Procedure and House Affairs Committee on Dec. 10th, 2013

[Marc Mayrand]

It started with the filing of the return in 2011, so four months. It was late August or early September 2011. Since then, it's been an ongoing discussion of reviewing the return and making sure it is accurate.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We're almost two-and-a-half years out.

[Marc Mayrand]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

In terms of the court process, there’s no end in sight because the appeal being made can be appealed to a higher court, or are we at the end?

[Marc Mayrand]

Yes, it could be appealed to a higher court.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Right. We're saying that knowingly or unknowingly, a candidate can break the law, be elected as an MP, sit in the House, not be suspended, and be under investigation by Elections Canada, be found to have broken an Elections Act law, appeal through you, then appeal to the courts, appeal any hearings they get there, and essentially run the clock until the next election.

Is this not worrisome in terms of the legitimacy of members of Parliament sitting in the House?

[Marc Mayrand]

In theory. That's why I suggested in the past that we need to revisit how the provisions of the act are enforced, because we are seeing more and more cases taking more than one election cycle to resolve. I'm not sure that it's appropriate for the circumstances.

The purpose of subsection 463(2) is not to determine whether there has been a breach or not. It's to ensure that the return is filed and is filed correctly. Matters of breaches will be dealt with as a separate matter, but the first thing we need is an accurate return that reflects the transactions. If that return points to breaches, well, the process would follow its course and it may be referred to the commissioner.

Again, subsection 463(2) is about a procedure to ensure that we bring closure in ensuring that there is a returned file and that it's accurate.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Cullen.

Mr. Lukiwski, you have four minutes.

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

I'm going back to the line of questioning I started in my original intervention, but it follows closely to what Mr. Reid was saying.

Despite the protestations of my friend, Mr. Cullen, about this potential of a conspiracy, that someone could deliberately fudge a return and continue appeal upon appeal while continuing to sit in the House, I believe, frankly, that if a legitimate dispute between a candidate and the Chief Electoral Officer, and it happens, lasts for so long that there can't be an immediate resolution, the only resolution would be through the court system. I think that is the appropriate action to take.

It may be that the candidate is right; it may be that the Chief Electoral Officer and his officials are right—

[Marc Mayrand]

Yes.

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

—but the only place that can really be determined is the courts. I think it is inappropriate in any way, shape, or form, to try to remove a member from his rightful seat until that legal dispute has been resolved.

There is an old saying we all know, and this speaks to what Mr. Cullen was saying, this so-called conspiracy theory, that it's better that 10 guilty people be set free than one innocent person be sent to jail. You have to resolve this through the court system.

I would also point out to Mr. Cullen and to others who might buy into this conspiracy theory, that if that were true, a candidate who deliberately tried to flout the law and then keep his or her seat through a series of appeals, it would mean the chief financial officer and the auditor and their legal team would be complicit in that action. I don't think a chief financial officer, given the constraints and restrictions they have and the oath of duty they have taken, or an auditor, would allow themselves to be part of that deception.

Based on that, I believe it highly appropriate that we do something in the act to change it, to allow the legal course of action to go its full course and a determination in the courts to be made, if it gets to the point where it's that long-standing and almost irreconcilable dispute between your office, Monsieur Mayrand, and a candidate. I think that's democracy. I think that's why we have a court system. That's why we have a system of justice.

It seems to me to somehow put in disrepute...even the thought of removing a member until it has been determined in a court of law whether that member either deliberately or inadvertently was in non-compliance with the Elections Act, is absolutely inappropriate.

Again, I ask for your comment on that. Do you think it should go to the end of the court system before we trigger this letter to the Speaker?

[Marc Mayrand]

My first comment is to recognize and not only accept but welcome that there are remedies available when there's a dispute. There's a procedure provided in the act. I respect that fully. These disputes are generally and vastly well intended or carried in good faith. We can have a disagreement on certain provisions in the act.

On section 463, it's more about a procedure than a substantive issue. It's about the fact that a return has been filed and corrected. The correction may raise substantive issues, but section 463 simply says you need to correct or there is a possible suspension of your right to sit and vote. Whether that's a proper remedy, that's how the act is structured right now. Whether it should be amended or not, I just want you to keep in mind that it's meant to get timely and accurate return files.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Reid, four minutes please.

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

Thank you, Mr. Chair.

Mr. Mayrand, I think you and I may disagree over how subsection 463(2) ought to be read.

Let me ask you this question. Do you deny that a reasonable person could read your obligations under subsection 463(2) as requiring you to take the action of writing to the Speaker only after court remedies have been used up? That's what I think you should have done. Do you deny that a reasonable person could interpret the law that way, given that the law, as you said, could have been drafted more clearly? You said that in your written presentation.

[Marc Mayrand]

Section 463 doesn't make that distinction. It could have been done very easily in subsection 463(2) by simply inserting a few words to the effect that subject to a court application....

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

May I understand you then in saying that you think you are obliged to act before the courts have been consulted?

[Marc Mayrand]

That's what I indicated before in my opening statement. I feel that I need to alert the Speaker. I'm not taking a position on the right of the member, but simply advising the Speaker of the situation.

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

Okay. We do differ. I think you acted in a manner that the law does not require you to act, and I think it was an overly aggressive manner, which was, frankly, inappropriate. You disagree with that, which is cool. I would hope that you would be supportive of your own position.

You said that these letters are rare. Mr. Cullen inquired how rare they were; or perhaps it was Mr. Scott. Could you actually submit to the clerk of this committee all the letters you or your office submitted for the last three elections, just so we can get a sense of what they look like and when they were done? It'd be very helpful to us to see if there's consistency in your actions.

[Marc Mayrand]

Absolutely. We can do it for the 40th and 41st federal elections.

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

I'd like for the one previous to that, too, seeing as you've mentioned that this is in relation to three elections.

[Marc Mayrand]

We can do that.

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

All right. Thank you very much.

[The Chair, Conservative, Joe Preston]

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Are we all going to be provided with the information that has been requested?

[The Chair, Conservative, Joe Preston]

I would think that's the case if it's been asked for the committee. We'll make sure it's distributed to all members.