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

[The Chair, Conservative, Joe Preston]

We will start our meeting. Today we are in public and televised.

We are here, pursuant to the order of reference of Thursday, October 17, 2013, on the question of privilege related to Elections Canada and the member for Selkirk—Interlake.

Monsieur Mayrand, it's great to have you back. It's always good to have you visit the committee.

I understand you have a short opening statement, and then we'll go to questions.

[Marc Mayrand, Chief Electoral Officer, Elections Canada]

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

Appearing with me is Stéphane Perrault, Deputy Chief Electoral Officer, Legal Services, Compliance and Investigations. We are here today to discuss a specific provision in the Canada Elections Act—subsection 463(2).

As you know, this subsection provides that an elected candidate who fails to file a financial return on time, or fails to make a correction to his or her return as requested or authorized by the Chief Electoral Officer, “shall not continue to sit or vote as a member” until the relevant documents are supplied. I agree with the Speaker of the House of Commons that this provision raises a prima facie question of privilege, since it deals with members' ability to continue to sit and vote in the House of Commons.

I am not here to offer you any advice on this question of privilege, which extends well beyond my field of responsibility. Instead, I will explain the Canada Elections Act scheme that leads to the application of subsection 463(2), and my role in it as Chief Electoral Officer.

Subsection 463(2) must be understood in its statutory context. As members will know, following an election, every candidate must file an election expenses return and related documents with Elections Canada. The statutory deadline for doing so is four months after polling day. These returns are then subjected to an audit by Elections Canada's auditors. The audit process serves the goal of transparency by ensuring that contributions and expenses are reported in accordance with the requirements of the law.

Auditors also seek to protect the public purse by ensuring that reimbursements are made only for eligible expenses. They also work to ensure the integrity of the political financing provisions by identifying improper transactions, such as ineligible contributions. In performing their duties, the auditors work closely with candidates and their official agents toward the common goal of compliance with the act.

The act provides for various means by which auditors, on behalf of the Chief Electoral Officer, can correct a return themselves, or authorize its correction on application by an official agent. The act also provides that the Chief Electoral Officer may request that a candidate or official agent make a correction within a specific period. Elections Canada only relies on this option in extremely rare situations, where it is evident that more informal discussions with the campaign are not yielding an accurate return.

Those in charge of a campaign may apply to a court to obtain, as the case may be, an extension of the deadline for filing the return, permission to make a correction that was refused by the Chief Electoral Officer, or relief from a request made by the Chief Electoral Officer for a correction to the return. The application must be made within two weeks of the Chief Electoral Officer's decision or of the filing deadline.

This is the context in which subsection 463(2) is situated. The purpose of this section is to provide finality in election filings. There comes a point where, if no return has been filed or if no corrections has been made—despite multiple attempts to bring a campaign into compliance with the reporting requirements of the act—there must be an effective mechanism to ensure transparency.

In the vast majority of cases, our experience has been that subsection 463(2) works as an effective tool for ensuring timely and accurate financial reporting by elected candidates.

My role in this process is a limited one. It is to ensure that the reporting obligations in the act are met. It's not for me to decide if and when a member of Parliament should be prevented from sitting. This is a matter of parliamentary privilege.

Accordingly, when it is clear that an elected candidate has not submitted a document as required under the act, or has failed to make a correction as requested or authorized, I write to the Speaker of the House of Commons to inform him of the situation. In my letter, I inform the Speaker that the member of Parliament has not submitted the required document within the relevant timeframe.

I refer the Speaker to the terms of subsection 463(2), and I also indicate that the member of Parliament is free to apply to a court for relief from the requirement imposed upon him or her. In the event that a court application is made, I advise the Speaker accordingly.

My sole purpose in writing letters of this nature to the Speaker is to make him aware of the dictates of subsection 463(2). Although it has been reported by some that the aim of my letter is to inform the Speaker that a member of Parliament should no longer sit in the House of Commons, this is not an accurate understanding of my intention.

As I indicated at the outset of my remarks today, I take no position on whether a member of Parliament should continue to sit in the House of Commons, despite the wording of subsection 463(2), as this is a matter of parliamentary privilege. My aim in writing to the Speaker is to acquaint him with the relevant provision of the act so that he may do whatever he sees fit to do.

There has also been a suggestion that I should delay writing to the Speaker for two weeks after a member has failed to submit a document. This is because, as I have noted before, an elected candidate is entitled under the act to take two weeks to file an application in court. It has been said that I should wait to see whether or not a court application ensues before bringing subsection 463(2) to the Speaker's attention.

I understand my obligation under the act differently. For me, waiting two weeks before writing to the Speaker would have the effect of substituting my own judgment for his, or for that of the House of Commons, as to the application of subsection 463(2).

You are gathered here today to study the very question of how the apparent prohibition in subsection 463(2) on sitting or voting in the House of Commons can be reconciled with the opportunity to seek relief from a court. We might have wished for the interaction of these two provisions to be more clearly set out in the statute, but they are not, and, as I have said, I believe their interaction raises a question of parliamentary privilege.

As I do not take any position on the issue of privilege, it is imperative for me to inform the Speaker as soon as possible of the situation to allow for a decision on this issue to be made. Waiting two weeks would mean that I could prejudge the matter, concluding myself that subsection 463(2) should not apply until after the two-week period. Indeed, if I were to wait two weeks in the face of a court application within that period, I might even have to wait until the completion of the entire court process, including any potential appeal.

This is the logical outcome of the argument that my writing immediately to the Speaker is premature, and yet this is precisely the issue of privilege that you are now debating. As I have already stated, it is not for me to determine whether subsection 463(2) applies only after a court process has run its course. My role is solely to inform the Speaker of the situation and the relevant statutory provisions. This is what I aim to do in my letters.

Mr. Chair, that will conclude my remarks. I will now be happy to take your questions.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much, Mr. Mayrand.

Mr. Lukiwski, you are up first for seven minutes, please.

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

Thank you very much.

Thank you, Monsieur Mayrand, for being with us today.

I have a couple of questions to try to determine the status of this case right now.

It's my understanding that this dispute is still ongoing, or has the dispute been resolved?

[Marc Mayrand]

There's one case that's still before the court. The other one was resolved some time ago.

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

Okay. I'm referring to the member for Selkirk—Interlake.

[Marc Mayrand]

That's still before the court as we speak.

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

Okay. Have you any sense—your opinion, I guess, is all I'd be asking for—from what you've seen so far, as you've been dealing with this for some time, of how quickly you think this might be resolved, or how long it might take?

[Marc Mayrand]

There are ongoing discussions between counsel. I am hopeful that this matter will come to a resolution very shortly.

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

Good. If that happens—we're close to the end of this session—I would suggest that we may want to invite you back after the resolution has been completed, because it was particularly the dispute between the member for Selkirk—Interlake and Elections Canada that prompted the Speaker to issue the prima facie case. Again, correct me if I'm wrong, but I'm assuming that because the case is still ongoing, you would be unable to speak to any of the details, or are you able to?

[Marc Mayrand]

No, not the details. Again, it's before the courts, so—

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

Okay. We may, then, wish to ask you to return after the dispute has been resolved. That's just a bit of a heads-up.

I have a question for you. You mentioned on a couple of occasions in your preamble the waiting for two weeks and you didn't think that would be appropriate. Was the dispute with the member for Selkirk—Interlake from the 2008 election?

[Marc Mayrand]

The request for correction was for three general elections, including the most recent one in 2011.

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

Okay.

How did this come about then? Was it something you saw, either some inconsistencies or non-compliance items from all three of those elections?

[Marc Mayrand]

Additional information was provided to the auditor that affected the returns of previous general elections.

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

I'm just wondering, if the first alleged infraction or non-compliance item was in 2008, why it took five years to get to this point.

[Marc Mayrand]

The information was not available to the auditor until after the 2011 election.

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

Okay. So that information was not provided until after the 2011 election.

[Marc Mayrand]

It came to the attention of the auditor after 2011.

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

Okay. If you got the information in 2011, when did you first determine that there may be a non-compliance issue? In other words, how long does it take when a normal—

[Marc Mayrand]

As the member knows, the returns have to be filed four months after the election. From there an extensive review is carried out by the auditor and there will be ongoing discussions between the auditor and the official agent. That will carry on for some time. Of course, as in any matter, at some point there has to be closure. That's one of the effects of this provision we're discussing today: trying to bring closure to a matter.

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

Okay. I'm just trying to determine timelines here. It just seems that if we're going back almost five years for one of the disputes, it's a pretty lengthy time to have a member wondering as to the legitimacy of his or her return. It also doesn't put your office in a very good situation because I'm sure you'd like to resolve these situations as quickly as possible.

[Marc Mayrand]

Yes.

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

Let me ask you your opinion.

You've stated what the provisions of the act are. I agree with that. I think it's an accurate reflection. In effect, you're saying your hands are tied. You are required by the act to inform the Speaker. However, are you able to determine or are you able to share with this committee on this particular dispute with the member for Selkirk—Interlake, are we talking a large amount of money? Are we talking tens of thousands of dollars, are we talking of hundreds of dollars, or is that something you're just unable to discuss right now?

[Marc Mayrand]

If we want to discuss it at this point, given the ongoing discussion....

Again, the whole purpose of these provisions is to ensure that accurate returns be filed in a timely manner. The significance of the inaccuracy may vary significantly. I want to point out to members that the provision also applies when there's a late filing of a return.