With me is Audrey Nowack, who is senior legal counsel with the commissioner's office. She has spent much more time in the office and knows the legislation a lot better than I do.
I'd like to make a presentation in order to identify to you some issues that have changed or developed in the time that I've been there.
[Translation]
This is the first time I have appeared before this committee as Commissioner of Elections Canada. I was appointed Commissioner on September 18. I want to thank you for this opportunity to speak to you about the activities of my office and to answer your questions.
First, I'll talk about the Commissioner's role, the observation processes and enforcement of the Canada Elections Act already in place and of those newly passed.
I will begin by discussing the history of the Commissioner's role.
Before 1974, no federal officer was responsible for enforcing the Canada Elections Act. That year, the position of Commissioner of Election Expenses was therefore created. The Commissioner's mandate was to oversee enforcement of the new financial provisions of the Canada Elections Act, which had been added to the act at the time.
In 1977, the responsibilities of the Commissioner, renamed the Commissioner of Federal Elections, were expanded to cover all provisions of the act, a mandate similar to today's.
[English]
In 1993, a national network of investigators retained on contract and trained by my office was set up to carry out the investigations on behalf of the commissioner. Previously these had been done by the RCMP.
There is still a memorandum of understanding in place between the Commissioner of Elections Canada and the Commissioner of the RCMP to provide assistance to the RCMP when needed, assistance, for example, of computer experts, information technologists, forensic accountants. There may be, from time to time, a joint investigation by the RCMP and the commissioner's office.
A chief investigator is located in my office, who is assisted by seven assistant chief investigators. These people coordinate the investigations carried out in the field by 28 investigators across the country, located in the major cities primarily.
To bring fairness and consistency to the process, the rules, the policies, the procedures related to investigations are set out in an investigator's manual, which is available on the Elections Canada website. The manual is currently being updated to reflect changes in legislation enacted by Bill C-2 and other amendments to law.
As commissioner, I have a number of legal advisers at headquarters to assist in the management of the investigations, and as you may know, prosecutions are now to be handled by the new Federal Prosecution Service, headed by the Director of Public Prosecutions. Until December 12, I was responsible for prosecutions under the Canada Elections Act as well. I am now responsible for making referrals from my office to the Director of Public Prosecutions. The office is quite small.
Powers and responsibilities of the commissioner. Section 509 of the act is the main section that creates the duty, the mandate, to ensure the act is complied with and enforced. To accomplish these duties, the commissioner is authorized to take any measures necessary in the public interest, including launching an inquiry, seeking an injunction, entering a compliance agreement, recommending a prosecution.
Complaints are received from a variety of sources. They may come from candidates or their representatives, officials of political parties, concerned members of the public; however, the largest single source of cases by far is the referrals generated by Elections Canada itself. For instance, in the 2004 election, or arising therefrom, 75% of all our casework were referrals from Elections Canada.
:
I'm using two terms here: one “complaints”; and the other “referrals”. For complaints, I'm talking about those that are not from Elections Canada, that casework that comes from other sources. For referrals, I'm using that term to describe cases that come from within.
Concerning the process for compliance and enforcement, as soon as my office receives a complaint or a referral, it is assigned to one of my legal counsel to complete a preliminary assessment. The assessment determines whether or not the conduct that's the subject of the complaint or referral falls within the specific offence provision within the act and what, if any, investigation is required.
As commissioner, I'm authorized under section 513 to start an investigation if it's considered in the public interest to do so. I don't act on mere speculation or assumptions. I look for some objective and reliable indications that a specific breach of the law may have occurred. In that context, we often seek clarification of a complaint, particularly from a member of the public, and further details of the complaint—tombstone data, dates, places, documents, who else might have been a witness to something, basic stuff from which we can make a determination of whether an investigation should take place and to launch an investigation.
After reviewing the information provided, counsel prepares a brief report analyzing the complaint and setting out a course of proposed action. If an investigation is recommended, the report will also set out a plan for that investigation developed with the chief investigator. Many referrals do not require further investigation at all. Many referrals are divergent without investigation or simply closed because they don't merit investigation. At any given time, we have approximately 40 cases under investigation.
I review the report of counsel and decide what action is to be taken and provide some general directions to the investigators. In effect, I approve the plan before it's carried out.
When the investigation is complete, counsel will prepare a second report, which analyzes the results of the investigation to determine whether there's reasonable cause to believe an offence under the act has been committed, and may recommend a disposition of the case. I do receive interim reports from time to time, primarily because I'm nosy and I like to know what's going on.
It's my responsibility to determine whether we should recommend a prosecution, propose a compliance agreement, consider a caution letter or some other communication, or take no action at all. During an election period, an injunction may be considered to stop something or to have something done, set something straight quickly. We've never had to apply for an injunction, but just having the power has an interesting effect.
In every case, at the end of the process we write to a complainant and explain the outcome of the complaint. This isn't necessarily so with the referrals internally from Elections Canada, but for every other complainant, they hear what happened.
Concerning the enforcement tools provided by the act, there are two principal tools that are described carefully in the act; those are compliance agreements and prosecutions. The act, however, recognizes that other measures may be taken.
Compliance agreements are essentially a voluntary agreement between me and the person or organization that is shown to have contravened the act. These were added by Parliament to the legislation in 2000. These have been increasingly used to obtain compliance with the act. They have the advantage of obtaining compliance without resort to the courts, which, as you know, is a costly and time-consuming process. To ensure transparency, a summary of these agreements is published in the Canada Gazette and is found on the Elections Canada website.
In these cases, there's clearly a violation of the act admitted by the responsible person, but it is not thought necessary to prosecute. This provides some greater flexibility in the enforcement of the act, and it supplements, but does not replace, prosecutions.
There are instances in which the public interest warrants prosecution whether the person involved wants a compliance agreement or not. Before a prosecution is recommended to the Director of Public Prosecutions--and as I pointed out, this postdates December 12--the commissioner must be satisfied that there's sufficient evidence to prove an offence beyond a reasonable doubt and a reasonable prospect of conviction at trial. If that is the case, then the second consideration is whether a prosecution is in the public interest, taking account of a number of public interest considerations, such as suitability of alternative modes of enforcement, the degree of seriousness of the alleged offence, and aggravating and mitigating circumstances in the case.
These regulatory offences are in effect like another criminal sanction that flows from a prosecution under the act, so the analysis is just as demanding as if you were taking a criminal prosecution forward and includes the respecting of protections and rights afforded by the Canadian Charter of Rights and Freedoms.
There is a great deal of informal enforcement and compliance, and I say “informal” because the tools we use are not specifically addressed in the act. There are numerous referrals from Elections Canada that involve modest, inadvertent, technical apparent violations of the act. Failing to file a report on time is an example, and those are numerous. We receive a large number of referrals from Elections Canada that involve modest, inadvertent, technical apparent violations of the act. You might wonder why they send them to us. It is because they see it as my responsibility to decide no, not theirs, and that's a responsibility in the legislation.
So there are some complaints of minor violations that don't even warrant a compliance agreement, and certainly not a recommendation for prosecution. In many of these cases a caution to the offending participant is the appropriate response and is likely all that is necessary to obtain compliance in the future. For these cases, I developed something called a commissioner's caution letter. This letter sets out the facts as indicated from the information available to my office. It sets out the prohibition in the legislation. It sets out the offence in the legislation, and the penalty provisions in the legislation. Having brought the offending conduct to the person's attention, the letter then invites the person to contact counsel if the facts are wrong--if we have the facts wrong, get back to us. But if not, the letter requests that the conduct not be repeated.
This is something I developed in September when I first took the job, because it seemed to me we needed another tool to deal to deal with a variety of minor matters that were still violations of the act. In some cases there were so many of them that they needed to be addressed.
Those receiving the caution letter are asked to acknowledge receipt by returning a signed copy of the letter. Since September, 86 caution letters have been sent out for minor violations of the act. For example, we received over 100 referrals-for-nomination contest reports filed late. Some of them were a week late; some of them were six months late. We did a triage and took the more serious ones. But with that number of late reports, obviously there was a problem in the system. So we sent out about 47 caution letters for roughly 150 referrals advising people of the responsibility under the legislation and that it had not been complied with.
The response to these caution letters has been very positive indeed. In addition to people's sending back the acknowledgement letter, I have received lengthy letters from people explaining why they violated the law, how they violated the law, that they wouldn't do it again, apologizing for it. I had one in the Maritimes where a radio station had broadcast in the black period. The response was from the broadcasting organization, indicating they would change their policy. They got it wrong at one station, but they would change their policy and make that known to all the stations within their broadcasting network.
So the response was quite positive. A number of people indicated that they liked the caution instead of something else--most would. A number of these letters came back on party letterhead from official agents or otherwise. Anyway, I was quite pleased that it received such a positive response.
Another tool we may use is this. During an election, informal compliance can be achieved simply by contacting party officials, who will informally rectify conduct that we find may be in violation of the act. This is done simply through a phone call. In other words, the parties will self-regulate. We use that phenomenon or that propensity to set things right. If something that we think is in violation of the act is happening in a particular constituency, we'll contact the party and ask them to fix it. And they do.
In terms of press releases, since taking office I've authorized two press releases that summarized the results of two investigations. The first one dealt with an investigation into allegations of wrongdoing in the vote in Desnethé--Missinippi--Churchill River, Saskatchewan, that huge riding in northern Saskatchewan. The second dealt with alleged voting irregularities in Edmonton Centre. We had received a number of complaints with regard to both of these.
We had done an extensive investigation, which determined that there was no wrongdoing and no significant irregularities in the voting in either electoral district in the 2006 election. However, there had been considerable media coverage at the time of the election, which left the impression, in both of these cases, that there was wrongdoing and that the result of the vote may not have been reliable. In the public interest, I felt this impression needed to be addressed and the public record set straight. A public statement was the only effective way I had of doing this. As for the future use of press releases, it will be a case-by-case matter. It's not something I necessarily hope to do regularly. But in these two cases, I felt strongly that the public was left with the impression that there was something wrong.
Public Prosecution Service of Canada. This is the name of the new prosecution service in the federal government that is responsible for all federal prosecutions, including Canada Elections Act prosecutions. With the enactment of Bill , the prosecution function has been transferred to the Director of Public Prosecutions.
The decision to prosecute and the conduct of the prosecution are now the responsibilities of the DPP. If the decision is made to prosecute, the DPP will instruct me to have the charges laid. That's the way the system works. I make a referral to the DPP after an investigation is made. The decision-making role in relation to investigations remains the same. It's with my office.
Once an investigation has been completed, the principles I have described will be applied in order to determine whether a referral and recommendation to the DPP should be made.
I have met with the Public Prosecution Service and have been assured that our referrals will be given prompt assessment by that office. My concern was in regard to yet more delay in the structure, and I'm doing my best to see that doesn't happen.
My general observation during the course of my work as commissioner is that Canadians, by and large, want to act in accordance with their statutory responsibilities. There's tremendous support for the law here among Canadians in general. Once informed that there's a violation of obligations, many immediately react positively and are quite prepared to ensure conformity with the law. In addition, political parties are often instrumental in ensuring that their own members comply with the law, and they are generally an effective ally in obtaining compliance with the act.
It's important to recall that the commitment of all stakeholders to abide by the rules ensures the harmonious unfolding of an electoral event and the public confidence in the electoral process. My own approach to achieving the goal of compliance with the act is to use mechanisms that will achieve compliance, without the prosecution of charges, wherever possible. The Public Prosecution Service supports this approach, and the courts do as well. Consequently, the prosecution of charges should be reserved for the more serious violations of the act.
Every time I've decided to initiate a prosecution--when I had that responsibility--I asked myself some questions: Is it in the public interest to prosecute? Has there been a wilful violation of the act? Is there an absence of remorse? Is there a refusal to comply? Every time, I ask myself, do we need to prosecute this case?
As you know, I must act independently in the decision-making and maintain the confidentiality of matters under investigation by my office. This reflects my obligation of fairness to anyone dealing with the office and the privacy interests of individuals. So I'm somewhat constrained in responding to certain kinds of questions--matters that are under investigation, for example--because this would have an impact on the ability of my office to carry out its responsibilities. I'm also somewhat reluctant to offer legal advice on hypothetical questions and, for that matter, policy advice, which this committee is much better suited to than I am.
I should begin by congratulating you, belatedly, on your appointment to this position, Mr. Corbett. We know the other William Corbett, but you two should not be confused. We'd have to know which is the real one! I also want to thank my fellow committee members for accepting my suggestion that we ask you to come and testify before us. I take this opportunity to boast: my colleagues are familiar with my proverbial humility. It is unusual for the Commissioner of Elections to testify before the Committee on Procedure and House Affairs.
I'm going to ask my questions quickly in order to give you the time to answer them and so as not to put myself to sleep in asking you them.
Mr. Corbett, your office has a credibility problem. Perhaps not for us members, but in the minds of the main election organizers in the ridings of our respective parties. Let me explain.
We on the outside sometimes get the impression we make a number of complaints that result in nothing. On an election campaign, you become paranoid. We always think that our opponents are doing something inappropriate, that we're the only ones who know the truth and do good, and that our opponents are doing wrong and doing us wrong. We get the impression that we file complaints and that that results in absolutely nothing.
To denounce or debunk this myth, I'm going to ask you something.
Can you provide, for the benefit of committee members, a table of all the complaints that were filed during the 2004 and 2006 elections, if you have those figures? I'd like that table to contain the number of complaints filed and their status: rejected, withdrawn or under investigation.
That in a way would make it possible to determine the utility of your position. In order to comply with confidentiality rules applicable to complaints, don't put any names or information that would make it possible to identify the persons concerned. I don't want to know that such and such a lady in the riding of my friend Jay Hill, at 226 Scott Street, Prince George, filed a complaint against the Conservative organization in her riding. I'm not interested in that. But I want to know what the complaint was and the section of the law in question. I agree with what Scott Reid said about the section of the act referred to. As he said, if there are any acts that pose a problem or sections of an act that give rise to complaints, perhaps that's because of a clarity problem.
:
Thank you very much, and thank you, Mr. Corbett, for coming today.
I don't think there's any question that the whole set-up and rules for Elections Canada are incredibly complicated. We belong to political parties, and you rely on your party a lot to provide you information, but even so, I find that at the end of the day you're pretty well alone. You have to figure out if you are doing the right thing or not.
So I certainly agree with you that in the majority of cases, I'm sure, where things have gone wrong it's not because of any deliberate action; it's just because it's so darned complicated. There are so many details, it scares the hell out of me. You always feel as if you're doing something wrong, and you probably haven't done anything wrong. Anyway, if that was the intended effect, it's certainly working.
I'm more interested in the informal complaint compliance process than what happens when you get to a formal investigation and maybe a prosecution, because when that happens I think another process takes over and you probably get a lawyer or something. But when it's still informal, I wonder if you have a protocol. And I'm thinking of a similar system. In most workplaces there are harassment policies, and usually there's an agreed-upon harassment policy in terms of what happens when a complaint is made. You try to resolve it informally before it goes to any formal investigation, but nevertheless there's a very clear protocol.
So, for example, when you say you send out these cautionary letters, do the people getting them know they're cautionary? It reminds me of Revenue Canada; you get this stuff and you don't know. We all deal with casework, and is this the beginning of their line where they're being easy or is it at the end of the line? For the person receiving it, it's incredibly difficult to know.
And even the little interchange here between you and Mr. Reid--around this table there may be some understanding of what these notices are on the Elections Canada site. We can wink-wink, we know what it really means, but the average person out there wouldn't have a clue.
So I am interested in what kind of protocol or process you have that provides an informed process for people, so people know where they are, where they stand. I think that's a huge issue for people, that you have the knowledge of where you are in that process and what your rights are, particularly if there are two parties involved.
Ms. Redman raised the question of confidentiality. If two parties are involved or two candidates, even if it's in the same party--maybe it's opposing parties--what happens then in terms of disclosure in this informal context? If you could respond to that, it would be helpful.
:
Thank you for appearing today, Mr. Corbett. I appreciate that. I have about four questions that I've jotted down here. Maybe you could just make note of them. I'll run through them very quickly and hopefully leave you half of my five minutes, at least, to respond, if that's all right.
The first one has to do with what's included in determining what's in the public interest. If I understood you correctly, you said there were a number of criteria, including the following: do we really need to prosecute; is there reasonable likelihood of success if you suggest the laying of a charge or put it over at least for further investigation as to prosecution; and is it in the public interest?
As part of whether it is in the public interest, do you include any consideration of deterrence? It would seem to me that if the offending person is contrite or remorseful, the terms you used, that's fine for that particular individual, but what about others who might have committed a similar offence? Is there any consideration of deterring them from their activities in the future, if it has not become known but is simply a cautionary letter or something that's sent to that particular individual?
The second thing is that this would have an impact, I would think, on the statistics. This gets into the issue that Mr. Guimond was raising, I think, in the sense of his table or list of the number of offences that are investigated. Statistics can be skewed, and we have a debate right now about Bill , as to whether we really need to address the whole issue of voter fraud right now.
People point to the statistics and say there haven't been very many investigations; there haven't been very many charges laid; there haven't been very many people prosecuted and convicted. Therefore, from that we extrapolate that there is no problem, and yet we continually hear as elected members that there are problems. So is there any consideration that the public interest might also lie in the fact that statistics can be used by people to say, well, the present system is working quite well, thank you very much, so there's no need for any further reform?
My third issue deals with the two instances that you said you investigated and you found no hard evidence—I think is that's the term you used. That was in northern Saskatchewan and Edmonton Centre. Could you give the committee some idea of the amount of time that was invested in those two investigations, the cost that was involved? I guess what I'm trying to find out is just exactly how much was involved in investigating those complaints before you made the determination that you were not going to proceed any further.
My last question, as an appendage to that, is that you didn't mention Trinity—Spadina specifically during your remarks today, yet I think if we were to look at the minutes of our previous meetings, when the CEO was here, he did make a commitment to this committee to have that particular riding looked into, investigated. Could you give us any indication of whether that's still ongoing or where you're at with that particular investigation?
With those four questions, I don't know how much time I've used up. Thank you, Mr. Chair.
Yes, deterrence is an aspect of the public interest, both specific deterrence of the individual and general deterrence of others who might be so inclined to do the same thing. These are matters to be considered as well.
I have to point out, however, that there is a remarkable ethic at work in Canada in Elections Act matters, and that is lawfulness. There isn't, it seems to me, a great deal of need to generally deter people. There isn't a plague of double votes wilfully undertaken. My own inclination was to look at the individual: can we deal with the individual without taking this matter to court? This may change if my investigations indicate that we do have a particular offence that needs to be dealt with more seriously. Keep in mind that the courts so far are giving out conditional discharges and small fines for matters that we bring to court now, and I don't know how much deterrence there is in that. In any event, you're right, it is part of the public interest.
Regarding statistics on voter fraud, I referred to the two cases that I did simply because they're finished, they're done with, and I wrote them up. With respect to the one in northern Saskatchewan, we sent investigators from Ottawa to do the investigation on the Ahtahkakoop Reserve, to interview people. We got good compliance and assistance from band officials in particular. Some people refused to talk to us. We have no magic in that. We have no more authority than anyone else to get cooperation. It was reasonably expensive, but we sent people from Ottawa to do it because we didn't have anyone locally and we needed to get on with that.
There was a lot more work involved in the one in Edmonton Centre, because for individuals who our screening process indicated might have voted in the wrong electoral district, we had to go door to door and speak to them and find out why they voted here and why they hadn't voted there. We came up with a systemic problem, as you know, in the voters list for that area, because in Alberta on your income tax return you can put your business address or your accountant's address, and your driver's licence may also have your business address. So there was difficulty with the voters list, and that is addressed in the press release by Elections Canada as to how they hope to deal with that. That one was considerably more expensive because it required, as I said, door-to-door collection of information and data. I can't give you the dollar figures or the hours or what not.
On voter fraud, my conclusion wasn't that we didn't have any hard evidence. My conclusion was that there wasn't voter fraud. There was no organized voter fraud, that's for sure. There wasn't some organization moving voters into one district who shouldn't be voting there. There were individual cases of people voting in the wrong place, if you will. We found no evidence of double votes, which is important. People weren't voting in one place and voting somewhere else, voting twice--none of that. It wasn't just an absence of evidence, in my opinion; it was an indication that there wasn't voter fraud.
The voter fraud we do find is individual cases of double voting, wilful and otherwise, but not organized voter fraud. Those two investigations are examples of it's not being there. The Spadina one is still ongoing, as you know, and I can't comment on that. It hasn't been resolved yet.