Procedure and House Affairs Committee on May 28th, 2013

[Richard Fujarczuk]

It had to do with some of the sensitivity of the materials that AECL deals with.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Sure, and there would be the normal protections of commercial or business information.

From your experience, maybe in private practice, how do you balance out...? I think I'd be curious to see, if we had you come back in a couple of years, whether the impressions you had after two weeks were the same as your impressions after two years. My sense is that one of the functions of parliamentarians is to get access to information, not in the statutory context, although that is one of the instruments, but to be able to represent their constituents or speak in Parliament based on facts and information that often, for contradictory reasons, a particular institution or a particular government may not want to be so transparent in giving.

I'm wondering if you had any experience in your practice with dealing with the decision to advise somebody to disclose something or not, based on statute or on perhaps a litigation context that you saw either coming down the line or before you.

[Richard Fujarczuk]

There are two flavours to your question. I'm going to try to deal with both of them.

There were many times—on one side of your question you talked about advising to disclose—where notionally under, let's say, ATIP we had an available exemption for which a plausible argument could be made. But again, now wearing my management hat, the view was that it better serves the organization to release this information than to resist on the basis of a plausible invocation of that exception. I've been there. As I said, in the role of manager and as part of the senior management team, you're going to weigh a lot of different consequences than just the purely legal sort of binary obligation. Is it eligible to be suppressed or withheld, or is it to be disclosed?

When you start talking about litigation...I must admit that I have an instinct that goes back to my private practice days, and I guess it's something that started back in law school. I remember Arthur Maloney, one of the most distinguished practitioners, came to speak to us at Western. He said that the mere fact that you've been retained is a matter of privilege, not something to be disclosed without your client's instruction. So certainly during my private practice days, that was a habit that became quite inculcated in me, and I still have that natural instinct—any lawyer will. When you talk about litigation, especially when you're talking about the disclosure of information that might expose your client, that's something, as I said, where I will tend to start from that initial position, because it's the one I've lived for 30 years or so.

Having said that, there have been times when, on balancing all the factors, you've made the determination as part of the management team that you're going to make a release of information. That's something that I've been prepared to recommend as well. It's something I guess that grows with your maturity too. When you're a younger lawyer, you might tend to be a little more binary about stuff: the law says this; that's what I'm going to do. As you become a little more experienced about the implications, you may be prepared to take a more nuanced view and ask what really is in the client's better interest.

I don't know if that answers your question.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

It does. Thank you very much.

[The Chair, Conservative, Joe Preston]

Thank you.

We've completed our time today. Thank you.

Monsieur LeBlanc invited you back in two years. I'd like to invite you back more often if you feel you need to. This is a great place you can come, and we're happy to have you come and share information with us.

[Richard Fujarczuk]

As I said, Mr. Chair, thank you to all members. I guess I have to say I'm excited about the prospect of being given the opportunity to serve this House and its members. If you want me back, you know where I live.

[The Chair, Conservative, Joe Preston]

All right. Thank you.

[Richard Fujarczuk]

We will suspend for two minutes while we change witnesses and move on to the second part of our meeting today.

[The Chair, Conservative, Joe Preston]

We will resume our meeting.

Welcome, Monsieur Mayrand. We're happy to have you here today.

Committee, we're here today pursuant to Standing Order 84(1) on the main estimates, vote 15 under Privy Council, and other issues pertaining to Elections Canada.

Monsieur Mayrand, I know you have an opening statement for us. If you'd you be happy to share that with us and introduce your guests who are with you here today too, that would be great.

After your opening statement, we'll go to rounds of questioning.

[Marc Mayrand, Chief Electoral Officer, Elections Canada]

Thank you, Mr. Chair.

Thank you, Mr. Chair, for inviting me to address the committee today.

Appearing with me are Stéphane Perrault, Deputy Chief Electoral Officer, Legal Services, Compliance and Investigations; Michel Roussel, Executive Director, Registration and Voting Services; and Belaineh Deguefé, Deputy Chief Electoral Officer, Policy, Planning and Public Affairs.

Last year, I committed to producing two reports. The first was in response to the occurrence of deceptive communications with electors during the 2011 general election. I transmitted it to the Speaker on March 26, 2013.

The second was the result of a comprehensive review undertaken in light of procedural and record keeping errors by election officers during that same election. I shared this report directly with the committee on April 30, 2013.

I am pleased to discuss these two reports today, as well as my office's main estimates for 2013-2014.

I will first deal with the report entitled Preventing Deceptive Communications with Electors.

For electors, communications with parties in Canada during an election is fundamental to effective participation. Parties and candidates also need to contact individual electors to engage them in the political process.

With new technology and increasingly sophisticated software, political parties and entities can more readily understand demographics and identify the preferences of electors, as well as communicate with them. However, these communications need to be regulated. Abusive communications that convey false information or mislead electors are likely to undermine trust, not only in the perpetrators, but in the political process as a whole.

The recommendations that I put forward in my report are designed to reconcile those different interests. While some of them are administrative, most require legislative change. I would like to highlight a few recommendations that require legislative intervention.

The first is in response to Canadians' concerns regarding what may be a significant amount of personal information gathered by parties in their databases.

Electors need and expect assurances that their personal information is used for proper purposes and is adequately safeguarded. There are principles accepted throughout the world with regard to protection of personal information that apply in Canada to most non-governmental organizations, large or small. They relate to collection, use, and dissemination, and to the responsibility that each organization must assume for personal information under its control.

I recommend that political parties be required by law to have in place policies and rules that are in line with these privacy principles before receiving voter lists from Elections Canada.

A second set of recommendations is designed to better regulate telephone calls made by political entities to electors.

I recommend new rules governing calls to electors to complement current CRTC rules on unsolicited communications. For example, in all cases, callers should be required to disclose the name of the candidate or party on whose behalf they are calling.

As well, political entities should be required to provide specific information about telemarketing services on a timely basis. On the other hand, companies providing the services should be required to keep records of communications made during an election period. The records should be disclosed to the commissioner to facilitate an investigation, following judicial authorization.

These recommendations would ensure greater transparency of campaign activities, a more rapid intervention in the case of complaints, and more effective investigations.

Indeed, the investigations into deceptive calls has made us keenly aware that the Commissioner of Canada Elections needs better tools to do his work. Good rules are of little use if they cannot be enforced.

I have recommended that the commissioner be granted the power, subject to prior judicial authorization, to compel persons to provide information relevant to an investigation either by testifying or by producing documents. The commissioner strongly supports this recommendation.

Under the Charter of Rights, information so obtained could not be used against persons required to testify. However, it could help to determine whether an offence has indeed been committed and thus make it possible to act more quickly and to facilitate investigation.

Such a power already exists in most provincial electoral statutes, and at the federal level it also exists under the Competition Act.

Those are my key recommendations for preventing deceptive communications.

I will now turn to the report entitled Compliance Review: Final Report and Recommendations, dealing with voting day procedures. As the committee is aware, in the last general election, there were a number of procedural and record keeping errors on election day for registration and voter identification. While there is no evidence that unqualified electors were allowed to vote, the conduct of an election must be accounted for through proper record keeping.

I therefore commissioned an independent electoral expert, Mr. Harry Neufeld, to conduct a rigorous and comprehensive review to understand the scope and the causes of these errors, and engage stakeholders in proposing solutions for the next general election and beyond. We agree with Mr. Neufeld that, in the longer term, a fundamental redesign of the voting process is required. A simplified process is vital to sustain an electoral system that, for one day every four years, relies on some 200,000 ordinary citizens to serve their neighbours and democracy in the role of election officers.

Redesigning the voting process is a large undertaking that demands a prudent approach. As required under section 18.1 of the act, I intend to seek the approval of this committee, as well as the Senate committee responsible for electoral matters, to pilot a new voting model that will include technology at the polls and a reallocation of election officer tasks. Following a successful pilot test, my office would propose significant legislative reform to implement the new model nationally after the election in 2015. I plan to engage both parliamentary committees in the coming months on the model and our plans for the pilot.

In the interim, some improvements need to be made administratively. For example, we will simplify forms and procedures. As well, we will improve the delivery of our training program, notably by investing in computer-based training. In addition, we plan to extend, to all electors, the use of the voter information card as proof of address, when presented with another authorized piece of identification. This should reduce the need for vouching.

Yet such administrative improvements will have little impact unless they are accompanied by a few specific legislative amendments. For the most part, these amendments were identified in my 2010 recommendations report to Parliament, and were largely endorsed by this committee. They were highlighted again in my response to Mr. Neufeld's recommendations. Three are most critical.

First, I am seeking legislative changes to allow full online voter registration, which would reduce the number of election day registrants and improve the quality of the voters' list. The act should provide more flexibility for electors to establish their identity and residence electronically. This would permit us to offer and promote a complete online registration service in most provinces and territories.

Second, I am seeking changes allowing us to recruit and train election officers earlier. The provision granting candidates the authority to nominate election officers should be removed. I realize this goes beyond my 2010 recommendation, but I believe it is warranted based on Mr. Neufeld's recommendation.

Third, the legislation should permit returning officers to appoint additional election officers, including supervisors, with the Chief Electoral Officer's authorization. Enough staff must be available to ensure prompt and efficient service at the polls, and to check that procedures are being followed.

I would like these amendments as well as those suggested in my report on deceptive communications with electors to be included in the expected government bill on electoral reform. I would be pleased to offer any technical support the government might need in developing the bill and of course, to support this committee during its review.

I will now turn to the main estimates and other priorities for my office in 2013-14.

Elections Canada is funded by and operates under two separate budget authorities. The first is a statutory authority that draws directly from the consolidated revenue fund. This authority funds all Elections Canada expenditures other than salaries for indeterminate positions. Our projected statutory draw for 2013-14 is $85.8 million.

The second is an annual appropriation that covers only the salaries of indeterminate positions. For these main estimates our appropriation is $30.1 million. It is this component that the committee is considering for approval today.

As I informed the committee last year, Elections Canada has reduced its operating budget by 8% in response to the deficit reduction action plan. To ensure that resources are focused on the highest priorities linked to our mandate, Elections Canada completed a zero-based budgeting review in 2012-13. In addition, we began implementing workforce adjustment measures and informed employees in January that 32 indeterminate positions would be eliminated.

The agency's plans and priorities for 2013-14 are twofold. First, we are continuing to support the electoral boundaries readjustment process. Once the commission has completed its final report and the new representation is proclaimed—likely this September—we will have seven months to implement the new boundaries. Second, we will continue to pursue a number of initiatives to bring registration and voting services closer to electors.

These complement our efforts to improve compliance and maintain Canadians' confidence in their electoral system and its administration.

For example, we are redesigning the voter registration IT system to access a national voter list. This is necessary in order to integrate online voter registration services and offer them during the election. The new system will be an essential component, enabling us to manage voter lists in real time at polling stations after 2015.

As well, in advance of the next election we are planning to conduct pre-election drives to improve registration rates among youth and aboriginal electors. We are also planning to expand voting services on campuses and extend them to some other locations where these electors gather, such as community centres and friendship centres.

With appropriate legislative amendments providing full online registration, these initiatives will add convenience for electors and reduce known barriers, especially when combined with the use of the voter information card as proof of address. They would also improve the quality of the voter lists, decrease the number of election-day registrants, and reduce the need for vouching.

Finally, we are continuing to enhance our information tools for political entities. This includes updating the handbooks for registered political parties and electoral district associations.

To conclude, it is my hope that any amendments to the legislation will be adopted by spring 2014 in order for my office to implement changes and secure additional resources in time for October 2015.

We understand that the government intends to table a comprehensive bill that will need to be considered carefully. I have provided two reference documents to the committee this morning. One is the CEO's report, “Preventing Deceptive Communications with Electors”. The other one is “A Review of Compliance with Election Day Registration and Voting Process Rules”. I hope these documents may be of assistance during our discussion.

As always, I will remain available to this committee during its study of proposed legislation.

Mr. Chair, my colleagues and I are happy to answer any questions the committee may have.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you. I believe we probably have some.

We'll start first with Mr. Lukiwski for seven minutes, please.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you very much, and thank you, Monsieur Mayrand and your officials, for being here.

I have a number of questions and we have a couple of hours, so hopefully we'll be able to get all of them in that timeline.

If I can, I want to start with a little update, if possible, if you can provide it, of the ongoing robocall investigation. I understand since the investigation is still ongoing there's probably very little you can tell us in terms of the details you have uncovered so far, but I can assure you our party, probably more than any other, would like to see a speedy resolve to this. As you know, many of the opposition have been accusing our party of being the ones who perpetrated the voter suppression phone calls of the infamous Pierre Poutine investigation. We did not. We've stated that categorically. I will do so again. We believe in getting out the vote, not voter suppression, but of course until such time as the investigation is completed, it is very difficult for us to prove we had nothing to do with that. Justice delayed is justice denied.

So even though I know you won't be able to provide much in terms of actual information as to what you have uncovered, I do have a few questions that hopefully will assist us in knowing what to expect once the investigation has been completed.

First, after the investigation has been completed and either a report or a recommendation based on the investigation has been submitted, who actually makes the decision whether or not charges will be laid? Would that be your office, or would that be the Commissioner of Canada Elections' office?

[Marc Mayrand]

Neither of them. It will be the Director of Public Prosecutions. The file will be sent to the DPP, who will assess whether there's a reasonable chance of conviction and whether it's in the public interest to file charges. If so, he will apprise the Commissioner of Canada Elections to proceed with filing charges before the court.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

This is probably an unfair question, but is there a rough timeline, an average timeline? How long does that take after a report has been submitted and a decision is made and there is the final word on whether or not charges are going to be laid? What would be an average timeline after the report of the investigators has been completed?

[Marc Mayrand]

I think that answer would be better provided by the DPP. Again, matters vary. Delay will vary depending on the complexity and the nature of the case. They have to assess all the evidence and satisfy that it meets the criminal threshold in terms of evidence.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Do either Elections Canada or the Director of Public Prosecutions have any procedures, practices, or policies that you follow in terms of at least saying you will try to determine whether charges should be laid at an earliest opportunity? Again, I'm just trying to get to the point...if a report has been received but there's a long, undue delay, those people who are under question obviously are still waiting for an answer, and I think most Canadians would like an answer as well.

What kind of a procedure does your office and the public prosecutions office follow, if any?

[Marc Mayrand]

My understanding is that as soon as the commissioner is satisfied he has gathered enough evidence to justify prosecution in his mind, he will provide a brief to the DPP.

As for the internal process, I would suggest the DPP would be in a better position to answer your questions.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I have a final question on this and then I'll move on, if there's time remaining.

Is there any information you can provide to this committee as to the status of the investigation, other than that it's ongoing?

[Marc Mayrand]

I think we all know about Guelph. As for the others, these investigations are still continuing as we speak.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

How much time do I have left, Chair?

[The Chair, Conservative, Joe Preston]

You have two and a half minutes.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Maybe I can turn now to a completely different subject, and that's the New Brunswick model. You mentioned in your report that you have plans to try to introduce different procedures that might facilitate better operations of voting at polling stations.

Correct me if I'm wrong, but my understanding is that you're suggesting—based on what I believe has happened in New Brunswick—a system where when voters are entering a polling station, they are first met by one individual who gathers identification materials and then directs them to a polling location, to try to better facilitate a quicker vote by members. In other words, rather than having people traditionally vote during rush hours at a polling station that maybe has 20 or 30 people in line, this one individual gets all the information, confirms they are eligible to vote, and then directs them to any one of a number of different polling stations. Is that...?

[Marc Mayrand]

Whoever is available to serve the elector....

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Has that been the practice in New Brunswick to date?

[Marc Mayrand]

It is the model in New Brunswick. It has been the model during municipal elections in New Brunswick for a few occasions; it was tested there. And it was used in the last New Brunswick provincial election.