Procedure and House Affairs Committee on March 25th, 2014

[The Chair, Conservative, Joe Preston]

Let's get started. Today we're here in public and televised with the study of the fair elections act. We have a small amount of committee business to start the meeting, and we'll get to Mr. Kingsley as quickly as we can after that.

I think, Mr. Christopherson, you're first.

[David Christopherson, NDP, Hamilton Centre, ON]

Chair, yes, on a point of personal privilege, I asked for this opportunity.

The last meeting of the committee was dealing with Monsieur Mayrand and the issues of the bells and the problems and whether or not the deal that was made with the government was honoured. At that time I certainly expressed how unhappy I was with what I considered to be incredibly dishonourable actions on the part of the government, and I personalized it in the form of Mr. Lukiwski because I can only deal with the face of government that I'm given.

I want to go on record publicly, and I appreciate the opportunity, Chair, to make it clear that although I had to focus my remarks on the government member that I was negotiating with in good faith, I believe in my heart that it was not Mr. Lukiwski's decision at all to violate that agreement. I want him to know I still consider him to be an honourable member and I look forward to working with him. I hope we can set that aside. I meant what I said, but I did not mean it towards the individual in the way that it could only come across, but I meant it to the government. There's been enough time now for me to say personally to Mr. Lukiwski that nothing has changed in terms of the respect that I have for him. In fact, I'm sure it brought great grief to him to see a deal that he made, I think in good faith, broken. I just want to put it on the record, Chair, that I look forward to continuing a good relationship with Mr. Lukiwski and I have the greatest respect for him.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski, very quickly on that one.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

It will be quick.

I thank you, David, for your apology. It's certainly accepted. I do have to point out to you that if this is the face of government you have to deal with daily, I have sympathy for you, frankly, more than anything else. Thank you very much. Yes, the respect is mutual and we'll go on as always. Let's just see if we can make this committee work.

[The Chair, Conservative, Joe Preston]

Yes, and you stole my joke about the face of government. As the president of the Tom Lukiwski fan club, I'm very honoured you had those words today.

Mr. Christopherson, the next thing we're going to deal with is your notice of motion that we closed off on the last time. Did you want to speak at all to that?

[David Christopherson, NDP, Hamilton Centre, ON]

Yes, Chair, I would.

We did have a steering committee. We had an agreement in order to get to our witnesses and not take too much time, that we would take just a moment to state our positions and then allow a vote to take place.

This was a motion that I made asking that those who are not affiliated with recognized parties in the House be given an opportunity to participate on this committee in a fashion that has been used before with the review of the Board of Internal Economy. At that time they were given the opportunity to be at the committee and ask a question during the rounds.

My motion basically is asking that we afford the independents that same opportunity for the very simple reason that I know when we did our review the last time over two Parliaments we didn't have representatives there from independents, and we didn't make as good decisions as we could have. If we're serious about an election law that's fair to everybody, then we should have those participants here at the table. They would decide among themselves who would be here and in what rotation, but I think it would be a signal to Canadians that finally this committee is prepared to start dealing in a fair fashion with a bill that is so important to Canadians.

I hope that we'll have the support of the government because they are the swing vote here to allow that important voice in our electoral process to be heard, that of those independents who are not part of recognized parties in the House. I think this would go a long way to improving the fairness of the process we're undertaking.

Thanks, Chair.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Christopherson.

On the same point, Mr. Lamoureux, as quickly as you can.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I just wanted to emphasize that the Liberal Party believes it's absolutely essential that we provide the Green Party, the Bloc party, those that are classified technically as independents, the opportunity to come before committee and be engaged in the process.

We're talking about our Elections Act. This is a pillar of our democracy. We're all familiar with the manner in which this government has been forcing this legislation through. We understand there are no other political entities in Canada that are supporting this legislation outside of the Conservative Party, and we should be affording them the opportunity to sit at this table and participate in some of the dialogue that is taking place in regard to a very important piece of legislation. One could ultimately argue that an election law is a pillar of our democracy. They have a right, I would argue, to be sitting at this table. We would ask the government to respect that right and allow them that opportunity. That's the only thing that's going to prevent them; there's no doubt. The only thing that will prevent them is a government decision to disallow that political engagement from the Green Party and the Bloc party, which we think would be a mistake.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski, on that motion, please.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Very quickly, I appreciate my colleagues keeping the remarks brief and then we'll go strictly to a vote.

The government will be voting against the motion, David, and I'll tell you why.

Independents, frankly, do have an opportunity to participate in this committee as witnesses. Mr. Bill Casey will be coming. As you know, Bill was an independent in the last term of office. We've also stated that at any time if you want to expand the list of witnesses and bring independent members to come and testify, you can certainly do so. Their voices will be heard.

But, primarily, it will be setting, I believe, a very bad precedent. One can certainly make the argument that independents should be at every committee discussing legislation. That's not the way the Standing Orders have been developed, and there are reasons for that. We have a history of well over 100 years as to why that has taken place, so we want to continue on with that tradition. If we want to hear the opinions of independent members on how this bill affects them, we have the opportunity to do so.

[The Chair, Conservative, Joe Preston]

Okay, we'll vote on the motion.

[David Christopherson, NDP, Hamilton Centre, ON]

Could we have a recorded vote?

[The Chair, Conservative, Joe Preston]

Certainly we can do that Mr. Christopherson.

(Motion negatived: nays 5; yeas 4 [See Minutes of Proceedings])

The other piece of committee business we must deal with is the budget for this study.

We will be seeing a number of witnesses. For those of you who were at the steering committee today, you have an idea of that number, but since that was an in camera meeting, we'll just discuss the budget. The budget currently sits at $38,700 to cover the witness costs of this committee, and I need permission from the committee for that.

[David Christopherson, NDP, Hamilton Centre, ON]

I'll be glad to move it, but I have a question.

The understanding is, of course, that if this gets adjusted as a result of other witnesses, then we accept that we'll be making a further submission, if need be.

[The Chair, Conservative, Joe Preston]

Absolutely. We're starting here with this amount and being as frugal as we can be, but we will not leave anyone out if that's the case.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Chair.

[The Chair, Conservative, Joe Preston]

All in favour of the budget?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Could we have a recorded vote on that?

[The Chair, Conservative, Joe Preston]

You want a recorded vote on the budget? Okay.

(Motion agreed to: yeas 8; nays 1)

Mr. Kingsley, it's great to have you here today. I know you have an opening statement and you'll do your best to keep it as short as possible because we have lots of questions for you. But welcome again, it's great to see you again.

[Jean-Pierre Kingsley, Former Chief Electoral Officer, As an Individual]

Thank you, Mr. Chair.

I would like to thank the clerk as well as the translators for the translation of the text you are about to receive.

Good morning, also, to all of the members of the committee.

I would also like to thank two people who shall remain nameless, who are good friends and colleagues who have worked days on end to help me prepare for this appearance.

Honourable members of the committee, it is always a privilege to appear before you. I am here today to speak to Bill C-23.

I followed the appearance of Mr. Mayrand on CPAC and I agree with his testimony. Canada's electoral democracy and our electoral agency, Elections Canada, stand second to none throughout the world because our elections enjoy the confidence of Canadians. They are built upon five values: participation, fairness, impartiality, transparency and accountability. I have evaluated the bill from their perspective.

A number of the proposed changes in the bill will sustain the values underlying the act.

The provisions respecting voter contact calling services will help avoid the repetition of the infamous robocalls during the 2011 election, or help trace them by providing an information trail for investigators.

On that, the committee should consider extending the requirements respecting the retention of records so that they mirror the time limitation for prosecutions. Moreover the records should include the phone numbers of persons contacted in order to maximize their usefulness to investigators. This latter information would not become public and would be accessible only for investigative and prosecution purposes.

The significant increase in potential fines for conviction of breaches of the act up to $100,000 for some offences, along with the potential for jail time, will help enhance deterrence significantly.

The graduated and significant reduction of the reimbursement of campaign expenditures will apply automatically in all cases where the spending limits are breached.

The provision of a fourth day for advance polls will benefit electors who increasingly vote in advance of polling day — a number in excess of two millions Canadians in the 2011 election.

The reformed legislated schemes for loans and unpaid claims will help ensure that rules concerning contributions are respected.

The Advisory Committee of Political Parties will be established in law. This committee has operated since 1977 and has proven an invaluable mechanism for exchanges between Elections Canada and all the registered parties, including the smaller ones, that often have a very different take on issues.

And lastly, the new statutory provisions respecting interpretations and advance rulings by Elections Canada will benefit participants and the public, albeit the time requirements imposed on Elections Canada will have to be adjusted to be workable.

There are also a number of major changes that are relatively neutral in their effect.

One is the decision to move the Commissioner of Canada Elections from the Office of the Chief Electoral Officer to that of the Director of Public Prosecutions.

This move constitutes an extension of the decision Parliament made in 2006 with the Accountability Act to transfer the authority for the prosecution of offences under the Canada Elections Act from the Commissioner of Canada Elections to the Director of Public Prosecutions. Parliament fixed a problem that did not exist. It bears repeating, Mr. Chairman, that as a result of that decision it has been the Director of Public Prosecutions, not the Commissioner of Canada Elections, and not the Chief Electoral Officer, who has decided when to prosecute under the act since that time. The commissioner serves only an investigative and advisory role in that process. It has always been the courts that have determined guilt, not the Chief Electoral Officer, not the commissioner, and not the Director of Public Prosecutions. In the performance of his investigative functions, the commissioner has always operated independently of the Chief Electoral Officer and will continue to act independently of the Director of Public Prosecutions with the protections afforded those operations in this bill and in the Director of Public Prosecutions Act. What is lost is the simplicity of the previous enforcement regime, its cost-effectiveness, and the timeliness of prosecutions.

The increase in spending and contribution limits is another one.

Under the bill, spending limits will increase by 5% and contribution limits will increase by 25%. As well, individuals will be able to donate more of their own money to their candidate and nomination campaigns. This should increase their ability to meet their start-up obligations, reducing their reliance on loans without seriously impacting the overall role of money in the process.

There are aspects of the bill that will benefit from further consideration. Several changes are essential.

The proposed exemption from a registered party's election expenses of those related to party funding communications with persons who have donated more than $20 over the preceding five years to emanations of the party is not justified. It is simply not possible to seek funds without including reasons for giving, and this can only constitute advertising for or against a party or a candidate. Moreover, it favours richer and established parties to the detriment of small and especially newer parties.

Nor will it save taxpayers any money. The established parties will continue to spend very close to the newly increased spending limits and will be reimbursed accordingly. The only way to reduce the amount of the reimbursement is to reduce the election expense limits.

Respecting registered party returns, your committee should consider vesting in law the authority of the Chief Electoral Officer to access and inspect relevant documents supporting the information on party returns when relevant. This recommendation has been before your committee previously as part of the report on the 38th general election, and it was included in Parliament's unanimous resolution of March 2012 in the wake of the robocalls scandal.

Bill C-23 would certainly provide longer reach and sharper teeth should the authority to compel testimony be granted to the Commissioner of Canada Elections when he investigates breaches of the Canada Elections Act, as agreed as well in the 2012 unanimous resolution.

The need for this authority, which is possessed by most of the electoral authorities in Canada and by many other federal agencies, is demonstrated by the apparent lack of progress in the robocalls investigation. Persons in positions likely to be able to provide important information now know they can refuse to talk to investigators. Their lawyers know. I would note in passing that this authority could only be exercised once approval is granted by a court upon application by the commissioner.

I would now like to address two vital matters that must be changed to maintain fundamental values of our electoral democracy. As they stand, these provisions will impact very negatively on the values of participation, impartiality, and transparency.

First there is Bill C-23's proposed abolition of the legal provision whereby one elector can prove his or her identity through vouching by another elector. This will directly affect the constitutional right to vote of a significant number of Canadians without justification. Strict measures surround the vouching process under the act allowing those electors who present themselves at their designated poll without the requisite documentary proof of ID and/or proof of address to establish them through another elector from the same poll who has already provided the required documentary proof to the satisfaction of the electoral officials.

The voucher takes an oath that the voucher knows the person to be vouched for and his or her address. The person being vouched for similarly takes an oath. One can only vouch for another once and a vouchee cannot vouch for someone else. In practice, in many cases vouching is employed in circumstances where there is no risk. In the majority of the cases, vouchers are related to the person for whom they are vouching and the person being vouched for may already be on the list of electors.

Moreover, Mr. Chairman, vouching is often used where proof of ID is provided and proof of address is lacking. For example, vouching occurs on reserves, which are defined territorially, and where the person being vouched for already possesses a status Indian card, acceptable proof under the Canada Elections Act. Each reserve usually constitutes one or more polls, and consequently the possession of such a card should constitute sufficient proof of address. It does not; hence the need for the vouching process.

Similarly, in the cases of students, poll officials obtain certifications by university housing authorities concerning those who reside in their residences. Again, this does not constitute sufficient proof of address. A large number of vouching cases take place in institutional residences where Elections Canada send revising agents as part of the targeted revision process during the election and determine who the residents are. Virtually all these facilities are designated mobile polls, when they don’t already constitute a regular poll, thus amounting to a totally controlled environment where the required proofs are already in the hands of election officials.

Mr. Chairman, the errors identified with the vouching process earlier in this committee have been administrative in nature, owing to failings of poll officials rather than being indicative of fraudulent voting. The resolution of this administrative problem lies in the simplification of processes, the rigorous application of the requirements by electoral officials, and the reinforcement of their obligations during their training.

I note the bill currently proposes to add greater certainty in circumstances where it appears at a poll that an elector's name has been crossed off the list in error, or it is purported that someone else has voted under that person's name. In such circumstances, the Canada Elections Act requires that the elector take an oath before being permitted to vote. The bill proposes to amend these requirements so that the elector will now be required to take the required oath in writing.

Amending the vouching provisions to require that the requisite oath also be given in writing will address the concerns which have been raised respecting vouching. There is a fundamental inequity when a federal statute requires documentary proof of identity and address before one can exercise a constitutional right, and no federal agency provides such proof in one readily available form.

Also, I wish to address Bill C-23's amendment to section 18 dealing with the Chief Electoral Officer's ability to communicate with the public, limiting it to four basic voting elements: who, when, where, and how, touching candidates as well.

The Chief Electoral Officer must retain the authority to reach out to all Canadians, to speak to them about our electoral democracy, the importance of our constitutional right to vote, and the methods and the values at the core of our electoral system. He speaks without regard to partisanship. Candidates and parties do so typically in a partisan manner with the legitimate purpose of obtaining their vote, which is not a problem.

The Chief Electoral Officer must be able to sustain important endeavours by academia such as the Canada election study, and by NGOs such as Student Vote and Apathy Is Boring. In total disclosure, I chair the latter's advisory council. We have a major problem of participation in our elections. Less than 40% of young people between 18 and 24 actually vote in this country right now.

The Chief Electoral Officer must retain the authority to provide the information requested by the media, and to share any information he deems pertinent with Canadians at any time. His overarching concern is the integrity of our electoral system. Any concern by a political party can be raised at the proposed advisory committee of political parties for consultation. It can also be raised at this very committee at any time.

Let me be clear. Absent the rescinding of the proposed section 18 in Bill C-23, Canadians will lose their trust and their confidence in our elections. That is not acceptable.

With these changes as proposed, Bill C-23 has the potential to maintain our electoral process and Elections Canada second to none in the world.

Thank you, Mr. Chairman.

[The Chair, Conservative, Joe Preston]

Mr. Kingsley, thank you very much for your opening statement.

We'll go to a seven-minute round.

Mr. Lukiwski, you're starting us off today.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Mr. Kingsley, for being here. It's good to see you again.

Mr. Kingsley, one of the things we haven't heard much of in the examination of this bill are the changes the bill proposes to the political financing regime. I think that's a very important aspect of this bill.

I'd like to get your take on that. I'd like to get your analysis on the changes this bill proposes, particularly on the attempt to take big money out of the election financing regime, particularly taking big money out from corporations and unions, and to also ensure political parties are not able to skirt donation limits through unpaid loans, which we have seen in years past, and testamentary donations.

Could you please comment on what your analysis of this bill does with regard to those items?

[Jean-Pierre Kingsley]

I think I alluded to loans and unpaid claims. Loans become unpaid claims after three years.

In my view this is a very good attempt to come to grips with the problem which exists when you have a regime that regulates money as well as the Canadian system does. Frankly, our system is the best in the world. It's as simple as that. This bill does not affect that in my view. The limits are increased in certain places. I find that acceptable. They do not thwart the purpose of the regime.

With respect to loans, several measures are put in place here so there is less of a need for loans as well as the fact the loans can come from financial institutions only. This is all meant to prevent the back door to the scheme that we have come up with, this very good system we have to regulate money. I think the bill is a reasonable attempt to come to grips with this.

I think your committee should be looking at this in a year or two, or several years after the next general election, to see how well people were able to adapt to that.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

For the purposes of those Canadians who may be watching and listening who aren't aware of how political parties and candidates frankly in the past have been able to skirt donation limits through unpaid loans, could you please give an example.

For example, I know there are many questions and many comments that all parties have made criticizing the Liberals because of unpaid leadership loans in the past.

Could you please give a framework of how the current system works, and how it can be abused, and how the changes in this bill would regulate those?

[Jean-Pierre Kingsley]

I'm sure that Canadians who follow this are aware of this. Essentially the issue is, especially when there are leadership campaigns or other candidacies just to be elected to the House, one can obtain loans, and the regime for reimbursement has not been clear under the statute, and therefore some of those loans have remained unpaid over time. The Chief Electoral Officer has told us that the regime is unenforceable, and I must accept that. Therefore, this is why I consider this to be a very reasonable attempt to come to grips with that.