How can it be that by following exactly the same guidelines as other political parties, only the Conservative Party was found to be in non-compliance? In my view, it is a serious error, an error in judgment in the ruling of Elections Canada.
One other quote that I think underscores what I've just been saying comes not from the handbook but from the report of the Chief Electoral Officer of Canada on the 36th general election, in 1997. The context was that, in the 1997 election, national political parties were not allowed to conduct advertising on June 1, which was the day before polling day in that particular year, and of course, on polling day itself. They claimed that under section 48 of the act. But candidates were allowed to do so because a similar restriction on them had been struck down by the courts. In other words, they were saying that the national party can't poll the day before polling day or the day of polling day, but individual candidates can advertise on those days.
It is reported how this issue was administered. The Chief Electoral Officer stated:
The criteria applied to determine whether specific advertisements were to be accepted for broadcast were the identity of the sponsor and that of the body or person invoiced. The content of the advertisements accepted was subject only to the freedom of expression guaranteed by the Charter. As a result, a number of individual candidates purchased time on the day before polling and on the actual day of the election. Since the time purchased was often used to run a national advertisement with a local tag line, this rendered the prohibition in section 48...somewhat ineffectual.
So what it was saying even then is that the lines between the local candidates and the national party were somewhat blurred, because while the act at that time stated—and it has since been changed—that a national party can't advertise the day before or the day of polling, a local candidate can; and also, if a local candidate can advertise a national ad, there's confusion.
So there are interpretive problems that we have seen consistently over the years in relation to Elections Canada. Therefore, I submit to you that this seems to be one of those, in my estimation.
In reference to remarks made by Monsieur Proulx yesterday, where he was trying to defend Elections Canada, that if they made a finding or a ruling, they have to be right, they were clearly not right in 1997. The rules had to be changed because there was this confusion. I'm suggesting that perhaps the same thing might have occurred this time.
Liberal
Marcel Proulx Liberal Hull—Aylmer, QC
On a point of order, Mr. Chair, I certainly don't recall making that statement yesterday.
Conservative
The Chair Conservative Gary Goodyear
But thank you very much. I appreciate the tone of the question.
Mr. Lukiwski.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you.
So the point is that there are at times differences of opinion on the rulings of Elections Canada, and you cannot say in all instances that Elections Canada has been correct. In fact, just the opposite. We've just given an example in which Elections Canada, in their 1997 ruling, had some problems with inconsistencies. Those rules had to be clarified. I would suggest that it's entirely possible that the rulings made by Elections Canada with respect to the Conservative Party of Canada in the 2006 election are also faulty. I would suggest that if we had a proper examination at the committee level, irrespective of whether or when our court case is heard, we would be able to determine that very thing. We would be able to determine, quite quickly, I would submit, that every action taken by all parties with respect to provisions contained in the Elections Act, as outlined in the candidates handbook, were consistently applied across the board by all parties.
The Conservative Party and I are looking for an opportunity in which to present this case, by standards of comparison with the other political parties. It is a fundamental part of our argument, which we are presenting in federal court, that we been in compliance with the act from both an interpretive and a comparative standpoint. We are in compliance for this reason: if a party other than the Conservatives has engaged in activity similar to that of the Conservatives, and that party is found to be compliant, then the Conservatives must be seen to be in compliance as well.
I think it's extremely important to recognize that, unless we have the ability to compare similar advertising practices and protocols, we will not be able to demonstrate that we have been compliant with the act. In fact, we would be denied our legal right to be able to advance our position. Therefore, Madam Redman's motion that only the Conservative books be examined in committee denies the Conservative Party an opportunity to demonstrate why we have not been uncompliant. We need that opportunity to compare our own examples with those of the other parties.
Unfortunately, my motion, which suggests that we engage in a comparative discussion of practices between parties as well as an interpretive discussion on Elections Canada, has not been favourably received by the opposition. They are seeking to deny us the opportunity of comparing our advertising practices with theirs—to deny us a fundamental right, almost a legal right.
Our request would never be refused in federal court. Can you imagine, if part of our defence in Federal Court was that we were doing exactly the same thing as the opposition parties have done, that a judge would refuse to hear our argument on the grounds that we could not enter into evidence the advertising practices of our opponents?
That would never happen. That would never happen because it would be a denial of our ability to defend ourselves. Yet that's exactly what the opposition members are attempting to argue. They are denying us the opportunity to examine their practices, because such an examination would substantiate our argument that we have done absolutely nothing wrong.
Chair, I see that the Speaker of the House is here. I certainly wouldn't want to interrupt any important conversations that the chair might have. I'm sure it's just a matter of idle curiosity that brings the Speaker down...his esteemed presence.
Let me say, Chair, further to some comments that I made before, that there was this confusion between whether a candidate could advertise on polling day in 1997 and advertise a national ad. This was deemed to have been not allowed from national party perspectives, and the confusion that resulted ended up with a position being presented by Elections Canada.
This position was reflected in a press release, a notice to the media, issued by Elections Canada on May 24, 1997, and May 29, 1997, respectively. Both documents made it very clear that it was Elections Canada's position that there was no restriction on the content of advertising by candidates.
This was a position taken by Elections Canada in 1997. It stated in 1997 a position that it has not reversed, up until and including the 2006 election. Let's be quite clear here on what it says. The stated position was that there was no restriction on the content of advertising by candidates.
Mr. Chair, from a ruling from Elections Canada in 2006, Elections Canada is now saying that there is a restriction. If candidates run national ads and they're paid for through transfer of funds from the national party, you can't do that. That's what they're saying now. That's their position now. But in 1997, they articulated the fact that you can run whatever kind of ad you want—local, national, whatever—and they haven't changed that position. They did change the guidelines, but again, a year after the 2006 election.
The then Chief Electoral Officer explicitly recognized that the act allowed candidates to pay for national advertisements, contingent upon, of course, their putting the appropriate tag lines on and everything else. So all right, local candidates can run and pay for national ads.
Now, if we were in a position where we were actually having a fulsome discussion on this, we would be able to enter into testimony evidence from Elections Canada in their ruling against the Conservative Party, where they stated that they felt that for local candidates running national ads with money supplied by the national campaign, those moneys should be considered a part of the national advertising cap of the registered party.
Chair, there are huge inconsistencies, not only in the interpretation of the act itself but huge inconsistencies in the application of the rulings from Elections Canada from party to party. That's something that, quite frankly, shouldn't be allowed. There has to be some form of consistency.
If we were allowed the opportunity to bring forward all of the books of the respective parties, and take example by example by example, we would clearly and quickly find out that there has been no non-compliance issues with respect to the Conservative Party of Canada. We'd be able to absolutely determine that we acted in an entirely appropriate manner, in full compliance with electoral law, with the guidelines, with the handbook, with the act itself.
Again I go back to wondering why we have this reticence exhibited by members of the opposition on this very fundamental matter. Why are they so indisposed to accepting our motion? Why do they not want a full examination of this very issue that they say proves the Conservatives have overspent? Well, there's only one reason that I can see: they do not believe their own argument.
They are putting forward a specious argument merely to try to throw some mud on the wall, to try to smear the Conservatives, when they know the actual truth of the matter is that the Conservative Party did nothing wrong. Were they convinced otherwise, they would have no difficulty in accepting our motion. Unfortunately, Chair, we have a situation in which, for partisan reasons, they want to deny this committee the ability and, I would suggest, their right to examine this issue thoroughly. They only want to take a certain portion of this issue, craft it to their own political use, and try to spin the story as if there was some scandal or some problem.
Chair, I would strongly suggest that if we had these matters before an independent tribunal, let alone the Federal Court, it very quickly would be determined that there has been some real wrongdoing here, but certainly no wrongdoing on behalf of the Conservative Party. The wrongdoing is that there has been an inconsistent application on behalf of Elections Canada in their rulings. I think any independent tribunal of reasonable Canadians could determine nothing but that, could come to that conclusion and nothing else. The evidence is clear that other parties have done exactly what the Conservative Party has done, and yet only the Conservative Party has been singled out by Elections Canada.
Chair, since we don't have an independent tribunal to examine this matter, the next best thing, in my opinion, would be to have this committee examine it, thoroughly examine the issue. To do that, to allow us to adequately and appropriately defend and explain ourselves, we need to be able to offer the same defence that we will be offering in Federal Court. That defence, partially, allows us to bring forward examples from other political parties on how they conducted themselves. That's part of the defence that is contained in our affidavit. That's part of the defence that we will be advancing when this case is finally heard in court. That's part of the defence that we would offer up to this committee. Yet, the opposition is denying us that right and that ability to bring forward this type of explanation, this type of defence. I keep using the word, defence, Chair, because that's exactly what it feels like here.
The opposition is making these trumped-up charges and allegations, yet not allowing us the ability to defend ourselves against the very things that they contend we did wrong. Who is playing politics here? Clearly, Chair, it is not us. We're merely trying to defend ourselves in a matter that is appropriate, consistent with the basic tenets of natural law. Yet, we have continued opposition by the members opposite to that very fundamental principle, that all parties in a dispute have the right to adequately and appropriately and fully defend themselves.
Chair, the defence that I would offer, and I would suggest the defence that members on this side of the table would offer, is twofold. First, a thorough examination of the Canada Election Act itself and the candidates handbook. Secondly, a comparison of the advertising practices of all political parties to determine if any or all of the political parties should be viewed as being in non-compliance with the act and with the regulations themselves.
Now, Chair, it's a commonsensical argument to make, and it just makes perfect sense to me, because anyone who wants to assure Canadians that they're trying to get to the bottom of any story, to find the truth behind any allegation, would have to admit that they have to allow a full defence. They have to allow a full examination of all of the issues. They have to allow the aggrieved party an opportunity to offer up its best defence. Yet we have an example here, Chair, where members opposite are trying to deny that very right, the very right that is afforded every citizen in this country, certainly every member of this committee.
Again, I only could draw the conclusion, Chair, that the reason the members opposite do not want to afford us that very basic right of an appropriate and adequate defence and representation is because they are not interested in the truth. They are not interested in the fact that we may prove without a shadow of a doubt, both here at the committee level and in a court of law, that we did nothing wrong.
They do not want to hear that. They do not want that proof to be brought forward. Then, that would destroy the very little credibility they have on this issue. It would destroy it completely. It would prove completely and thoroughly that the only reason this action is taking place, this trumped-up motion that the Liberal Party have advanced, is to try to score some cheap political points. Otherwise, Chair, they would have absolutely no difficulty in accepting this motion intact, without amendment.
When I read media reports, when and if members talk about this issue, members opposite are saying, “Well, we're just trying to get to the bottom of it. We're just trying to get the truth. That's all we're trying to do.” Yet their actions speak loudly and they speak otherwise. Because they don't want to get to the bottom of this. They don't want to get to the truth. All they're trying to do is create sensationalist headlines and then convince people, through an aggressive media spin, that it's only the Tories who did something wrong in terms of spending practices and advertising practices in the 2006 election.
They're not interested in the defence. Far from it. The last thing in the world they want to have happen—
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
—is an aggressive defence, an aggressive examination of this issue.
Now, Chair, I, at least, have always been of the view that everyone, every single citizen of this country, intuitively, instinctively knows the difference between right and wrong. I think anyone taking the time to examine the testimony and examine the issue at hand would agree that the position taken by members of the opposition is absolutely wrong.
They cannot, nor should they be allowed to, continue on with this charade that purports to be acting in a manner that is impartial and fair. It's absolutely inconsistent with any definition of impartiality and fairness.
Chair, I would say that if we want to continue with this charade we're more than willing to do so. We're more than willing to do so because the opposition is giving us no option. They are merely trying to say, “Hey, look, if you want to give up the battle here and you want to turn over the floor to us, then we'll try to bring forward our motion and force an examination of only Conservative advertising practices. Let's do it.” Well, I'm not prepared to give up that fight. I'm not prepared to give up the battle, because it's not the right thing to do. It is wrong.
I know if any member opposite were in the same position as we are, they would argue as aggressively and as vociferously as I am. Frankly, if the situations were reversed—although I would not admit it publicly—I would know in my heart that the opposition is right.
So I think that what we need to do here is continue our examination. Since it is apparent that the members opposite are not going to allow my motion to carry—my motion that is based on impartiality and fairness—then our only recourse is to continue to read into the record example upon example which further supports our argument. Then we can present this testimony at the appropriate time to Canadians and let the court of public opinion determine what's at stake here and who's right and who's wrong.
Frankly, part of me wishes that these hearings were televised right now, so that Canadians could listen in—
Conservative
Liberal
Karen Redman Liberal Kitchener Centre, ON
I thought we previously had agreed that we would televise these hearings. I am wondering why we aren't in a televised room. Was there an attempt made to schedule that?
Conservative
The Chair Conservative Gary Goodyear
Order, please.
I don't recall that we had made that decision for this particular meeting. I'm not going to get into a debate about whether it was discussed. I'm sorry. If we want them televised, we'll make that arrangement for the next time.
Actually, if it pleases the members, we'll try to do it right away. We do have this room all night; I've cleared the room. But we will attempt to do that.
I don't want to get into a debate about this.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
It's not a debate. You say that you don't recall. Perhaps the clerk would recall if such a decision was made.
Conservative
The Chair Conservative Gary Goodyear
Unfortunately, Lucy is not our regular clerk. I'll check the very second that Jim gets back.
Thank you.
Mr. Lukiwski.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Whether or not these proceedings are televised, my point is that a part of me wishes they were so Canadians could actually listen to the arguments I'm advancing here and understand the situation at hand.
On the one hand, we have an argument advanced by Elections Canada that the Conservatives were at fault because of national ads run by local candidates funded by the national party. That would then be, in the opinion of Elections Canada, part of the national advertising buy and part of the cap.
If these proceedings were televised, we could read into the record example after example showing how other parties did exactly the same thing but were not found to be in violation of the Elections Act. It wouldn't take long for Canadians to determine on their own that there has been wrongdoing here; that there has been an incorrect application or ruling from Elections Canada.
Furthermore, the members opposite have no intention of allowing a full examination and a full defence to be offered by the Conservative Party of Canada. They have no intention of accommodating this motion, because they do not want us to be able to demonstrate graphically and empirically that our advertising practices, procedures, or protocols--whatever you want to call them--were identical to those of the other parties. They don't want that on the record. That don't want that to be televised. They don't want Canadians to see that. They would simply prefer to continue with their attempted spin of the situation and their smear campaign.
I've always been a big believer that Canadians and the Canadian public can very easily determine what's right and what's wrong. They can easily determine in the course of an election or political discourse who's playing games and who's telling the truth. So I wish this testimony could be made available in a more visual and auditory fashion to Canadians from coast to coast to coast. I don't think it would take long for them to determine, as we have, that the political games being played here are being advanced from members opposite.
As I mentioned earlier, all we can do is give examples of and read into the record some of the defence we'll be advancing as part of our legal case, in the hope that anyone who has an interest in this case will be able to get the record of this testimony and make their own determination as to whether or not we, the Conservative Party, have ample cause to advance the arguments we have been advancing.
With that in mind, I would like to read into the record another quote. This is exhibit seven. It comes as a direct quote from the Election Handbook for Candidates, Their Official Agents and Auditors (2000). With respect to section 4.4.5, election advertising, it states:
Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.
Conservative
The Chair Conservative Gary Goodyear
I apologize, but I couldn't hear that. Perhaps you wouldn't mind slowing down and repeating it.
Thank you.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Certainly, Chair.
Again, this comes from the Election Handbook for Candidates, Their Official Agents and Auditors (2000). It states under section 4.45, Election advertising:
Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.
In other words, if one of the major issues in a national campaign is X, the local candidate can choose, if he or she wishes, to advertise that issue, which is associated as a national issue, and fully be compliant. They have that ability.
In other words, Chair, all of the rules and regulations and guidelines that I have been referring to and will continue to refer to make it quite clear that it is up to the local candidate as to the type of advertising that he or she wishes to engage in. In other words, it would be absolutely false to rule that because a local candidate chose a national issue or national message or national ad to promote their own candidacy, they were in violation of any electoral law. It is quite clear that it is up to the candidate to determine which ad would best serve the election of that candidate.
It states that the only qualifier is that the local candidate must properly authorize the ad by indicating that it is authorized by the official agent of the candidate. I think we all know this. We've all gone through elections before. Even if it's an ad produced by the local candidate and not an election ad, it still has to have the name of the official agent, the proper authorization at the bottom of the ad. We all know that. We have all gone through elections time and time again. What the Elections Act states is that this is all you have to do if you want to run a national ad.
If it's electronic in nature as opposed to a print ad, somewhere that has to be contained in the body of the electronic ad. Obviously if it is a radio ad, you have to have a voice-over towards the end of the ad, or contained somewhere in the ad, saying that it's authorized by so-and-so, the official agent of such and such a candidate. If it's a television ad, you could have both audio and video if you wish, or video only, if you ran a trailer at the bottom of the ad, where it said, this ad authorized by the appropriate official agent. That would be appropriate. But as long as you have that authorization, then it doesn't matter what the content of the ad is.
Yet in its ruling against the Conservative Party of Canada, Elections Canada uses that as a basis for its argument, stating that we were in non-compliance with the act, partially because ads run from local candidates promoted the national campaign. That was the opinion of Elections Canada. Yet in their own guidelines, Chair, in their own handbooks and in the act itself, it states otherwise.
So what are we to draw from this? How can we possibly sit back and not engage Elections Canada in any course of legal action? Of course we have to do that, because our opinion—and I think I've illustrated many examples of this—is that Elections Canada erred, and we are going to discuss that. We are going to demonstrate that in Federal Court. I would absolutely love to be able to do it right here, but in order for us to engage in that type of active and aggressive defence, we must have the ability to compare the actions of the other political parties. That ability is being denied by members opposite in this committee. They feel it appropriate to restrict the level of discussion to an examination of the Conservative's election documentation only.
While we do not deny the fact that we're willing and fully ready to discuss that, in order for us to refute any charges that may be levelled by members opposite, we have to be able to look at their books and say,“You see? How can you possibly say that we did something wrong, when according to your own books, you've done exactly the same thing?”
That's all we're asking for, to have the opportunity to provide an adequate defence to the charges being levelled by members opposite. The members opposite will not allow us that opportunity.
It's why I equate this to being—certainly not a court of law, nothing close to it—close to a kangaroo court. In other words, if this were a court of law and it were being handled in this fashion, it would be equivalent to the situation where the prosecution said, well, I will dictate the terms of your defence, I will dictate what kinds of defence materials you can bring forward, I will dictate what kind of evidence you can avail yourself of. That would never happen in a court of law, Mr. Chair.
In any jurisdiction, in any democracy, in any court in the land in any democratic country, anyone who wishes to defend himself against a charge, no matter how fanciful it is, has the ability to request evidence, to uncover evidence that would help in the defence. Yet members opposite are saying that in their opinion, sorry, they don't recognize it as a fundamental right of ours. We are only saying and promoting the fact that one can have a limited amount of information to help present a defence—not unlimited, but limited.
They're saying that all the information we may need to help us defend ourselves and prove that our position is valid and appropriate, they're going to deny. They're not going to allow that to be brought forward.
Chair, if you can give me an example of any democratic country that runs by that set of rules in any other legal arena, I would be fascinated to see it. I would love to see a case study that suggests that a defendant is restricted in his or her ability to gather evidence and to present a spirited defence, because it just doesn't happen.
Yet according to the members opposite, that's exactly what should be happening here. They're saying, hey, you can't get your hands on the evidence that might exonerate you; you can't get your hands on any evidence that might prove that you're in complete compliance, because we won't let you have it, but on the other hand, we want the ability to try to make unfounded allegations at every opportunity and to restrict the use of evidentiary procedures; let's have a hearing so we can then go out to talk to the media and make headlines. That's what they're talking about here.
The motion presented by members opposite is the farthest thing from a judicial and impartial examination of what happened in the 2006 election that I can imagine.
Chair, what are we to do? We have a situation in which we'll continue to offer evidence through my testimony and my colleagues' testimony. I would suggest that it is irrefutable evidence that clearly illustrates the similarities between our advertising practices and those of the members opposite and their respective parties in previous elections. But, Chair, I don't know whether that will be good enough. That's why I made mention that if this were televised, or at least, Chair, if we were able to cohesively get our arguments in front of the Canadian public, I have no doubt that they would agree with my opinion that not only did the Conservative Party of Canada do nothing wrong in its actions during the 2006 election, but that the opposition parties are trying to actually create an incorrect impression strictly for partisan political purposes, and that though they continue to insist that their motion is one of fairness and impartiality, it is exactly the opposite.
Chair, I would suggest to you that any Canadian taking even a cursory glance at this testimony, with even a passing knowledge of electoral law, could not help but be convinced that this action by the opposition is just a sham.
But, Chair, we must press on.
I think we also have to get into the record some of the other points we have attached in our affidavit. I mentioned earlier that there was a change made in 2007, and this is something I think is important. It appears that what might have happened is that Elections Canada, pointing to the changes made in election guidelines in 2007—fully a year after the 2006 election—used those changes to say that what you did in 2006 was wrong.
To set up that situation, Chair, I've gone over excerpts from the candidates' handbook in 1997 and 2000. I'm going to refer to excerpts from the candidates' handbook in 2005 and then get into this change that occurred in 2007.
Here's the 2005 reference. I want to say that this reference I'm about to read into testimony was included in the Election Handbook for Candidates, Their Official Agents and Auditors, published December 2005, which in fact was the official handbook that all candidates were to guide themselves with for the 2006 election. These will be the latest guidelines prior to the 2006 election. With respect to election advertising, it states the following:
Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.
Furthermore, it talks about the identification of election advertising, and it states:
All election advertising that promotes or opposes a registered political party or the election of a candidate, including taking a position on an issue with which a registered party or candidate is associated, must indicate that it is authorized by the official agent of the candidate.
Nothing has changed, really. It's still saying the same thing.
Going into the 2006 election, it states that if a candidate wishes to pay money for an ad that has a national message, they have the right to do so as long as they authorize it appropriately. That was the same for 1997. It was the same in 2000. I suggest it goes back all the way to 1988. In other words, a candidate has the right to determine the advertising message that he or she wants. If it happens to be national in scope, that's okay. He or she can do it.
Yet Elections Canada said no, you can't do that. In their ruling against us, they said no, if a local candidate is paying for an ad that's national in scope, and if they got money from the national party, directly or indirectly, to pay for that, they can't do that. They can't claim that as an expense. It's got to be claimed as a national advertising expense. That's the position of Elections Canada, yet that is in direct conflict with its own act.
The rules, as identified in 2005 and previous years, said you can do it, and Elections Canada is saying, all a sudden now, you can't. How did that happen? Well, as I mentioned, the 2005 regulations seemed to be unchanged from 2000, and the 2005 regulations would have applied to the January 23, 2006, election.
But then, Chair, a sudden change is contained in the Election Handbook for Candidates, Their Official Agents and Auditors published by Elections Canada in March 2007. So a year after the 2006 election, Elections Canada comes up with a new handbook.
What does it say? Well, here's the definition of election advertising:
Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.
In other words, the first part of it says it promotes or opposes just a candidate, not a candidate and/or a registered party. There's a change. There's a huge change. It completely then disallows a candidate from arguing or putting an ad that promotes the national party. But that rule did not come into effect until 2007. The rules in 2006, Chair, allowed candidates to either advertise local concerns or issues or place an ad national in scope.
Furthermore, the 2007 handbook goes on to say, with respect to identification of election advertising: “All election advertising that promotes or opposes a candidate”—a candidate—“including taking a position on an issue with which a registered party or candidate is associated, must indicate” who authorized it, etc. But it doesn't say “any message that promotes or opposes a candidate and/or a registered party”. They have changed the rules. And it's certainly within their ambit to do so.
I've talked at length here, saying that maybe that's an issue that should be discussed. In years previous, a local candidate could receive money transferred from a national party and run a series of ads that were merely national ads. That was allowed up to 2006. Now they've changed the rules, and that's okay, but don't apply the new rules to the 2006 election, because these rules weren't in effect in 2006, Chair.
Now, Chair, I think that's where we've got this whole confusion, and I say it's confusion because, again, I'm somewhat hesitant to suggest that Elections Canada made anything more than an honest mistake. But I think that perhaps what's happened here is that the changes in 2007 to the guidelines have been applied retroactively to 2006. They shouldn't have been, because if they had been, then all the ads I've already given you examples of, run by the NDP, the Liberals, and the Bloc, should have been found to be not in compliance. But it was apparently applied to our party.
Chair, time and again we've seen references from the Election Handbook for Candidates, Their Official Agents and Auditors to the fact that local candidates can receive money from the national campaign and they can then run an ad that's national in scope. It states that consistently from 1997 up until the last publication, which was December 2005.
So let's look at the argument advanced by Elections Canada. They said, no, you can't. It was a local campaign, it ran a national ad, and money was received from the national party. You've got to consider that a national ad; therefore it's got to be put on the cap of the national registered party, and you exceeded the cap. If you take all these local ads that were national in content, and take the money away from the local campaign and add it on to the national campaign total, you've then exceeded the cap.
How do they come to that determination? Everything we've read, everything I've read into testimony, and everything in the candidates' handbook and the act says otherwise. It says you can do exactly what we did. In fact, Chair, and I keep pointing this out, all the other official registered parties knew of these rules and did exactly the same thing, knowing full well that they were fully within the guidelines established by Elections Canada.
That's what I'm trying to get at. If we could have this full examination of not only our books but the opposition's books, we could show that clearly before all members of this committee. We could show that to any witnesses we brought in.
We could offer evidence to the witnesses: look, here's example after example after example that all parties engaged in similar advertising practices. Election officials, why would you single out only one party? What is it that you saw that differentiates our ad campaign from a Liberal or an NDP or a Bloc Québécois campaign?”
However, Chair, we're not being afforded that opportunity. The opposition members say, sorry, you can try what you want here; you can argue that you did similar practices to us, but we're not going to give you the books to allow you to prove it. We're not going to allow you the opportunity to prove your case, yet we still want to rake you over the coals and accuse you of everything from improper election advertising to who knows what. That's no way, Mr. Chair, in a democracy like ours, to run a committee, let alone the natural law of the land.
All we're saying, Chair, is give us the opportunity. Give us our inalienable right to provide an adequate defence by opening up your books, as we will ours, and show that the practices you have engaged in are similar to the practices we engaged in. That's all we're asking. Yet time and time again we are refused by members opposite, because...well, I don't know why. Again, that's the frustrating part about this. We've had no tangible argument by the members opposite as to why only the Conservatives should open up their books.
The closest thing we had, and I refer to this again, are comments that Monsieur Proulx made at the last meeting when he said, “Elections Canada said...”. Well yes, they did, but we dispute that. We dispute that. Just because Elections Canada said something doesn't mean they're right. I've given evidence already that Elections Canada has made mistakes previously. But even if they hadn't, even if they had an impeccable record of levelling charges or making rulings that were absolutely correct, that still doesn't mean we shouldn't have the right to dispute the rulings and to offer an appropriate defence. That's what we're saying.
We absolutely disagree with Elections Canada's ruling. I pointed out a number of examples that absolutely fly in the face of that ruling. I want to have the opportunity, Chair, to bring that level of discussion to this committee. And what do we have? We have the opposition saying, well, I can't tell you why; I'm just saying no. I can't present any argument that what you say is false or off-track; I'm just saying we're not going to allow you the ability to present an adequate defence by examining our books.
Time after time after time in my testimony I've stated that I do not believe the opposition did anything wrong. By my interpretation of the act and guidelines, everything they did was appropriate. We gave the example where the New Brunswick and region MPs got together and ran a series of regional ads that were totally national in content—no problem with Elections Canada. We read into testimony how Edmonton and area candidates did the same thing—no problem. We read into evidence how members of the New Democratic Party received money from their national campaign, ran national ads—no problem, no dispute from Elections Canada.
So why is it, then, when the Conservative Party did the same thing, Elections Canada found fault with it? Well, I think there was an honest mistake made. But I would like the opportunity, Chair, to be able to present that argument before this committee. Yet the position of the committee, at least the position of the opposition members of the committee, is, no, you can't do that. We will not allow you to have that opportunity to bring evidence forward that might prove, might demonstrate, that you did nothing wrong. We're just going to deny you that, arbitrarily deny you that ability to examine our information contained in our books that might help you with your case.
I guess they can do that, Chair. They're apparently doing it now. But I sure as heck don't see by anybody's definition how that is fair, how that could be considered to be fair and impartial. Yet I keep hearing all the time from members opposite, you know, it is fair; let's get this examination done. Let's get it done forthwith, right now. Let's get her on. Let's do it. Give me the motion, give me your books. Let's get it on right now.
We're not going down that road, Chair, because the opposition will not allow us the opportunity to forward an adequate defence. Quite frankly, Chair, I think that's unconscionable. I think it's shameful. And I think Canadians would find it to be shameful as well.
So, Chair, now that we've found that there were rules in place governing the election in 2006, and we've found that there are rules and guidelines that have changed subsequent to the 2006 election, I think we have a sense of what might have happened here. But, Chair, I would strongly suggest that the 2005 Election Handbook for Candidates, Their Official Agents and Auditors is the only guideline we should refer to when trying to determine whether or not there was an infraction of electoral law.
Furthermore, I would suggest, Chair, if I may, that concerning transfers of money, the Elections Canada Registered Party Handbook, 2004 and 2005 editions, specifically states that transfers from a national party may be “used by the candidate directly to promote or oppose a registered party, its leader, or a candidate during an election period”, and so when they are used, “the official agent must consider them as election expenses of the candidate.”
Now let me go back to that last part, that “the official agent must consider them as election expenses of the candidate”. That's where we have a huge difference of opinion in the ruling from Elections Canada, because Elections Canada is interpreting this, or at least interpreting the practices of the Conservative Party, to say no, sorry, he was a local candidate who received a transfer of funds from the national party, and it was a national ad, so we say that has to be considered a national ad.
Right here in black and white, and I quote, it says, “the official agent must consider them as election expenses of the candidate”. There is no grey area here. There is no interpretation here. There is nothing to say, well, I guess it's kind of...you know...maybe, maybe not. No. This states, without equivocation and as clearly as possible, in the Elections Canada Registered Party Handbook of 2005, that transfers of funds from a federal party to a local campaign can be used by the candidate directly to promote or oppose a registered party, its leader, or candidate, and that if they do choose to do so, “the official agent must consider them as election expenses of the candidate.” In other words, it states categorically in 2005 in the handbook that if transfers of funds were to go to a candidate and that candidate used those funds to promote his national party, they must be considered an expense of the candidate.
Yet what do we hear from Elections Canada? They're saying you can't, that it's a national ad. Funds were transferred from the national party for the promotion of national ad; ergo, it's national. Their own documentation shows that is incorrect, Chair. Their own documentation says it must be used as a local candidate expense. It must be used—not should be, shall be, may be, want to be. It must be.
Having heard this, I don't know why there should be any confusion on behalf of either Elections Canada or this committee in terms of the Conservative approach to ads. We have clearly complied with all the advertising requirements as set out by Elections Canada themselves.
We then go into the changes. There was a change in the candidates' handbook in 2007, and there's also a sudden change contained in the Registered Party Handbook. The quotes I have just been illustrating are from the Registered Party Handbook, which says a candidate can accept a transfer of moneys from the federal party, use it to promote the national party, and if they do so they have to claim that as a local expense. That's what the Registered Party Handbook says. That handbook is printed by Elections Canada. That is their own rule, and it states the national party can donate money to a local candidate, and the candidate can turn around and use that money to promote the national party, but you have to claim that as an election expense of the candidate.
That's what it said prior to the 2006 election. Those are Elections Canada's words, not mine.
Suddenly in 2007 there is a change to the wording in the Registered Party Handbook. The references I have made to the acceptability of a candidate promoting or opposing a registered party or its leader have been deleted. In other words, if you recall, prior to 2007 a candidate could receive money from the federal party and choose, if he or she wanted, to promote either the national party or the leader or promote himself or herself as a candidate. In 2007 the references to the national party and leader have been removed, so it is now stating that if you receive money from the national party during an election now and into the future, you can only promote yourself; you can't promote the national party or the leader. That will not be allowed.
That's okay. Rules are rules. But don't apply the rules from 2007 to the 2006 election campaign, and that is apparently what has happened here.
Chair, I don't know where else to go on this, other than the fact that I've raised so many questions about the interpretation of the act as apparently viewed by Elections Canada that without an opportunity to examine Elections Canada officials, it's pretty difficult in this environment to prove anything. Once again, what we require to have a fulsome debate and a thorough examination, and perhaps cross-examination, of Elections Canada officials is the ability to view the very election campaign expenses as performed by the opposition parties. We have to have the ability to say, okay, this is what we did, and now you claim we were in violation of the Elections Act; I dispute that, and I'd like you to explain that, but before we get into that, let's take a look at the practices of the opposition parties.
If we can demonstrate that the opposition parties conducted themselves in a similar fashion, why are we the only ones being singled out? I would love to be able to speak about that, but the opposition is not allowing it.
I think it's absolutely incumbent upon members of this committee to allow this discussion to go forward. I would be hard-pressed to think that any member, after hearing this testimony for the last several hours, could now go forward to the media and maintain that although a lot of the quotes referenced indeed come directly from the act and the Elections Canada handbook, Mr. Lukiwski is still wrong.
Why? Why would anyone say that? No one could say. There is no good argument. That's all that's going to happen. We're going to have media spin. They can't even distort the evidence that I've entered into testimony, because it's factual. It's not my view; these are words contained within the act and within the guidelines and handbooks of Elections Canada itself. So I think the opposition members would have a very difficult time in arguing why their position should be adopted, when in fact the evidence is absolutely to the contrary.
I have gone to great lengths to try to demonstrate, through my words and, more importantly, those of Elections Canada, that our position is the correct one. We dispute the ruling of Elections Canada that we have in some way violated the Elections Act with respect to advertising.
It all comes down to Elections Canada's ruling that because there was a transfer of money from a federal party to the local candidate, and the local candidate ran a national ad, the local candidate shouldn't be allowed to claim this as an eligible election expense; it should be claimed as a national advertising expense. But if you go over the cap, then you're in violation of the advertising caps. That's the position of Elections Canada. Yet the published words of Elections Canada are absolutely opposed to their ruling. Every single reference I made here is contained in their Elections Act handbook or guidelines. Elections Canada states unequivocally, categorically, that you can transfer money from the feds to a candidate and the candidate can use that money to promote either a national party or a leader. That's in the guidelines that Elections Canada published. Yet the ruling that they gave is 180 degrees away from what their own guidelines state.
Am I confused about this ruling? Yes, you're darn right I'm confused. I can't understand it. Would I like the opportunity to discuss this ruling at the committee level with officials from Elections Canada? Indeed, I would. But would I have the ability to pursue the matter fully without the opportunity to compare our practices with those of the opposition? No. That opportunity would be denied to me or any other member of the Conservative Party at this committee.
We must be given the opportunity. If we want to have a full discussion and examination of the ruling made by Elections Canada, we must have the opportunity to examine the books of the opposition.
Now, I have referenced a lot of the advertising practices and procedures of members of the opposition. I've read them into the testimony. Of course, we got this information because we were able to obtain the election records that opposition parties and candidates filed with Elections Canada. But that's not the same thing as having election officials from the Liberal Party, the NDP, and the Bloc Québécois explain to this committee why they entered into the practices that they obviously did. That has a very significant measure of importance to us when our defence is presented to Elections Canada.
It's one thing just to grab election returns and read them into the testimony. It's quite another to ask the executive director of one of the registered parties, why did you do this, and who organized this? Was this organized from the national level? Who put this whole campaign together? Who sent out the e-mails from the national level to the candidate saying this was all above board, it was all okay to do this? Who collected the money? Who created the ads? What happened to the rebate money?
I can only do that if I have access to officials from the other parties to ask them those questions. The opposition is saying, sorry, we want the right to question your officials. We want the right to examine your books, and despite what you say in your testimony, despite the affidavit that we have filed in Federal Court that clearly shows we are not in violation of the Elections Act, but we are in accordance with the practices offered by the other members and the other parties, we are going to deny you the right to bring that testimony forward at committee.
So who is playing political games here? If you want to open up our books, let's do it. But let's not hide behind your sanctimonious talk—well, because Elections Canada made a ruling, we don't have to offer up any evidence ourselves. That's what Monsieur Proulx was saying. Sanctimony. I'll stop short of saying hypocrisy.
