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.

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

It in effect would be a motion to kill this bill.

I think we've seen non-stop articulate reflective condemnation of this bill from all quarters. Whether it's voter ID rules, or undermining Elections Canada and the Chief Electoral Officer, the massively problematic fundraising exemption, the undermining of the commissioner for Elections Canada by moving that office to the Director of Public Prosecutions, all sorts of fetters on his work, not giving him the powers that have been requested, total focus on citizen fraud, and not on the kind of fraud we thought was going to lead to this bill, consequently, I would like to give notice of a motion that the Standing Committee on Procedure and House Affairs present a report to the House of Commons recommending that Bill C-23, an act to amend the Canada Elections Act and other acts and to make consequential amendments to certain acts, be withdrawn.

Mr. Speaker, this is just a notice of motion and at some point we will move that.

[Prof. Patti Tamara Lenard]

I am also an assistant professor of applied ethics at the University of Ottawa’s Graduate School of Public and International Affairs, and I am here as a research associate with the CCPA. I'm also—some of you may know this—a co-author with several Canadian professors of an open letter concerning Bill C-23, published in the National Post earlier in March.

The views I express today, though, are my own and do not necessarily represent the views of my co-authors or of the 180 signatories to that letter. Of the many difficulties presented by the fair elections act, I’d like to focus on just one, which Mr. Quail has already talked about, and that is the way in which it would undermine political equality in Canada, by making the right to vote more difficult to access in general, and most particularly but not exclusively, for vulnerable Canadians.

It does this—as we've already heard today—by proposing to eliminate vouching and by imposing stricter voter ID requirements. Let me begin by pointing out that Canada’s voting ID requirements are already more restrictive than in many countries. Indeed, in leading Westminster democracies, the U.K., Australia, and New Zealand, all that is required is that one be on the voter registry; no identification is required. In other democracies, vulnerable citizens are exempt from identification requirements entirely.

According to international best practices of electoral law, governments that require ID should ensure that these are provided to citizens free of cost, as with the VICs that this bill would disallow.

The purpose of beginning here is simply to highlight that the proposals to eliminate vouching and to impose stricter voter ID requirements will move us away from widely accepted international best practices by which states protect the right to vote of their citizens. In Canada—we already heard this today—the right to vote is protected in section 3 of the charter. In my view, the constitutional protection of this right imposes a duty on all of us, particularly our government, to protect that right for each one of us.

In my view, the proposed fair elections act is anything but fair. As we've already heard, it risks excluding some of Canada’s most vulnerable citizens such as seniors and students, first nations' citizens, low-income Canadians, and homeless Canadians. We know from Elections Canada that these groups relied on vouching most frequently in recent elections. It should go without saying that in our Constitution, these citizens’ right to vote is no less important than that of any other Canadian. This bill, regrettably in my view, makes it necessary to underline this point.

In its recent decision in the Etobicoke Centre case, the Supreme Court acknowledged the multiple values at stake in elections such as integrity, transparency, and efficiency. It then gave pride of place to the constitutionally protected right to vote. I quote from the decision:

...the Act seeks to enfranchise all entitled persons, including those without paper documentation, and to encourage them to come forward to vote on election day, regardless of prior enumeration. The system strives to achieve accessibility for all voters, making special provision for those without identification to vote by vouching.... The goal of accessibility can only be achieved if we are prepared to accept some degree of uncertainty that all who voted were entitled to do so.

In other words, our electoral system relies on a certain amount of trust in our fellow citizens not to abuse our most basic democratic right. In my view, this bill rests on the false premise that we should distrust one another.

Bill C-23 will effectively take the right to vote away from some Canadians. How then can we claim to be a democratic country?

The right to vote is not something the government grants us permission to do, like driving, hunting, or practising medicine. It belongs to each of us by virtue of our citizenship status. The job of a truly democratic government is to protect our right to vote by securing the conditions that make it possible. This act does the opposite.

The government’s reason for restricting the right to vote rests on the importance of eliminating fraud from our electoral system. As has been said repeatedly in the media and before this committee, there is no evidence of fraud, only of record-keeping errors that can be dealt with in ways that do not threaten the integrity of Canadian democracy.

So let there be no mistake. The government proposes to protect against imaginary dangers by creating real and significant harms. There is something gravely wrong when we plan to turn away citizens at the voting booth because we imagine they might be trying to cheat the system. There is something wrong with a policy that slanders hundreds of thousands of Canadian citizens as potential fraudsters because they are vulnerable in ways that make it difficult to get a driver’s licence or to have a stable address.

The so-called fair elections act is inconsistent with a commitment to political equality on which Canada’s democracy is built. In my view, Bill C-23 should be rejected.

Thank you for listening.

[Cara Zwibel]

Chair, I'm happy to start.

I would say that the fundamental premise underlying this is that we assume that any restrictions that are placed on the right or the opportunity to vote should have a reason behind it. There should be evidence to demonstrate that this is necessary.

To the best of my knowledge at least, the provisions in Bill C-23 aren't correcting a problem. There's an administrative problem with how things are recorded when people vouch, but there's not a problem in terms of ineligible voters being allowed to vote or at least there's no evidence of that problem. So I would say that with other changes that have been made in the past that are more restrictive, I'd have to look at the evidence that existed there, but I would say that no, we wouldn't have supported those changes either. I can't speak to what the CCLA did or didn't do at that time. I wasn't with the organization at that time.

We're talking about people's right to exercise their democratic will, so we should be correcting a problem if we're placing more restrictive parameters on their ability to do that.

[Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association]

Thank you, Mr. Chair and members of the committee, for inviting me to speak to you today on behalf of the Canadian Civil Liberties Association.

The CCLA is a national non-profit, non-partisan, non-governmental organization that promotes respect for and observance of fundamental human rights and civil liberties. This year marks the CCLA's 50th anniversary defending the rights and freedoms of Canadians. It's in this capacity, as a defender of core rights, including the fundamental right to vote, that I am here to express our very serious concerns about certain aspects of Bill C-23.

I know that my time is short, so for the purposes of my opening statement I want to focus on those aspects of the bill that will have the most direct and immediate impact on the electorate, and in particular may erode the fundamental right to vote. CCLA has submitted a written brief to the committee that outlines a number of our concerns in more detail.

With this audience, I don't think I have to go on about the importance of the right to vote and how crucial it is to our democracy. The right to vote is protected in our charter, and it is excluded from those rights subject to the notwithstanding clause. As our chief justice has held, “In a democracy such as ours, the power of lawmakers flows from the voting citizens, and lawmakers act as the citizens’ proxies.”

With all due respect, it would substantially delegitimize our system if, in your role as proxies of the people, some of whom helped to elect you, you in turn denied some of them their constitutionally guaranteed right to vote.

CCLA's biggest concern about Bill C-23 is the proposal to do away with vouching and to preclude use of the voter information card as a form of identification. We know that over 100,000 Canadians established their identity by vouching in the last election. There are very strong reasons to believe that these individuals will be disenfranchised if Bill C-23 passes as it currently stands.

I appreciate that people in this room may have trouble understanding why vouching may be necessary. For many of us, myself included, having basic identification is something we take for granted. However, those people who don't have the ID necessary to vote are often from marginalized groups. In general, these are not people who will be testifying before this committee. In fact, I did have to show identification to get into this building.

Those people stood up and chose to participate in the last election. They chose to express their democratic will. Many of the people who rely on vouching are students, seniors, aboriginal persons. Many live in rural and remote communities. Please do not ignore those people, and please don't erect barriers to their ability to vote. It's a fundamental precept of our system that every vote counts. If the changes made in this bill disenfranchise a single person, in our submission that is one too many.

We appreciate that the basic purpose of the proposed change is to address concerns about voter fraud. I have to repeat what you have by now heard likely many times before, from a number of witnesses who have appeared before the committee, including those sitting next to me. There is clear evidence that vouching has resulted in administrative problems and irregularities, but there is no evidence that it has resulted in fraud. There is no evidence that individuals who were not eligible to vote were permitted to do so as a result of vouching. In fact, the evidence that we do have is to the contrary.

The appropriate response to a concern that something may be broken in the administration of our electoral system is to take steps to fix it. A response that results in disenfranchising eligible voters is simple indefensible. In our view, this is a problem from a public policy perspective as well as a legal constitutional perspective.

The safeguards that are built up around vouching—for example, the need for record keeping, the fact that one person can only vouch for one other person—are procedural safeguards. In a recent Supreme Court of Canada case, the court made the very important point that these procedural safeguards are not ends in themselves. They are provisions that help to ensure that only those who have a right to vote may do so, but they are part of the Canada Elections Act, and the broad purpose of that act is to enfranchise all persons entitled to vote. It's to facilitate the right to vote.

Furthermore, the court remarked that they apply a stringent justification standard when considering laws or actions that result in a denial of voting rights. In the absence of any evidence that vouching has resulted in allowing ineligible persons to vote, it is hard to see how this stringent standard could be met. The CCLA believes these provisions of the bill will disenfranchise voters, may cost taxpayers money in protracted litigation, and may ultimately, if tested, be found wanting from a constitutional perspective.

I'm just going to briefly mention a few of CCLA's other concerns with this bill, the details of which are laid out in our written submission.

First, we urge the committee to remove the proposed changes to section 18 of the Canada Elections Act, which place significant restrictions on the role of the Chief Electoral Officer. This provision undermines the important role that the CEO currently plays. If there are concerns that basic information is not being communicated, that should be addressed, but not at the expense of other important public education and outreach done by the Chief Electoral Officer.

Second, we are concerned about provisions that shroud in secrecy investigations into allegations of fraud or other electoral improprieties. We certainly recognize the importance of upholding the presumption of innocence and the need to respect privacy, but the current bill doesn't strike the right balance between these interests and the need for transparency and the public's right to know.

Finally, we're concerned about provisions in the bill that attempt to draw a distinction between fundraising activity and advertising, and that exclude some of the expenses associated with fundraising from the quantification of election expenses. A bright-line distinction between advertising and fundraising is simply not possible. In excluding fundraising costs from the calculation of expenses there's both the potential for unlimited spending and a lack of transparency with respect to what is spent.

The same applies to the provision that would exclude from election expenses the value of services provided to a party to solicit funds from those who have made prior contributions of $20 or more in the last five years.

To conclude, CCLA strongly urges this committee to reconsider and remove those provisions that I have discussed.

I welcome the chance to answer any questions, and thank the committee again for this opportunity to appear.

[Leilani Farha, Executive Director, Canada Without Poverty]

Thank you.

Thank you for the opportunity to appear before you this evening.

I find it somewhat ironic that just over 50 years ago aboriginal peoples were granted the right to vote in Canada, and here we are just a short while later struggling to defend their rights. This has been a huge reminder of how fragile democracy is and how vigilant we have to be to protect it.

I am Leilani Farha, the executive director of Canada Without Poverty.

CWP, whose board of directors is composed of people living in poverty from every province and territory, is deeply concerned with the impact of the fair elections act on the right of poor people to vote in Canada. In particular we are concerned that the bill bans Elections Canada from promoting the right to vote, and we're concerned about the elimination of vouch voting without a suitable alternative. I'll address each of these in turn.

The ban on Elections Canada from promoting the vote is simply illogical. It is illogical in the face of the lowest voter turnout in our history, suggesting a near complete loss of faith in the democratic process by a huge percentage of Canadians. As well, it is illogical in light of the fact that poor people are experiencing unprecedented social and political exclusion. Surely it is precisely now, in the moment of this democratic deficit, that Parliament should be pouring resources into efforts to promote the vote. Elections Canada must be allowed to continue to do its work to foster democracy.

With respect to vouch voting, CWP is concerned that its elimination without a suitable alternative will disenfranchise tens of thousands of low-income voters and violate their section 3 charter rights. Vouch voting is used particularly by those who are poor, homeless, or otherwise marginalized. Though the government seems to find it incredible that over 100,000 people in Canada don't have adequate ID for voting purposes, it's a reality.

Let me give you one example from my work. Imagine a woman living in a situation of domestic violence. In the midst of a particularly brutal incident she manages to escape to safety by fleeing to a friend's house. She leaves behind all of her belongings, including her wallet, thinking only about saving her life. She has no photo ID, no proof of residence. She has nothing but the clothes she is wearing. Eliminating vouch voting is not going to provide this woman with voter-appropriate identification. Eliminating vouch voting will do only one thing. It will prevent her from exercising her right to vote.

What troubles CWP about all of this is that the government has yet to articulate an understanding of how important the right to vote is, particularly for those who are socially and politically excluded. Perhaps they don't know.

Imagine being the woman I just described. She has absolutely nothing. Ensuring that she has the right to vote allows her to be more than just her circumstances. It allows her to engage her nation and it restores something to her. As the South African constitutional court said so simply, “The vote of each and every citizen is a badge of dignity and of personhood.” Why wouldn't the government want to ensure the right to vote for this woman? Isn't that what democracy requires?

CWP is offended that Minister Poilievre wants us to imagine that allowing this woman to vote might compromise the electoral system. The minister has invented the myth of fraud by conflating fraud with vouching irregularities. I remind this committee that no evidence of fraud has been found with vouch voting, only administrative errors.

In conclusion, CWP recommends that the government just pause for a moment and reflect on the fact that it is about to deprive tens of thousands of disadvantaged Canadians of their democratic citizenship and their constitutionally protected right to vote.

CWP recommends that Bill C-23 be rejected in its entirety. If the bill continues to stand, however, we recommend at a minimum the following: first, the provisions narrowing Elections Canada's mandate with respect to promoting voting be removed from Bill C-23; and second, and this has two parts, maintain vouching and fix it so it functions more effectively, or adopt a new system for in-person identification that treats voters with dignity and respect.

Thank you.

[The Chair, Conservative, Joe Preston]

Committee, it's great to have you all here tonight.

This is the 26th meeting of the procedure and House affairs committee on our study of Bill C-23.

We have three witnesses tonight. We have Raji Mangat, counsel from the British Columbia Civil Liberties Association; Leilani Farha, executive director of Canada Without Poverty; and from the Canadian Civil Liberties Association, Cara Zwibel, and I've been her tour guide earlier today.

We're all set tonight and we've decided that for opening statements we will start with Ms. Farha.

Ms. Farha, you have five minutes or less, please.

Instruction to the Standing Committee on Procedure and House Affairs Regarding Bill C-23

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

moved:

That it be an instruction to the Standing Committee on Procedure and House Affairs that, during its consideration of Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to other Acts, the Committee be granted the power to expand the scope of the Bill in order to strengthen the role of the Commissioner of Canada Elections by allowing the Commissioner to seek relief through the courts to compel testimony.

Mr. Speaker, I would like to begin by mentioning that I will be splitting my time with the hon. member for Louis-Saint-Laurent, who seconded the motion.

The reason for the motion today, just to give some background, is that our attempt to have Bill C-23—the so-called fair elections act, but what New Democrats are calling the unfair elections act—channelled to the committee after first reading, at which time the bill could be more open to amendment, failed. Our attempt in the House did not receive unanimous consent.

There is concern that some areas of the bill that should be subject to amendment may not be because the admissibility rules in the House with respect to committee amendments are a little arcane, to put it mildly. They are complex. The clerks do their best to enforce the rules, but I am not completely certain I am going to get a ruling on admissibility on this point, that the Commissioner of Canada Elections be able to go to court to seek relief to compel testimony of witnesses. Therefore, out of some kind of excess of caution, we are seeking a motion of instruction from the House to permit such an amendment.

All this motion would do is permit the amendment. It does not say the amendment would occur. It would simply allow the committee to consider this kind of matter, and in committee, if the majority declines to adopt the amendment, that will determine it. However, what we do not want to have happen, after all the witnesses who appeared suggesting that the power to compel testimony through a judicial order be included in the bill, is for that to be ruled out of court from the beginning as beyond the scope of the bill. That is the reason I am standing in my place at the moment.

I also want to provide a bit of context.

Last night one of several witnesses, the current Commissioner of Canada Elections, Mr. Côté, appeared, and in no uncertain terms gave support to the Chief Electoral Officer, Mr. Mayrand, and other witnesses, who have said it is absolutely, as he put it last night, “essential to give the Commissioner the ability to seek a court order to compel testimony”. This is something that was in both the commissioner's 2012-13 report and the report entitled “Preventing Deceptive Communications with Electors” by the Chief Electoral Officer, and it comes from painful experience.

The commissioner and the Chief Electoral Officer are all too aware of how difficult it has been to have witnesses, who are themselves not suspect but are members of a political party, actually talk to investigators. The context of the Commissioner of Canada Elections' report is at page 13. Although he is talking in general terms, nobody in the House is under any illusion that he is talking about anything but the investigation into the fraudulent calls that occurred in 2011. He stated:

When investigating matters where the stakes are perceived as significant...investigators often face reluctant witnesses. Frequently, key individuals will simply refuse to be interviewed or they will initially accept, only to later decline. In some cases, they will participate in interviews but will provide only partial information and incomplete answers, often citing a faulty recollection of events or the inability to retrieve key documents. In other cases, a potential witness will profess a complete willingness to cooperate, but the process will take time – resulting in information being provided slowly and in an incomplete fashion.

He goes on to explain why the model in the Competition Act, which is a model very similar to over half of the provincial elections acts, should be adopted by the Canada Elections Act. Basically, it allows for the chief investigative officer within the Canada Elections Act system, the commissioner, to go to court to show that there is a need for witnesses to be forthcoming and to receive a judicial order for witnesses to indeed testify to investigators, with important safeguards.

Three of them were listed in the testimony last night by Mr. Côté, as follows: one, a prior judicial authorization, based on affidavit evidence showing that the person likely has information relevant to an investigation of an offence under the Canada Elections Act; two, the right to be assisted by counsel and to have counsel present at the interview; and three, the right not to have the evidence used against the person—this is obviously very important—who is required to testify. These are basically safeguards taken from the Competition Act.

The commissioner said, “These safeguards would present, in my view, a balanced approach to ensuring more effective enforcement.”

Here is probably the most important and most forceful statement by the Commissioner of Canada Elections last night about the need. He said, “I want to be absolutely clear: if this amendment is not made, investigations will continue to take time, and in some cases a lot of time. And, importantly, some will simply abort due to our inability to get at the facts.”

I grant to the minister that the new voter registry that would be overseen by the CRTC would be beneficial and get us somewhere within the legitimate telecom system, but what has become very clear is that however much that is true, there are all kinds of reasons to know that those who are technologically sophisticated know how to get around the system, effectively setting up proxy servers in their basements or in other countries and not ever having to use the legitimate system.

If that is the case, it is all the more necessary that the investigative powers of the Commissioner of Canada Elections be bolstered in exactly the way that he and the Chief Electoral Officer have requested for the last two or three years in light of their experience of all the recalcitrance and all the resistance they have received investigating the fraudulent calling scheme that undermined the 2011 election.

We only discovered with clarity yesterday, when we were asking questions of witnesses from the CRTC in committee, how important this could be in terms of the internal limits of the voter contact registry. It turns out that although calls are defined as including live voice calls, there is an exclusion for live voice calls from any group or person as long as that group or person is using internal services.

Let us forget about the minister's image of the grandmother at the local level calling with regard to lawn signs. The concern is the national party with its capacity to have internal services for live voice calls. What are live voice calls normally used for? They are usually used for not just getting out the vote and that kind of stuff. They have to be used for fundraising.

There is another exception in the bill. This one would allow for fundraising calls to anybody who has given $20 or more in the last five years to be exempted from the expense ceiling, which basically means that a whole operation has to be set up at the national level to make those phone calls. We have been concerned from the beginning that those calls could be a cloak for all other kinds of pitches to be made under the guise of fundraising requests. What we have found is that such live calls at the national level, using a national phone bank that is part of the internal services of a party, are not part of the CRTC's regime. The CRTC testified that this is an exclusion. Live voice calls coming from external telecom providers would be, but not those from the national party.

We have no problem with making sure there is no red tape for grandmothers helping out at the local level by calling for lawn signs. Our concern is at the national level, with the phone bank problem of live calls using that exemption for fundraising as a Trojan Horse that will be completely unmonitorable because it is not part of the CRTC regime and because the Chief Electoral Officer has already testified that he cannot monitor it.

One of the reasons it is so important to have the power to compel testimony through a judicial order is that the voter contact registry is only going to go so far. It is only going to provide prevention and detection for a certain kind of person who unwittingly uses the system, not the sophisticated rogue who now knows that legitimate telecom operators cannot be used to call perhaps hundreds of thousands of numbers and who would use available technology to skirt that system. The system is not useless, but it would do almost nothing for the knowledgeable, technologically sophisticated rogue, especially using offshore resources, to call into elections.

Therefore the back-end investigation is all the more important, and therefore the power to compel testimony of witnesses through a judicial order is an absolute must as an amendment to Bill C-23. Out of an excess of caution, I am asking the House through this motion for instruction to allow PROC to amend the bill in this respect to give us that authority if the committee agrees in its discussions that it is a valid amendment.

Democratic Reform

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

Mr. Speaker, perhaps the minister should tell that to the experts in the United States and throughout the world who are opposed to his reform.

Another American elections expert, Élisabeth Vallet, says that the Conservative movement likes to focus on cases of fraud and is feeding conspiracy theories in order to disenfranchise society's most vulnerable people and thereby serve its own partisan interests. Bill C-23 follows squarely in the Conservative's pattern of prejudice and partisan interests.

Will the minister withdraw his bill and agree to reopen discussions and start over?

[The Chair, Conservative, Joe Preston]

I will call us back to order. We are still in meeting number 25 and we are still televised and in public. We have a new guest, Mr. Corbett.

It is great to have you here and I apologize for the lateness of the hour but we have been working what seems like around the clock on Bill C-23. You have an opening statement I understand, so please go ahead and tell us your thoughts and then we will ask you some questions.

[Erin O'Toole, Conservative, Durham, ON]

I'm going to suggest to you a better analogy than the Competition Bureau because your presentation reminded me a lot of law school over a decade ago and some work I did, particularly because you described yourself as the enforcer of the legislation. That was a line you used.

A better comparator would be securities commissions because they are commissions that regulate and administer securities in the public interest, and confidence in the public markets is critical. In the last 15 years, securities commissions with commissioners—and a very similar structure—have moved away from also being multi-functional agencies with investigative, prosecutorial, and even adjudicative functions that would be similar in some ways. In 2003, Justice Coulter Osborne had what was called the fairness committee about bifurcating the OSC, much as the B.C. securities commission did.

The reason I use that is that it's clear to me. There was the creation in 1974, where you said the Chief Electoral Officer had some concerns about this being housed within the agency, and then the splitting off of the prosecution mandate to the DPP in 2006. Is Bill C-23 not really the completion of that bifurcation? So now we have Elections Canada running something in the public interest, in the public good, from an administrative standpoint, and to respect all principles of natural justice, the backward-looking function—the investigation prosecution— is housed entirely distinctly. Now not just the prosecution but also the investigation is housed within the DPP. Is that not just the completion of that bifurcation and is that not in line with modern public administration practices?

[Yves Côté]

Mr. Chair, I don't think I would phrase it in the way it has been stated. What I would say is that the current scheme as it exists should be and must be improved so that we have more tools in our box, and what I find is that in Bill C-23, in spite of the fact that the CEO and I have called for this additional power, I have to of course note that the additional power is not being given to us.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I have been listening to you, Mr. Côté, and what you do is reinforce in my mind just how bad...how this legislation, Bill C-23, is a destructive force to democracy here in Canada. This is not a step forward. This is a significant step backwards. I feel insulted in regard to the degree in which you weren't even consulted, you said, in regard to your position as the commissioner and having that position transferred out of Elections Canada.

I think you've been exceptionally clear. I had a few questions that I would like get on the record with you.

The in-and-out scandal, robocalls, overspending, and cheating: these are things that the public as a whole feels have taken place in the last election. There is a general feeling of public confidence...of a lack thereof, because of the thousands of phone calls that were made because of the last election. There's this huge expectation that you, as the commissioner, are going to be able to get to the bottom of a lot of these very important issues.

I'm not asking you to comment on any specific issue, but what I'm thinking about is, going forward, if this legislation were to pass without amendments such as compelling a witness, would you clearly state that it would in fact make it more difficult for you to acquire any sort of a prosecution?

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

Apparently some people do have that perception despite all evidence to the contrary.

So basically you're saying for anything done in this act that is a benefit—for example, security of tenure is built into Bill C-23 in a way that it doesn't exist right now for your office—there's no reason that couldn't have been done by keeping your office within Elections Canada, for example.

[Yves Côté]

I'd say at least two things on this.

One is that I certainly would see any cases involving an electoral officer or an employee of Elections Canada where fraud or misbehaviour of some sort was alleged as being a very serious matter. I can assure you that, as commissioner, this is something that I would get to the bottom of with all the energy and all the tools that I have at my disposal. That would be point number one.

Point number two, there are many benefits—as I think I alluded to in my opening remarks—in our being now part of Elections Canada, and it has to do with the day-to-day operations. It's very important for us, as enforcers of the legislation, to understand the priorities, to understand the environment in which decisions that we take have to be taken. We cannot operate in a separate world, on a separate planet. We have to have that access.

More importantly, if Bill C-23 is passed as it is now, there will be serious issues that will come up in terms of what information the CEO may communicate to me as commissioner. Right now, we're both within the same organization so the flow of information is free and it goes quickly. If I am to move into a different organization, which now would be a department of the government, there will be all kinds of issues having to do, for example, with privacy and personal information in terms of whether or not the CEO has the power to disclose and communicate that information to us. Certainly this is an issue that should be addressed because that kind of uncertainty would create no end of problems and headaches.

I would put it to this committee, Mr. Chair, that this is a very important issue. There has to be clarity in the law in terms of what the CEO can communicate to me, if Bill C-23 is passed as it is, and also in terms of what I may request of the CEO.

I would go one step further. It seems to me that there should be a provision in the bill, again if it is passed as it is, that would compel the CEO to respond to any request I make for information and to give me that information. In the same way, Bill C-23 provides—with the new scheme that might be created—that the CRTC would have to disclose to me any information that I requested of them, in terms of the new scheme that is being created for voter contact.

[Yves Côté]

Well, there's an act of Parliament that specifies the circumstances in which the Chief Electoral Officer may ask me to conduct an investigation. So Parliament has spoken and has said that this is the way it should be. Again, I think it's very important that, if the CEO does that, then I decide how I'm going to do that, in the same way that if Bill C-23 is passed as it is now, if our office were to move with the office of the DPP, I would decide how investigations are to be conducted.