Procedure and House Affairs Committee on April 29th, 2014

[David Christopherson, NDP, Hamilton Centre, ON]

I don't want to belabour this, Chair, but it's an important point.

I'm still having some difficulty understanding. Though I haven't heard the government say it's not likely anyone would have a problem interpreting this, it's not likely this would end up in court, no one's making that case. We're all of a clear mind, and we can take steps to put language in there that would preclude and prevent and make unnecessary a citizen or an organization having to spend all that money going to court, plus the public money that's involved, just ultimately to arrive at an interpretation on which we're 100% in agreement, from what I can see.

I mean this sincerely. Why would we not take the steps to drop in a few words that prevent anybody from having any doubt as to the interpretation? Therefore, they would have no need to go to the courts. When the ruling is made, then it's very clear and that's the end of it. If we leave it open-ended, are we not just generating potential court action needlessly?

[The Chair, Conservative, Joe Preston]

I haven't called repetition on you in a long time, David, but we're starting to hear the same things over. Where are we on this?

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I don't think he's being vexatiously repetitive, although I do think the same question got asked.

Maybe I could address a different aspect, because I think I've gone as far as I can in responding to the substance of that question. This is about the Chief Electoral Officer issuing an interpretation. My understanding of these interpretations is that he's effectively saying Revenue Canada does much the same thing. There's some ambiguity in some provision of the law as to what falls afoul of the law. In looking at it, I'm going to say that I won't prosecute if you do up to this point, but if you go beyond it, you stand in danger of a prosecution.

With that in mind, I think the issue would not be the kind of thing that's likely to find itself before the courts because of the fact that this is about his indication to us as to what he'll do as an actor, as opposed to determining what the actual law is, and where the line is that you're drawing, if you follow.... If a tennis ball lands on the white line, is it in or out? We say the line is not zero points of thickness.

I don't think that the particular danger Mr. Christopherson is addressing is likely to produce litigation. That's just my own impression. I am now beyond the bounds of my own expertise, but that's my sense.

[The Chair, Conservative, Joe Preston]

I'm going to stop there.

We are voting on amendment PV-4.

(Amendment negatived [See Minutes of Proceedings])

We're moving all the way through the list now to PV-6.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, PV-6 is an amendment to clause 5 on page 6. Again, it's relating to guidelines and interpretation notes. It amends proposed subsection (8), such that the amendments that are made are subsequent to my next one, which will be proposed subsection (9), to ensure that external auditors will have to be bound by the guidelines and interpretation notes that are issued by the Chief Electoral Officer.

Right now, at line 27 on page 6, proposed subsection (8) says that the guidelines and interpretation notes are binding. The next one that makes sense of that is my amendment that makes them binding on external auditors, so PV-6 and PV-7 need to be considered together.

[The Chair, Conservative, Joe Preston]

I was going to let you know that what happens to PV-6 will happen to PV-7.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

That's right.

I need to explain that both of them together offer the intent of ensuring that the guidelines and interpretation notes of the Chief Electoral Officer will be binding on external auditors. This, of course, is also an amendment that was largely recommended from the testimony of the Chief Electoral Officer, Mr. Mayrand.

[The Chair, Conservative, Joe Preston]

Okay, great.

Is there any discussion?

Mr. Scott.

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

We will be supporting this amendment.

Amendment PV-6 and PV-7 also dovetails with amendment NDP-5. Formally, it doesn't matter to me which one.

We also have an amendment, proposed subsection (9), which would make guidelines and interpretation notes binding on external auditors. We use slightly different language. We say “Despite subsection (8)” as the way to link them together.

[The Chair, Conservative, Joe Preston]

We'll get to yours, too.

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

Right. The point is to look at them together.

Let's just call them informally external auditors. I think we should realize how important this is. Not only has a CEO suggested it after reflection and analysis, but in the system set up by Bill C-23, the external auditor is the government's response to the demands by the official opposition and others. I think they include those who voted for our motion in March 2012 for direct access by the Chief Electoral Officer and his auditing team to the receipts and documentation of the national parties which at the moment do not have to be produced. The government is saying there has to be external auditors doing it, and that's their answer.

Therefore, it's all the more important, if that's the case, that this should be voted for. You need to at least have that connection between the interpretations of the act in this structure set up by the government's Bill C-23 and the external auditor. If the government does not want to vote for this, I would worry.

One of the worries of the Chief Electoral Officer is that external auditors appointed by the parties from general auditing firms may not have the same kind of expertise as in-house auditing staff in the office of Chief Electoral Officer. As such, his worry is that the auditing may not be as experienced or as informed.

If there's a linkage between the two through Ms. May's combined amendment, and our amendment, as well, I think the circle would be kind of squared, if that's the right metaphor.

[The Chair, Conservative, Joe Preston]

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

The first comment to make about amendments PV-6 and PV-7 together, or alternatively about amendment NDP-5, which substantially is the same thing, although worded in a somewhat different manner, is that if we were to adopt this, we would effectively be imposing on certain actors a legislative requirement that they follow interpretation guidelines. They effectively cease at that point to be interpretation guidelines, that is, a guide as to the things that I am prepared to prosecute. My own interpretation of the law is that this reading is going too far as to what you're allowed to do. However, that reading of the provision of the law is within the bounds, barely within the bounds, perhaps.

Once we say that these future rulings of the Chief Electoral Officer are binding on any participant, they are not guidelines anymore, but regulations. This is a fundamental change. If they're binding on the auditors, let's face it, they're binding on the rest of us. We get audits done. This is a backdoor way of achieving that which the legislation seeks through the front door to prevent. I would argue that it's going in a different direction than I think the law ought to go, and I would oppose it on that basis.

I want to say something else. At the very end of our last discussion, between Mr. Christopherson and me, the concern we had is that this won't lead to litigation...aside from the fact that we have given a very strong indication in our transcripts as to the intent of the relevant part of the law.

Also, these are only interpretation bulletins. In the end, they do not actually determine what the law is, merely what someone who has no judicial authority believes them to be. We would be shifting from that. In a sense, if we were to adopt this amendment, we would be making my prior statement untrue, which I think would be a step backwards.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Scott.

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

I appreciate the point. I think the point is very well taken, that the current paragraph (a) specifically says that guidelines and interpretation notes are issued for information purposes only and are not binding on those listed registered parties. It is important that Scott's point be known, that this is making binding on the external auditor something not being binding as such on others.

For the reasons I gave, the purpose is to create part of an enforcement structure that the external auditors play a role in. That's why it would be justified as an exception, the same way as the commissioner is actually effectively bound by these. This is why the commissioner needs to have more of an organic connection to the process of generating these things, which partly goes back to Tom's amendment that was already adopted.

It's not an attempt to make an end run around this; it's recognizing what we think is a difference.

[The Chair, Conservative, Joe Preston]

Ms. May, on that point.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I appreciate the latitude, Mr. Chair, but only want to say that given that this is the advice that comes from the Chief Electoral Officer, I don't believe this is a case of an end run, as Mr. Reid said. It really is a matter that when you consider the importance of guideline orders and interpretation orders, those of us who struggle with the Canada Elections Act during elections—and I've had the same experience—I could wish that we got snap decisions so that when we ask a question we know right away that the issue is going to be resolved. But if your guideline and interpretation order isn't even binding on the external auditors, the ability to ensure that the statute is being observed and that across the board the auditors are able to have the benefit of the advice given by the Chief Electoral Officer, that binding on external auditors is something recommended by Elections Canada itself based on their experience.

That's all I wanted to add. I think it's an improvement to the act.

[The Chair, Conservative, Joe Preston]

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Very briefly in response to one thing Ms. May said, I actually can't remember my exact words. I may have used the term “end run” that she attributed to me. If so, I want to make it clear that my intention was not to suggest any inappropriate recommendation on behalf of, or sneakiness or whatever one wants to attribute to, the CEO or to any other participant. It was simply a choice of words that perhaps could have been better.

[The Chair, Conservative, Joe Preston]

Thank you, noted.

We'll vote on amendment PV-6.

(Amendment negatived)

Then PV-7 would also not apply.

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

Could we have a recorded vote on that one please?

[The Chair, Conservative, Joe Preston]

A recorded vote on PV-6 itself will affect PV-7.

[An hon. member]

Yes.

[The Chair, Conservative, Joe Preston]

I'll let you have it if it affects NDP-5 too. No, I'm just kidding.

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

Chair, I have a point of clarification if I may.

I'm not trying to delay this or anything. I don't know what the procedure is when calling for a recorded vote. Are you procedurally supposed to call for it prior to the chair calling the vote?