The Director General of Elections (DGE) Jean-François Blanchet affirms that an order from the deputies of the National Assembly is insufficient for him to make public the evidence collected as part of an investigation into the financing of the referendum campaign of 1995 on the sovereignty of Quebec.
In a nine-page analysis, obtained by The dutythe DGE explains that without the adoption of a law which would allow him to disclose these documents, he would be exposed to legal proceedings from people linked to the closed-door work of the investigating commissioner Bernard Grenier in 2006 and 2007 .
“In the current state of the law, responding favorably to the parliamentarians’ request would not only go against this legal framework, but would also potentially be very costly,” the document indicates.
A law
In this analysis, given to representatives of the four political parties in the National Assembly during a “technical briefing” held on September 22, the DGE affirms that the only option is the adoption of a specific law.
“The only intervention by the National Assembly which could allow the DGE to disclose and make public the documents and testimonies collected as part of the investigation conducted by Me Grenier into the activities of Option Canada would be, subject to its constitutionality , the sanction of a law,” the document indicates.
The legislative text should, however, provide that it applies despite the provisions of the Charter of human rights and freedoms, the Act respecting access to documents held by public bodies and the protection of personal information and the Election Act .
Such a law would constitute an “unprecedented precedent” which would affect the independence of the DGE and, more broadly, that of all the people designated by the National Assembly, indicates the analysis.
In 2007, Bernard Grenier concluded that $539,460 had been spent illegally during the 1995 referendum campaign by two federalist organizations, Option Canada and the Canadian Unity Council.
Since last spring, elected officials from the four parties represented in the National Assembly have been in a standoff with the DGE regarding the publication of the evidence collected by investigating commissioner Grenier. On two occasions, MPs voted unanimously in favor of motions calling for the disclosure of these documents, which were subject to a non-publication order.
Last June, in their last request, the National Assembly took care to specify for the attention of the DGE: “that this motion be an order of the Assembly”.
Limits to orders
In his analysis, the DGE asserts that the Election Act and parliamentary jurisprudence ensure that the DGE cannot be subject to the constraints of elected officials by a simple motion.
“The privilege of non-compellability conferred on the DGE by articles 494 and 572.1 of the Electoral Act could in particular apply to an order or a summons from the National Assembly,” indicates the DGE.
Section 572.1 stipulates that the DGE, his employees, as well as any person designated by him to carry out an audit or investigation, cannot be forced to make a statement about information obtained in the exercise of their functions. or produce a document containing it.
Other persons designated by the National Assembly such as the Public Protector and the Auditor General also have a non-binding clause similar to article 572.1 of the Electoral Act, underlines the DGE.
These provisions aim to ensure their independence from political power.
“These designated persons report to the National Assembly, of course, but they answer only to the law,” specifies the DGE.
Risks of prosecution
In September, in letters exchanged with the National Assembly, the DGE had already stated that he considered himself exposed to the risk of legal proceedings if he disclosed the documents collected by the investigating commissioner Grenier, who issued two orders of non-publication “without time limit”.
According to the DGE’s most recent analysis, a redaction exercise would be insufficient to protect the identity of certain people whose testimony is inseparable from the position they occupied. The documents also contain a wealth of personal information.
“Even if we have not received any threat of prosecution or formal notice, this does not exclude the possibility that prosecution may nevertheless result from non-compliance with the legal obligations imposed on the DGE in terms of protection of information personal”, maintains the DGE.
Concerning the option of using a jurisconsult to sort the documents, the DGE affirms that this would be illegal. He considers that the question could be submitted to the Commission for Access to Information.