Statements and Speeches: Commissioner of Canada Elections
Remarks of the Commissioner of Canada Elections on
Bill C-23, An Act to amend the Canada Elections Act and other Acts and
to make consequential amendments to certain Acts
Standing Committee on Procedure and House Affairs
April 1, 2014
Check against delivery
Thank you, Mr. Chair.
I would like to thank the Committee for giving me the opportunity to testify today regarding the changes proposed by Bill C-23 and their impact on my role as Commissioner of Canada Elections.
I am accompanied today by Ms. Audrey Nowack, Senior Counsel, Compliance and Enforcement.
Before discussing the bill, I believe it would be useful if I first reminded the Committee of why the position of Commissioner of Canada Elections was created in 1974 and placed within the Office of the Chief Electoral Officer.
The traditional view of the Department of Justice was that it should not be involved in prosecutions under the Canada Elections Act. Such prosecutions, to quote the Attorney General in 1974, should be the responsibility of the Chief Electoral Officer, "whose independent position could not be questioned." At the same time, the Chief Electoral Officer was concerned that his involvement in the investigation and prosecution of election offences could be seen to diminish his impartiality.
This led to the creation of the position of Commissioner in 1974. The position was placed within Elections Canada so that it would be fully independent from the government. The mandate of the Commissioner was initially confined to offences involving election expenses, but was broadened in 1977 to include the enforcement of all election offences, including prosecution.
With the creation of the Director of Public Prosecutions (DPP) in 2006, election offences are now prosecuted by the DPP.
Let me now turn to my comments on the bill that is currently before this Committee.
1. Organizational changes
Bill C-23 proposes to go much further than what was done in 2006, by placing the Commissioner within the Office of the Director of Public Prosecutions.
As you consider this proposal, I think it is important for you, Parliamentarians, to understand the benefits of the current model which, in my view, strikes a proper balance between investigative independence and a coherent and informed application of the Canada Elections Act.
Indeed, I must stress that, as Commissioner, I have enjoyed complete and unfettered independence with respect to the conduct of investigations and the choice of enforcement action, including the decision to refer a matter to the DPP.
I have now been in the job for almost two years, and there has never been any attempt by the Chief Electoral Officer, or by anyone at Elections Canada, to interfere in any way with the manner in which I and my investigators do our work. In other words – and I think it is important that I state this – I alone decide what to investigate, how to conduct my investigations, and what measures are to be taken, including referrals to the DPP.
At the same time, my presence within Elections Canada allows me to have direct insight into how the law is administered and to understand the main challenges with respect to compliance. This informs my interventions and reduces the risk that regulated entities, such as political parties and candidates, be caught between conflicting interpretations of the rules.
The need for such coherence explains why, to my knowledge, in the vast majority of regulatory regimes, the administration and enforcement of the rules are vested in the same agency. Examples include the Canada Revenue Agency, the Competition Bureau, Fisheries and Oceans, and the Canada Border Services Agency.
This is even true, for example, of the CRTC, which under the very terms of Bill C-23 would be granted the mandate to administer and enforce the rules on "voter contact calling services."
With the separation of the Commissioner from Elections Canada, there is, in my view, a danger in the long term of a disconnect between the administration of the rules and their enforcement. To avoid that risk, it is critical that an ongoing relationship between the two entities be preserved and nurtured. This goes beyond transfers of information in support of investigations – something which, in fact, Bill C-23 does not explicitly provide for and which requires amendment to ensure timely and effective investigations.
It also means that the two entities will need to create structured mechanisms to continue to work in an open and collaborative fashion. For example, a joint committee on regulatory compliance may need to be established to discuss trends or new issues that arise as a result of evolving practices by political parties and candidates. Moreover, given that under Bill C-23, political parties would be able to request written opinions from the Chief Electoral Officer on the application of the Canada Elections Act and that these opinions will be legally binding on the Commissioner, there need to be mechanisms for consultation between the Commissioner and the Chief Electoral Officer.
In placing the Commissioner within the Office of the DPP, Bill C-23 would bring under the same roof two functions that are normally, and for good reasons, kept separate. This structural change raises important questions with respect to the separation of the investigative and prosecutorial functions – a separation that was deemed sufficiently important in 2006 to remove prosecutions from the Commissioner. It also raises concerns with respect to at least the perceived independence of the Commissioner from the government of the day.
Bill C-23 provides that the Commissioner's investigations must be conducted independently of the DPP. I have every reason to be confident that neither the DPP nor the Attorney General would interfere in my investigations. However, the fact that the Commissioner will be placed within the Office of the DPP – and that the DPP will report to the Attorney General on the Commissioner's activities – does present challenges, at least in terms of perception. For that reason, it is not a step in the right direction.
2. Investigative powers
The second matter that I wish to address relates to the Commissioner's investigative powers. The Chief Electoral Officer mentioned in his appearance how important it is to have timely and effective enforcement of election laws. It is fair to say that, among Canadians, there is an expectation – and I would say an entirely reasonable expectation – that significant violations of the rules governing elections will be dealt with swiftly and within a normal four-year electoral cycle. When the legitimacy of elected office is at stake, the need to resolve allegations of electoral wrongdoing is, by definition, pressing.
This is why, as I indicated in my annual report, I believe it is essential to give the Commissioner the ability to seek a court order to compel testimony.
My experience to date has been that it is not uncommon for individuals who are not directly concerned with an investigation, but who may possess important information, to refuse to co-operate. In a political context, where partisan loyalties are strong, this should probably not come as a surprise. However, this can cause significant delays or even compromise an investigation.
A power to compel testimony in the context of election investigations exists in many provinces and territories, including Quebec, Ontario, New Brunswick, Nova Scotia, Manitoba, Alberta and Yukon. Other regulatory agencies have a similar power. The recommendation that both the Chief Electoral Officer and I have made is that this power be given to the Commissioner with a number of appropriate safeguards, as exist in the Competition Act. These safeguards include:
- A prior judicial authorization, based on affidavit evidence showing that the person likely has information relevant to an investigation of an offence under the Canada Elections Act;
- The right to be assisted by counsel and to have counsel present at the interview; and
- The right not to have the evidence used against the person who is required to testify.
These safeguards would present, in my view, a balanced approach to ensuring more effective enforcement.
I want to be absolutely clear: if this amendment is not made, investigations will continue to take time, and in some cases a lot of time. And, importantly, some will simply abort due to our inability to get at the facts.
Bill C-23 should also be amended to improve the regime proposed for voter contact calling services. First, whether it is a live or automated call, there should be an obligation to identify the source of the call immediately at the start of the message. Second, and most importantly, entities providing automated services or making live calls should be required to preserve a record of the telephone numbers contacted and to make that record available to the Commissioner, through the CRTC. Without telephone numbers, it is difficult to see how the proposed regime can be of much use.
Finally, with respect to the powers of the Commissioner, I want to express my deep concern with the limitations imposed by Bill C-23 on my ability to inform the public of the results of my investigations. There are certainly excellent reasons to preserve the confidentiality of investigations. These mainly include considerations of privacy and fairness, as well as the need to protect the integrity of ongoing investigations. For this reason, I, like my predecessors, will generally not comment on or disclose information related to investigations – except where necessary in the course of the judicial process.
There are, however, rare but important exceptions to this. Where allegations have been publicly made that cast a doubt on the integrity of an election, and where an investigation shows these allegations to be unfounded, it is important for the Commissioner to be able to reassure Canadians by making his findings public, including by providing factual details of what was uncovered. My predecessor has twice done this in recent years, and it is important that my successors and I be able to do the same in the future.
3. New offences, increased fines and sanctions
Finally, I would like to mention the addition of a number of new offences and the proposal to increase fines. The increased fines, in particular, are a significant and welcome improvement to the regime.
However, as I indicated in my annual report, achieving compliance with election rules should not rely primarily on criminal offences and sanctions.
The criminal process is inherently slow and heavy handed. It is ill-suited to the vast majority of instances of non-compliance that I encounter, which are of a purely regulatory nature – for instance, late filings. Administrative sanctions, such as the proposed automatic reduction of reimbursement on election expenses in cases of over-spending, are generally much better suited to deal with compliance issues related to political financing. In this regard, I hope that this measure in Bill C-23 will point the way for future reforms.
In concluding my remarks, I would like to indicate that I fully support the amendments relating to enforcement that the Chief Electoral Officer suggested at his appearance on Bill C-23.
I am aware of the fact that the Minister for Democratic Reform has written to the Committee and that he appears to be open to some amendments dealing with the limitation period as well as the threshold to initiate investigations.
And, in closing, I would strongly encourage the Committee to also consider the other amendments on enforcement proposed by the Chief Electoral Officer.
Mr. Chair, I would be pleased to answer any questions, insofar as they do not relate to the particulars of investigations.