I am really happy to be before this committee, which has been part of my professional life for close to 10 years. I am here today as an individual, so any views or comments that I may make as part of this appearance are my personal views only and do not represent the views of Elections Canada.
In my opinion, Bill manages to significantly modernize services to electors. It makes the electoral system more accessible and inclusive, and it improves the fairness of our system.
You will not be surprised that, consequently, I very much endorse the proposed legislation. Bill was informed by the feedback of electors, the experience of the 2015 election, and the experience of field officials, candidates, parties, which fed into my recommendations report of 2016, which was itself reviewed and the object of three reports by this committee. My point here is that much in the bill has already been extensively studied and generally endorsed by this committee.
I have heard there are new issues—issues that have emerged or become more acute since the various studies. The third party regime has become seen as overly exposed to foreign influence, as well as being somewhat unfair in the context of fixed-date elections. Foreign influence or interference in national elections in some countries suggests that Canada needs to be proactive. Social media and technology bring great value to public discourse and civic engagement, but as you all know, we are increasingly finding that they can be used to disinform and manipulate opinion and undermine confidence in our institutions.
A possible approach would be to set out clearly that parties must adhere to PIPEDA principles; provide an independent review, either by the Privacy Commissioner or an independent auditor; and provide for appropriate remedies for failing to adhere to the principles.
The third party regime also sees significant and very substantial, probably the most substantial, reform that is contained in Bill . It expands the regime to include not only advertising but also partisan activities as well as election survey expenses, setting a limit of $350,000 during the writ period and $700,000 during the pre-writ period, excluding, in that case, issue advertising. It does require three reports to be filed by a third party. I'm not sure why this is needed. It seems to be a lot more than is required from candidates or any other participants in the electoral process. They must maintain a separate bank account to pay for their expenses. They are prohibited from using foreign funds and are subject to anti-collusion provisions to circumvent spending limits. Their returns must be audited, and the auditor must certify that no foreign funds were used.
What Bill does not do is put an effective restriction on the commingling of funds. Foreign money may be laundered through various Canadian entities to make it look Canadian—that's also an issue, to my mind. There's no limit on the source or amount of contributions except that they cannot be from foreign entities, of course.
A possible approach to addressing those concerns would be difficult to conceive in the context of Bill . Designing a new system would require that we set up a system of contributions analogous to what exists for other political entities, yet it would be fraught by challenges in meeting the test of the charter. With the time being what it is, I am not sure this can be done effectively, but who knows? I am sharing that with the committee.
Foreign influence is another issue that is being addressed by Bill , which does prohibit contributions by foreigners. Foreign third parties are forbidden to spend on advertising or partisan activities, including election surveys, during the pre-writ and writ periods. It prohibits the sale of electoral advertising to foreigners, and many of the new generic provisions would, of course, apply to foreigners.
What Bill does not do is prevent the circumvention of the prohibitions, especially relating to the flow of funds to Canadian entities. A possible approach here would be making sure that a solid anti-collusion provision is added to the act. Beyond that, we would need to look, I believe, at a coordinated international approach to limit the interference and prevent the interference of foreigners in national elections.
The last emerging issue I want to raise with this committee today is the one regarding social media platforms and technology. In my view, Bill does little regarding the abuses in this area, possibly because issues are much larger than electoral matters and may be better handled through other legislation. Also, it is a truly emerging issue that few countries have successfully regulated today. It is compounded by the fact that social media and technology have no frontiers. It adds to the challenge of regulating those activities.
Bill does not prevent disinformation, propaganda, or artificial promotion of pseudo-info through trolls and bots. Maybe that's something this committee should consider, or at least provide clarity in this regard. A possible approach would be to create a repository of all digital advertising related to an election. Make sure that platform owners are accountable for illegal use of their platforms, and—to my mind quite important—task an organization to undertake public education on how to assess the reliability of information that you see on the web or on various platforms. I think the more Canadians are aware of the issue and the traps of misinformation, the better they are at recognizing it and the better they are at exercising their judgment during the election.
Finally, I have a few other considerations. They're maybe not of significant importance, but I would like to raise them for the attention of the committee.
The first one is vouching. Bill does reintroduce vouching in our electoral system. Personally, I would have liked to see it extended to staff in seniors homes and long-term care facilities. I am struck by the Etobicoke case where a nurse, serving electors in a long-term care facility, out of her goodwill simply vouched for the electors who were present there and who had insufficient or inadequate ID or documentation. When the case proceeded before the court, all the judges who looked at it—the case went up to the Supreme Court—found that there was no leeway there. Since the nurse did not reside in the same polling division as the residents in the long-term care facilities, the ballots were void, yet there was no question about the eligibility of those electors.
I put that on the table for your consideration. I think the risks in those confined, closed residential establishments are very limited in terms of possible fraud. All the people can be tracked easily. The worst thing is that Elections Canada visits those long-term care facilities to establish who resides there during the election. It's unbelievable that two weeks later, we can't recognize those people. I leave that for your consideration.
The other issue that I'm not sure was an oversight but I thought was concurred in by this committee was the provision of a subsidy to candidates' official agents. I think quality official agents are difficult to find and difficult to retain. They bear the crux of the burden imposed by the act in terms of reporting and tracking expenses, and I feel very strongly that these people—who devote an exceptional number of hours, these days mostly as volunteers, for well beyond 36 days and in fact, sometimes off and on for a year easily—would greatly benefit from a small compensation for the service they provide, because they make such a contribution to you as candidates but also to the integrity of our system. Again, I thought this matter had been agreed to in committee. I proposed it in 2016, and I'm bringing it back again today as I have this occasion.
I know also that there is nothing in the bill on the leaders debate. My only point here is not suggesting it should be part of this bill at this point, but certainly time is pressing to address the issue if we are to have any independent framework set up for 2019.
In closing, the points that I made earlier this morning should not be seen as undermining the importance of Bill , which is a sound piece of legislation that is squarely anchored in the core values underpinning free and fair elections. Like any draft legislation, it is susceptible to improvement through the work of parliamentarians. I hope, however, that the best does not become the enemy of the good, as we say, in the quest for improvement.
Thank you, Mr. Chair.
I will be happy to take questions.
There are a few points.
We have an interesting regime in terms of identification in Canada. We have a requirement by federal legislation with regard to identification and proof of address, but we don't have a national card. That I find quite striking. We don't have a national card that meets all the requirements for identification. That forces us to adopt a system that's rather complex. It leads to, I believe, 32 or even more pieces of ID that are to be accepted.
At that time, in 2014, given what we knew about youth and seniors mostly, and also, I must say, aboriginal people living on reserve, we thought those groups were facing unique challenges in terms of proving who they were and where they lived. We ran pilots in by-elections and also in the GE. We allowed the use of the VIC in very specific circumstances, such as in student residences, where they're not likely to have a document establishing where they live. If they have a driver's licence—many don't—it probably has the address of whatever place they live with their parents.
We used it for this group and we used it for seniors. Nowadays, seniors often don't have access to their personal documents. Many of them don't have any bills that come in their name, so there's no address; similarly for aboriginals. In those cases, which were all closed environments, I did allow the use of the VIC, and it was a success, a real success. It allowed people to vote who may not otherwise have been able to. It also allowed them to vote independently, which is important, and to vote expeditiously.
Thank you very much, members of the committee, for having me. I really appreciate the invitation to speak to these important issues.
I'm a professor of constitutional law and election law at the University of Ottawa, just down the road. I'm going to focus on what I think are four or five of the key take-aways in the bill. It's 349 pages, by my count, so I'm happy to discuss issues other than the ones I raise in my initial presentation.
The first one I want to flag, which Mr. Mayrand discussed, is the pre-writ spending limits. As of June 30 in an election year, there will be a spending limit, with the inflation factor, of about $1.5 million for political parties and $1 million for third parties. I think this is an extremely important and overdue amendment to the Elections Act. We've seen third parties and political parties from across the political spectrum—I think it's a non-partisan issue—using one of the large loopholes that exist in the Elections Act.
We have very tightly regulated spending during the election campaign period. That was found to be constitutional by the Supreme Court of Canada in a case called Harper. The obvious loophole was that spending rules were not applied in the pre-writ period, so you could simply spend millions of dollars, unregulated, uncapped, prior to the start of the official campaign. Third parties have increasingly been doing that in Canada, especially since the 2011 election, as have political parties, so having a pre-writ limit is extremely important.
If anything, I would have liked to see an even longer pre-writ period. I know there are constitutional concerns. The Harper case was about spending limits during the campaign period. This is pushing the constitutional envelope a little bit by putting in spending restrictions in the pre-writ period. The bill tries to deal with that by having it start only on June 30 rather than earlier, as occurs in some jurisdictions; changing the definition of “election advertising” to call it “partisan advertising” so that it will capture less advertising; and then also having quite generous, I would say, spending limits in terms of the total amount that's permitted in the pre-writ period. All those provisions in the act to try to manage the constitutional risk make sense to me, but I think that given the example we have in the United States and given the data we have about spending by third parties and political parties in recent Canadian elections, the bill could have been even more aggressive in pushing out a longer pre-writ period. I do think it's very necessary to have in the pre-writ period spending limits of the kind the bill has put in place.
I should say it would also apply to some activities beyond just advertising, which is important given that third parties are now doing many of the things we would traditionally understand political parties to have done in the past. There's been tons of evidence in the United States, in a number of recent election cycles, of their version of third parties doing things like Get Out The Vote, organizing campaign events, doing messaging—all the sorts of things that parties traditionally have done. I think that's an important feature of Bill .
The second aspect of the bill that I'd like to discuss is the non-resident voting provision. Previously, you would lose your right to cast a ballot if you lived overseas for five or more years. The bill would get rid of that restriction. I also think that's a long overdue change and a really positive development for the more than one million Canadian citizens who may wish to exercise their right to vote. Even among those Canadians who are abroad for fewer than five years, there's been a small percentage voting. I think this will encourage parties and encourage citizens to be more engaged in the electoral process, and hopefully, will drive voter turnout up.
There is a Supreme Court case, which the committee will be aware of, Frank v. Canada. We are waiting to hear what the Supreme Court will say about the constitutionality of the five-year limit. Even if the court decides it's constitutional, it is still within the jurisdiction of Parliament to decide whether or not to get rid of the rule. Another feature of Bill that I applaud is expanding the right to vote to non-residents who are abroad for more than five years.
One area in which I'm a bit more critical of the bill is voter privacy. I paid great attention to Mr. Mayrand's comments. As you'll know, the bill requires parties simply to have policies and to address certain specific issues in those policies. Political parties do already have policies on privacy.
I would like to see provisions expanded so that parties will be obliged to actually follow specific rules, to not just have a policy on an issue but to meet certain standards, which the public and private sectors more generally do. Political parties are one of the only exceptions to PIPEDA and the Privacy Act. I think that is an anomaly that needs to be rectified, because parties, as you well know, now collect, use, and analyze enormous amounts of personally sensitive data.
In the earlier round of questions, there was a question about how it could be adapted to political parties. I think people should have a right to be notified if there is a breach of the rules. They should have a right to know what information a party holds about them.
Also, under very limited circumstances, I don't think political parties should be permitted to sell the data they collect. We want to facilitate the connection between citizens and parties. That's something we don't want to stop, but part of the trust mechanism there is that voters believe their data is going to be used for the political process, not for profit-making.
Second-last, on social media platforms, there is a new offence in the bill in terms of how social media platforms or advertising platforms generally should not be able to sell space to foreign entities. I think that's a very positive move. I would just draw the committee's attention to the current rules in the Elections Act that are imposed on TV broadcasters. They cannot charge more than the lowest basically available rate to any political party seeking to advertise. What this effectively means is that it gives political parties a right to have advertising time at a reasonable rate, but it also means that the same rate has to be charged to all political parties.
Political advertising is now happening to a great extent on Facebook. There is nothing in the current Elections Act or in Bill that would prevent Facebook, through what they call their “ad auction system”, from charging differential rates to different political parties. The current rule for broadcasters is in the Elections Act for a reason. There's no principled reason why that shouldn't also apply to social media advertisers, which may have commercial interests at heart when they're making decisions about their algorithms.
I would just conclude by saying that one of the other very positive features in the bill, which I don't think has gotten enough attention, is the 90% reimbursement for child care expenses for candidates. That is an important and quite practical measure to try to encourage a more diverse array of candidates in the political process.
Those are my initial comments. I look forward to your questions on any of those issues or the other matters in the bill.
Thank you very much.
Good morning. Thank you for the opportunity given to the Council of Canadians, and me as executive director, to present today to the Standing Committee on Procedure and House Affairs regarding Bill .
I speak to the committee today as we prepare to go to court to defend the constitutional right of every Canadian of age to vote in next year's federal election.
The issues of greatest concern to us in the current legislation are those provisions that will rescind amendments to the Canada Elections Act made by the previous government in passing the so-called , which made it more difficult for the Chief Electoral Officer to communicate with Canadians about the electoral process and their right to vote; stripped the Chief Electoral Officer of his ability to authorize the voter information card as a means for proving an elector's residence or identity; diminished the independence and accountability of the Commissioner of Canada Elections; and effectively eliminated vouching as a means for people without the necessary identification to obtain a ballot.
In response to the , the Council of Canadians partnered with the Canadian Federation of Students to file a charter challenge, not only to repeal those problematic elements of the act but also to defend the most fundamental right in a democratic society: the right to vote. We launched the charter challenge because the Fair Elections Act made it harder for students, people who are de-housed, seniors, indigenous people, and others who have difficulty proving their identity and residence to vote. That application is to be heard by the Ontario superior court in October 2018, a date chosen so that the Office of the Chief Electoral Officer will have the six months he requires to implement the necessary changes, should we succeed, before the 2019 federal election. We certainly hope that the provisions of Bill will address the issues now before the court and will come into force in time to obviate the need for that hearing.
Until the bill receives royal assent, our case will proceed. We have amassed a substantial body of expert opinion, including from Harry Neufeld, the former chief electoral officer of British Columbia, stating that the effectively limits ballot access by increasing the administrative burden for any voter who does not possess acceptable documentation that proves their current address of residence. It has made the vouching process more intimidating to participants. It's difficult for all to understand and cumbersome for election officers to administer.
This also eliminates the discretion of the Chief Electoral Officer to allow any use of the voter identification card as a legitimate form of address identification. Elections Canada has described the problem in this way:
||With regard to accessibility, a continued challenge in the identification regime is the difficulty some electors face in providing documentary proof of their residence. Among the larger challenges is that no piece of identification issued by the [federal government] contains all three elements required in a single piece by the Act: the elector's photograph, name and address.
The difficulty electors may encounter in proving their current address falls disproportionately on certain groups. As described by Elections Canada, these groups are indigenous people; electors living on first nations reserves; electors living in long-term care facilities, including seniors; youth, including students; the de-housed, also known as homeless electors; and electors who have recently moved or who have difficulty proving their physical address.
The Harper government's declared objectives in enacting the were to protect against fraud and to uphold the integrity of our electoral system, but study after study has shown that claims about in-person voter fraud have no foundation and serve as a pretext for measures intended to prevent unfriendly voters from being able to cast a ballot. In fact, public concern about voter fraud, as we saw following the 2011 election robocall scandal, was about organized efforts to deter people from voting, not about individuals seeking to vote fraudulently.
The groups I have highlighted who are disproportionately challenged to prove their identity and residence are electors who care deeply about a host of public policy issues, particularly those that affect their daily lives and that often become important electoral issues. They would have strong views about what government should be doing to deal with the problems they confront, and are keen to participate in the electoral process.
Under the Constitution, all Canadians are guaranteed the right to vote, yet for many, including tens of thousands of electors who are on the voter list, the voter identification requirements of the act are a significant impediment to exercising their democratic franchise.
In summary, the Council of Canadians is strongly supportive of those provisions of Bill that will reverse the anti-democratic reforms of the previous government, including an expansion of the Chief Electoral Officer's mandate to include public education campaigns; a reversal of changes that disallowed the use of a voter information card as a piece of eligible identification at polling stations; a reversal of changes that disallowed one voter vouching for another; and more independence to the Commissioner of Canada Elections.
Hi. I'm James Hicks. I'm with the Council of Canadians with Disabilities.
I want to read for you something that was said by the :
||...I will expect you [as Minister of Democratic Institutions] to...bring forward options to create an independent commissioner to organize political party leaders' debates during future federal election campaigns, with a mandate to improve Canadians' knowledge of the parties, their leaders, and their policy positions.
I bring that up because it's a huge issue for people with disabilities to even participate in the debates. We've spoken to a committee already once on this. I'll go through some of the reasons why that's difficult for folks and through some of the things that need to be done.
The Council of Canadians with Disabilities is a national human rights organization of people with various disabilities working for an accessible and inclusive Canada. CCD is delighted that the Standing Committee on Procedure and House Affairs is conducting a study about appointing an independent commissioner and getting information about televised leaders' debates during federal election campaigns. Leaders' debates are an important component of elections, as they provide the electorate an opportunity to observe the party leaders competing for the job of leading Canada's federal government.
Our interest in this issue is that for too long the electoral process has included barriers that have prevented the full participation of people with various disabilities. Since the 1980s, CCD has been advocating for the reform of the electoral process so that it is accessible to people with disabilities. For example, CCD was an interested party in the Hughes v. Elections Canada case in 2010, which led to Elections Canada's removing of barriers to the participation of people with disabilities in the electoral process. As well, CCD serves on Elections Canada's advisory group for disability issues.
What are the issues here? The bill includes a number of important improvements to the Canada Elections Act that will assist electors with various disabilities to participate more fully in the electoral process.
These include creating a financial incentive for political parties and candidates to accommodate electors with disabilities and facilitate their participation in the democratic process through reimbursement of expenses related to accommodation measures; increasing the reimbursement rate to 90% for expenses in the aforementioned categories and exempting them from campaign spending limits; allowing the Chief Electoral Officer to authorize the use of a voter information card as identification; permitting vouching as a means of identity and residence; making it easier for Canadians to apply for and obtain special ballot kits; reducing the wait times at regular and advance polls by streamlining intake procedures; and increasing the hours of advance polls to 12 hours a day.
They also include better serving remote, isolated, or low-density communities by expanding the use of mobile polls; expanding the option of at-home voting to persons with all types of disabilities; allowing electors with disabilities who are voting by special ballot at a returning office to rely on the same people for assistance as at the polling station, which is currently restricted to an elections officer at the returning office; making it easier for electors with disabilities to apply for a transfer certificate; establishing a register of future electors in which Canadian citizens from 14 to 17 years of age may consent to be included; removing limitations on public education and information activities conducted by the Chief Electoral Officer; and limiting election periods to a maximum of 50 days.
For Canadians with disabilities, leaders' debates have barriers to full and equal participation. That's not just in leaders' debates, but we're focusing on those. Any time that a group of politicians gets together publicly to talk together and put their ideas forward, there are rarely supports in order for people with disabilities to be able to participate.
A full range of disability-related accommodations is necessary to make leaders' debates fully accessible. So that the committee has a better understanding of what we are referring to, we provide some examples: ASL and LSQ interpretation so that deaf Canadians would be able to receive the information in their first language; audio narration of the debate's key visual elements so that persons with vision impairment are aware of the non-verbal communication that takes place during a debate; the use of plain language so that people with psychosocial disabilities can follow the discussion; and closed-captioning so that people who are hard of hearing have access to the debate's information.
Accessibility accommodations would be available in all locations and platforms to ensure participation of citizens with disabilities in the audience, and participation of potential candidates who may have disabilities.
During debates, disability would be addressed in a substantive manner. If questions are introduced in the House, the answer should include responses about persons with disabilities. For example, if questions on violence against women are included in the debate, answers would reference the concerns of women and girls with disabilities and deaf women and girls in a meaningful way.
I'll give you an idea. The rate of violence and sexual assault against women and girls who are deaf and who have disabilities is almost triple what it is for most women. We already know there is a problem in this country with issues around sexuality and women. I think it's important to highlight that it's that much worse for people with disabilities because they can be in a very vulnerable position.
If a question on housing is introduced, it would reference the use of universal design, ensuring that people with disabilities have the same access to these units as any other Canadian would. The best example is the newest information that's coming through with housing directives. They're going with the standard certain percentage of accessible units. However, what we know about universal design is that if you use universal design, it can be very quickly modified for any person who needs it. That means you don't have a list of people with disabilities waiting 10 or 15 years to get a unit, as opposed to just being available for the next unit that comes up if their name is at the top of the list.
There are a whole bunch of things we need to consider when we're looking at it. I think those things are just examples. You can then look at what would happen in debates if there is no one to guide and no idea of what is supposed to happen and how people are supposed to do it.
I presented to the all-party meeting about two years ago and it was very clear, when we had a discussion, that making every single debate and every single appearance accessible is not going to happen because politicians don't have the money for that. It then comes back to the government to ask if there is something it needs to do, to step in to make provisions whereby people could actually spend money and not have to claim that as a part of the pot if they're actually addressing accessibility issues.
I don't want to go into too much detail because I know you have other people there, but there are ways we can do that. CCD is more than happy to work with government in order to find ways to actually do that, and to work with the political parties to help them identify where they can get access to information on how to do this.
With regard to the standard that has been set, CCD reminds the committee that the United Nations Convention on the Rights of Persons with Disabilities, which has been ratified by Canada, in article 29 calls for the political rights of people with disabilities to be upheld, including the promotion of an environment in which people with disabilities can participate fully in the conduct of public affairs. Article 29, on participation in political and public life, says that:
||States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake:
|| a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected...
|| i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
|| ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
||iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;
||b) To promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
||i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;
||ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.
Thank you for inviting me. I see a few familiar faces in the room. I'm happy to be here.
I thought I'd help out by handing out my speaking notes, but I understand that if they are not translated, you're not going to see them for a while. But I would like to point out one thing in particular, which you'll find on page 5. I've actually listed a few items in which we have comments on how the bill might be easily amended, if you were interested in doing that.
I know you are busy. You have a 350-page document in front of you. This would hopefully make it easier. I'm happy to email this to anybody who'd like to see it. Just be in touch with me and I can send you the link. It's a Google doc.
You know what Fair Vote Canada is. I'm not going to go into any detail about that, but as a representative of Fair Vote Canada here—I'm the president—I'd like to address mainly issues of third parties, because there is some new material here and I'd like to express a few thoughts about that, which I think you will find useful.
Before I get into that, I'd like to acknowledge a couple of things with regard to our general issue, which is equal opportunity in the electoral process, levelling the playing field. I'd like, first of all, to acknowledge how much the bill actually does, without going into detail—because you already know what it does—in terms of ensuring greater access for a wide range of specific groups of people, including people with handicaps.
One thing I have to acknowledge, and that we all have to acknowledge, that it does not do—and my colleagues would not forgive me if I didn't mention it—is, of course, anything to ensure that every vote counts equally in terms of effectiveness regardless of where you live and who you vote for. The only way you could get that is with proportional representation, and this act doesn't deal with that. I'm putting it on the table, but I'm not going to harp on it. I know that's not what you want to hear today.
Let's talk about the third party issues. Here I'd like to speak about five different points. The first one is whether Bill is restrictive enough with regard to third parties. There is one important point to be made on what we in Fair Vote Canada and, I think, many others would think it is not restrictive enough, and that is with regard not to how much third parties can spend, which is fairly generous, and I'm okay with that. We can't spend that much money anyway. We couldn't spend a fraction of what the ceiling is, so it's not a problem for us. However, there is no restriction that I could find on contributions to third parties, so what you have is a system whereby moneyed interests can channel large amounts of money to third parties. They can create more third parties if they want to, and therefore, have a disproportionate influence on the results of elections.
I would like to point you to the B.C. Election Act, which I think is a very good example of restrictions that can be added with regard to third parties. I'm familiar with it because we're working on the referendum there. It restricts contributions to third parties in the same way as it restricts contributions to political parties, with a maximum of $1,200 per individual. I believe there are also restrictions on corporate and union donations as well. I think that is worth looking at. I don't know if you have time to look at it, but I'd like you to put that issue on the table as one that needs to be dealt with in the future.
I am speaking now as a representative of a third party, and I turn to whether the bill is too restrictive in any way. I have four points to make. From my very careful reading of the bill, it is not too restrictive on these two points, but it's not very clear. I'd hate for us, in Fair Vote Canada, to spend hours arguing back and forth on whether it applies to us or does not apply to us, so I have a couple of suggestions on how to make it clearer, assuming that my understanding of what's intended is correct.
First of all, with regard to the pre-election period, third parties have to register if they engage more than $500 in partisan activities, partisan advertising, and election surveys. Never mind election surveys; we don't do a whole lot of those, but maybe that's something we'd have to do. Partisan activities and partisan advertising, the way they're defined here, we do. We are a multi-partisan organization and we focus strictly on the issues, and the bill seems to exclude from consideration advertising that's focused on issues.
It sounds as though we're off the hook, but where it's not clear is whether we can name parties and candidates and the position they have taken when we provide information on our issues.
Does that constitute partisan advertising or is that simply informing the voter? I think it's only informing the voter, and I think the bill is intended to allow naming provided that it's with regard to the issue. That needs to be clarified. It could be clarified with some very simple wording where, when you talk about it with reference to “an issue”, it actually says, “otherwise than with reference to an issue”. If you're referring specifically to an issue, you can name and you can describe, and that's okay. That needs to be clarified: which is it? That's the first point.
With regard to the “election period”, the election period is more demanding. In terms of the election period it says that even when you're dealing with the issues, if you are promoting or opposing a candidate or a party, that counts as election advertising. Fine. I think that makes perfectly good sense.
What we're concerned about here, and I think it could be useful—we ran into this with the Ontario election, where there are similar clauses—is what happens with a general brochure that doesn't promote or oppose any party or candidate but advocates for proportional representation. It's clearly about the issue, but it doesn't promote or oppose. The spirit of the bill seems to be, no, that's not election advertising; that's general advocacy around an issue.
For almost any issue in the country, there's going to be an advocacy organization that works on it. Do we expect every advocacy organization in the country on any issue to register whether they promote or oppose? I think not. If you could be clear about that, it would be really useful. I've proposed that in those “not including” clauses—there are five of them now—you add a clause that refers to business-as-usual advocacy that does not oppose or promote. That's my suggestion on that one. Make it clearer. That will make everybody's lives a lot easier.
The third point has to do with the $500 trigger before a third party has to register. This is nationwide. If we spend more than $500, we have to register. If we spend more than $500 on election advertising, we have to register. Now, that depends on what you consider to be election advertising, hence my two points that I've made and that are important to clarify.
The point is this. For example, in P.E.I. right now, they're discussing Bill 38. Bill 38 is about the referendum. Their trigger for a third party to have to register is $500. They have a population that is about equivalent to that of a riding anywhere else in the country, and here we're talking about a whole country and you want the same threshold of $500. To me, that's way too low. You should be talking about probably at least $5,000, which is 10 times that much. I'd like you to consider that having to register is a huge burden on a third party. We have to hire a financial officer. That's expensive. It's going to be more than $500, I can tell you that; it will be several times that much.
Basically, then, if you say that if we spend more than $500, we have to register, you're basically saying that we're not in the game at all. I think we need to be fair. I think it's going to have to be higher than that. That's worth thinking about.
Finally, there are the new clauses on collusion. There are clauses in the Canada Elections Act—or a clause—on collusion already. The logic of it is obvious. If third parties are working with a political party in order to circumvent limits on election spending, that's against the law. That's collusion.
The existing Canada Elections Act is as clear as day on that. You're not allowed to circumvent limits on spending. You're not allowed as a third party to make in-kind contributions. If you own a storefront, you're not allowed to just lend it to a party. That's obvious. It's included already in the Canada Elections Act. However, for an advocacy organization like ours, Fair Vote Canada, we have to work with politicians or we are never going to get electoral reform in this country.
If we are not allowed to talk to politicians to find out what they're prepared to do if they're elected.... Are they prepared to take some leadership on proportional representation? If they are, we might want to consider endorsing them and supporting them. We need to talk to them to do that, just as politicians need to talk to voters. They're prepared to tell voters what they're prepared to do and not do, and voters are prepared to push back. There has to be that kind of dialogue with third parties as well, without circumventing the electoral spending limitations.
I think, and my colleagues in Fair Vote Canada think, that the new clauses on collusion are over the top. They should simply be struck out. They're not necessary. They are handicapping third parties from doing what they need to do, which is to be part of the political process and to talk with politicians to see where alliances can be forged in order to pursue our reform agenda.
Thank you very much. You have the notes. As I said, if you need them more quickly, just contact me. There is a summary. There are proposed amendments. The definitions I was talking about are included at the back. I think you'll find this useful.
Thanks very much.
Thank you, Mr. Chair, and thank you to the committee members for inviting me here today.
My name is Ryan O'Connor. I'm the lawyer for and director of Ontario Proud, which is a registered third party political advertiser in the province of Ontario for the current provincial election. We're a social media-based political advocacy group. We're not-for-profit. We promote ethics and accountability in government, fair taxes, personal freedom, and Ontario culture. We started in February 2016 as just simply a Facebook page, and have grown to over 400,000 supporters on the web. Millions in Ontario and throughout Canada view our content online, to the point where Ontario Proud is one of the most engaged and popular Facebook pages in Canada and is the most engaged and popular Facebook page in the province of Ontario.
Since November 9 of last year, Ontario Proud has been registered as a third party political advertiser in Ontario. That was the first day we were required to do so under that province's Election Finances Act. We've advertised on television, but we've largely focused our efforts on non-traditional fora for political advertising, including YouTube, Facebook, and Instagram, in order to maximize our reach in the most efficient manner possible while remaining compliant with the very strict spending and disclosure requirements of the Ontario Election Finances Act. We receive support from donors throughout the province of Ontario. We also comply with the legislation by not accepting contributions for advertising expenses from anyone outside of Ontario.
The legislation on election procedure and campaign finance is arguably some of the most important legislation that Parliament enacts. It sets the ground rules for the exercise of our constitutional right to a free and fair franchise and sets the ground rules for those who participate in the electoral process. Because such legislation is so important, Parliament must carefully and properly consider any changes to the conduct of Canadian elections. This is especially so with Bill as proposed. Neither this committee nor the House and Senate should expedite the passage of this legislation before the House rises in the summer if it cannot give due consideration to the serious infirmities contained in the legislation as proposed. These infirmities, if not rectified, will have as their result the opposite effect of what the legislation intends and will work to stifle political discourse, discourage third parties from participating in issue advocacy, and perhaps more alarmingly, cause them to ignore the requirements of the legislation altogether.
I will focus my remarks on two primary areas of concern. First, the onerous registration rules, compliance costs, and spending limits outside of elections in relation to third parties are likely unconstitutional. Secondarily, the attempts at limiting the foreign funding of political advocacy will have no measurable impact on the foreign influence that has occurred previously in the Canadian political discourse.
With respect to the constitutional concerns, the legislation as proposed will, for the first time, impose spending limits and registration and donor disclosure requirements on third parties outside of election periods and for a specified pre-election period that commences on June 30 of a fixed-date election year. The legislation goes further than most regimes in the country insofar as it will not only regulate third party political adverting spending; it will also regulate “partisan activity expenses” and “election survey expenses”. The former specifically refers to, in the draft legislation, holding rallies, canvassing, and encouraging electors to vote.
Furthermore, the proposed legislation purports to expand the government's role in policing election advertising, partisan activity, and survey spending even before the pre-election period by requiring third parties, after registering with Elections Canada once incurring expenses, to file an interim return if the third party has received contributions or incurred expenses for regulated activity of $10,000 or more from the time of the preceding election until the time of registration.
The leading Supreme Court of Canada case, which I'm sure many members of this committee are familiar with, is the 2004 case of Harper v. Canada. In that case, the majority of the court found that although the third party spending limits that currently exist in the Canada Elections Act violated paragraph 2(b) of the charter, which is the right to free expression, those were justified, under section 1 of the charter, as reasonable. However, it's critical to note that the spending limits, which remain in the legislation but are indexed to inflation, are only applied during the writ period and only applied to advertising spending. The majority of the court in Harper v. Canada found that the limited time period within which these limits applied was minimally impairing of the right to free expression and proportionate to the objective of promoting electoral fairness. In disagreeing with the minority's position, in that case, that spending limits meant that—to quote from the decision—“citizens cannot effectively communicate their views on election issues”, the majority said that “this ignores the fact that third party advertising is not restricted prior to the commencement” of the campaign period.
More recently, the B.C. Court of Appeal found in a 2012 case, the Reference re Election Act (BC), that the proposed third party advertising spending restrictions on a 40-day period prior to the writ period violated the charter right to free expression and was not justified under section 1 of the charter. Part of the rationale of the court in that decision was that the B.C. government had advanced no evidence that restrictions on third party advocacy had the benefit of ensuring electoral fairness outside of a period when electors would actually be voting.
Currently in Ontario there is a coalition of trade unions that has initiated a constitutional challenge to the third party spending restrictions of the Election Finances Act. A constitutional challenge is inevitable, I would say with all due respect, if the legislation as drafted passes in its current form.
When organizations regularly participate in the political discourse in this country and are forced to comply with onerous regulatory requirements such as those proposed in the legislation, they may simply refuse to do so. They will do so in two ways. They will either ignore the legislation—which in any event is impossible to police in an era of digital campaigning—like many third parties are currently doing in Ontario, or they'll simply not participate in the democratic discourse. Parliament shouldn't be prioritizing the political expression of candidates and parties at the expense of ordinary citizens.
Parliamentarians also need to consider how Bill will affect issue advocacy. Any trade union that publicly advocates on labour legislation outside of a pre-election period will now have to account for its spending on that issue to Elections Canada. An environmental advocacy group that wishes to organize a rally related to forestry development would have to do the same. Also, a small citizens advocacy group that supports lower taxes will simply stop participating in the public discussion of issues, both during the pre-election period and during the writ period, because it is afraid of running afoul of the legislation or cannot afford the significant compliance laws that Mr. Lavergne had alluded to. This is hardly the intent of the proposed legislation, but that's going to be its effect, and its effect is an unconstitutional one.
I want to turn now briefly to foreign finance loopholes that exist in our current electoral financing legislation. Foreign influence in elections has been a concern in western democracies over the last half a decade, although that may be putting it mildly. One of the most common examples cited is the previous presidential election in the United States. Canada has not been immune to foreign influence in our elections. Foreign-funded groups have bragged about funding third party campaigns against parliamentarians, most recently in the 2015 federal election. Senators—notably, Senator Frum—have been encouraging Parliament to close any loopholes that allow foreign financial influence in our elections.
The proposed legislation before you prevents foreign entities from financing third parties for their advertising efforts or their partisan activity; however, it only does so during the pre-election period and the writ period. It doesn't specifically prohibit financial support for third parties outside of these periods. It would still be legal for foreign foundations, governments, corporations, and trade unions to financially support third parties.
Going further, it would allow third parties to avoid the disclosure requirements of the act altogether if they simply chose not to register during an election period. If members of this committee really wish to address the mischief of foreign involvement in Canadian politics, it would do well to completely close this loophole and either ban or heavily restrict foreign involvement in our electoral system at all times, not just between June 30 and election day.
The government that proposed this legislation often refers to itself as the party of the charter. If it truly wishes to live up to that mantle, it would support amending the proposed legislation, limit any domestic third party spending requirements to the writ period, and defend the right to free expression instead of causing its suppression.
Thank you, Chair, and thank you, guests, for joining us. I'm going to start with the person I've met many times before.
Mr. Lavergne, it's good to see you again. I hope all is well. I want to thank you for your input here today as I know it has been through discourse, no matter what the issue is, on our elections.
You've talked about clarification, in many cases, on how you communicate. In your case, it's about naming parties or candidates, or who it is you're supporting in particular, and how that gets caught in this particular act. I'd also like to say that it's also the people who you do not want to vote for that should be clarified as well, because in going through the procedure of democracy I guess in many cases we tend to eliminate options before we get to the one that we're voting for. Also, on advocacy for promoting a specific party or the stand they take, I understand that as well.
The only issue I have is with the registration of a third party. You mentioned that you'd rather see it go from $500 to, say, $5,000. I want to give you an example of why I'm not sure I agree with that. If you take a province like mine, which has seven members of Parliament in total, if there were an advocacy group for, say, the separation of the island—float our way to the EU and have at it—they could actually mount a substantial campaign, but it's very focused. I only fear that if you have a larger number to start with, it wouldn't eliminate those local campaigns that may make a difference. They won't have to be registered as a third party. I'll let you comment on that.