Evidence of meeting #25 for Procedure and House Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was elections.
A video is available from Parliament.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Well, I can give you an opinion, which is that you should be reporting not to any other committee but to this committee and the reason is that we deal with all elections matters. It makes sense to have the same committee overseeing these things. The analogy I've given in previous hearings is to a board of directors. If your company has multiple divisions you want all management to be reporting to the same board of directors.
But that's a very interesting piece of information.
Commissioner of Canada Elections, Elections Canada
The analogy that I would make, Mr. Chair, would be that the Chief Electoral Officer reports to the two Houses of Parliament. That is my understanding. Given that there is some element of commonality between the two, an amendment could also provide that the report of the commissioner would be like the report of an agent of Parliament and could go directly to the two Houses of Parliament.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
All right, that's very helpful. Thank you very much.
Conservative
The Chair Conservative Joe Preston
Great, then we have completed.
Thank you, Mr. Côté, for coming tonight and sharing your information with us.
Commissioner of Canada Elections, Elections Canada
I would like to thank the Chair and the members of this committee for taking the time to hear from me. Thank you very much.
Conservative
The Chair Conservative Joe Preston
Thank you.
We will suspend just for a couple of minutes while we change witnesses.
Conservative
The Chair Conservative Joe Preston
I will call us back to order. We are still in meeting number 25 and we are still televised and in public. We have a new guest, Mr. Corbett.
It is great to have you here and I apologize for the lateness of the hour but we have been working what seems like around the clock on Bill C-23. You have an opening statement I understand, so please go ahead and tell us your thoughts and then we will ask you some questions.
William Corbett Former Commissioner of Canada Elections, As an Individual
Thank you, Mr. Chairman.
Mr. Côté has covered a lot of the ground, as you well know, in a very thorough way and I'm hopeful that perhaps I can add some contextual information from my six years as commissioner of Canada elections, which ended in July 2012. Before that, I was employed by the Department of Justice for 34 years, mainly in the criminal law branch, so I'm well familiar with the DPP and his organization. During my time as commissioner, I was involved in three federal elections in a period of a little more than four years. You probably remember them all.
I'm concerned for the ability of the commissioner to investigate alleged violations of the act in an effective and timely way. I'm a practically oriented person. There's nothing in the amendments that will enhance the ability of the commissioner to investigate alleged violations of the act, and there's one amendment that will detract from the ability of the commissioner to investigate violations of the act.
One of the main problems with significant investigations is that they take too long. One investigation that we completed took two years and one month. The director of public prosecutions spent 16 months reviewing what we had done. The prosecution brief was a few pages short of 400 pages. It was a book, and this was a summary of the evidence that we had managed to put together. In this case and in some others, delay is occasioned by key witnesses, who decline to be interviewed by an investigator. In some cases, key witnesses were discouraged, actively discouraged, from being interviewed by an investigator.
What is missing from the amendments is the authority to seek a judicial order to require a vital witness to be examined by the investigator. This authority would avoid the need to use more complicated, expensive, and intrusive procedures, and might very well save considerable time. Again, I can't say a lot about cases before the court, but you can imagine what we had to go through when we had to sort out robocalls in general.
The Internet is unregulated, it's the Wild West, and a number of judicial orders we had to obtain, and what we had to learn as we pushed our way through this quagmire was remarkable. Had we been able to compel witnesses, we might very well have advanced the case much more quickly. I'm very concerned for the public perception of things when we can't advance these cases of considerable public interest.
We already have an injunction power in the act, which allows us during the election period to go to a court for an injunction to get something done. We've never used it. We've waved it around from time to time, and people know it's there, and we can pursue it if we want. I expect that an authority to get a judicial order to compel someone to be interviewed might not have to be pursued all that often. Persons couldn't say to a witness, “You don't have to cooperate,” because the law would then provide a means to obtain cooperation. Its availability would frequently be sufficient. I would expect to obtain cooperation from witnesses.
What is detrimental in the amendments is the removal of the commissioner's office from Elections Canada to the office of the director of public prosecutions. Elections Canada is a vital centre of information, and intelligence, and expertise in federal electoral matters, and there isn't any other. The director of public prosecutions certainly is not.
What you would do with this is, you would remove investigators from ready access to the experts at Elections Canada: the legal experts, these are people who are engaged in knowing this act and providing legal advice on it on a regular basis, including to investigations, keeping investigations in line, if you will; the auditors, who apply the law to the financial aspects of campaigns; and the experts who run the election, who apply the laws to the actual vote and the campaigning in the election period.
It's important to remember that the commissioner's office is composed of about 20 people. They rely on resources where they can get them. Elections Canada is the main source of that. As well, other police forces assist investigators. The DPP provides assistance to investigators in getting judicial orders and on matters before the court.
I'm not sure if the move would disturb the ability of investigators to get access to the records that are kept at Elections Canada. There are specific sections of the act that guarantee access to certain records, but taking the investigators out of the organization may raise a problem for access to records. Records are vital to confirm complaints, and referrals from auditors with regard to financial matters. That's a legal matter that I'm not able to give you an opinion on, but it's something to be concerned about.
There is one other aspect that needs to be brought to your attention. It's important, and I don't believe any other source has identified it for you. I'm referring to the monitoring role of irregularities during the election period. I went through three elections. Each election period was about 35 days long. We put together a team of investigators and the legal staff assigned to them. They were on the ground every day during the election period. We double-shifted so that we covered 12 hours a day.
So the complaints flow in from returning officers, members of the public, and political parties as to what's going on during that 35-day period. We monitor the election, and we take action to ensure that the rules are being followed. We have dedicated contacts within the political parties. We ask the political parties to straighten out something that may be going on that they're better able to deal with. We have contacts with the municipal police forces. We take the complaints, we put them in the computer, we run them up the screen, we assign investigators if something needs to be done, and we get after it—not with the idea of prosecuting charges down the way but with the idea of regulating the playing field as the campaign rolls along.
As you well know, there is a never-ending complaint about signs. Municipalities don't like them if they interfere with traffic. Landlords don't like them when the tenants put up big signs in the windows. Signs get stolen. People have signs on their property that they didn't approve of. Signs are put on signs. Signs are put on government signs. Sign teams have fights over the best places to put up the signs. We sort these things out.
As another example, a candidate wants to get inside a condominium to campaign—a lot of people are living in condominiums these days—and the management doesn't want them in there. The regulations of the condominium corporation may prohibit them from getting in there. We make contact with the condominium corporation. We contact the lawyers, if we can find them. We read them the riot act: here's the law, sort this thing out, because a candidate is entitled to reasonable access to a condominium, an apartment building, or a shopping centre. These are the things that get dealt with.
You may recall the oddball one in Quebec, where a journalist got access to a ballot box and photographed the ballot box open. It looked like it had been damaged and beaten up. They made quite a fuss over it. We looked into it immediately. The matter was sorted out by our investigators, the municipal police force, the returning officer, and members of the parties on the ground who looked at the box and were satisfied that the ballots inside the envelopes had not been disturbed. They all agreed that they could be accepted. We sealed it up and got on with business.
These are the kinds of things that happen, as you yourselves know, during an election period. We're there 35 days in a row, two shifts a day, watching this stuff not to prosecute down the road but to regulate. This is a regulatory statute.
I don't know who is going to do it in the next election, because I'm certain the DPP isn't going to do it. I don't know who else is going to do it. Could someone else at Elections Canada do it? I don't think they have the skill set. Investigators have a particular skill set. Our investigators are all mostly 30-year police veterans.
They're very good at getting municipal police forces to look into our matters when they aren't priorities for them. There's a very practical aspect of this that you need to be aware of in the removal to different agency, which as I say, doesn't have the expertise and is used to acting in an independent way from investigators.
Removal of the commissioner from Elections Canada does nothing to enhance the independence of the office. I have to tell you, political interference is non-existent. I never encountered it in any form at all; I never had an investigator advise me that there had been anybody trying to interfere with an investigation. The Chief Electoral Officer, in my time, maintained a strict hands-off approach. The decisions were made by me and the director of public prosecutions with regard to prosecution matters.
As far as how we do things and what we do, we put together a 19-page document, which is on the Elections Canada website, to tell the public what we do and how we do it. It's available to anybody who wants to take a look at it. I should say, it's not usual for investigators to be associated with the prosecutor's office. I worked in the prosecutor's office for many years in the regulatory context in particular, although prosecutors do prosecute regulatory offences. Their main preoccupation, and that of the DPP, is with Criminal Code offences, drug offences, terrorist offences, money laundering, tax evasion, and things like that. It's not common, in the common law context, for investigators to be working out of a prosecutor's office or to be associated with or under the umbrella of a prosecutor's office, even in a general way. Investigators are usually located with the agency responsible for implementing the legislation, and that's primarily because it's a regulatory agency and the goal is not prosecution; the goal is compliance.
Personally, I don't like prosecutions. I'd just as soon get compliance with the requirements of the act and the goals of the legislation. What happens, and is happening more though, is it gets adversarial. Witnesses refuse to be interviewed; witnesses are discouraged from being interviewed; it becomes adversarial. If they cooperated and we were able to get to the bottom of something in a timely way—and that does happen—there are other avenues besides prosecution that can be used to obtain compliance. We have a compliance agreement, in fact, that we can use and it's used in many minor cases, for that matter. There are serious cases that can't go that way; you do have to investigate with an eye on prosecution.
Prosecutors, generally, want to take an independent view of an investigation after it's completed. In fact, the less they have to do with the investigators beforehand, the better. If they have been involved with the investigators because they had to make a court application, someone else in the office will make that decision to prosecute. The prosecution role is who to charge, what to charge, and who not to charge. If it's criminal, it goes to a criminal court.
Let me say a few words about election or voter fraud, which is something of a concern to you. We looked into a number of cases of alleged organized voter fraud when I was commissioner. The complaints were found to be without substance, and no charges were pursued. I put out a press release on two of these, and another one was looked into by a company called Navigant. A few cases of individual illegal voting were prosecuted but, in my opinion, while administrative errors were found, significant voting fraud was not taking place.
I came into the job as an outsider, and what struck me as interesting were the ethics that are at work in the electoral process. The 60% of people who vote are very serious about it; they're very concerned for and they support the system and the process enormously. That was my first observation. Similarly, the people at Elections Canada were impressed by the role that they were performing, from the most senior to the most junior person. It begins with a fair election and a reliable result.
That's the beginning of the democratic process.
That's my little speech for today.
Conservative
The Chair Conservative Joe Preston
Super. Mr. Corbett, I could listen to you all night but I know the members want to ask questions so we're going to let them do that.
We go to the seven-minute round. Mr. Lukiwski, you're starting.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you very much.
And thank you very much, Mr. Corbett, for being here.
It's good to see you again. We have seen you before at this committee. I, like my colleague Mr. Reid, have been on this committee for what seems like an eternity—I guess for the last eight years.
I do have a question about one of your former investigations. May I ask, sir, since this investigation I'm going to be referring to has been completed, are you able to talk about completed investigations?
Former Commissioner of Canada Elections, As an Individual
I'd rather not be reconducting the investigation or a prosecution, mind you, but—
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
There were no charges laid here, but I'm just curious. It's always been something I've been extremely curious about. Now that I have the opportunity to be with you in the same room, I'd just like to get some information to satisfy my curiosity.
It refers back—I hope you can remember—to a case involving a former Conservative member of Parliament by the name of Jeremy Harrison. In the 2006 election Jeremy Harrison was running in the far north of Saskatchewan. It's the Meadow Lake riding provincially, but it was the Desnethé—Missinippi—Churchill River riding federally.
Former Commissioner of Canada Elections, As an Individual
Desnethé—Missinippi—Churchill River, yes.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Right.
Now at the time during that federal election, of course, Jeremy was the incumbent. And we were listening to the poll results come in and at the end of the evening by the time I went to bed, the media had declared Jeremy the winner because he was up by a few hundred or perhaps even several hundred votes. His main opponent was a Liberal candidate by the name of Gary Merasty. Gary was a fairly well known first nations individual, a former chief of one of the bands up in the northern Saskatchewan area.
What happened was there was only one poll left to report. Jeremy was up by, as I say, a number of votes, a few hundred votes, and declared the winner. I went to bed thinking he was re-elected. I woke up in the morning and all of a sudden I find out that Gary Merasty had won. The circumstances were such that the last poll to report was from a very northern riding on a first nations reserve and the report came in three and a half hours late, after they had obviously known all of the vote counts up until that point in time. And when the ballots were counted three and a half hours later they found an amazing thing. They found, number one, that over 100% of the eligible voters in that first nations reserve voted. I think it was about 103% to 105% of voter turnout. And every single ballot cast was in favour of Mr. Merasty.
Of course, Mr. Harrison thought this was highly unusual, as do I still to this day. I think most reasonable Canadians would think there was something fishy going on there. Probably if you were to be making a haphazard guess as to if there was voter fraud, perhaps someone wanted Mr. Merasty to win, waited to find out what they needed to win in terms of votes, stuffed the ballot box, submitted it, ergo, presto, change-o, Mr. Merasty wins.
Your office, I believe, conducted that investigation and the report we got back I think was from the Chief Electoral Officer. Mr. Corbett, it might have been from you, but I think it was Elections Canada that reported back saying they found no evidence of wrongdoing and in fact they thought this was in effect almost a good thing because they were trying to encourage first nations participation in elections so having 103% was a good thing. Why was there more than 100%? They really couldn't enumerate; they didn't know how many people actually lived on the reserve and so to say there was 103% turnout was perhaps not accurate. And then to the point that every single ballot cast was in favour of the Liberal candidate, again, they didn't find anything unusual there, at least nothing to warrant recommending to the DPP a prosecution or a court case take place because Mr. Merasty was a well-known first nations chief, former chief, so therefore it's quite possible that 100% of the people casting ballots voted for him.
I didn't understand there was much of an investigation there. On the surface it would appear to me, and I think to most reasonable Canadians, that something fishy happened.
Can you recall that investigation, sir? And can you shed any light just to satisfy my curiosity, which has been bothering me for the last number of years?
Former Commissioner of Canada Elections, As an Individual
We did put out a press release—
Former Commissioner of Canada Elections, As an Individual
I have it in my hand here.
Conservative
Former Commissioner of Canada Elections, As an Individual
The press release is better than my memory.
When you talk about more than those on the voters list voted, that was in fact the case. The voters list was vastly incomplete with regard to the eligible possible voters in that community. I recall the band people being asked why there was such a unanimous vote for one person and the band people's response to that, as I recall it, was “we told people that they'd get a better deal from the Liberals than the Conservatives if they voted Liberal, and that's what happened”. I don't know that's against the law to call a band meeting and suggest to people how they should vote and which way is in their best interest.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Did they find out why the delay, why the lapse?
Former Commissioner of Canada Elections, As an Individual
No, I don't remember the delay part.
Conservative
Former Commissioner of Canada Elections, As an Individual
There were numerous people vouched for in that election who were not on the list. People in that riding had no municipal addresses. They had post office boxes in the next riding, but they lived there. The people running the polls knew everybody in town. They could have vouched for everybody. People didn't have drivers' licences with addresses on them. It was an interesting investigation to review because I didn't know these places existed, frankly, until I read that there.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
In your investigation, did you raise any possibility of voter fraud? Did you consider that as an option?
Former Commissioner of Canada Elections, As an Individual
What kind of voter fraud would you be...?