I think I know what's being referred to. I'm sorry, Mr. Chairman, it took a while to get the connection. But I think the subject matter to which the honourable member is referring is not actually contained either in this motion, the way Madam Redman has put it forward, or in any alternative wording that I've seen. So perhaps it's not germane to the discussion of this motion. However, I imagine that this or anything else could be dealt with by means of an amendment to the motion if the member chooses to go in the speaking order and propose such a motion. So he might want to consider that at some point in time.
In her opening remarks, Mrs. Redman used the terms “compelled or coerced” in reference to two former Conservative candidates, Mr. Gary Caldwell, from Compton—Stanstead, and Liberato Martelli, from Bourassa.
I'm not 100% sure if she's aware of what the legal meaning of these words is. “Compelled or coerced” involves some form of threat to an individual, either physical violence to themselves or to somebody else, or blackmail. In their legal meaning, compelling and coercion are criminal actions. I'm pretty certain that she didn't actually mean that, because that would not only be a violation of the Elections Act, it would be a violation of the Criminal Code. Had such assertions been made by either of these candidates, I feel pretty confident that we would be dealing with a very different situation. There would presumably be a criminal action before the criminal courts.
So once again we see the unwise use of language, which on its surface seems reasonable, but which is in fact excessive and misleading. I think it's unintentionally misleading, but nevertheless, it's misleading in that it leaves the impression of a crisis of a very different nature than the problem we are facing here.
I definitely think there is a very real problem here. And I think the problem that's at work here is that the nominally impartial adjudicator of our elections, the administrator of our elections—that is to say, Elections Canada—is in fact not acting impartially. It is in fact treating different parties differently. That can't be seen in the cropped snapshot that is proposed in the motion submitted to the committee today. In fact, the purpose of this is to take the inappropriate activity of Elections Canada in treating different parties differently and to sanctify it, legitimize it, and cause the impression that there's a scandal here, when in fact there's an unequal administration of the law by Elections Canada vis-à-vis the different parties.
I think the fact that this is self-evident is revealed by the fact that the court action that is under way right now is not a court action by Elections Canada against the Conservative Party or any of its official agents. It is in fact a legal action by two official agents of former Conservative Party campaigns against Elections Canada. It's very important to remember that.
We all know that we shouldn't be discussing this at all because of the sub judice convention. We know you made a ruling. We know it was overruled. We know, however, that in the overruling there was no reason given. It was simply an assertion—we have more votes than you guys do and we're just asserting it. Now, that's not entirely the fault of the members opposite. When anyone challenges the chair, the nature of the vote is that it is a vote that takes place without debate or discussion. But they have had about eight months, seven months anyway, to explain their reasons, and I haven't heard a convincing reason from the members on the opposite side as to why the sub judice convention doesn't apply in this case.
Certainly, they've had many opportunities in this committee, in debate, and in the media and elsewhere, to explain an action before the courts in this particular case. The sub judice convention does not apply. Presumably, there must be a profound logic to it or else they would not make such an assertion, but the sub judice convention is designed to ensure the law can operate impartially and fairly for all concerned. It ought not to be prejudiced by the actions that take place here. That remains in effect.
Of course, by trying to steer the discussions in a certain direction I assume the intention is certainly to get the court of public opinion to come down on one side of things before an election. I'm guessing here, but a reasonable guess is the reason the dates in the motion were chosen was that the first meeting would occur on February 27, which would have been yesterday. This would have timed things nicely so there would be the appearance of a make-believe scandal right before a writ that could have been dropped as a result of a vote occurring as early as today. Thanks to our friends in the Liberal Party, that seems to be an unlikely occurrence. We understand they are enthusiastic in their support of the budget, and therefore the election is not likely to happen.
I don't know if that means we're now going to face a situation in which they're going to try to keep this make-believe scandal alive until we eventually go to an election, at the rate things are going, in October of 2009. It will certainly make for a tedious year and a half for all of us. The positive side of this is that the actual court action will presumably have been dealt with by that point. The real courts will have ruled. The various Conservative Party campaigns will have received the moneys they are owed by Elections Canada for their legal and permissible election expenses. Perhaps that will end what I think is essentially a farce, Mr. Chairman, that we are somehow on course that it is somehow appropriate for us to prejudge courts, to hold parallel hearings, and to have a very selective list of witnesses designed to produce a foregone conclusion.
I would draw to the attention of members on the other side of the table the fact that it is going to be a little bit embarrassing, having pursued this thing relentlessly, and then to have it revealed that everything you were doing was, in the minds of the real courts, wrong.
This brings me back to a point we keep hearing every time Madam Redman reintroduces her motion. She makes the point that Elections Canada has found us wrong. Elections Canada, I can only point out, is not a court. It's not a legal body. Even courts gets things wrong sometimes. That's why we have courts of appeal. We have a court of first instance where an initial hearing takes place, a trial if it's a criminal matter. Then you have a court of appeal. Depending on the province, we call it a Court of Queen's Bench, a court of appeal, the Superior Court, and then it moves on from there to the Supreme Court. You have the recognition that lower courts get it wrong. Even supreme courts get it wrong sometimes and later on go back and say that back then they didn't get it right. That happens less frequently—in fact infrequently. Nonetheless, even courts get it wrong. But for goodness' sake, this is not a court. It's not a quasi-judicial body. It's a body that administers the law, and that is why the commissioner of elections is a separate official from the Chief Electoral Officer.
Bringing in the Chief Electoral Officer, who is one of the parties to this dispute, to have him, the respondent—right here, I've got the front page of the Federal Court action:
Court File No. T-838-07
L.G. Callaghan in his capacity as official agent for Robert Campbell and David Pallet in his capacity as official agent for Dan Mailer
So Mr. Callaghan and Mr. Pallet were official agents for, respectively, Mr. Campbell and Mr. Mailer. They're the applicants. The respondent—that's the guy who's defending himself against an argument, a charge that he has violated the law—is the Chief Electoral Officer of Canada. So you can see the problem of inviting the very first witness, Mr. Mayrand, who is a party to this.
In fact, I would hazard a guess that if he were invited here, Mr. Mayrand would have to respond by saying, “I cannot attend this without prejudicing a matter for which I myself am before the courts. I therefore have to turn down your invitation.” I don't know if it's the intention of the Liberals to bring him here in leg irons, like Karlheinz Schreiber—get a Speaker's warrant for him—but the fact is that it would be inappropriate to call him here. I would have thought they would recognize that. Their former proposal had presuppositions of guilt and so on, but for goodness' sake, at least it didn't have a witness list that involved a man who is the respondent in a case before the courts. This is a really fundamental error.
If we work on the thesis I was putting out there a little earlier, that the real goal was to just have a motion passed in the committee stating that we're going to have hearings, but not to actually execute these things, then the embarrassment of having him turn down this offer would not ever have taken place, and then they'd be off and running. It's an election. You can make all kinds of accusations during elections. For that matter, you can make all kinds of ads, and you can say anything you want as long as you say at the end of it, “We aren't making this up; they won't let us make this up.” Troops in the streets, and the Conservative Party is guilty of all kinds of crazy things we dreamed up—but “We aren't making this up; they won't let us make this up.”
Anyway, those were ads, and that's what I think is going on here. I don't know. There may be a plausible explanation, and perhaps when I finish my remarks, one of the Liberal members here will want to straighten me out and explain what the real motivations were. But at any rate, if this is to go through, if Mr. Mayrand is to be summoned here as a witness, a real problem will have been created, and a real embarrassment will be delivered to this committee when Mr. Mayrand says, as he inevitably will have to say, “I can't come because I am a party to this dispute before the Federal Court of Canada.”
So all of this comes back to the idea that the Chief Electoral Officer administers the law, and he does this, of course, in a variety of ways. We've had him in here as a witness on other matters, on many occasions, and he explains how he administers it. One of the things he does is he puts out interpretative bulletins, and they are posted on his website. The interpretative bulletins explain how he understands various sections of the law to operate—when there might be some confusion as to how the law works—and in this, he's following a practice that's widely used, not by judicial bodies but by administrative bodies that are responsible for administering a complex piece of legislation and, when necessary, pursuing prosecutions under that act.
So he is an administrator, and he can serve in a prosecutorial capacity when he sees the law that he's administering being, as he thinks, violated. He never, at any point, actually renders a judgment. So if you like, in a certain specialized way, he is, in one of his roles, operating a bit like a crown attorney. He has more than one role. He is administering the law and he has to go out and appoint all these returning officers, who in turn appoint the DROs and the poll clerks across the country in 308 ridings, and that's a very substantial administrative task, which is why he has such a large budget, in the tens of millions of dollars.
But then he also, separately from that, has his staff review the activities of various participants in elections, and then, where he deems it appropriate, he proceeds to pursue certain administrative actions, which can take the form of prosecutions, when somebody actually violates the law.
By way of example, there was recently a man in Toronto named James Di Fiore who, in either the 2004 or 2006 election—I can't honestly remember which—went down to a polling station and asked for a ballot on three different occasions. I'm told he only voted once but returned two of the ballots spoiled. Nevertheless, he was trying to demonstrate that Elections Canada doesn't do a very good job of checking the identity of potential voters and preventing vote fraud, or multiple votes. His argument was that this could lead to some ridings being won by a candidate other than the candidate with the majority of legitimate votes—a very serious problem, I think. In that particular riding, it's worth noting that the former Liberal candidate and Liberal MP, Tony Ianno, actually argued that the New Democrat now representing the riding won it as a result of voter fraud, and there was an investigation that took place after the fact.
Anyway, all of this is within the Chief Electoral Officer's prosecutorial function, and he argued that Mr. Di Fiore had violated a section of the act. I apologize, but I hadn't anticipated going along this particular line of argument or using this particular analogy, so I don't have the relevant section of the act, but there is a section of the act that states that in addition to not voting more than once, you can't seek a ballot more than once. The argument is that he violated that part of the act. So prosecution was sought. The court ruled in the Chief Electoral Officer's favour and against Mr. Di Fiore, who has now received a fairly minor punishment.
That's one thing the Chief Electoral Officer does, when an active wrong has been done, in his mind, or when he asserts so and the courts then rule on it. There are different situations where he deems that something has been done that is not an active wrong, but which is different from the administrative interpretation of the law he would give—for example, someone seeking a rebate for an expense that he deems not to be legitimate. I'll bet everybody in this room has claimed items that have then been disallowed by the Chief Electoral Officer. I'm not sure there's a winning candidate in Canada who hasn't had some claim for an expense disallowed; it's just in the nature of things, particularly given the enormous complexity of trying to figure out what qualifies and what doesn't. In fact, to some degree, I know that in my own case we have submitted expenses because we didn't want to engage in the alternative practice—also forbidden by law—of making expenses and then not recording them. That itself is an offence. So you include things and say to yourself, I think this qualifies. They say yes to some of them, and to others they say no, they're taking that one out.
You'll see what I'm getting at when I point to the fact that in this case, what started this whole process was that the Chief Electoral Officer in his capacity as an administrator of the law—I won't say in his prosecutorial capacity, as I'm taking a step back from that—who also tries to interpret the law and determine whether the interpretation a candidate has given to the law is valid, has said that some expenses, some advertising expenses to be more specific, claimed by Conservative candidates were disallowed because he deemed them not to be actual election expenses for the purpose of electing the candidate in that riding, but that they were expenses of another nature. This is where the whole thing started. A series of Conservative candidates in local campaigns engaged in expenses known as regional ad buys, which the Chief Electoral Officer, or his minions, deemed not to be legitimate election expenses and simply disallowed.
I think I'm right in saying they did something else—and I stand to be corrected on this point—that is hard to regard as legitimate. I think they also withheld the entire rebate amount from the candidates—
