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.

Democratic Reform

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, on March 25, I asked during question period whether the minister would fix the real electoral problem and make our electoral system more proportional. The answer I received at the time was completely irrelevant to the question that I posed. I hope the parliamentary secretary will attempt to provide a more on-topic response this evening.

Unamended, Bill C-23 could have prevented thousands of Canadians from voting, and likely violated the charter in the process. I am pleased to see that the minister of state has finally agreed to amend at least some of the most anti-democratic aspects of this legislation, but only after thousands upon thousands of Canadians stood up against this bill.

However, the fact remains, that the real problem facing Canadian democracy is our first-past-the-post, antiquated, unfair, and undemocratic electoral system, which delivered 100% of the power to the party that received less than 40% of the vote in the last election. What is the primary symptom of that? Many Canadians believe their vote will not count, and increasingly they remain home on election day. Too few voters is our problem in Canada, not too many. As many voters stayed home during the last election as voted for the governing party. This appears to suit the Conservatives just fine.

What is the solution to this crisis in our democracy? The answer is to move to a more proportional voting system where every vote counts, and all Canadians have a genuine opportunity to have an equal say in selecting their government. First-past-the-post probably harms the electoral prospects of the Greens more than any other party. For example, in 2011, despite receiving almost 600,000 Canadian votes, the Green Party of Canada was only allowed one member in Parliament. In a proportional system where every vote counted, as in the vast majority of countries with real elections, these same 600,000 Canadians would have elected 12 Green members to Parliament.

However, our electoral system does not target only Greens; it disenfranchises voters from coast to coast to coast whose ballots, whether cast for Conservatives, New Democrats or Liberals, are not reflected at all in the make-up of the House of Commons today. This huge group of Canadians of all political stripes cheated out of their votes adds up to approximately half of all eligible voters. Can we really be surprised that 40% of Canadians could not be bothered to cast a ballot in 2011?

However, there may be hope. I see hope in the thousands of Canadians who spoke out against the Conservatives' unfair elections act, forcing them to accept amendments to Bill C-23. I also see hope in the widespread support that has greeted the important private member's bill, the reform act by the Conservative MP for Wellington—Halton Hills, which would allow MPs to return to working for their constituents.

After eight years under this administration, these questions are increasingly understood as central to the health of our democracy. Electoral reform and restraining the centralized power of the Prime Minister and other party leaders must be understood as central to fixing the crisis in Canadian democracy and restoring Canadians' faith in our government.

I ask this question again. Rather than attempting to invent some fake plague of voter fraud, are the Conservatives prepared to fix the real problem facing Canadian democracy? And what are they prepared to do to ensure that every vote actually counts?

[Craig Scott, NDP, Toronto—Danforth, ON]

I will move amendment NDP-20. This concerns the registration offices.

The system in question within the Canada Elections Act and tweaked by Bill C-23 again involves a system of appointing after nomination lists from parties; those lists can be closed, so that becomes, de facto, pure nominations. Again, to be consistent, this is a whole package, which this would have been if we'd been succeeding on each vote, and it states, “Each registration officer shall be appointed by the returning officer on the basis of merit, following a process that is fair and transparent.”

I should also say that if the government MPs had been onside with this, towards the end of these amendments this would have been NDP-22, closing out the package. Having listened a bit to what the government was saying on their own concerns, we would have proposed the following: that the Chief Electoral Officer shall publish guidelines on the criteria and procedures associated with appointing electoral workers on the basis of merit, following a process that's fair and transparent.

We would have put in a “for greater certainty” clause showing that persons associated with political parties and persons nominated by candidates of parties in any election are fully entitled to be appointed on the same basis as any other person. Also, we would have created a mechanism, not a cumbersome one, but a basic way in which parties could direct people to Elections Canada or the returning officer to make sure they are considered under this process.

If we had succeeded with deputy returning officers, poll clerks, and now the registration officer—I've realized that we're not going to succeed—we would have been trying to assuage some of the concerns of the governing side, in that this process nonetheless would have produced appointments of election day officials that are, in our view, let's just say, fit for the 21st century.

We do think that elections commissions around the world generally are responsible for the appointment of election day workers. Scrutineers are the party's business. Election day workers should be Elections Canada's. That is why this is the third of the three amendments, and I hereby move it.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, the Conservatives failed to submit an amendment to Bill C-23 to give the Commissioner of Canada Elections the power to compel testimony. Well, I wonder why.

The Conservative Party knew that the commissioner did not have this power, and that is why it ordered other Conservatives not to co-operate in the investigation of election frauds.

Liberals have submitted the amendments.

Will the minister finally do the right thing and support this amendment, or will he continue to protect Conservatives from election fraud investigations?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, sir.

We're now looking at the makeup of the committee that we were just debating, the advisory committee of political parties.

My amendment, Parti vert 19, is all about the scope of the work of that committee. My amendment proposes to expand the scope of the work by adding these words after what is found on page 11. At lines 8 to 9, it says, “The purpose of the committee is to provide the Chief Electoral Officer with advice and recommendations...”. My amendment would pick up to say:

—related to increasing voter turnout, public participation in the political system, electoral reform and fairness of the electoral system, and upholding principles of fairness and access with regard to political financing.

That encompasses more than the words that are currently in Bill C-23.

As you can imagine, Mr. Chair, there's a substantial movement across Canada that believes that any fair elections act starts with actually making elections fair and making sure that every vote will count. While it would have been beyond the scope of this bill to put forward an amendment that Bill C-23 actually put in place proportional representation, say, mixed member proportional, this amendment would at least draw some attention of the advisory committee of political parties to the issue of electoral reform, among other topics that are listed here in PV-19.

Thank you, Mr. Chair, for the chance to present this amendment, deemed presented by others in a process which I oppose, but here I am.

[Craig Scott, NDP, Toronto—Danforth, ON]

Yes. This goes back to Monsieur Bellavance's earlier amendment that I foreshadowed in my comments.

So that everybody knows, effectively, at the moment, the Canada Elections Act allows for the Chief Electoral Officer to carry out studies on voting that include alternative voting processes. It could be different ways to organize polls, it could be.... You can imagine what that might mean. It also would include e-voting, electronic voting, as a test or an alternative process.

At the moment, this committee and an equivalent or a parallel Senate committee are the only ones that have to give permission for such tests. What the government has done in Bill C-23 is it has taken one alternative process out of all the others, that's e-voting, and made it subject to the plenary approval, that is, the entire House of Commons and the entire Senate. It's no longer within this kind of committee structure.

Now, e-voting is not just of interest to the younger generation and the Internet-connected generation; it's of interest to anybody who believes that at some point in time the combination of security, efficiency, and encouraging people to vote is going to require us to at least have e-voting as one feature of our system, and we want to be ready. To me, this signals a structural reluctance to even test it. It's also, in some sense, I have to say—I'm speaking clearly as an NDPer here—offensive to add to the authority of the Senate in testing on something that's involving electoral process. Symbolically, it's nuts. I honestly do not see the logic here beyond wanting to create extra hurdles for this one process.

In committee, we had an interesting perspective. I think some of you might remember my saying to the witness, “I hadn't thought about that.” It was disability rights witnesses. In particular, the Canadian National Institute for the Blind, if I'm not mistaken, were specifically expressing real concern about this. That also probably involves people with mobility disabilities too; it's less likely for them to easily get out to vote. They basically said that this is a provision that doesn't just affect students, but it's the kind of provision that affects them, because it's through e-voting that they can imagine they would be more included in the electoral process.

I'll end there and simply appeal to the government to let it go back to the way it was and not have this extra hurdle that involves not just us in plenary session, but the Senate.

[Craig Scott, NDP, Toronto—Danforth, ON]

This would modify the proposed new section 18.01. I think it will be helpful if I read what proposed section 18.01 of Bill C-23 says. It's very short:

The Chief Electoral Officer may, at the Governor in Council’s request, provide assistance and cooperation in electoral matters to electoral agencies in other countries or to international organizations.

We heard testimony from the CEO of the Northwest Territories, who actually expressed in quite eloquent terms considerable concern about this, because his view was that, as written it looks to any external agency as though Elections Canada is a foreign policy arm of the Canadian government when it interacts with foreign election commissions or with international organizations' elections operations. The practice tends to be—but I'm not sure it really needs to be stuck in a bill—that the Chief Electoral Officer doesn't go and interact and do missions without having sounded that out and having obtained approval from cabinet.

I think it is a big mistake to include it in the bill, because doing so sends a signal of a compromised independence. For that reason my amendment would delete the words “at the Governor in Council's request” and simply would give him that authority, which he already has.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

That's where I am.

As we know, the current version of Bill C-23 lists specific measures as the only measures that the Chief Electoral Officer may communicate directly with the public about. It says ''with information on the following topics only''.

My amendment offers a new paragraph 18(1)(f) to extend that new subsection 18(1). It would now be paragraphs (a) to (f), and the (f) would make it, as previous motions from other parties have attempted to do, that the Chief Electoral Officer may also provide the public, both inside and outside of Canada, with:

any other information that the Chief Electoral Officer considers necessary for increasing the participation, in the election and in the political process generally, of any segments of the Canadian public that have been historically underrepresented.

Again, looking over Preston Manning's testimony and that of many other groups, whether indigenous groups, low-income groups, it is strongly supported across Canadian society that the Chief Electoral Officer should have this catchphrase at the end of this list of things that he is specifically entitled to use for educational purposes for those groups that are historically under-represented in the political process.

It doesn't do any significant damage to Bill C-23 in terms of structure. I hope the Conservatives opposite will give it a fair consideration because it would certainly, I think—I can't speak for the official opposition or any other party, obviously—just make the overall reception of this act....

I do want to say on the record that I'm pleased with the government amendments. It's great to have the voices of so many critics and the public in general heard on this matter. It's important for Canadians to know that when they raised their voices and organized demonstrations and did all kinds of things to get the attention of the Minister of State for Democratic Reform, they were heard.

They were heard, and the door opened a crack. Let's open it all the way.

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

There was a pitcher of water in front of you. My apologies, Scotty knows I love him.

I have two quick points.

Number one, I take great issue with Mr. Scott who was saying in effect that this would be voter suppression of other demographics. How in the world could you be suppressing the vote when we're saying that Elections Canada should be extensively advertising, telling people how, where, and when to vote? That's telling them to get out and vote and here's how to do it. How in the world could you consider that to be voter suppression?

The other point I'll make very briefly is this. I take great issue with Mr. Christopherson's continued mischaracterization of the fact that he believes, or at least he contends, that Bill C-23 muzzles the Chief Electoral Officer. It does nothing of the sort. This clause only deals with advertising. If Monsieur Mayrand wants to go out and appear on one of the political panels here in Ottawa, he can do so. If he wants to hold a news conference, he can do so. If he wants to go and speak at a university, he can do so. He is not being muzzled and that is apparent. So at the very least, at the very least, Mr. Christopherson is being extremely disingenuous. This bill does not attempt in any way, shape, or form to muzzle the Chief Electoral Officer.

Thank you.

[David Christopherson, NDP, Hamilton Centre, ON]

All right.

It's hard, Mr. Chair, to extrapolate from 17.1 as presented and as defined by our staff and the minister's commitment that he could say whatever he wants. I see the member shaking his head and I'm willing to listen when we get that chance. I asked rather methodical questions. He has the power to do this now with the general public but Bill C-23 all but shuts it down completely, and 17.1 pries it open, but only to the extent of primary and secondary students. They still can't do partnership programs with other community groups that target other populations that are not in secondary school or in primary school.

Is that correct? If you need to further refine that, I'm listening.

[David Christopherson, NDP, Hamilton Centre, ON]

Yes. My question went a little further than that, sir.

Right now, my understanding is—I'm a layperson, so I'll use layperson's language—that the Chief Electoral Officer can partner with any group in Canada and can initiate any program that's directed to any segment of the population or the general population with the sole purpose of trying to instill in people why it's important to vote. That's my understanding of the current law. Bill C-23 as tabled all but eliminated that.

The amendment the government is bringing in, which I would think is supposed to honour the commitment that the minister made publicly, only releases the CEO. He's got everything right now, and in the current bill practically nothing, and now proposed section 17.1 would open it up and allow the Chief Electoral Officer to do these information and education programs, providing they're only targeted to primary students and secondary students.

Is that correct?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

I think the wording used in the bill is fairly clear. In fact, section 18 states the following: “The Chief Electoral Officer may provide the public, both inside and outside Canada, with information on the following topics only [...]”.

So I think it's very legitimate to feel that the Chief Electoral Officer is being muzzled and that the government wants to make sure he can no longer communicate with the public on any topics other than those set out in the bill.

In addition, as my colleague just pointed out, the minister told us that this was not at all what the bill contained. Therefore, if the minister is saying so, I have a hard time understanding why the Conservatives are refusing an amendment that only clarifies things so as to remove any risk of the Chief Electoral Officer being muzzled. I think this is one of the most dangerous provisions of the bill. A steady line of witnesses have told us how important it was to give the Chief Electoral Officer the power to speak about any topics he deems appropriate. Even Preston Manning said that section 18 should be removed. I am having difficulty understanding how someone can vote against an amendment that simply confirms the minister's statement to the effect that this was untrue and that the bill was doing no such thing. Why not confirm that? Why not set it out, in black and white, to eliminate any doubts?

If we consider the government members' general comments about the Chief Electoral Officer, I think it's normal to have serious doubts about that party's intentions. There really seems to an element of vengeance against the Chief Electoral Officer. I think we definitely need to ensure that the bill's wording is clear and specific, so that the Chief Electoral Officer cannot be muzzled like he currently is under Bill C-23. That's why I will vote in favour of this amendment.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I'll try to make it interesting, something like that old joke about Liz Taylor and the seventh husband, but anyway....

This is a very important amendment, because section 18 of the existing act is important. Bill C-23 would eliminate the positive proactive measures the Chief Electoral Officer takes to assist in educating particularly those groups that might not be sufficiently familiar with this. We've certainly seen members in Parliament point out the various easy ways that they know how to vote, but we know there are disadvantaged groups in society who often don't have easy access to that information.

I strongly urge my friends on the Conservative side of the committee to consider the benefits of leaving section 18 of the act as it is, leaving it alone, by accepting this amendment.

[Craig Scott, NDP, Toronto—Danforth, ON]

I think it's important to take a step back. We can have a very spirited debate on whether this minister did or didn't engage in consultations. To me it's absolutely clear as day that he largely didn't, outside of a very narrow circle, and that, at a minimum, if there were consultations, they certainly didn't produce a sense of what was needed, given the fact that there has been so much reflective and reasoned resistance to much of the bill as we saw in the evidence period.

We had 72 witnesses, 69 or 70 of whom found problems with much of the bill or with specific parts. The convention, which is actually in the Elections Act context, is that the government, through the minister, would actively consult with opposition parties and any interested MPs, particularly, I guess, independents. I think that would probably pass the test if it were ever looked at judicially as a convention, even it couldn't be enforced. That was in no way respected here.

I would like to move an amendment that would keep the spirit of this but that would say that Bill C-23 in clause 5 be amended by replacing the first two lines in amendment PV-13— I'm not quite sure if that's the way to go—but where it says, “The minister shall engage in extensive consultations with the Chief Electoral Officer”, it would now say, “The minister shall engage in good faith consultations with the Chief Electoral Officer, opposition parties in the House of Commons, and independent MPs with respect to any proposed amendments to the act”. It continues in the last two lines.

I'm not sure if that's a friendly amendment.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, even with its amendments, the government still refuses to budge on giving more powers to elections investigators. The former commissioner of Canada elections, William Corbett, was very clear in committee. He said that there was nothing in Bill C-23 that will enhance the ability of the commissioner to investigate alleged cases of fraud.

Why is the minister content to have a commissioner of Canada Elections whose hands are tied behind his back? Why is he more concerned about protecting fraudsters than protecting the integrity of the election process?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, although the Conservatives have made some amendments, their election reform is full of holes. Bill C-23 still does not give investigators the powers they need to uncover fraud. Even with the Conservatives' election reform, perpetrators of the robocall scandal would remain unpunished, because Bill C-23 does not allow Elections Canada to compel testimony and to get hold of the documents it needs for its investigation, nor does the bill force call centres to retain telephone numbers and the scripts of their calls.

Will the minister stop protecting fraudsters and fix the holes in his bill?