Procedure and House Affairs Committee on April 8th, 2014

[Blake Richards, Conservative, Wild Rose, AB]

So making the rules clearer would be good—

[Keith Lanthier]

Whatever can be done in terms of transparency and accountability; frankly, I didn't see that in the last election.

[The Chair, Conservative, Joe Preston]

Thank you very much.

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

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

To the Competition Bureau, I'm just wondering if in either your statute or your practice you are under, or feel to be under, an obligation to provide written notice that you're investigating a company or somebody.

[Richard Bilodeau]

We do have a practice.

I'll let my colleague answer that question.

[Ann Salvatore]

Maybe I'll start by explaining our confidentiality provisions.

We do have strict confidentiality provisions, under section 29, that limit the disclosure of information, except for instances of sharing with Canadian law enforcement agencies or for the administration and enforcement of the act. We also are required to conduct our inquiries in private. However, within those bounds, in terms of targets of our investigations, we are giving them opportunities to engage in dialogue with the bureau. Depending on circumstances, they may be notified that they are under inquiry and the nature of that inquiry.

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

Are you under an obligation to inform them?

[Ann Salvatore]

We're not under an obligation, no, but we do inform them in certain circumstances, depending on the case or what provision of the act we're investigating. It also gives them an opportunity perhaps to resolve their liability. That's with respect to targets.

In terms of the public, if our investigation results in a prosecution or a civil proceeding, then the matter becomes public, becomes on the public record, and in most instances we will issue a press release. In other circumstances, if we resolve an investigation through a negotiated settlement, if we believe the results of that investigation could provide guidance to the public in terms of how we enforce the act, if there's a novel issue that we've dealt with, then we may issue a position statement.

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

Okay. Thank you very much.

At the moment, Bill C-23 would require the commissioner to give written notice that a person is being investigated, with some possibility of deciding “I won't do that”, but the primary obligation is that they must. But we also have a provision that makes it very clear that the commissioner cannot provide after-investigation information, such as the kind of summary you've suggested your commission can do on occasion for the benefit of the public. That's actually prohibited by proposed section 510.1.

The other thing is that the standard set out in Bill C-23 for a commissioner to even begin an investigation is an interesting standard. I'm hoping the minister remains open to amending it. It basically says that the commissioner may conduct an investigation if he or she believes on “reasonable grounds” that an offence has been committed. My understanding, at least from other areas of law, is that this is a much higher standard, which I am used to seeing in criminal law areas, for example, to be able to even start an investigation. I understand from your presentation that the simple fact of market condition fluctuation might be enough for you to start an investigation.

Is the standard of reasonable grounds a standard that you would use, or do you have a much lower standard? This is not to compel testimony or anything like that; this is just to start investigating.

[Richard Bilodeau]

It wouldn't be appropriate for me to get into this. I'm not a lawyer. I'm not counsel for the Department of Justice. I wouldn't want to get into the legalities of “reasonable grounds to believe”, and what that means.

Just to be clear on when we can start an investigation, the commissioner has that ability to start an investigation. He does so not just simply if there are market conditions, but if he has reasons to believe that a company is engaged in anti-competitive conduct. We have to have some sort of behaviour in the market.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Thank you, Mr. Scott.

We'll go to Mr. Lukiwski for four minutes to finish this.

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

Thank you very much.

I have questions for our representatives from the Competition Bureau.

I'm trying to get some clarity here because we've heard from members of the opposition throughout this examination of Bill C-23 that they believe the commissioner of elections should have the power to compel testimony, something that you currently have in the Competition Bureau.

My point is simply this. The power to compel against an individual that the commissioner of elections is trying to pursue, or is pursuing, couldn't ever be used because any testimony that came out of that wouldn't be accepted by the courts afterwards.

My understanding, in your particular case, is that the power to compel testimony is mainly due to, or for, administrative issues. Would that be a correct assessment? Or have you used this to try to compel an individual to come forward and provide testimony?

[Richard Bilodeau]

We have used the ability to seek an order from the court to compel testimony from an individual.

You're correct in saying that if we get testimony from an individual we cannot use that testimony against that person.

We have used it in instances where we have documents that need some explanations. For reasons maybe of that person being under certain confidentiality obligations, we will seek a section 11(1)(a) order to compel testimony from that person. We've also used it in situations where maybe.... To give an example of where we could use it, if companies are involved in an illegal criminal cartel under the Competition Act, often people don't put those legal agreements in writing and oral testimony may be how we would be able to get the evidence we need to uncover it. It is a tool that we use, but you are right, we cannot use that testimony against those individuals.

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

Thank you for that.

The reason I'm bringing that forward, of course, is because the opposition continuously says, and I've heard it from some of our witnesses as well, that if the commissioner of elections had the power to compel testimony then we could have gotten to the bottom of the Pierre Poutine case already by merely getting witnesses forward. You could not use that information in court afterwards. That's why that would never be used. I'm glad you confirmed that.

This may be an unfair question, but I'll ask it anyway. If you were analyzing Bill C-23 comparatively, the issue about the ability to compel testimony, do you believe the ability you currently have would enhance the ability of the commissioner of elections to receive the type of information he would need in the course of his investigations, or do you have any opinion?

[Richard Bilodeau]

I can't speak to what other agencies need or don't need in investigating power.

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

As I said, it's an unfair question, but I appreciate that.

Thank you, Chair.

[The Chair, Conservative, Joe Preston]

Thank you.

We'll finish at that point and thank our witnesses for this hour of knowledge.

We thank you for coming tonight to do so.

We'll suspend while we change the panels.

[The Chair, Conservative, Joe Preston]

We're about to start this portion and we will do that.

Welcome back, Committee, we'll start our second hour.

We have the Honourable Preston Manning and Madam Fraser and Borys Wrzesnewskyj.

Mr. Manning, we'll let you go first. We always like to go with the ones covering on technology first in case we lose them. So if you have an opening statement for us, please go ahead.

[Preston Manning, President and Founder, Manning Centre for Building Democracy]

Thank you first of all for this opportunity. I should make clear that I'm speaking solely on my own behalf and on behalf of the Manning Centre for Building Democracy. I'm not speaking on behalf of the advisory committee to the Chief Electoral Officer of which I'm a member. I want to just confine my remarks to four points. I think you've been given a one page brief from me.

First, I do think this is a commendable democratic initiative, Bill C-23 in particular, because it seeks to eliminate those practices like robocalling that discredit elections, parties, and candidates associated with them. So that would be the first point that I'd like to make.

Second, I do think there is merit in separating the administration of the elections from the enforcement of election law. I just think that this would allow the Chief Electoral Officer to focus solely on the election administration and allow the independent commissioner to focus entirely and independently on the law enforcement.

The one area where I'd like to suggest the bill can be improved, and I know you've heard a lot of suggestions for improvement, is this. I would like to see the role of Elections Canada and Chief Electoral Officer strengthened with respect to the promotional and educational activities needed to increase voter participation. It seems to me that the biggest challenge that we have with the Canadian electoral system is not its fairness, although one has to address that, but it is this declining participation in elections generally. If we profess to be democrats and I think no matter what our ideological or party divisions are, that we are all democrats here that everybody, Elections Canada, the parties, the candidates, the NGOs should do everything conceivable to get that participation rate up.

I suggest adding a section to the bill where it lists the only topics on which the Chief Electoral Officer can provide information. I suggest adding a fifth clause that says, public education and information programs to make the electoral process better known to the public and increase voter participation should be one of his duties.

The last point I'd make is this. As some of you know, ever since I got out of Parliament, I've been a strong advocate of getting more training and preparation for people seeking elected office, not just themselves but the constituency organizations, campaign managers, anybody that's actively participating in the process. The old idea that we can learn on the job has been the conventional wisdom for a long time. I think in this age of rapid communication it's just not workable.

I've been involved in trying to persuade people to take training if they're going to get into the political arena. When you run into prospective candidates and campaign managers, there is some confusion as to whether investments in training prior to the election might be considered an election expense or a contribution in kind.

To eliminate that confusion, I'd propose an amendment to the bill that simply says that training course expenses, including expenses for education on the subject of the act or on election campaigns, are not election expenses, personal expenses, or electoral campaign expenses under the act.

I do think that one change would make it crystal clear. Our lawyers say that actually these things are not expenses now, but it is unclear. I think that one change would make that crystal clear.

So those are my four points, Mr. Chairman. I won't take longer and I'd be happy to elaborate on any of those or to answer any other questions that you might have.

[The Chair, Conservative, Joe Preston]

Great. Thank you, Mr. Manning. We will get to you with questions.

But first we're going to go to Madam Fraser.

Would you like to go next, please?

[Sheila Fraser, Former Auditor General of Canada, As an Individual]

Thank you, Mr. Chair.

I am pleased to be here and would like to thank you for the invitation to appear before this committee with regards to its study of Bill C-23.

I would like to emphasize that my comments are mine alone. I do not represent the Chief Electoral Officer, Elections Canada nor the advisory committee to that organization, which I co-chair.

In the interest of full disclosure, I would like to advise the committee that I have received an amount of $2,450 for my participation to date on that advisory committee. I have also been engaged as a member of boards of selection for various positions within Elections Canada, and was paid $976 in 2013 and $3,240 in 2012 for those services.

As you are aware, I had the privilege of serving as the Auditor General of Canada for a 10-year term, which ended close to three years ago. The Auditor General is one of seven officers of Parliament who play a very important role in our democratic system.

The Privy Council Office refers to these officers as agents of Parliament, and states:

Agents of Parliament are a unique group of independent statutory officers who serve to scrutinize the activity of government. They report directly to Parliament rather than to government or an individual Minister and, as such, exist to serve Parliament in relation to Parliament's oversight role. Agents normally produce a report to Parliament to account for their own activities, and their institutional heads are typically appointed through special resolutions of the House of Commons and the Senate. To maintain the independence of the Agent, the degree of influence exercised by the executive arm of government is minimal.

The independence of the officers of Parliament, both in fact and appearance, is critical to their credibility and their ability to carry out the mandates entrusted to them. I was very pleased that government recognized the importance of this independence in 2007-2008, when a number of administrative policies were amended.

These amendments recognized that it is the officer of Parliament who is responsible for implementing these policies and ensuring compliance with them, rather than, as was previously stated, a minister. For example, some requirements of the government communications policy do not apply to officers of Parliament. The Treasury Board Secretariat worked very cooperatively with the officers at the time to address our concerns.

In light of that, I am very concerned with two provisions of this bill that would affect the independence of the Chief Electoral Officer and his organization.

The first is proposed section 18, which restricts the Chief Electoral Officer’s communications with the public to certain specified, limited information. Outreach activities, encouraging people to vote, and educational initiatives would no longer be permitted. An independent officer of Parliament should be able to bring any issue that he or she believes important to the attention of Parliament and the public.

The second is proposed section 20, which will now require the Chief Electoral Officer to obtain Treasury Board approval to “fix and pay...[the] remuneration and expenses” of “persons having technical or specialized knowledge” engaged on a temporary basis. This is clearly an infringement on the independence of the Chief Electoral Officer.

In comparison, the Auditor General Act explicitly states that the Auditor General does not require the approval of the Treasury Board. In addition, the government's contracting policy specifically exempts the officers of Parliament from obtaining Treasury Board approval.

I am also concerned that should this article be adopted, it could create operational difficulties for Elections Canada in managing an election, given the hundreds of people with specialized assistance that it requires.

In 2005, the Office of the Auditor General conducted a performance audit on the operations of Elections Canada. At that time, we concluded that Elections Canada plans, manages, and administers the federal electoral process well, according to applicable authorities, and that it plays a key role in supporting the fairness and transparency of the electoral process.

I encourage the committee to ensure that this proposed legislation does not alter that.

In closing, Mr. Chair, I would like to thank the clerk of the committee and House staff for their assistance to me in preparing for this hearing.

I would now be pleased to answer any questions the committee members may have. Thank you.

[The Chair, Conservative, Joe Preston]

I echo your thanks to the clerk because without her I'd be lost too.

We will go to Mr. Wrzesnewskyj for five minutes or less, and then we'll do questions.

[Borys Wrzesnewskyj, Former Member of Parliament, As an Individual]

Thank you, Mr. Chair and committee members.

I'd like to address the issue of preventing electoral fraud. The assumption that organized electoral fraud happens elsewhere in countries we send Canadian observers to, and not in our Canada, can no longer be assumed. The Neufeld report states that in Etobicoke Centre there was judicial agreement that, despite the presence of irregularities, there was no evidence of fraud or ineligible voters being provided ballots.

I support all the recommendations in the Neufeld report; however, the above statement would have been more accurate if it had added that there are legal limitations to the Canada Elections Act and the Privacy Act that practically limit evidence of fraud from being admissible or proven in court—in fact, they make it impossible. As an example, the table in annex C of the Neufeld report points out that, in statistical analysis of three byelections, the incidence of ballots being handed to people not on the voters' list and no registration certificates being completed occurred in 0.4%, 0.5%, and 3.8% of cases. Yet in the court sampling of 10 polls in Etobicoke Centre, the number was 48.2%, almost 1,000% higher.

I've been an electoral observer overseas and have organized electoral observer missions on behalf of NGOs, Canada, and the OSCE, since 1991. When we have found such patterns of statistical anomalies, we've concluded the likelihood of fraud. However, the Canada Elections Act precludes statistical findings of fraud. The standard is to prove that individual ballots are fraudulent. However, the Canada Elections Act and the Privacy Act prevent us from questioning the voters who cast those ballots, nor could we compel election officials to answer questions—a legal Catch-22.

In June of 2011, after being given an anonymous tip that ballots were being handed out in one poll without IDs being shown, we followed up with a statistical analysis of all Etobicoke Centre polls. We found disturbing results. For example, in poll 31, voter turnout increased by 70%, and the Conservative vote percentage increased by 50%. When poll 31 documents were examined at Elections Canada's secure facility, 20% of all votes were by registration certificate, 1 in 5, whereas the overall Etobicoke Centre and Canadian averages were 5%, or 1 in 20. Of the 86 RCs, a majority turned out not to live in the poll. Towards the end of the Superior Court hearing, Elections Canada tabled emails in which both the DRO and registering officer in poll 31 made contradictory and false statements as to whether non-eligible voters were allowed to vote. Has Elections Canada investigated these officials?

There were significant numbers of other similarly problematic polls. To maintain the public's confidence that those elected by the narrowest of margins are in fact a reflection of the people's will, statistical evidence must be allowable and the legal standard ought to be the balance of probabilities and not beyond the shadow of a doubt.

In addition, I disagree that the office of the commissioner of elections' independence be jeopardized by putting it under the wing of a government department. However, I also believe that an arm's length investigative unit should be foreseen in legislation in cases of serious allegations of administrative failures or fraud against Elections Canada officials. Both investigative bodies must have the powers to subpoena and to compel people to give evidence. I also suggest that there be a legal requirement to bring resolution to cases within a one-year timeframe as opposed to the decisions rendered five or more years after the fact, making them moot, as by then the next federal election has occurred.

In Etobicoke Centre, alleged vote additions occurred in an atmosphere of vote suppression, including the disruption and shutting down of two of the strongest Liberal polls by identified Conservative campaign team members, including the campaign manager. Consequential penalties need to be applied in cases of direct vote suppression. Campaigns whose team members engage in such tactics need to face the penalty of having their candidate's election disallowed. A democracy's foundational social contract is that we all have a voice. Young or old, it's one person, one vote. Rich or homeless, it's one person, one vote. White or aboriginal, it's one person, one vote.

If the rules that provide the framework for the act of voting are overly restrictive, the representative nature of a government is questionable. If rules are not followed by officials due to lack of training and resourcing, we have no confidence in the results. If rules are broken by vote suppression or vote addition, a government's legitimacy is called into question. If the government introduces Bill C-23 without serious amendments, it will have facilitated all of the above.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Wrzesnewskyj.

We'll go to a seven-minute question round.

Mr. Lukiwski, you're starting tonight.

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

Thank you very much.

Thank you, Mr. Manning, Ms. Fraser, and Mr. Wrzesnewskyj, for being with us today.

My first line of questions will be directed to both Mr. Manning and Ms. Fraser, and it deals with the provisions contained in Bill C-23 to remove the commissioner of elections from Elections Canada and place him within the office of the Director of Public Prosecutions, because our contention is that this would give far more independence to the commissioner of elections.

Currently, although the commissioner himself thinks he does have independence, under questioning from myself at his appearance here, it was ascertained that in fact the Chief Electoral Officer—Elections Canada, in other words—can hire and fire the commissioner of elections. Elections Canada controls the commissioner of elections' budget; Elections Canada can direct and compel the commissioner of elections to conduct investigations whether or not the commissioner himself wants to; and the CEO of Elections Canada can stop an ongoing investigation by just requesting that the investigation be halted. To me, that's not independence whatsoever.

What we are suggesting is that the commissioner of elections be removed from that, so then he would have, number one, the ability to control his own budget, to hire his own staff, to determine what investigations he wishes to conduct, but he is not compelled to do so. I think by anybody's common-sense examination, it would be very apparent that this gives the commissioner of elections far more independence than he has now.

Mr. Manning, I know you suggested that you like that part of the provisions of Bill C-23 and I think, Ms. Fraser, you disagree, so I would like to hear both your comments on why you support your particular position and the position as advocated by the government in Bill C-23.

Mr. Manning, you first.

By the way, Mr. Manning, I should start off by asking a question. Ms. Fraser has voluntary disclosed her remuneration by being on the advisory board for Elections Canada, and I should ask you the same question. Mr. Manning, are you being remunerated by Elections Canada?