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

before the

Standing Senate Committee on
Legal and Constitutional Affairs

April 10, 2014

Check against delivery

Thank you, Mr. Chair.

I would like to thank the Committee for inviting me to testify regarding Bill C-23 and its impact on my role as Commissioner of Canada Elections.

I am accompanied today by Ms. Audrey Nowack, Senior Counsel, Compliance and Enforcement.

Given the time available, I will focus my remarks on three aspects of the bill that are of particular concern to my Office. These are: (1) the structural changes contained in Bill C-23, (2) the lack of adequate powers to conduct timely investigations, and (3) the limitations imposed on my ability to communicate with the public.

1. Placing the Commissioner Within the Office of the Director of Public Prosecutions

The structural changes proposed by Bill C-23 are in my view both unnecessary and problematic.

First, I want to stress the fact 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 Director of Public Prosecutions (DPP). My predecessor has recently indicated publicly that this was equally true for him.

This should not come as a surprise. The current law was drafted precisely so that the Commissioner, and not the Chief Electoral Officer, makes decisions regarding investigations and enforcement. Based on experience, I can say that the organizational culture within Elections Canada is one that strongly supports that separation.

I have now been in the job for almost two years, and independence has never been an issue. There has been no attempt by the Chief Electoral Officer, by anyone at Elections Canada, or from any other source, to interfere in any way with the manner in which my investigators and I do our work.

Placing the Commissioner within the Office of the DPP is an attempt to respond to a problem that, in my view, does not exist.

While I make my decisions independently, I need to have complete and easy access to the information held by Elections Canada that may be relevant to my investigations – something which Bill C-23 in its current form does not provide for, let alone guarantee. I also rely on the expertise and knowledge of Elections Canada personnel to ensure that my interventions are informed and are not at odds with the agency's manuals and practices. This is to everyone's benefit, including parties and candidates. Enforcement cannot be done in a vacuum.

With respect to regulatory statutes, the need for expertise and for coherence between administration and enforcement explains why the trend is to place these functions in the same agency, not to separate them. One example is the Canada Revenue Agency. It receives and audits tax returns, and it also has an investigation branch and can recommend prosecution. This is likewise true of many other federal agencies.

No legal principle and no court decisions stand in the way of this existing structure. In fact, courts that have looked at the issue of communication between, for example, investigators and auditors, including the highest court, have not identified a problem with these two functions residing in the same agency.

However, in placing the Commissioner within the Office of the DPP, Bill C-23 would bring under the same roof two functions that are normally kept separate. This is not a natural fit – it is the opposite. When it comes to approving or refusing charges and taking a case to court, it is absolutely essential that the DPP act with a healthy distance from the investigators and the investigation, and crucially, that he be seen as doing so.

If the independence of the Commissioner from the Chief Electoral Officer is perceived to be an issue, then I suggest adding the relevant provisions for a fixed-term appointment and security of tenure to the Canada Elections Act, without placing the Commissioner within another institution.

To conclude on this subject, moving the Commissioner to the Office of the DPP is definitely not a step in the right direction.

2. Investigative Powers

The second issue of concern for me relates to the investigative powers of the Commissioner. I believe it is essential to give the Commissioner the ability to seek a court order to compel testimony.

It is not uncommon and, in fact, seems to be more and more frequent, for individuals who are not directly concerned with an investigation, but who may possess important information, to refuse to co-operate with my Office. This causes significant delays and could even compromise an investigation.

The comment has been made that the police do not have such a power. That, of course, is true. But the Commissioner is not the police, and the Canada Elections Act is not the Criminal Code. The Canada Elections Act is a highly regulated regime that operates in a political context where partisan loyalties are generally very strong.

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.

Failure to grant this power would be a missed opportunity.

3. Restrictions on Communications

Finally, I want to express my concern with the limitations Bill C-23 imposes on my ability to inform the public of the results of my investigations and the work of my Office.

There are certainly excellent reasons to preserve the confidentiality of investigations. There are, however, two types of communication that I believe it is important for me to do, directly and unfiltered.

First, 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, I want to be able to reassure Canadians by making investigative findings public, including by providing factual details of what was uncovered. The previous Commissioner did this twice while in office.

Second, it is important that I be able to produce my own annual report on my activities, with observations on trends and concerns. This report should not be subsumed in another that is submitted by someone other than me to a minister of the government of the day.

Conclusion

In concluding, I would like to say that my concerns do not detract from some of the positive elements in Bill C-23, such as the increased fines, the creation of some new offences, and the automatic reduction in the reimbursement of election expenses in cases of overspending.

Finally, I am aware of the fact that the Minister for Democratic Reform has indicated he may be open to some amendments dealing with the limitation period as well as the threshold to initiate investigations. These are important issues to resolve.

Mr. Chair, I would be pleased to answer any questions, insofar as they do not relate to the particulars of investigations.

Thank you.