Bill C-23 (Historical)

Fair Elections Act

An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts

This enactment amends the Canada Elections Act (“the Act”) to require the Chief Electoral Officer to issue interpretation notes and guidelines on the application of that Act to registered parties, registered associations, nomination contestants, candidates and leadership contestants. It also requires the Chief Electoral Officer, on request, to issue a written opinion on the application of provisions of the Act to an activity or practice that a registered party, registered association, nomination contestant, candidate or leadership contestant proposes to engage in.
The enactment also modifies the Chief Electoral Officer’s power under section 17 of the Act so that the power may only be exercised to allow electors to exercise their right to vote or to allow votes to be counted. It also limits the Chief Electoral Officer’s power to transmit advertising messages to electors and requires the Chief Electoral Officer to ensure that any information so transmitted is accessible to electors with disabilities.
The enactment further amends the Act to permit the Chief Electoral Officer to seek approval from parliamentary committees to test an alternative voting process (but where such a pilot project is to test a form of electronic voting, the Chief Electoral Officer must first obtain the approval of the Senate and House of Commons). The enactment also eliminates the mandatory retirement of the Chief Electoral Officer at age 65 and replaces it with a 10-year non-renewable term. It provides for the establishment of an Advisory Committee of Political Parties to provide advice to the Chief Electoral Officer on matters relating to elections and political financing. The enactment also amends the Act to provide for the appointment of field liaison officers, based on merit, to provide support to returning officers and provide a link between returning officers and the Office of the Chief Electoral Officer. It also enables the Chief Electoral Officer to temporarily suspend a returning officer during an election period and provides for the appointment of additional election officers at polling stations. Finally, it empowers registered parties and registered associations, in addition to candidates, to provide names of individuals for election officer positions and changes the deadline for providing those names from the 17th day before polling day to the 24th day before polling day.
The enactment also adds to the Act Part 16.1, which deals with voter contact calling services. Among other things, that Part requires that calling service providers and other interested parties file registration notices with the Canadian Radio-television and Telecommunications Commission, provide identifying information to the Commission and keep copies of scripts and recordings used to make calls. That Part also requires that the Canadian Radio-television and Telecommunications Commission establish and maintain a registry, to be known as the Voter Contact Registry, in which the documents it receives in relation to voter contact calling services are to be kept.
The enactment also replaces Part 18 of the Act with a new, comprehensive set of rules on political financing that corrects a number of deficiencies in the Act. Notably, the enactment
(a) increases the annual contribution limits for contributions to registered parties, registered associations, candidates and nomination and leadership contestants to $1,500 per year and by $25 per year after the first year;
(b) increases the amount that candidates and leadership contestants may contribute to their own campaigns to $5,000 and $25,000, respectively;
(c) permits registered parties and registered associations to make transfers to candidates before their nomination is confirmed by the returning officer;
(d) requires a registered party’s auditor to complete a compliance audit in relation to its election expenses return indicating that the party has complied with the political financing rules;
(e) requires registered parties, registered associations and candidates to disclose details of expenses for voter contact calling services in their returns;
(f) reforms the rules governing unpaid claims, making it an offence for claims to remain unpaid after three years and strengthening the reporting of unpaid claims;
(g) reforms the reporting requirements of leadership contestants;
(h) permits higher spending limits for registered parties and candidates if an election period is longer than the 37-day minimum;
(i) includes new rules on political loans; and
(j) defines “capital asset” for the purposes of reporting the distribution cost of advertising or promotional material transmitted to the public using a capital asset, so that the expense is reported as the corresponding rental value for the period in which it was used, and for the purpose of the disposal of the campaign surplus.
With respect to voter identification, the enactment amends the Act to require the same voter identification for voting at the office of the returning officer in an elector’s own riding as it requires for voting at ordinary polls. It also prohibits the use of the voter information card as proof of identity, eliminates the ability of an elector to prove their identity through vouching, allows an elector to swear a written oath of their residence provided that their residence is attested to on oath by another elector, and requires an elector whose name was crossed off the electors’ list in error to take a written oath before receiving a ballot.
The enactment also amends the Act to provide an extra day of advance polling on the eighth day before polling day, creating a block of four consecutive advance polling days between the tenth and seventh days before polling day. It requires a separate ballot box for each day of advance polling and details procedures for the opening and closing of ballot boxes during an advance poll. Finally, it gives returning officers the authority to recover ballot boxes on the Chief Electoral Officer’s direction if the integrity of the vote is at risk.
The enactment also amends the Act to, among other things, establish a process to communicate polling station locations to electors, candidates and political parties, to provide that only an elector’s year of birth is to be displayed on the lists of electors used at the polls, instead of the full date of birth, to permit candidates’ representatives to move to any polling station in the electoral district after being sworn in at any polling station in the district and to establish a procedure for judicial recounts.
The enactment further amends the Act to change how the Commissioner of Canada Elections is appointed. It establishes that the Commissioner is to be appointed by the Director of Public Prosecutions for a seven-year term, subject to removal for cause, that the Commissioner is to be housed within the Director’s office but is to conduct investigations independently from the Director, and that the Commissioner is to be a deputy head for the purposes of hiring staff for his or her office and for managing human resources.
The enactment also amends the Act to add the offence of impersonating or causing another person to impersonate a candidate, a candidate’s representative, a representative of a registered party or registered association, the Chief Electoral Officer, a member of the Chief Electoral Officer’s staff, an election officer or a person authorized to act on the Chief Electoral Officer’s or an election officer’s behalf. It also adds the offences of providing false information in the course of an investigation and obstructing a person conducting an investigation. In addition, it creates offences in relation to registration on the lists of electors, registration on polling day, registration at an advance polling station and obligations to keep scripts and recordings used in the provision of voter contact calling services.
The enactment further amends the Act to provide for increases in the amount of penalties. For the more serious offences, it raises the maximum fine from $2,000 to $20,000 on summary conviction and from $5,000 to $50,000 on conviction on indictment. For most strict liability offences, it raises the maximum fine from $1,000 to $2,000. For registered parties, it raises the maximum fine from $25,000 to $50,000 on summary conviction for strict liability political financing offences and from $25,000 to $100,000 on summary conviction for political financing offences that are committed intentionally. For third parties that are groups or corporations that fail to register as third parties, it raises the maximum fine to $50,000 for strict liability offences and to $100,000 for offences that are committed intentionally and for offences applying primarily to broadcasters, it raises the maximum fine from $25,000 to $50,000.
The enactment amends the Electoral Boundaries Readjustment Act to authorize the Chief Electoral Officer to provide administrative support to electoral boundary commissions. It amends the Telecommunications Act to create new offences relating to voter contact calling services and to allow the Canadian Radio-television and Telecommunications Commission to use the inspection and investigation regime in that Act to administer and enforce part of the voter contact calling services regime in the Canada Elections Act. It amends the Conflict of Interest Act to have that Act apply to the Chief Electoral Officer. It also amends the Director of Public Prosecutions Act to provide that the Director of Public Prosecutions reports on the activities of the Commissioner of Canada Elections.
Finally, the enactment includes transitional provisions that, among other things, provide for the transfer of staff and appropriations from the Office of the Chief Electoral Officer to the Office of the Director of Public Prosecutions to support the Commissioner of Canada Elections.

Fair Elections Act

[The Speaker, Andrew Scheer]

Order, please. That sounded a bit more like debate. I believe the bill is before the House, so there is no need to table it. Perhaps the section is contained in the bill. It is probably a good point for a future question and comment, or for another opportunity to debate, but not on a point of order.

The hon. member for La Pointe-de-l'Île.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, investigations by the Chief Electoral Officer will no longer necessarily be a priority. This is like taking away the RCMP's power to investigate Criminal Code offences.

Not only will the Chief Electoral Officer no longer be transparently and democratically accountable to Parliament, but he also will no longer be able to talk about potential investigations or fraudulent activities. He is being stripped of not only his integrity, but also his freedom of expression.

[James Bezan, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, I am very pleased to be able to stand and address the House today on the fair elections act.

I want to inform the House that there are a lot of great things in the fair elections act. All of us have been talking about the need to crack down on rogue callers, impersonations, and people who have committed fraud, and we want to make sure those things are cleared up.

We also want to talk about modernizing, making some minor increases in donations, again focusing on those small donations and keeping out unions, businesses, and big corporations, so they do not take over the financing of political parties, local candidates, and their campaigns.

We want to make sure we continue to uphold free speech, provide better customer service, and increase voter opportunities to participate in the electoral process.

I do want to focus on my recent ordeal with Elections Canada, which I had to go through over the last 14 months. As I have said right from the beginning, my legitimate right to take my place here in the House of Commons as the elected member of Parliament for Selkirk—Interlake was never in question. The writ came in. It is secure. I was overwhelmingly supported by the constituents of Selkirk—Interlake.

We have to remember that the dispute was about my campaign election return and the financing of that campaign. It came down, specifically, to my member of Parliament highway signs. At the get-go, I just want to say I am a member of Parliament who represents a riding that is geographically larger than Nova Scotia. It is necessary, as members of Parliament, to try to reach out to our constituents in every way possible.

I used highway signs, large billboards that I own, paid for with my operating budget. These signs were built over a number of years, going back to 2005. We used different contractors and different materials. It creates a little confusion about the invoices: who did what, what sign is in what location, and which sign is made out of what? That became a bit confusing for everyone involved: Elections Canada, my campaign, and even my office, in trying to provide all the details and going over that timeframe.

Elections Canada knew about those signs. In 2008, we claimed those signs in our return on a formula that had been discussed with local Elections Canada officials and through the audit process. Not only did Elections Canada know about those signs in the 2008 general election, but it determined that they were not a campaign expense and moved them out of our return into a non-contribution expense to the campaign.

That, in itself, provided us with some idea of what Elections Canada was thinking about member of Parliament signs back in 2008.

In 2011, we used the same formula because we thought it was okay. It had been audited and approved in our official return of 2008. Then there started to be some questions, back and forth, with Elections Canada.

While we were able to provide Elections Canada with the information detail it needed, all of sudden the Chief Electoral Officer made the decision that it wanted all production costs in, even though the other formula we had before was approved in the past.

This speaks to why we need to have a rule system that everybody can follow and that cannot be changed on a whim. If it has been accepted in one election, then there needs to be proper notification if it is going to be changed in the future. We thought we were within the rules.

Based on hearing it was not applicable, we looked at the Elections Canada campaign handbook. In there is the guideline that says:

Some signs can be used for more than one election. If a campaign...in a second or subsequent election, the amount that the official agent shall record as a non-monetary contribution or transfer from an election expense is the current commercial value for similar signs. If the campaign refurbishes, restores or repaints used signs, the value that the official agent should record is the amount it would cost to purchase a sign similar to the restored sign.

That is right out of the handbook. The Chief Electoral Officer said no, even though we were able to prove what a commercial sign would cost using our own experience from recovering and refurbishing those signs and having those production costs right there. He refused it, even though that is what I filed in our corrected return on May 5.

That subsequently resulted in his writing to you, Mr. Speaker, saying that I should not be allowed to sit for a vote in the House of Commons.

It is an affront to democracy when the Chief Electoral Officer tries to take away the voice of the people of Selkirk—Interlake. He tried to quash the democratic will of the constituents of Selkirk—Interlake. That should never be allowed to happen unless something extremely fraudulent arises that tampers with the election result. When we are having a dispute over accounting practices, an interpretation of guidelines, and the act, that should be resolved in a formal discussion process between Elections Canada and our campaigns.

Let us remember that our campaigns are run by volunteers. The local Elections Canada staff are temporary staff. They are there just during the writ period. It becomes quite difficult to have a discussion with Elections Canada in Ottawa when it is overturning everything that is happening at the local level.

Just to make things clear, we were able to settle this dispute out of court. Even though I did exercise my right under the act to pursue this in a court of law, we were able to resolve it out of court.

Elections Canada accepted the commercial value of my signs, which we submitted on May 5, at $518 per sign, and I was under my expense limit. The difference between the return I filed on May 5 and the return we filed last month was only $458.

Let me repeat that. For $458, and when I was below my Elections Canada allowable expense limits for my campaign and for me personally, I would have been removed from this House of Commons because of a cynical question of privilege that was dealt with through the procedure and House affairs committee.

The bill is about making a change, through the fair elections act, to respect democracy and respect voters wishes and to try to resolve these administrative issues without having to be bullied or forced into embarrassing situations. This is about tarnishing one's reputation, especially when other members in this place and in the media start making accusations that have no basis whatsoever. We want to make sure that changes.

One of changes, which I think all of us should support, would be modernizing Elections Canada. Right now Elections Canada is the only government agency where all the powers are concentrated in the hands of one person. It is very monolithic.

Elections Canada is the administrator, the educator, the adviser, the adjudicator, and the enforcer. I do not know of any other government agency that has everything wrapped up in one monolithic structure without an appeal mechanism. In every organization we have, whether it is CRA, government departments, ombudsmen, who are independent, appeal boards, tax courts, and things like that, people have their rights protected, but not under Elections Canada.

I really feel, through my personal experience, that some of my rights were not respected, not just here in the House but in the course of due process and the rule of law.

The bill would split the elections commissioner from the Chief Electoral Officer and make two independent bodies. We have to remember that currently not only does the Commissioner of Canada Elections have to report to the CEO but his staff, for all actions, are under the control of the Chief Electoral Officer. It is important that we provide independence and a situation whereby they work not only independently but without bias and that they are able to make the correct decisions on enforcing these rules.

We would be providing more power to the commissioner to punish true fraud and rule-breaking. As the Minister of State (Democratic Reform) has said, the legislation gives sharper teeth, a longer reach, and a freer hand to the commissioner.

I want to close by saying that we should look at what I have gone through and why it is important that we need to change it. It can happen to any one of us over a dispute about something as small as $500. It should never happen that any one of us could be taken out of here and the will of our constituents not be respected.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Mr. Speaker, I found my hon. colleague's speech quite revealing. It seemed that he was using the opportunity to in some way defend himself against the letter written by the Chief Electoral Officer.

I am not sure why he believes that taking the commissioner of elections out of the Office of the Chief Electoral Officer and putting him under the ministry of justice is suddenly going to change the situation he has described. The reality is that when elections occur, there are rules. The Chief Electoral Officer was ensuring that everyone followed those rules, and he had cause to be concerned that those rules had not been followed and was perfectly within his authority to send a letter to the Speaker.

What is really required are the teeth that my colleague is talking about. That is where the government has singularly failed to come up with the kind of legislation we need. What matters is not moving the commissioner out of the Office of the Chief Electoral Officer, but giving him more teeth.

What are those teeth he is talking about?

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, the member mentioned that the Chief Electoral Officer was just following the rules. Yesterday, the Chief Electoral Officer appeared at the procedure and House affairs committee and was asked by the member for Winnipeg North on a number of occasions how many times he had had to send a letter to the Speaker requesting that the House not allow a member to sit or vote. He revealed that he has only done it a couple of times. He says it is a common practice and something that has been going on since this rule came into effect in 2001.

I can tell the House that his answer is revealing. It has only been done twice, with me and the member for Saint Boniface. That was revealing, as it only happened in one month out of that entire 14 years. That is disturbing in itself.

Usually, Elections Canada—

[The Speaker, Andrew Scheer]

I will stop the member there because I see other members rising.

The hon. member for York South—Weston.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I appreciate the comments of the member opposite, but I heard him suggest to the House that the Chief Electoral Officer bullied him. As was the case in Toronto with the mayor when he was threatened with removal from office, the law is a clumsy and sometimes forceful animal, so if the law says the mandatory minimum for a particular breach is a letter to the Speaker saying a person cannot sit, then the Chief Electoral Officer was merely acting according to the law. That is not bullying.

I regret that the government seems to have taken the same position as a hockey team would when it does not agree with the decision of a referee and does not like the referee, but most hockey teams do not have the authority to remove the referee and fire him. However, that seems to be what the government is doing in response to this activity.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, the Chief Electoral Officer is not the referee but the scorekeeper. The referee is the commissioner. Let us make sure that we get the game straight: the scorekeeper should not be interceding in these affairs.

Yes, I do feel like I was bullied and intimidated. On page 113 of O'Brien and Bosc, Speaker Bosley is cited as saying:

The intimidation by government officials of Members and their staff in carrying out their parliamentary functions has been considered a prima facie breach of privilege.

Therefore, it is our right to be here and government officials should not intimidate us as members of Parliament in doing our jobs.

[Jeff Watson, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, I am not sure that members opposite understand the current system right now. The commissioner of elections does not lay a charge; it is the Director of Public Prosecutions who lays charges under the Canada Elections Act currently. I would point to a case in 2013, where a Liberal candidate did not file an election return. All we are doing is formalizing that relationship.

In this act, the CEO of Elections Canada cannot direct an investigation, but he can still seek it from the elections commissioner. Is that not true?

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I can confirm that the Chief Electoral Officer can refer cases, or things that he thinks should be investigated, to the commissioner, and the commissioner would have more power and more opportunities to investigate and charge individuals who violate the act.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, it is my privilege and pleasure to join the discussion on a bill that is very important to all Canadians. Bill C-23, purportedly the fair elections act, seems to improve in some ways the electoral system for all Canadians, but in other ways there are some significant shortcomings.

The good news is that after repeated calls by our party, repeated promises by the government, and repeated pleas from Elections Canada, the government has finally tabled a bill. We hope the bill will proceed and that it becomes law before the next election. Of course, only the Prime Minister knows exactly when that will be.

We are pleased that the bill is finally before us, but what we are not pleased with is that the government has called closure on this very extensive bill. The current Canada Elections Act is over 300 pages long. These amendments are comparable in length. It is clearly a complex bill and one of great importance to all Canadians in ensuring that they have equal rights to vote and that any voter fraud is prevented, first and foremost, and then responded to.

Now we have this fast-tracked debate. I will do my best in my 10 minutes to raise some of the issues that have been raised by Canadians.

What is equally important, though, is that it is one thing to pass a law but another thing to put in place the administrative system so that the law will be in place and that Canadians will actually be supported to vote.

There are a number of measures in the bill. As a former enforcer, I am pleased that the government has chosen to increase the penalties to $50,000. We had proposed $500,000 because there are some egregious potential offences under this law, and Elections Canada had called for $250,000. It is nice to have an increase, but regrettably, the proposed penalties remain too low.

Some of the proposed measures that are causing concern are the changes to the powers and the mandate of Elections Canada. One of those areas is the power of Elections Canada to promote electoral engagement, to encourage and enable Canadians to vote.

The bill would significantly narrow the education mandate of the head of Elections Canada. Right now, that mandate is very broad. For example, he can implement public education information programs in order to make the electoral process better known to the public, particularly to persons who experience difficulties in exercising their voting rights.

He may also use any means to provide the public, inside or outside of Canada, with information on the electoral process. That is being removed. As well, the educational mandate of the Chief Electoral Officer would be significantly reduced. It would be reduced to simply letting people know where, when, and how to vote. It is definitely a step backwards.

One of the most important measures we need to take is to encourage Canadians to vote and to tell them ways that would make it easier for them to be enumerated. Then, when they get to the polls, they have to be able to exercise their right to vote.

I am very concerned about this backpedalling.

Voter disengagement is a very serious problem as well. The government, in its wisdom, because it had found a relatively higher error in vouchers, has therefore decided it will just throw the baby out with the bathwater. However, we are told that the reason some vouchers were judged invalid was simply that elections officers lacked experience, not that the person seeking the voucher support was unqualified to vote.

As a result, we are very deeply concerned. That measure would potentially disenfranchise more than a hundred thousand voters, particularly youth and first nations. At a time when we are trying to get youth more engaged in elections, we should not be increasing barriers to their voting rights.

I can certainly testify to the many incidents we found in my own riding when I ran for office. Not only students but also many long-time residents found that they had not been enumerated or had been put on the wrong list. They spent the day running from voting poll to voting poll. Some just gave up and were not able to vote.

With regard to students, in many cases advance polls are held during exams, which makes it difficult for students to get to those polls, or are held in places with no bus service. My volunteers actually set up a votemobile that helped students, no matter how they were voting, to get to those polls.

Therefore, there are a lot of very pragmatic measures as well as legal changes that the country really has to dedicate itself to.

The government in its wisdom says it is going to add additional days to vote, but student exam time, as I am sure the parliamentary pages will testify, spans quite a long time period. They will be so preoccupied with trying to get the best marks possible and a good job when they graduate that they may be distracted. We need to make sure that those advance polls are readily available to students who are studying and can vote.

One area that I want to speak to in particular is the enforcement regime. In speaking to this legislation, government members have said that it would implement a system that would ensure a more effective enforcement compliance regime. Nothing could be further from the truth. The government is going to move the office of the commissioner into the Office of the Director of Public Prosecutions, but strangely, this will be the only enforcement office reporting to the Director of Public Prosecutions.

I fully applaud the government for understanding the important concept of separating the administrative and the permitting functions of a government regulatory agency from the enforcement and compliance functions. The norm in this country for quite some time has been for the enforcement and compliance entity to report to the relevant minister, and in this case it would be the Chief Electoral Officer. There is absolutely no rational reason for moving this office to the office of the public prosecutor.

I would like to point out that the mandate of the Director of Public Prosecutions has not been changed whatsoever. His mandate already includes advising law enforcement agencies or investigative bodies in respect of prosecutions. He does not advise them in the course of investigations; that is still the duty and function of the investigative unit of Elections Canada.

Personnel in an enforcement office should be well informed on the legislation they are going to enforce, in this case the elections act, and also well informed and trained in investigative and enforcement mechanisms. In this case, we would be separating the commissioner for elections completely from the office of elections. As I understand it, the government wants to make sure that the commissioner has not been employed by Elections Canada. This is possibly a big mistake. We need to make sure there is a closer linkage. That is a deep concern to me.

In addition, this legislation would not deliver the new enforcement powers that the Chief Electoral Officer has understandably called for. As a former enforcement officer, I fully understand why he has asked to have the power to compel witnesses to come forward and to provide testimony, and the power to demand financial documents from political parties. It is absolutely absurd that investigators, in order to do an effective investigation, will need to seek a court order each time they want information or approach someone to provide important information. That barrier is not in place for any other regulatory enforcement agency. The government is taking a step backward rather than a step forward to ensure effective enforcement.

Secondly, the government is not talking about having an enforcement and compliance strategy and policy for more effective and consistent delivery of its powers. We heard a Conservative member complaining about how he felt he was being prejudicially treated by Elections Canada in its exercise of its powers. The best remedy for that is to have a public and consistent enforcement and compliance policy.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, we heard the member for Selkirk—Interlake's story earlier.

I have a question on some of the problems under the elections act that need to be solved.

I had an incident in my riding in the last election as well. The chief of staff of former minister of public safety Vic Toews spent three weeks in my riding working on the campaign. He lived in a basement, yet we know he is paid $160,000 per year—

[An. hon. member]

It is leave without pay.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I do not know, because we never applied under access to information whether or not he was on leave while he was there.

The fact of the matter is that we knew that through a minister's office that a certain candidate in an election was being targeted.

Is there any way under the elections act that should be covered?

[Some hon. members]

Oh, oh!