Procedure and House Affairs Committee on April 1st, 2014

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

That tells me that if someone's going to violate a law, there's a very good chance that you're going to have to abort because of your inability to get to the facts, and the reason why you can't do that is that you have individuals who make a mockery of our Elections Act. All they have to say is, “I'm not interested in assisting you”, because you cannot compel.

[Yves Côté]

Mr. Chair, what I would say is that I think the words that appear in my opening remarks have been carefully chosen. What I would say is that some investigations would abort because of our inability to get at the facts.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Both you and, I understand, the Chief Electoral Officer felt it was important that you have the ability to compel. In your presentation, you make reference to many other organizations, independent associations, that have the ability to compel. They don't even have to go to a court. You're requesting the ability to appeal to a court in order to get someone to compel.

[Yves Côté]

That's correct. What we are saying is that what we have put forward is a recommendation that we have a scheme that's very similar to what is in the Competition Act, so that, as the member just said, we would apply to a judge, and a judge would sit between us and the citizen and would decide whether or not, on the circumstances of the case, to give us the order that we were seeking. The member is quite right that in some other regulated areas—in particular, perhaps, in the securities world—the head of the organization has the power himself or herself to issue those orders.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

That's right.

I think it's important that we repeat what I think was something that you made a statement on during your opening remarks. In 1974, when your office was actually created, it was felt at that time that it would go to the Department of Justice, but then it moved and evolved to get outside of the Department of Justice, because there was this perception that the Government of Canada might have some influence, versus if it were to go to Elections Canada, it would not only be perceived to be, but in real terms, based on what you said, truly would be that much more independent.

[Yves Côté]

That's the history of the provision, and if I may, Mr. Chair, I'd like to add something here.

In order to ensure fair competition, the Parliament of Canada decided to give the commissioner of competition that power, and I think one way of looking at this would be to say that if we want to have fair elections, as opposed to fair competition, why would we not give or why would Parliament not give to the commissioner the same kind of power that the other commissioners have to ensure fair competition? It seems to me that the set of values at play is at least equivalent and therefore it seems to me that Parliament would certainly be consistent with itself if it decided to do for fair elections what it has quite clearly chosen to do for fair competition.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes, it would seem to me that in essence this bill is going to weaken your ability to be able to get justice when an election law is violated, and your office is going to become that much more costly because you're going to have to set up special groups to deal with Elections Canada.

Is that a fair assessment?

[Yves Côté]

There will certainly be inefficiencies if our office is transferred to the office of the DPP in terms of what I referred to before, in acquiring the information and communicating the information back and forth between the two organizations, and, if the tool box is not made more complete by way of giving us the ability to apply for an order to compel, then yes, investigations will continue in some cases to be long or extremely long.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

More costly, fewer prosecutions is a very likely scenario, along with a public loss of confidence in the independence of your office. Is that true?

[Yves Côté]

I've made my point on these things and I would not necessarily adopt the way in which you have stated the issue, but I think that's essentially what I have said, not exactly what you said.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Have you ever had the opportunity to express your thoughts directly to the minister?

[Yves Côté]

No.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Have you made any inquiries with the minister, that you would like to share your thoughts with the minister?

[Yves Côté]

No.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Can you give us some sort of indication.... Now that many people are aware of the fact that all they have to do is just say no and then they don't have to provide testimony, do you believe that will weaken the law as that gets better known?

[Yves Côté]

It will not help.

[The Chair, Conservative, Joe Preston]

We will go to a four-minute round, starting with Mr. O'Toole.

[Erin O'Toole, Conservative, Durham, ON]

Thank you, Mr. Chair, and thank you, Mr. Côté, for your service, including, as I learned tonight, as a JAG officer.

[Yves Côté]

Indeed.

[Erin O'Toole, Conservative, Durham, ON]

I'm going to suggest to you a better analogy than the Competition Bureau because your presentation reminded me a lot of law school over a decade ago and some work I did, particularly because you described yourself as the enforcer of the legislation. That was a line you used.

A better comparator would be securities commissions because they are commissions that regulate and administer securities in the public interest, and confidence in the public markets is critical. In the last 15 years, securities commissions with commissioners—and a very similar structure—have moved away from also being multi-functional agencies with investigative, prosecutorial, and even adjudicative functions that would be similar in some ways. In 2003, Justice Coulter Osborne had what was called the fairness committee about bifurcating the OSC, much as the B.C. securities commission did.

The reason I use that is that it's clear to me. There was the creation in 1974, where you said the Chief Electoral Officer had some concerns about this being housed within the agency, and then the splitting off of the prosecution mandate to the DPP in 2006. Is Bill C-23 not really the completion of that bifurcation? So now we have Elections Canada running something in the public interest, in the public good, from an administrative standpoint, and to respect all principles of natural justice, the backward-looking function—the investigation prosecution— is housed entirely distinctly. Now not just the prosecution but also the investigation is housed within the DPP. Is that not just the completion of that bifurcation and is that not in line with modern public administration practices?

[Yves Côté]

I would go back, Mr. Chair, to some of the points I made in my opening remarks.

One is that we have in Canada at least four provinces that have in place the system that we have been proposing, and I'm referring in particular to Ontario, Quebec, Manitoba, and Alberta. I would also point out that the Australian Electoral Commission has that power as does the U.S. federal elections commission.

I would also point out, as I said in my opening remarks, that we have within the federal government agencies such as the Competition Bureau, Fisheries and Oceans, Canada Border Services Agency, the Canada Revenue Agency where we still have the—

[Erin O'Toole, Conservative, Durham, ON]

If I may, because I don't have much time, I use the securities commission example because of the regulatory overhaul in the last 15 years, and because I think it serves very similar purposes in the public interest. I sprung this on you now, so feel free to provide the committee with your comments afterwards, but do you not see the benefit, from a public confidence standpoint, of having that administrative function housed in one distinct administrative body, Elections Canada, and your function, the investigative aspect, housed separately, much like the securities commissions have done?

[Yves Côté]

I don't, and I don't for a number of reasons, but the main one would be that if this issue of the independence of the commissioner is a real concern, it could be addressed by way of amendments to the Canada Elections Act.

[Erin O'Toole, Conservative, Durham, ON]

I did mention that as a concern. I'm saying that as a principle of public administration that's what a lot have been doing.

[Yves Côté]

Even as a principle of administration, as you say, I think the Canada Elections Act can be made clear with whatever it is that would be required to state, in black and white, that the commissioner is to exercise his functions in a way that is completely independent and so on. But the other thing is also the loss of efficiency that would necessarily flow, in my view, from us being taken out of Elections Canada and moved into a department of the government.

And that's a real issue at a time when we are challenged to be more timely in our investigations and come to conclusions more quickly. Any time you put distance, and you allow barriers to build in terms of the exchange of information—