Procedure and House Affairs Committee on April 8th, 2014

[Pierre Lortie]

I don't think that is practical. I have seen enough elections to tell you that it is unrealistic to say that the Chief Electoral Officer or whoever is responsible for an election in a riding or municipality will be able to find enough staff within the required timeframe. I believe it is entirely natural to have a pool of individuals put forward by the candidates or the parties, and this facilitates the process.

Should those appointments be made earlier? Yes, that would facilitate the process. However, there is a difference between saying “I want to have it a little earlier” and saying “it's not you”.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

What the Chief Electoral Officer was asking for was to be able to hire them earlier himself. At present, he cannot hire anyone until he receives the lists from all the parties. So, all he was asking for was to continue—

[Pierre Lortie]

Are you talking about moving up the date of the list?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

He said that, at this time, about 30% of the staff comes from that list. He wants to continue to use the lists from the parties, but he is simply asking to be able to hire people a little earlier in order to be able to give them better training.

Mr. Conacher, do you have anything you would like to say about this?

[Duff Conacher]

Democracy Watch's conclusion is that the current measure prohibiting vouching and prohibiting use of the voter information card will be found to be unconstitutional, and there is a reasonable compromise that includes empowering Elections Canada to hire people earlier, which means the parties could still put forward suggestions. I agree, they can be sources of good people who are qualified, but Elections Canada should have the discretion as to who they appoint and not be required to appoint any candidate put forward or nominated by a party or a candidate.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

I have another question about Elections Canada's power.

We had the opportunity to hear from the current Commissioner of Canada Elections and the former commissioner. They said that the act as amended would prevent the Commissioner from talking about any reports he produced or any investigations he conducted. He would not have the authority to share those reports with anyone. Once an investigation was complete, he would not have the authority to say, for example, that he did not find any evidence of fraud or anything else. The Commissioner noted that that was the main problem.

What do you think?

[Duff Conacher]

If you're talking about the Commissioner of Canada Elections, yes, it's a clear bar on the commissioner and the Director of Public Prosecutions from disclosing anything about any investigation unless they prosecute or unless they do a compliance agreement. If they prosecute, obviously there's an open court proceeding and a compliance agreement is also disclosed. So that's very dangerous. The commissioner keeps things secret now, unfortunately, in terms of rulings, but will be required to in the future.

To be clear, the act does not prevent Elections Canada if it receives complaints.... Elections Canada under the changes will be able to disclose details about any complaints that it receives, other than what would be prohibited under the Privacy Act.

[The Chair, Conservative, Joe Preston]

We'll stop there.

We'll go to Mr. Lukiwski, for four minutes please.

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

Unfortunately, because I have only four minutes, I'm restricted in the number of questions I can ask.

I do want to engage you, Mr. Lortie, on something you said earlier, that is, on whether or not it would be appropriate to have the Commissioner of Canada Elections removed from Elections Canada and put over to the DPP's office. We obviously agree with that. To us it's a matter of independence.

The point, which I will raise with subsequent witnesses as well, is that when the Commissioner of Canada Elections was here, he maintained that he currently does have independence but under questioning from me, he admitted that the Chief Electoral Officer hires him, has the ability to fire him, and quite frankly can direct the Commissioner of Canada Elections into conducting investigations.

I don't know about you, Mr. Lortie, but in my world, if somebody can hire me, fire me, and tell me what to do, that person is my boss and therefore I'm not independent. We believe it is appropriate to remove him, give him full independence, so that he or she, depending on who becomes commissioner years hence, would have the ability to determine his or her own investigations.

They can certainly receive requests and appeals from anyone, including the Chief Electoral Officer, but the Commissioner of Canada Elections would determine himself whether it would be appropriate to go forward with an investigation. I consider that to be true independence.

I appreciate your comments and I agree with you, Mr. Lortie, when you say there still has to be close communication between administrations, in other words, the Chief Electoral Officer and Elections Canada and the commissioner. If they want to suggest an investigation take place, the Commissioner of Canada Elections has to know the background. They have to know the relevant information. Clearly that has to take place and I believe it would. But we're saying that to maintain clear independence and the perception of independence and no interference, we would remove the Commissioner of Canada Elections from his current status as being beholden, frankly, to Elections Canada and put him into a position where he's truly independent.

I'd just like you, in the few moments we have left, to add some comments on that.

[Pierre Lortie]

I'm not sure I would argue the way you argue, because at the end of the day, somebody is appointing the Director of Public Prosecutions and somebody is appointing the.... So if the appointment means you're not independent, it's just not correct. In the case of the Director of Public Prosecutions, the law puts him in an independent position and so on.

Quite clearly for me, if he's independent of the Chief Electoral Officer, that he be there or that he be basically where all prosecutions are taking place for the federal government, it shouldn't change anything as long as you have the flow of information on the cases. I think there are merits of putting everything together.

I have one caveat, which is that I think it's abnormal that the Commissioner of Canada Elections not have the same power that is given for economic crimes to the Director of Public Prosecutions. It should be the same place. If you're going to put it there and you have the argument to put them together, it should be the same powers that they have for just about any criminal investigation.

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

Do you agree with my contention, however, that it is appropriate for the Commissioner of Canada Elections to have the ability to determine on his own volition which investigations to pursue instead of being required to investigate complaints or suggestions or directives from Elections Canada? Should he have that independence?

[Pierre Lortie]

Basically at the present time, the Director of Public Prosecutions has that power.

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

No, I'm talking about currently the Chief Electoral Officer can direct the Commissioner of Canada Elections to conduct an investigation.

[Pierre Lortie]

That's not what Bill C-23says.

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

Yes, it does. It removes the ability from Elections Canada to tell, force in other words, the Commissioner of Canada Elections to conduct an investigation. It gives the ability—

[The Chair, Conservative, Joe Preston]

I'm going to stop you, Mr. Lukiwski. Thank you.

We're past our time, so I'll thank you both today. Thank you for your input, and thank you for your words to this committee.

We'll suspend for a couple of minutes while we change witnesses.

[The Chair, Conservative, Joe Preston]

We are back. We are still in public, televised, and we have three great new guests with us.

From the Council of Canadians, we have Steven Shrybman.

We have Simon Rowland from Direct Leap Technologies Inc.

Leading us off today, from Institut du Nouveau Monde, we have Madam Fahmy.

Madam Fahmy, you are going to go first, please, with your opening statement, in five minutes or less.

[Miriam Fahmy, Director, Research and Publications, Institut du Nouveau Monde]

Thank you.

Hello everyone.

As the chair of the committee mentioned, my name is Miriam Fahmy and I am the Director of Research at the Institut du Nouveau Monde, a non-partisan, non-profit organization that is based in Montreal. Its mission is to increase and support citizen participation in democratic life.

I would like to thank the committee for inviting us to testify about Bill C-23, the Fair Elections Act.

I will now provide you with some information about the INM.

The INM organizes public debates in which ordinary citizens are invited to participate. These activities help to strengthen citizenship skills and citizens' knowledge of social issues. The INM also organizes citizenship schools for college-aged youth and young adults in their 20s.

Since 2012, the INM has been working with the chief electoral officer of Quebec in order to develop and implement promotional campaigns to encourage young people and the general public to vote.

Finally, the INM stays abreast of research on democratic life, more specifically, voter turnout. The INM is concerned about a number of aspects of Bill C-23. However, given our practices and expertise in civic education, my speech today will focus on a single aspect of the bill and that is the amendment proposed to section 18 of the Canada Elections Act, which would take away Elections Canada's public education mandate.

As you all no doubt already know, there has been a very strong decline in voter turnout in Canada. However, an even more serious trend has emerged since the 1980s, and that is a consistent, significant drop in initial turnout or turnout among members of a new cohort of electors who are eligible to vote for the first time. This rate went from 70% in the 1960s to 50% in the 1980s and 40% in the 1990s. Since the beginning of the 2000s, this rate has stayed below 40%.

All of the studies show that voters who do not vote the first time they have the right to do so are unlikely to do so later on. Given that, today, so few new voters tend vote when they come of age, the general rate of voter turnout is expected to continue to drop. According to experts, there is no doubt that the drop in voter turnout in federal elections is mainly due to the drop in initial turnout.

That is why the INM believes that an overall strategy, the objective of which is to reverse this trend that is threatening the legitimacy of the electoral process, should focus mainly on young people aged 16 to 24, or young people who are on the verge of acquiring the right to vote or of voting for the first time.

Like the INM, Elections Canada conducted research in order to understand why young people do not vote. The results of this research show that the main reason is that young people are not interested in politics. When young people are asked what could be done to pique their interest, they said that civic education would be the best way of doing so.

Elections Canada took note of this and began working to reverse this trend. In co-operation with civil society organizations, Elections Canada is piloting public education programs, innovative election day voting simulations in schools and campaigns to promote voter participation.

All of these initiatives seek to provide the non-partisan, civic education needed to encourage young people to vote. However, rather than strengthening Elections Canada's role as a non-partisan educator, the amendment to section 18 proposed in Bill C-23 takes that mandate away from Elections Canada.

In light of this information, the Institut du Nouveau Monde recommends that Bill C-23 be amended to not only maintain but reinforce the role and responsibility of Elections Canada as a provider of civic education programs and public awareness campaigns.

It is our belief that more studies should be conducted to further understand what stimulates youth voter turnout, that current education programs should be extended as much as possible, and that new initiatives should be developed targeting the issues that research results point to.

Any and all efforts that can encourage youth to go out and vote should be encouraged and strengthened, not abolished.

I am happy to answer any questions you may have.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

We'll go to Mr. Shrybman.

[Steven Shrybman, Board Member, Council of Canadians]

Thank you very much, Mr. Chairman, and members of the committee.

I am here today as a board member of the Council of Canadians and also as legal counsel to eight Canadians who applied to the Federal Court in 2012 seeking orders annulling the results of the May 2011 federal election in six ridings across the country because they were the intended victims of voter fraud.

I've prepared a written statement, which I believe is translated, and which I think all of you have, so I won't take you through that. But I do want to point out some of the more significant things we want to say to this committee and to the federal government.

I want to speak to you about an aspect of the fair elections act that hasn't attracted a lot of attention, but which in our view is critical to safeguarding the integrity of the electoral process and the democratic franchise of Canadians. I am referring to section 524 of the Canada Elections Act, not the bill, which empowers any elector to defend their constitutionally protected right to vote.

I've reproduced the provisions of section 524 in our submissions, but they entitle an elector or a candidate—and only an elector or a candidate, not the Chief Electoral Officer or commissioner or anyone else—to actually bring an application to the Federal Court seeking the annulment of an election in certain circumstances. These include the circumstances set out under paragraph 524(1)(b) of the act where there are alleged to have been irregularities, fraud, corrupt or illegal practices that affected the result of the election.

While a great deal of attention in this committee has focused on the enforcement role of the Commissioner of Canada Elections to prosecute perpetrators of voter fraud, only a candidate or an elector, as I have noted, can seek a court order annulling the result of an election that was fraudulently won.

It is this right of an individual elector to defend their democratic franchise that is arguably, in our view, the most significant deterrent to voter fraud. It's one thing to chase a fraudster, somebody like Pierre Poutine, and catch him and subject him to significant sanctions; it's another to take away the ill-gotten gain, which in certain cases is going to be a seat in Parliament that was not fairly won.

As I expect members of the committee will know, on May 23, 2013, Mr. Justice Mosley of the Federal Court rendered his decision in the applications my clients had brought and made the following findings. I set out some of the key findings of his decision in my submissions, but I just want to draw your attention to two or three of these.

He found, “there was a deliberate attempt at voter suppression during the 2011 election.” He found the calls that were made misdirecting people to the wrong polling stations were “targeted towards voters who had previously expressed a preference for an opposition party, or anyone other than the government party...”.

He also found there was an orchestrated effort to suppress votes during the 2011 election campaign by a person or persons with access to the CIMS database. You all know what the CIMS database is. He said he was satisfied that the CIMS database maintained and controlled by the Conservative Party of Canada “was accessed for that purpose by a person or persons currently unknown to this court” and that was the source of information used in this effort to defraud Canadian electors.

Last, he found that during the course of the litigation the Conservative MP respondents engaged in trench warfare and every other tactic to prevent the matter from coming to a hearing before the court.

To the question that remains, having regard to those conclusions, I think as a well-known national columnist pointed out, we now have a smoking gun, but we just don't know who pulled the trigger. But the people who control the CIMS database will know who downloaded lists of non-Conservative Party supporters in the days leading up to the election, and the findings of the court indicate that indeed the database was used for that purpose.

What does the bill before you have to say about that? Nothing. It imposes no greater measure of accountability on those maintaining these types of databases—not just the Conservative Party, but all political parties—for their misuse.

In fact the bill as before you will actually make it more difficult for an individual elector to bring the kind of applications that my clients brought, because they are unlikely to ever discover that voter fraud took place during a particular election, as both the commissioner and the Chief Electoral Officer are prevented from making public complaints about voter fraud that come to their attention.

I've also set out in our submissions the amendments to the bill that we believe would actually address the problem of voter fraud and make it less likely to occur in a future federal election.

Thank you very much for giving me the time today.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Mr. Rowland, please give your opening statement.

[Simon Rowland, Chief Executive Officer, Direct Leap Technologies Inc.]

I'm Simon Rowland, founder of Direct Leap Technologies, which is a telecom engineering and voter contact firm. We have developed a lot of telecom equipment over the years.

The first point l want to make is that the scope of the crime in terms of the national election fraud investigation is breathtaking, and this is an important context to keep in mind when looking at reforms to the Canada Elections Act.

I have a few points. It needs to be an offence to hire an unregistered voter contact firm so that the onus is also on clients to verify the registration. SMS, Facebook messages, and a huge list of other communications technologies aren't adequately regulated as voter communications. This list of technologies will evolve over time as communication with electors moves from in-person canvassing over time to jump from technology to technology, but SMS is essentially totally unregulated.

Elections Canada needs to have a much easier way to request telephone records. Imagine if Revenue Canada needed to put forward evidence in a 50-page brief in order to get access to the basic books and receipts to begin an audit. The current process to obtain digital phone records of an essentially public act, an essentially public communication, is the same process that detectives are required to follow in order to forcibly enter someone's home. Given that modem investigations are going to often involve the telephone, investigators need to have either the same powers as the CRTC to simply request records from carriers, or similarly, to have the right to request records of intelligence databases that match voters' complaints.

These CRTC-type tools to request calling records also make it easier to audit evidence provided by voter contact firms, simply by requesting the matching records from the carriers they send calls to. If a call centre that's subject to an investigation produces a table of calls as evidence, for example, as RMG did during the Federal Court challenge, it would be nice to be able to easily verify that there aren't any calls missing from the list. The ability to more easily cross-reference these records would add to the evidence value of these computer files.

The fact of a voter complaint must be enough to retrieve the relevant telephone records by canvassing major carriers to determine if the listed calls had transited their network. This allows the calls to be traced back to their call centre of origin using billing records. There has to be a change in the law to make it easier for Elections Canada to request telephone records. Like the CRTC, it is now in the 21st century, essentially a telecommunications regulator.

Investigations will end up requiring cooperation of international enforcement bodies, which must be facilitated in advance.

Election fraud at a sufficiently serious industrial scale may need to be declared to be at the level of priority as national security to permit international cooperation in tracing fraudulent calls to their originators, as this status is normally what is required to get other countries to process our subpoenas.

Imagine a foreign call centre distributing misinformation to influence the outcome of a foreign country's election, or simply debasing the integrity of the process. Offences that are now quite imaginable have the potential to be very serious, and require an appropriate framework for investigators.

Another point is that every piece of telecom equipment is designed to collect calling records in real time, as this is needed to do billing. These records from voter contact firms should be streamed to a secure records archiving facility at Elections Canada as a part of the voter contact registry. Contacting voters with a political message is fundamentally a public act, and making these records automatically available to Elections Canada for investigation or audit and archiving is simple transparency that would allow investigators to find a call that matches a voter's complaint with a simple search.

There is a great deal that can be done to facilitate the investigation into telephone voter fraud. For example, voter contact firms should essentially be auditable. What they do is a public act. Grant Elections Canada the power to audit the technical infrastructure and financial records of voter contact firms. They can start by simply auditing every firm that does voter contact and that did it in the last election.

I find it curious, after Parliament unanimously voted to provide new powers to Elections Canada following the revelations of the industrial-scale voter fraud that took place in the last election, that this bill instead would take relevant powers away.

Thanks, Mr. Chair.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Rowland.

Thank you to all of our witnesses.

Before we go to our round of questions, I want to note that some friends have joined us today. A group of parliamentarians from the United Kingdom is here watching us, so let's be on our best behaviour, please.

[Voices]

Oh, oh!

[The Chair, Conservative, Joe Preston]

Mr. Richards, you have seven minutes, please.