Earlier today, I tabled a report with the Legislative Assembly that describes my investigation and findings in response to two complaints I received related to the selection of the Ontario Liberal Party's candidate in the recent Sudbury by-election. The complaints allege that certain individuals contravened subsection 96.1(e) of the Election Act. This provision concerns bribery in connection with inducing a person to become, refrain from becoming, or withdrawing from being a candidate.
There has been considerable public and media attention paid to these complaints.
Having reviewed the evidence and findings from this regulatory investigation, it is my opinion that the actions of Gerry Lougheed Jr. and Patricia Sorbara constitute an "apparent contravention" of subsection 96.1(e) of the Election Act. Consequently, I have reported this matter to the Ministry of the Attorney General of Ontario in accordance with section 4.0.2 of the Election Act. In my report, I explain what an "apparent contravention" is for purposes of the Election Act and the Election Finances Act and how I apply that standard.
No Chief Electoral Officer of Ontario has ever conducted a regulatory investigation into allegations of bribery or ever reported an apparent contravention of the Election Act or the Election Finances Act to the Ministry of the Attorney General. Given these unprecedented circumstances, it is important for all to understand the process that we at Elections Ontario follow to investigate complaints. Investigations conducted by Elections Ontario are regulatory investigations. They are not criminal investigations. The offences set out in the Election Act and the Election Finances Act are prosecuted under the Provincial Offences Act. To be clear, they are not Criminal Code offences.
Elections Ontario has no mandate to conduct prosecutions. According to the protocol in place with the Ministry of the Attorney General, the Assistant Deputy Attorney General – Criminal Law Division, decides whether or not to refer the matter to the police. It is up to the police to decide whether to lay charges in consultation with the Crown, which would then prosecute the matter.
My powers in investigating and reporting are set out in the Election Act. To determine that conduct amounts to an "apparent contravention" as set out in s. 4.0.2 of the Election Act, I must be satisfied, based on the evidence obtained in the investigation, that there is a prima facie case of a contravention. This means I must be aware of sufficient facts that, if proven correct, would constitute a contravention of the Election Act or the Election Finances Act. Although I do not have to weigh questions of credibility or balance competing facts as would a judge, my non-partisan role in overseeing the integrity of provincial elections means that I have to be satisfied that there is more than simply a "fair probability" that there has been a contravention before concluding that any possible contravention has reached the threshold of being "apparent".
Neither can I decide to prosecute a matter, nor determine anyone's guilt or innocence. Those decisions rightly fall beyond my purview under the Act, and are respectively for prosecutors and judges to make.
As the independent officer of the Legislative Assembly responsible for ensuring the integrity of the electoral process and upholding the public interest, my mandate in this situation is to review the evidence, and if I conclude that there has been an "apparent contravention" of the Act, refer the matter to the Ministry of the Attorney General. This is exactly what I have done.
I should also note that separate from my regulatory investigation into an apparent contravention of the Election Act, the OPP is also conducting a criminal investigation into these events.
While I have always tried to be open and accessible on matters that fall within my jurisdiction, this is an unprecedented situation. To comment further on the evidence at this time, or to disclose the report that is now in the hands of the Ministry of the Attorney General, would not be appropriate. In light of the ongoing separate criminal investigation, and my desire to ensure that my report does not interfere with it or any other investigation, I've had to balance the public interest of transparency against the need to ensure that the legal processes underway are not unduly hindered.
For these reasons, apart from providing the Legislative Assembly with the report tabled today, I will not be making further statements at this time. My report speaks for me and for Elections Ontario.
Greg Essensa
Chief Electoral Officer of Ontario