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.

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

But under Bill C-23, and this is the distinction I'm trying to make.... I'm certainly not trying to be argumentative here, but I think it's an important distinction. Under Bill C-23, you would not be directed by anyone. It would be your decision and your decision alone if you wished to conduct an investigation. It would be based on a complaint or if someone requested, but it would be your decision. Currently, you're suggesting, or you're saying, to this committee that if the Chief Electoral Officer directs you to conduct an investigation, you will. You may conduct it in your own fashion, that's great, but you have no right to refuse.

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

I know, and I'm sorry, but I always gone on the principle that if someone can hire me and fire me, then that person is in effect my boss. But I'll take you at your contention.

Why I'm trying to get at is that Bill C-23 would make you truly independent. In other words, the Chief Electoral Officer now can direct you to investigate a certain case. Bill C-23 would give you full independence. The Chief Electoral Officer, for an example, could request an investigation be conducted, as anyone else could request an investigation, but you would have the full authority to investigate based on your own decision, not a directive from someone else? So I think that increases and enhances your independence, which I would think would be a good thing, particularly—and I don't know if this has ever happened before, I honestly don't, but theoretically, since the Chief Electoral Officer has the ability to appoint and dismiss you, as you've mentioned—in terms of what would happen if in fact there was a case where you felt you had to investigate an employee of Elections Canada. Would you not think there would be a conflict there?

[Yves Côté, Commissioner of Canada Elections, Elections Canada]

Indeed, sir.

Thank you very much, Mr. Chair.

I would like to thank the committee for giving me the opportunity to testify today regarding the changes proposed by Bill C-23 and their impact on my role as commissioner of Canada Elections.

I am accompanied today by Audrey Nowack, senior counsel, who provides us with legal counsel.

Before discussing the bill itself, I believe it would be useful if I first reminded the committee of why the position of commissioner of Canada Elections was created 40 years ago in 1974 and placed within the Office of the Chief Electoral Officer.

The traditional view of the Department of Justice at the time was that it should not be involved in prosecutions under the Canada Elections Act. Such prosecutions, to quote the attorney general at the time, in 1974, should be the responsibility of the Chief Electoral Officer “whose independent position could not be questioned”. At the same time, the Chief Electoral Officer was concerned that his own involvement in the investigation and prosecution of election offences could be seen to diminish his impartiality. This led to the creation of the position of commissioner of Canada elections, in 1974.

The position was placed within Elections Canada so that it would be fully independent from the government. The mandate of the commissioner initially was confined to offences involving election expenses, but was later broadened, in 1977, to include the enforcement of all election offences, including prosecution. With the creation of the office of the director of public prosecutions, in 2006, election offences are now prosecuted by the DPP.

Let me now turn to my comments on the bill that is currently before you.

The first point I'd like to address has to do with the organizational changes proposed by the bill.

Bill C-23 proposes to go much further than what was done in 2006, by placing the commissioner within the Office of the Director of Public Prosecutions, or DPP.

As you consider this proposal, I think it is important for you to understand the benefits of the current model which, in my view, strikes a proper balance between investigative independence and a coherent and informed application of the Canada Elections Act.

Indeed, I must stress that, as commissioner, I have enjoyed complete and unfettered independence with respect to the conduct of investigations and the choice of enforcement action, including the decision to refer a matter to the DPP.

I have been in the job for almost two years, and there has never been any attempt by the Chief Electoral Officer, or by anyone at Elections Canada, to interfere in any way with the manner in which I and my investigators do our work. In other words, and I think it is important that I state this, I alone as commissioner decide what to investigate, how to conduct my investigations, and what measures are to be taken, including possible referrals to the DPP.

At the same time, my presence within Elections Canada allows me to have direct insight into how the law is administered and also to understand the main challenges faced by Elections Canada with respect to compliance. This informs my interventions and reduces the risks that regulated entities, such as political parties and candidates, are caught between conflicting interpretations of the rules.

The need for such coherence explains why to my knowledge, in the vast majority of regulatory regimes, the administration and enforcement of the rules are vested in the same agency. Examples of this would include the Canada Revenue Agency, the Competition Bureau, Fisheries and Oceans, and the Canada Border Services Agency.

This, by the way, is true even for the CRTC, which under the very terms of Bill C-23 would be granted the mandate to administer and enforce the rules on what is referred to as “voter contact calling services”.

With the separation of the commissioner from Elections Canada, there is, in my view, a danger in the long term of a disconnect between the administration of the rules and their enforcement. To avoid that risk, it is critical that an ongoing relationship between the two entities be preserved and nurtured.

This goes beyond transfers of information in support of investigations—something which, in fact, Bill C-23 does not explicitly provide for and which requires amendment to ensure timely and effective investigations.

It also means that the two entities will need to create structured mechanisms to continue to work in an open and collaborative fashion. For example, a joint committee on regulatory compliance may need to be established to discuss trends or new issues that arise as a result of evolving practices by political parties and candidates.

Moreover, given that under Bill C-23, political parties would be able to request written opinions from the Chief Electoral Officer on the application of the act and that these opinions will be legally binding on the commissioner, there need to be mechanisms for consultation between the commissioner and the Chief Electoral Officer.

In placing the commissioner within the office of the DPP, Bill C-23 would bring under the same roof two functions that are normally, and for good reasons, kept separate.

This structural change raises important questions with respect to the separation of the investigative and prosecutorial functions—a separation that was deemed sufficiently important in 2006 to remove prosecutions from the commissioner. It also raises concerns with respect to at least the perceived independence of the commissioner from the government of the day.

Bill C-23 provides that the commissioner's investigations be conducted independently of the DPP. I do have, of course, every reason to be confident that neither the DPP nor the Attorney General would interfere in my investigations. However, the fact that the commissioner would be placed within the office of the DPP—and that the DPP reports to the Attorney General on the commissioner's activities—does, it seems to me, present challenges, at least in terms of perception.

For all of these reasons, Mr. Chairman, I do not think that the proposed move to the office of the DPP is a step in the right direction.

The second matter that I wish to address relates to the commissioner's investigative powers. The CEO mentioned in his appearance how important it is to have timely and effective enforcement of election laws. It is fair to say that, among Canadians, there is an expectation—and I would say an entirely reasonable one—that significant violations of the rules governing elections will be dealt with swiftly and within a normal four-year electoral cycle.

When the very legitimacy of an elected office is at stake, the need to resolve allegations of electoral wrongdoing is, by definition, a pressing matter. This is why, as I indicated in my annual report, I believe it is essential to give the commissioner the ability to seek a court order to compel testimony.

My experience to date has been that it is not uncommon for individuals who are not directly concerned with an investigation, but who may possess important information, to refuse to co-operate. In a political context, where partisan loyalties are strong, this should probably not come as a surprise. However, this can cause significant delays or even compromise an investigation.

A power to compel testimony in the context of election investigations exists in many provinces and territories, including Quebec, Ontario, New Brunswick, Nova Scotia, Manitoba, Alberta and Yukon. Other regulatory agencies have similar power. The recommendation that both the Chief Electoral Officer and I have made is that this power be given to the commissioner with a number of appropriate safeguards, as exist in the Competition Act. These safeguards include the following.

First, before obtaining a court order, a prior judicial authorization is required, based on affidavit evidence showing that the person likely has information relevant to an investigation of an offence under the Canada Elections Act.

Second, every person has the right to be assisted by counsel and to have counsel present at the interview.

Lastly, and this is extremely important, the person being interviewed under these circumstances would have the right not to have the evidence used against the person who is required to testify.

These safeguards would present, in my view, a balanced approach to ensuring more effective enforcement. Mr. Chair, 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. Importantly some investigations will simply be aborted due to our inability to get at the facts.

Bill C-23 should also be amended to improve the regime proposed for voter contact calling services. First, whether it is a live or an automated call, there should be an obligation to identify the source of the call immediately at the start of the message. Second, and most importantly, entities providing automated services or making live calls should be required to preserve a record of the telephone numbers that were contacted and to make that record available to the commissioner through the CRTC. Without telephone numbers, it is difficult to see how the proposed regime can be of much use.

Finally, with respect to the powers of the commissioner, I want to express my deep concern with the limitations imposed by the bill on my ability to inform the public of the results of my investigations. There are certainly excellent reasons to preserve the confidentiality of investigations. These mainly include considerations of privacy and fairness, as well as the need to protect the integrity of ongoing investigations. For this reason, I, like my predecessors, will generally not comment on or disclose information related to investigations—except where necessary in the course of the judicial process.

There are, however, rare but important exceptions to this. Where allegations have been publicly made that cast a doubt on the integrity of an election, and where an investigation shows these allegations to be unfounded, it is important for the commissioner to be able to reassure Canadians by making his findings public, including by providing factual details of what was uncovered. My predecessor has twice done this in recent years, and it is important that my successors and I be able to do the same in the future.

Finally, I'd like to mention the addition of a number of new offences and the proposal to increase fines. The increased fines in particular are a significant and welcome improvement to the regime. However, as I indicated in my annual report, achieving compliance with election rules should not rely primarily on criminal offences and sanctions. The criminal process is inherently slow and heavy-handed. It is ill-suited to the vast majority of instances of non-compliance that we in the commissioner's office encounter, which are of a purely regulatory nature such as, for example, late filings of reports.

Administrative sanctions such as the proposed automatic reduction of reimbursement of election expenses in cases of overspending are generally much better suited to deal with compliance issues related to political financing. In this regard I hope that this measure in Bill C-23 would point the way for future reforms.

In concluding my remarks, I would like to indicate that I fully support the amendments relating to enforcement that the Chief Electoral Officer suggested at his appearance a few weeks ago.

I am aware of the fact that the Minister for Democratic Reform has written to the committee and that he appears to be open to some amendments dealing with the limitation period as well as the threshold to initiate investigations.

And, in closing, I would strongly encourage the committee to also consider the other amendments on enforcement proposed by the Chief Electoral Officer.

Now that I am finished with my introductory remarks, I would be pleased to answer any questions, insofar as they do not relate to the particulars of investigations.

Thank you very much.

[The Chair, Conservative, Joe Preston]

Let's call this meeting to order, please.

This is meeting number 25 of procedure and House affairs committee, on the study of Bill C-23.

The meeting is in public and televised tonight. We have, to start off with, the commissioner of Canada elections, Monsieur Côté.

Mr. Côté, will you introduce your guest? I understand you have an opening statement.

Democratic Reform

[Pierre Poilievre, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, the member is indeed wrong, and very wrong again.

There are three types of calls. There are automated calls, which must be registered under the fair elections act.

There are telemarketing calls, which are probably the largest number, and they involve hiring professional firms that make tens of thousands, in fact, hundreds of thousands of calls. Those calls must be registered, and the scripts must be retained.

Then, there are calls that are done by parties themselves, almost exclusively by volunteers. They do include the volunteer calls, the types of which I just described, and no, we are not going to bury these people in red tape.

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

Mr. Speaker, on another unfair elections act front, today in committee my questioning of CRTC lawyers confirmed my suspicions of a huge loophole in Bill C-23's voter contact registry scheme, which was supposed to prevent fraudulent calling to voters. Live calls by a party's internal services are not covered, so Conservative Party phone banks can live-call Canadians during elections with no oversight.

My question is to the minister. Is this massive omission deliberate?

[Pierre Poilievre, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, the Fair Elections Act is very reasonable. It creates a new registry to oversee the robocalls and telemarketing calls that many Canadians receive, as well as to protect the legitimacy of those calls. The bill creates new penalties to punish those who mislead voters with fraudulent calls. It also guarantees that the legislation limiting donations will be obeyed. Yes, the Fair Elections Act will require people to present a piece of ID when they vote.

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

Mr. Speaker, I do not know which world the Minister of State for Democratic Reform is living in, but it is clearly not the same one as most Canadians.

Yesterday, I had the opportunity to hear professor Paul Thomas express his views on Bill C-23. He emphasized the fact that other countries that conduct free elections recognize that election laws must not be changed unilaterally, without consultation. As well as being dangerous for our democracy, the Conservatives' electoral deform bill will undermine the legitimacy of the electoral process. It will not help the Conservative government earn the trust of voters.

Will the minister listen to the experts at last?

Opposition Motion—Government Aircraft

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I rise to speak in support of today's opposition motion by the member for Timmins—James Bay, because it identifies an abuse of the public trust, which, unfortunately, is part of a much larger pattern by the Conservative government. In this case, we are talking about the use of government planes to transport Conservative Party fundraisers around the country.

Let me be clear. I am not disputing the use of government jets to transport the Prime Minister, his family, his security detail, or even public servants assisting the Prime Minister with government business. To me, the line is crossed when party fundraisers are flying on government jets. As we have now learned, that was a regular practice for the Conservatives. In particular, the flight logs reveal that Mark Kihn, who lists his job as a fundraising projects manager for the Conservative Party, has been a regular passenger, travelling with the Prime Minister on government jets every year from 2007 to 2012.

While this may seem to some a narrow issue for an opposition day motion, it tries to shine a light on a failure by the Conservatives to recognize the importance of respecting the line between the public interest and party interest. On those grounds, it is clearly wrong to use government jets to transport Conservative Party fundraisers.

As I said at the beginning of my remarks, this example illustrates a larger pattern by the Conservatives, which is to seek every partisan advantage for themselves, whether by using their majority to change the rules or by running as close to the line as possible when it comes to the existing rules. We have certainly seen this in Bill C-23, where the Conservatives have included a provision exempting fundraising expenses from election spending limits. Spending limits, as many will know, were introduced in Canada in the 1974 Election Expenses Act in an attempt to level the playing field for elections, so that those with the most resources would not automatically win elections.

Public support for spending limits as an essential part of electoral fairness has always been and still remains very high. The comprehensive Canadian election study conducted in 2000 specifically asked about this and found that 93% of Canadians supported spending limits for candidates and political parties, but what this motion points to is an attempt to get around those kinds of spending limits by using government resources for partisan purposes. Both the transport of Conservative Party fundraisers on government jets and the attempt to undermine spending limits in Bill C-23 violate the fundamental sense of electoral fairness that is an essential part of our Canadian democracy.

These attempts to skirt the rules on election spending limits are not new for the Conservatives. In fact, they began with the first omnibus budget bill. In that bill, the Conservatives used their majority to eliminate public funding for political parties. Normally, in seeking to change fundamental rules in our democracy, we would expect the governing party to consult widely and seek the broadest support for changes to the rules. We would expect this in Bill C-23, and we have not seen it. We would certainly expect them to hold those kinds of consultation and not to sneak in changes through what should have been a technical budget bill.

As in the case of Bill C-23—

[Christianne Laizner]

The registry will contain the information that's required in Bill C-23. That information would be the name of the calling service provider, the name of the group or person on whose behalf the services are made. It will not contain the phone numbers, but at the time that the registration notice is filed, there's an obligation on both the calling service provider and the person or group who entered into an agreement with the calling service provider to provide the CRTC with their name, their address, and their telephone number, and a copy of the identification that the CRTC has authorized them to use. You get the registration notice to the CRTC, and that information that I just explained to you. The script and recordings are required to be kept for a period of one year. The purpose of that is if there's an investigation, the CRTC may request those, but they don't form part of the registration notice.

[Christianne Laizner]

Yes. Just to clarify, the obligations under Bill C-23 are for the calling service provider or the group in question to retain the script or the transcript of the messages. When the CRTC conducts investigations, we can request those as part of our investigation, but they don't actually provide the script to us in advance.

They do have obligations to make sure that when they enter into these agreements, both parties are aware of the identities and name and address and all that important information that was not a requirement before.

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

Thank you to the witnesses for coming.

I'm going to do something a tiny bit unusual. I have a whole series of questions I'd like to read first. That will also put them in the record in both official languages and then we'll start to get to some of them, the most important ones probably in the second round. I'd appreciate it if you could consider providing written answers to some of them if we don't get to them, but that's something we can discuss later.

I'm going to refer to them by numbers.

One, assuming that the CRTC was consulted or otherwise worked with the minister or his officials on the new division in the act that you've described, is the present text of Bill C-23 what the CRTC understood would be legislated, or are there differences, and if so, what are they?

Two, is it the case that current technology would permit technologically sophisticated persons to use their own call delivery systems consisting of their own server, intermediary proxy servers, and so on to conduct a calling operation without needing to use any calling service provider as defined by these new sections, and if so, does that mean such persons would not be registered in the new system, let alone caught by it, if they were engaging in voter suppression calls?

Three, if there is the just described coverage gap, does it stand to reason that other preventive measures and/or effective investigative tools, notably on the part of the Commissioner of Canada Elections, such as the power to seek a judicial order compelling testimony, and such as access to all receipts for national party campaign expenses, will be needed to deal with such voter suppression calling that takes place outside the system overseen by CRTC?

A lot of these will now be technical.

Four, regarding proposed section 348.01, are text messages or similar communications like BBMs covered by the definition of calls?

Five, again regarding proposed section 348.01, under the voter contact calling services definition, one purpose covered is indeed the raising of funds. There are two questions. Could you confirm that calls made within the new fundraising exemption for campaign expenses found in proposed subsection 376(3) of the act are covered by this voter caller contact services definition? Within question five, to what extent will the CRTC oversee the compliance of parties with the new fundraising exemption, as the minister has claimed it will in the House?

Six, proposed sections 348.03 and 348.07 use the language “a person enters into an agreement” and the question is, should this not read “a person or a group enters into an agreement”? In the definition, political parties and other collective entities are defined as being within the category of groups. If they're not put there, will this end up meaning they're not covered by theses duties in those two sections?

Seven, there are two pairings of provisions and I'm wondering if there's a gap. There may not be. Proposed sections 348.08 and 348.09 go together. Proposed sections 348.18 and 348.19 go together. Is there a gap here that means that groups, including political parties, do not have to account for live calls if those live calls are made using their own internal services? If so, is an amendment needed?

Eight, regarding proposed section 348.11, could you confirm that the voter contact registry will not contain phone numbers called through voter contact calling services or through the internal services of groups like political parties, and will also not contain scripts and recordings? There is no duty to provide either of them to the CRTC. For maximum effectiveness, should both of these be required to be retained by the calling services providers, as we know for a designated period, but also conveyed to the CRTC to be part of the voter contact registry?

Nine, there is nothing explicit in the voter contact registry provisions on either a CRTC duty to retain information or a period of retention. The question is whether this duty is implicit, and if so, for how long. Does the CRTC already have policies that would apply? Should the duty to retain be made explicit? If so, for what length of time? Is the 10 years suggested by former Chief Electoral Officer Kingsley a good period?

Ten, there are no tag line requirements in the bill. Should all calls have to have specified caller information that must be included in scripts and recordings, and also conveyed for inclusion in the voter contact registry?

Eleven, calling service providers must retain data for only one year. Should this be longer? If so, for how long?

Twelve, should there be an express power, as recommended by the Chief Electoral Officer, for the commissioner to apply for a judicial order for any person or group or calling service provider to retain data beyond the specified period should the commissioner believe he may need access to that data as part of an investigation?

Thirteen, is the voter contact registry public, or is it only the registration notice as referenced in proposed section 348.12 that is public?

Fourteen, is the voter contact registry accessible at will to either the Chief Electoral Officer or the Commissioner of Canada Elections, or is access limited by proposed section 348.15, which requires a request only from the commissioner, and using a necessity test?

Fifteen, according to proposed section 348.15, the commissioner must ask for documents or information. Must the commissioner know exactly what document or information he or she needs? Within the same question, there's no explicit, proactive duty on the part of the CRTC to inform the commissioner of any suspicions so as to trigger a request from the commissioner. May the CRTC do so? Should the duty be made explicit? In any case, will the CRTC be likely to discern any problems that would give rise to suspicion, given the nature of the oversight regime? Is the threshold too high for the commissioner? It's a “considers necessary” threshold. Should it be “considers helpful”? Should the bill be amended to give the commissioner unfettered access to the voter contact registry?

I'm going to skip two questions, but I'll come back to them.

There's no express clause dealing with extraterritorial service providers. Should there be?

We'll come back to these questions in the second round. Thank you.

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

Thank you, Madam Laizner and Madam Bombardier, for being here today.

Obviously, the provisions contained in Bill C-23 were to address the situation commonly known as the Pierre Poutine scandal, in which some still unknown culprit apparently attempted to use voter suppression tactics by sending out phone messages to voters, primarily in Guelph, I suspect, but perhaps on a far wider range than that. Since we haven't had the ability yet, or at least the Elections Canada investigation has not produced any evidence as to who this culprit may be, provisions were put in Bill C-23 to try to prevent that sort of situation from occurring again.

We've had the former Chief Electoral officer, Jean-Pierre Kingsley, appear before the committee. When I asked him directly whether he thought the provisions put into Bill C-23 would prevent the situation from occurring again, he just simply said yes.

I would like to ask both of you a twofold question. Number one, in your opinion, do you believe the provisions in Bill C-23 would prevent the type of Pierre Poutine situation from occurring again? Two, and perhaps even more important, perhaps you could expand upon your thoughts as to the ability of the CRTC to administer and maintain such a registry, and whether or not you have the full level of confidence within your own organization that this could be accomplished. Perhaps, finally, you could add a bit of a timeline for us, since you mentioned this could not be done overnight.

Madam Laizner, perhaps I could start with you.

[Manon Bombardier, Chief Compliance and Enforcement Officer, Canadian Radio-television and Telecommunications Commission]

Good afternoon, Mr. Chairman.

As you already likely know, the CRTC administers and maintains the national do-not-call list as a tool to protect the privacy of Canadians, but also to reduce the number of unsolicited calls that they receive from telemarketers.

To date, the national do-not-call list includes over 12 million telephone numbers that are registered to the list. There are also over 10,000 telemarketers who have registered. In the nearly six years that the do-not-call list has been in effect, the CRTC has helped those telemarketers both understand what the requirements of the regulations and rules are and comply with those rules and register with the list.

We have received to date over 800,000 complaints and conducted over 1,300 investigations under the unsolicited telecommunications rules, and we have levied over $4 million in administrative monetary penalties in relation to those violations.

I mention all of those accomplishments not only because the CRTC takes great pride in these accomplishments but also because new responsibilities that would be given to us under the new bill, if it were proclaimed into law, would follow a similar model as we have under the unsolicited telecommunications rules.

Under such a scenario, we would be able to leverage our experience and expertise in the administration and enforcement of those rules and apply them to the new provisions of the bill.

For instance, the CRTC has significant experience in building and overseeing lists of registered telephone numbers and telemarketers. We could draw on that experience if it was required to build a similar record to meet the requirements of Bill C-23.

We also maintain rigorous processes for investigating possible violations of the Unsolicited Telecommunications Rules. Under the process, complaints submitted by Canadians are assessed and used to prioritize investigations and determine whether or not the rules were complied with.

Finally, our methods for ensuring compliance with the rules—such as issuing citations and notices of violations, imposing administrative monetary penalties, and working with violators to correct improper practices—can be adjusted to suit new purposes.

Mr. Chair, it would be imprudent of us to suggest that we could simply and quickly adapt our National DNCL systems and processes to suit the requirements of Bill C-23. No new law can be administered with that degree of simplicity.

New tools would need to be purchased and processes likely created to handle complaints. We would also need to ensure candidates and telephone service providers were aware of their new responsibilities, and provide timely information to the public.

Yet we, at the CRTC, are confident that we have the expertise to meet any new responsibilities given to us under the bill.

Thank you, and we would now be pleased to answer your questions.

[Christianne Laizner, Senior General Counsel, Canadian Radio-television and Telecommunications Commission]

Thank you, Mr. Chairman, and good afternoon. My name is Christianne Laizner and I'm the senior general counsel at the Canadian Radio-television and Telecommunications Commission. With me today is Manon Bombardier who is the CRTC chief compliance and enforcement officer.

We are pleased to appear before you as you study Bill C-23, which proposes a number of amendments to the Canada Elections Act. I would like to start by reminding the committee of the new responsibilities that would be given to CRTC if Bill C-23 were proclaimed.

My colleague, Madam Bombardier, will then speak about how the CRTC would be prepared to fulfill its mandate under the proposed legislation.

If the bill is adopted in its current form, the CRTC would be tasked with establishing and maintaining registration information for voter contact services. This means that any person, group, or company engaged in voter contact, including those using automatic dialing announcing devices, which we also refer to as robocalls or ADADs, for voter contact purposes, would be required to register with the CRTC. Registrations would be made available to the CRTC within 48 hours after a call is made.

The ability to verify the identity of the calling party is another important aspect of the bill. Any person or group using a calling service provider or making robocalls for voter contact purposes would have to provide identification to both the CRTC and the calling service provider.

Additionally, the bill would require recordings of messages and scripts to be retained for one year after the date of an election.

Breaches of these roles could cost violators penalties of up to $1,500 for individuals and $15,000 in the case of groups, such as political parties or companies. It is important to note that these penalties can be assigned per violation and that each day constitutes a separate violation.

Let me now open the floor to Ms. Bombardier.