The problem is that the decision in Longley, which is an Ontario Court of Appeal decision, said, “Care should be taken to ensure...the impartiality of this critical public role”. That's the role of the Chief Electoral Officer—and the commissioner, we can add.
If an individual who is intended to be neutral becomes the prosecutor, then we have a situation where there will be a perception that the party is not neutral. The way to bring back a perception of neutrality—the commissioner does at times have to prosecute—is to put judicial review of that decision so that there can be better or more confidence in the decision, a very powerful decision. If it were done in the criminal area, it would be absolutely unconstitutional, but because it's administrative law, the Supreme Court has allowed this kind of law to be in place.
In my view, it should not be in place in election laws because of the important neutral position that the commissioner and CEO must play. The Court of Appeal has effectively said that's mandated. My recommendation is that this committee recommend that the rule in proposed section 510.01 apply everywhere. Always require a judicial oversight. You have to ask the judge, with an affidavit where the commissioner says, “I have evidence that leads me to want to ask questions of this individual. I want to have permission to do that.”