Procedure and House Affairs Committee on March 25th, 2014

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

With respect to unpaid loans, in the case of some of the former Liberal leadership candidates, those loans have been unpaid for several years. Most reasonable people, I think, would assume that if you haven't paid back a loan within a reasonable amount of time, that individual—or the party if it's a case of a party, but usually it's candidates—should face some sanctions. That has not happened.

In other words, you can have individuals who still owe hundreds of thousands of dollars from loans they received during their leadership bid that have been unpaid for several years and they face absolutely no sanctions. One of the things that obviously appears to me should be done is then consider those unpaid loans as contributions.

What do you see in this bill that helps address the problems that we've faced for the last number of years with respect to unpaid leadership candidate loans in particular?

[Jean-Pierre Kingsley]

Only a financial institution will establish the risk and determine what it thinks is a reasonable loan to make, or individuals. But individuals can only make a loan or offer a loan guarantee up to the limit of $1,500 for that year, which is what they are entitled to. This will obviate the need and remove the capacity for individuals or corporations or others, except for financial institutions, from making any kind of substantial loan to a candidate or to a leadership candidate.

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

Thank you.

Finally, I'll just move to a different element of the bill, very quickly to the changes that we have in the bill to try to prevent the problems we saw with robocalling and the Pierre Poutine example in the last election.

Could you comment briefly on why the changes we are proposing in this bill would help prevent those types of situations from occurring again in the future?

[Jean-Pierre Kingsley]

The bill will require that people who offer the services that are called robocall services or automated calls must register with the CRTC and they must file their names. People who retain their services must also be known and the messages must be kept, under the present bill, for one year. I recommended that it should be something akin to 10 years, which is the length of time that an actual investigation and prosecution can take place. There's not much point in keeping it for one year when so many things can happen quite rapidly in one year and the time will have elapsed, so I would urge your committee to consider that.

For all those reasons it becomes a traceable item. Obviously, if someone is doing it without doing all those things, they are breaking the law, and this is where people would have to step in. I'm also recommending that the numbers that were called be kept so that the trail can be followed right to the people who received the call so that they can tell the investigators what it is they remember about that call.

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

In your opinion then, would the changes we are proposing ultimately help prevent the same Pierre Poutine situation we saw in the last federal election?

[Jean-Pierre Kingsley]

Yes, they would.

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

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Lukiwski.

Mr. Scott, you have seven minutes, please.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Kingsley, for coming and for an extremely detailed and contextualized presentation.

I appreciate that you've been very fair in commenting on some of the positive aspects of the bill and categorizing some other parts as neutral, but you've also very clearly indicated some problems that I think you would obviously like to see fixed. Frankly, I may be understating that because at the beginning of your remarks you indicated that you seem to be largely in agreement with Mr. Mayrand on many of his concerns. What I would like to do, if possible, is double-check and ask whether there are any elaborations you'd like to make on some of the concerns that you've expressed.

One of the things you have expressed is that section 18 as now modified is getting rid of public education outreach functions and replacing them with a targeted list of communication functions. That has to absolutely be repealed and the current provision put back in place. That seems to be what I heard you say.

I do know back in 2006 in your report you stated:

Elections Canada was also able to conclude landmark agreements with various Aboriginal organizations, to generate stronger interest and participation in the election among First Nations, Métis and Inuit electors.

I've taken the time to read a lot of your work over your tenure, and to me, outreach, public education, and enhancing general participation in elections were hugely emphasized. With that, am I right in thinking that you think getting rid of section 18 is a very large mistake?

[Jean-Pierre Kingsley]

I've categorically stated that proposed section 18, in my view, must be totally repealed from the proposed legislation.

If I may, I'm very pleased that you're raising the whole issue of aboriginal electors. A Canadian population that had been slowly reducing to 60% participation actually went to 64% at that election. We were able to achieve that. Phil Fontaine and I, through efforts that had been deployed, were able to trace that for aboriginal electors, especially first nations, the increase had been 8%. Who knows where we would be if there had not been those efforts with respect to the young people. Would we be at 33%, 35%, or 41%? I don't know. All I know is that when you're the Chief Electoral Officer, you know you have a job to reach out to groups that require special efforts to be deployed by the electoral authorities. This is the only way one can visualize that job.

[Craig Scott, NDP, Toronto—Danforth, ON]

Great. Thank you.

I'll now move on to the interconnection between the new voter contact services regime and the investigative powers of Elections Canada. My colleague Mr. Lukiwski asked you a question about the new voter contact services registry. I think your answer was that it will help, and I can't disagree. The problem is whether it will actually make us too complacent, because there are still things that are not either in it or connected to it.

The first thing is, am I correct in hearing you say that the one-year period for retaining data on the part of the telecoms, the voter service companies, etc., is far too short?

[Jean-Pierre Kingsley]

It's far too short.

[Craig Scott, NDP, Toronto—Danforth, ON]

The second thing is that, and Mr. Mayrand pointed this out, it's rather inexplicable and a problem that phone numbers do not have to be retained. Did I hear you say that?

[Jean-Pierre Kingsley]

Those are the two matters that I raised that your committee should consider very seriously introducing into this bill; especially the prolongation to hold records for one year simply does not do it. If you consider that parties take six months to file their reports, Elections Canada then must do its audits. Not all reports are audited in one day. This can take several months. If there's anything wrong after you've dealt with the party to and fro, you then have to refer this to the commissioner for an investigation. Then that has to be referred to the prosecutor. One year doesn't do it.

[Craig Scott, NDP, Toronto—Danforth, ON]

I'd also point out something Mr. Mayrand mentioned. He said that the shorter the period, the more you need a power to go to the courts to ask for documents to be retained once an investigation is under way, and that power is also not in the bill. I've had my own private member's bill on this, and I was under no illusions that it would solve the problem of truly rogue operators doing automated calls using proxy servers and burner phones, not even using the services of legitimate voter contact companies.

There's nothing in the regime that will actually tackle that problem. The only solution I see is you must beef up the investigative powers of the Commissioner of Canada Elections. Two things are missing. One in particular is the power to compel witnesses along with requisite safeguards for their rights. The other thing is the access of Elections Canada to national party documentation supporting their expense claims. Neither of these has been included in the bill. I understand that in your remarks, as I was listening, you said both of them are still needed. Would you agree with me that without those two powers, the ability of Elections Canada or the commissioner, if he's now in the DPP's office, to actually get to the bottom of the more serious forms of robocall fraud, the ones that don't even use the existing legitimate system, is going to be very difficult?

[Jean-Pierre Kingsley]

I would submit to you that even with those powers, it'll be very difficult. There are people who want to cheat. It's as simple as that. They are few and far between, but they are there. Obviously, it would help if those two powers were included, and that's what the gist of my remarks was in my recommendation to this committee, to consider them seriously if we're not including them.

[Craig Scott, NDP, Toronto—Danforth, ON]

Just to finish this round of questioning, I did understand you to say unequivocally.... I want to make sure I heard correctly that the practice of vouching is at some level the last constitutional safety net for the right to vote, and that it should be retained. Is that the correct interpretation?

[Jean-Pierre Kingsley]

I'm saying that vouching is an essential ingredient of our system; it is very well protected under our present system. One can easily understand why there are concerns—the lacking documentation. Solve the lacking documentation issue. Deputy returning officers are very busy on election day. They see a lineup of people and they see people who need to be vouched for. They recognize the people. They know they're there with their brother, so they'll say, “Okay, you can vote. Forget the documentation. I have 20 other people in line.”

This is what happens in the reality of things. They now have to produce bingo cards. They now have to check ID. They have to check residence. These were all things that were added without any consideration by your predecessors on this committee when I told them that they should consider adding people at the polls, which is now being done—now being done. In 2006, I sounded the bell on that.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Kingsley.

Mr. Lamoureux, for seven minutes, please.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Kingsley, welcome to the committee.

I have a number of questions that I would like to get on the record.

Let's go back to the ability to compel. You state, “Bill C-23 would certainly provide longer reach and sharper teeth”—an interesting choice of wording, I thought—“should the authority to compel testimony be granted to the Commissioner of Canada Elections...”.

Without the authority to compel a witness, we would argue that the legislation, when a violation has occurred, in fact, is going to get weaker, because those individuals.... Now it's becoming even that much better known that if you don't want to say anything to Elections Canada, you don't have to say anything to Elections Canada. Many independent election authorities today across Canada already have that authority, so in the past we were saying that in fact this should have been brought in, in the form of a change, to allow Elections Canada to compel a witness.

Could we have a clear statement from you: do you not concur that having the ability to compel a witness would in fact directly help in getting prosecutions for things such as the robocalls?

[Jean-Pierre Kingsley]

The short answer is yes.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Good. I'm satisfied with that.

Regarding vouching and when we talked about vouching, in reading your report I see you've indicated that obviously it's important that we continue with the vouching. I'm very happy to see that. It's something that we support. There needs to be ongoing vouching taking place.

Are there issues that you have around vouching in some ways, and that in fact what we really do need is to retain vouching, to maybe look at ways in which we can improve it, but definitely keep it? Is that a fair assessment of your position on it?

[Jean-Pierre Kingsley]

I have no problem whatsoever with vouching the way it is structured under the Canada Elections Act at the present time. I am suggesting that if the committee wishes to go further, the oaths that are taken should be in writing as opposed to oral, with documentary evidence only being filled out by deputy returning officers and clerks.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

That's right. So your advice is that if you want to fix it, go ahead and fix it, but just don't get rid of it.

[Jean-Pierre Kingsley]

Please, please do not get rid of it. Some 120,000 Canadians—