What I wanted to say here is I don't know the answer to that question. I don't know if this is a practice that is universal or if it has only taken place in certain cases. I can tell you that the next time we get Mr. Mayrand before the committee—obviously I don't think he should come before it in the context of this particular proposed motion and in the context of this proposed case—I actually would like to ask him for a record of how they've decided, what their internal policy is, and how they've applied it, and then have some kind of breakdown as to how this has been dealt with in the past.
I think it is appropriate to keep track of the administrative practices of Elections Canada and to ensure that they are in full conformity with the law and with the rule of law, the concept that underlies our entire legal system, which, as one of its foundation stones, has the principle that laws are applied impartially, that laws are applied to all parties, not just political parties, in whatever activity is going on in society, on an impartial basis and equally.
I don't know if that's the case. I do not want to suggest, by the way, that it is not the case because I simply have no evidence one way or the other. But in the particular case of any individual riding withholding all rebates, it is a very, very significant problem. If—and I believe I'm right in this—the other non-disputed portions of the rebates hadn't been made and we had gone into an election, which we would have done if it were not for the help of our Liberal colleagues, who now support the government apparently on basically everything—or at least Rick Mercer says so—his actions, the Chief Electoral Officer's actions, and those of his agency could have affected the outcome of some elections, potentially the outcome of the election itself, as to who forms the largest block of seats in the House of Commons. That is a very, very serious problem, and I invite the Chief Electoral Officer to reconsider that practice, which I would argue is in violation of his charge, his obligations, and is also in violation of the Canada Elections Act.
I will come back from all of this to the theme I've been developing, which is that the Chief Electoral Officer engages in an administrative and prosecutorial function. He's not a court of law, and certainly final judgment has not been rendered. Even if he were in some kind of adjudicative capacity, this wouldn't be the final situation. There are the courts out there.
Let me now turn, because I started to develop this theme a bit, to the question of how Elections Canada has played its role or has failed to play its role in being an impartial administrator of the law.
Now, I talked a bit about how the Chief Electoral Officer and, in its administration of the tax laws of this country, the Canada Revenue Agency both issue interpretive bulletins as to how they will interpret sections of the law. The way an interpretive bulletin ought to work is this. It ought to give the section of the law, to say here's the clause in question. We understand that it forbids this kind of practice but not that kind of practice. The wording may not be clear to the average person. Our understanding as an administrative body is that this particular practice will be allowed, that particular practice will not be allowed.
Therefore, what you can learn from reading this is, if you do actions in column A that are forbidden in our interpretation, you have a reasonable expectation that if we audit you and catch you doing it we're going to prosecute you for it. If you're in column B—the things that we aren't saying—we aren't going to prosecute you. That effectively is your assurance that we aren't going to come after you.
Some of the members of this committee were present when Mr. Mayrand arrived for his first appearance before this committee. I raised the point that I found there was a problem with the bulletins that his agency puts out, that they don't express things quite that way.
First of all, they make it clear that this is not a legal interpretation, that this is not a court of law. In fact, I have one right here. It has a disclaimer on the front of it.
By the way, I was calling these information bulletins, but they call them information sheets. You can find them online at Elections Canada. I do want to give Elections Canada credit; the sheets are very easy to find on their website. The way they're written is commendable in certain ways. They're very clear. They're printable only as PDF, so people can't print them off and fiddle with them in order to cause someone to make the mistake of thinking Elections Canada says A when it actually says B.
So there are some good things about these, but here's the disclaimer at the top of “Information Sheet 2”, which was revised on January 1 of last year:
These information sheets set out Elections Canada’s current interpretation of the Canada Elections Act and are issued to assist the public in understanding the Act. The views expressed in information sheets are not law and are not intended to replace the official text of the Act. How the Act applies to any particular case will depend on the individual circumstances of that case. Elections Canada reserves the right to reconsider any interpretations expressed in information sheets,
—this is the important part here—
either generally or in light of the actual circumstances of any case, and in accordance with continuing legislative and judicial developments.
By that they mean, I have to assume, that they can do this retrospectively, that they can go back and say, “Well, you've read this before, and we meant this by our interpretation...but we don't mean it any more. We now are taking a more restrictive interpretation. That which in a previous interpretation bulletin we said was permissible we now say is impermissible. And the fact that we said it to you, and you acted because of what we said, ought not to count in our current actions.”
I will submit to you that this is a preposterous position. It's not Mr. Mayrand's position. These disclaimers have been up here since before he took office. They were a problem that dates back to Mr. Kingsley's tenure as Chief Electoral Officer. I haven't gone back and done the historical research, so it's possible they were there when his predecessor was around, but that doesn't change the fact that this is preposterous.
The idea that you can effectively say, “We're going to have, after the fact, reinterpretations that cancel anything we've said before” renders every single thing they say, in every single one of these things, absolutely meaningless, because who knows what they're going to say tomorrow?
Now, they could have said, “Look, this isn't law, this doesn't replace the law. A court is going to interpret this in a different way, but because we're the only ones who can initiate a prosecution, you know that we will not initiate anything that we've deemed in here or in any previous bulletin to be acceptable.”
They could have said, “We will not proceed with anything unless a court, in its ruling, determines the law should be interpreted differently than we've interpreted it, and more restrictively.”
They could have said, “This was revised January 1, 2007. We had a more permissive interpretation back in 2006. We've tightened it up now. Any future action we'll interpret this way.”
I'm not actually sure that last one is legitimate, but at least it says they're not going to get into this nonsense of reinterpreting the past by means of some present bulletin, where it's now you see it, now you don't, as in, “Here's a rule. But it's not a rule any more. It doesn't suit us any more. We've changed the rule on you because it suits us.”
Can you think of a more arbitrary way of conducting the administration of an important law, let alone the law that governs how elections will occur, and—if it's not administered impartially—the law that determines to some degree who will govern the country? As I'm pointing out, the Chief Electoral Officer, through his arbitrary actions, through his arbitrary and changing interpretations, effectively is deciding who gets to rule the country—notwithstanding what the voters may want, notwithstanding what a fair and an impartial election might produce.
Unfortunately, the opposition parties, who would be the beneficiaries, of course, of any such abuse of the Chief Electoral Officer's role, are not really enthusiastic supporters. They want to sanctify it through the various shenanigans they've been up to over the course of the past half year. So it's a very serious problem.
It's not a problem that's new to us in this committee. People are free to go back and check the committee Hansards. They'll see that when Mr. Mayrand came before us the very first time as a witness—I can't remember whether he'd been sworn in yet; I think he was just up for consideration at that time actually, and we had to nominate him and pass him on. I raised the issue of these bulletins. I said I found the way in which the disclaimers were written was very problematic. You can go back and examine exactly what I said. These things should be changed.
Now, they weren't, and obviously he's under no obligation to take my advice. But I think it ought to be an item of business for this committee to instruct him to act differently—we do oversee his actions—and make sure this disclaimer is adjusted and made more professional and less subject to abuse. If this committee won't take that action, then it would be an appropriate thing for Parliament to amend the Elections Act to mandate him to give information sheets that do not allow this kind of nonsense, these ex post facto reinterpretations of the law, to take place.
Our Constitution actually forbids, when it comes to laws themselves.... It is unconstitutional for any person to be found guilty of an offence that was not an offence at the time the action was committed. I'll give you an example.
The Senate has just approved, finally—I think mainly because the Liberals just couldn't figure out a way of stopping the law without triggering an election—a package of Criminal Code amendments that will include a provision that says the age of consent will rise from 14 to 16. This means, assuming royal assent is given in the next few days, that by the end of the month of March it will be finally—and thank goodness—a criminal act for an adult to engage in sexual intercourse and other sexual acts with a minor who is under the age of 16, between the ages of 14 and 16. But if it turns out that at some point prior to that time, prior to the granting of royal assent, someone had engaged in such an action, we may disapprove of it, find it morally repugnant, but it actually would not be a criminal act because it was not a criminal act at the time it was committed. And there's nothing you can do to prosecute that in the future.
By exactly the same token, the Constitution also states that if there is an offence for which the penalty is increased at some point through an Act of Parliament, the lesser penalty that was in place when the act was committed is the one that is put in place rather than the harsher penalty that was imposed later on, even if the actual court action, the actual criminal prosecution and trial and sentencing and conviction, takes place after the date on which the new harsher penalty went into effect.
The way the American Constitution, the American Bill of Rights, states it is that Congress shall make no ex post facto law, no after-the-fact law. This is one of the most critical foundation stones of law-making in a civilized society. The Americans constitutionalized it in 1789, I guess it was, or 1790. We did so, after a considerable delay, in 1982.
But you go back and look at British jurisprudence or English jurisprudence from before that time and this concept was clearly incorporated going back to Blackstone and Sir Edward Coke. It is a foundation stone of civilized action, and not just in the British and British-derived system, but you'd see it in the continental systems. You see it anywhere the rule of law prevails. In fact, without this, there can be no rule of law. It's just one of the things that is essential to the rule of law functioning.
Anyway, that, unfortunately, is not how the Chief Electoral Officer has been acting in his role as administrator of the law and prosecutor of offences under the law, and that does need to be changed. Now this is very pertinent because this is exactly the circumstance under which the argument is being made that the Conservative Party is in breach of the law. The argument is that actions were taken with regard to advertising that were not in breach of the law as defined by Elections Canada in its administrative bulletins, which are what we would have relied upon in order to make our decisions at the time the decisions were made in the 2006 election.
After the fact of the election, the Chief Elector Officer revised the relevant information sheet so that these actions that had occurred in the past were no longer acceptable, and he has argued that his current interpretation—not his previous interpretation, not the one he made at the time, not the one you followed at the time—is the one that should be applicable. He has enacted an ex post facto, not a law but a regulation that has the force of law. Therefore, not only is he withholding the money, but better than that, he's withholding the money and has now dreamed up an offence that you're guilty of: the offence of spending, on a national campaign to promote a national party, moneys that were meant to be used for local promotion.
I have to say that in looking at that interpretation, I find the interpretation nonsensical, frankly. Unlike the Americans and unlike other countries that have congressional systems, countries with parliamentary systems do not have separate elections for different offices. We don't have a separate prime ministerial election as they have separate presidential elections. We don't even have separate elections for members of the upper house, although hopefully that will be changing at some point in the future.
But the idea that you're promoting a national campaign...I don't know what that means. Everybody in Canada who participated in the last election had to vote for a member of Parliament in a riding. It's unavoidable. Some of them voted based on the qualities of the individual member of Parliament. The pollsters tell us that a much larger number voted based on what they thought of the relevant parties and leaders. And I can tell you—anybody can go back and check my campaign literature—that while I certainly like to promote the idea in my riding that Scott Reid is a stand-up guy, I don't suffer from the illusion that that's why most people vote for me. I get correspondence from people who say things like, “You could elect a fence post in Lanark County if it ran as a Conservative”. Some would say that's been tried, but at any rate, the point is that people vote for the party to a large extent. That's the history of the riding. It hasn't always been the history in every election, but it is the majority of the history of the riding.
We know that people vote on the basis of leader more often than on the basis of candidate. That is why in the 2004 election, an election that is of course excluded from the motion proposed by Madam Redman, you saw one riding after another with signs saying, “So and so, your Paul Martin candidate”, with a picture of Paul Martin on it, because the belief was that Paul Martin's brand was stronger than the brand of the individual candidate.
To take a provincial example, from the just recent provincial election in my province of Ontario—