Bill C-33 (Historical)

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

This enactment amends the Canada Elections Act to
(a) remove limitations on public education and information activities conducted by the Chief Electoral Officer;
(b) establish a Register of Future Electors in which Canadian citizens 14 to 17 years of age may consent to be included;
(c) authorize the Minister of Citizenship and Immigration to provide the Chief Electoral Officer with information about permanent residents and foreign nationals for the purpose of updating the Register of Electors;
(d) remove the prohibition on the Chief Electoral Officer authorizing the notice of confirmation of registration (commonly known as a “voter information card”) as identification;
(e) replace, in the context of voter identification, the option of attestation for residence with an option of vouching for identity and residence;
(f) remove two limitations on voting by non-resident electors: the requirement that they have been residing outside Canada for less than five consecutive years, and the requirement that they intend to return to Canada to resume residence in the future; and
(g) relocate the Commissioner of Canada Elections to within the Office of the Chief Electoral Officer, and provide that the Commissioner is to be appointed by the Chief Electoral Officer, after consultation with the Director of Public Prosecutions, for a non-renewable term of 10 years.
In addition, the enactment contains transitional provisions and makes consequential amendments to other Acts.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Chair. Thank you, Minister and your team, for being here.

I'm looking through the amendments that your government has moved to this bill and I'm considering the track that has taken us here. It has been 700 days since you introduced Bill C-33, which was the original effort to get rid of the unfair elections act. It's five months past the deadline that was set by Elections Canada to bring these changes to completion and into law. It more than two years after the broken promise to make 2015 the last election under the first-past-the-post system.

I'm surprised, because I thought there would be more in here on things that your government, and you personally, have claimed to support, and because you seem unsupportive of things that I think would help.

I think of the launch of the parliamentary session. The Prime Minister said to your caucus, “Add women. Change politics is how we will make a better country.”

One of the Liberal fundraising ads said, ”Canada needs more women from diverse backgrounds making decisions in Ottawa. Because when women succeed, we all succeed.”

We have an amendment in here that is based upon a model that Ireland and other countries have used. In the case of Ireland, it increased the participation of women candidates by 90% and helped elect 40% more women to their parliament.

We're ranked 61st in the world right now, Minister. You know this, of course. The Parliament is 26% women, and at the current pace, as the Daughters of the Vote pointed out to the Prime Minister, it will take 90 years to get to equity in our legislature, yet you're planning to vote against an amendment to get us there, an amendment as has been applied in other democracies.

Did you get the IT alert that I received just recently from our IT service department here in Ottawa? It just happened a couple of hours ago. It was an IT alert for a Facebook data breach. You commissioned a report, which was delivered to you by the CSE, and I'm quoting from that report. It said:

...almost certainly, political parties and politicians, and the media are more vulnerable to cyber threats and related influence operations....

The Privacy Commissioner has said that one of the ways to counter those threats to our democracy is to include political parties under privacy rules. The British Columbia Civil Liberties Association just wrote to you and said that the provisions on privacy are so inadequate as to be meaningless, and the current Privacy Commissioner has said that Bill C-76—this bill—has “nothing of substance” when it comes to privacy.

British Columbia has existed under these privacy rules for 15 years. Parties have been able to communicate effectively with voters. Europe has had it for 20 years, and they've been effectively able to communicate with their voters.

We're proposing Sunday voting, which the former Chief Electoral Officer has promoted. In other democracies, it has increased voter participation by 6% to 7%.

I guess what I find confusing about all of this is that I'm trying to match the words and the rhetoric of your government with your actions when we now have an opportunity to do something about it. You've been in office for three years. Here's an opportunity to deal with the rules that guide us as politicians, that guide the electoral process. I would think that one of your fundamental mandates would be to increase the participation of women and diverse voices, yet your party has chosen to protect all incumbents, thereby ensuring the status quo. The status quo should be unacceptable to everybody.

When we have amendments that would help more women become candidates, help more women and diverse voices actually get elected, you want to vote against them. We see the cyber-threats and the cybersecurity issues that your own agency identified after your request to investigate, but this bill has nothing in it to increase protection of data and privacy.

When the current Chief Electoral Officer was here testifying, we asked him what he knew about what the parties gather in terms of the data on Canadians, and he said, “I have no idea.” Your report says that we, as political parties, are vulnerable to attacks and that Canada as a country is susceptible to these attacks. Having watched Brexit, having watched the U.S. elections, we have important and very recent examples of the reasons to strengthen privacy laws, but this bill has nothing in it.

Seven hundred days after introducing the first iteration of this bill, five months after passing over the deadline set by Elections Canada to get us to this place so we can introduce these changes, and after having made so many promises to women and diverse groups to do better, we're offering opportunities to do better through amendments, based on evidence that is in front of us.

Your government claims to be evidence-based. We are using evidence to improve the things that your government and your party claim to want to improve, and you're choosing not to do them. My question is, why?

[John Nater, Conservative, Perth—Wellington, ON]

I do appreciate that I have the floor, Mr. Graham. If you want a Simms protocol, I'm always happy to yield the floor for a Simms protocol. The fact is that the minister has indicated she's willing to come back. I will take her at her word on that.

I have a great deal of respect for many Liberals, many on this committee and many who no longer sit in the House. One of those people I have a great deal of respect for is Stéphane Dion. Monsieur Dion said this:

This bill comes after a long wait. It took the government two long years to introduce this bill, as though it cost the government a great deal to do so. This long wait was then followed by a suspicious haste to rush the bill through, to speed up the parliamentary process, as though the government had something to hide. It wants to rush through a 252-page bill that has to do with electoral democracy.

It's interesting that Mr. Dion said this during the debate on Bill C-23 because this is what happened with Bill C-33 tabled in November 2016, which was left unmoved, unloved on the Order Paper, and has never been debated at second reading. Then on April 30, towards the end of the spring sitting of Parliament, Bill C-76 is tabled. It is tabled, I would suggest, with some deal of haste, as Mr. Dion suggested with Bill C-23, and here we are. Here we are facing a guillotine motion with a hard end date. That's the right of the government to do so. That's the right of the committee to agree.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Chair.

I appreciate the comments from Mr. Christopherson. I do. I appreciate where he comes from.

Very briefly, on his comment about timing, Bill C-33 was introduced in the House on November 24, 2016, almost 24 months ago. The government had time. A four-year mandate is a lot of time in which to move legislation forward. Here we are, literally in the last 12 months, or even less, because when we adjourn at the end of June, we are done until the election. We are literally in the last eight to 10 months of sitting, and we are dealing with a substantial piece of legislation.

That's unfortunate. It's a big bill. It has things we will support, and it has challenges we won't support. They are hills that we don't need to die on. We recognize that. We recognize that this is a bill that the government has introduced and that you have the numbers to go forward with it.

Mr. Chair, I will leave my comments there for now. I don't know what the protocol is, but I'll leave it to your good graces.

[Stéphane Perrault]

Bill C-33 was much narrower in scope. It did not provide a whole lot of discretion to the Chief Electoral Officer, so what I'm looking at are largely mandatory aspects, and I have no issue with those. There was some discretion but not a whole lot. For example, they were talking about the possibility of doing mobile advance polls for remote communities.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We're almost two years past when C-33 was first introduced. Imagining a scenario in which this bill had passed in the spring, is it fair to say you would have had that discretion and would have likely implemented all the aspects of C-76?

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

Thank you very much. Thanks, John.

I haven't addressed you since your official designation as our Chief Electoral Officer. I want to congratulate you personally. I think you're a wonderful choice.

I'm very worried about timelines. I would have liked to see C-33 move ahead when it was at first reading in December 2016. Now we have C-76. I generally support this legislation. It's in the House. We're going to go to clause-by-clause soon, and then it goes to the Senate and royal assent.

I know you're doing a lot of due diligence preparedness as though this was going to become the law, but I'd like you to give us a sense of when royal assent is necessary so that you can actually be ready for an election in the fall, assuming we stick to our fixed election date under the legislation and don't have a snap election. What's the drop-dead date for royal assent?

[Chris Aylward, National President, Public Service Alliance of Canada]

Thank you, Chair, and thank you to the committee for allowing us to appear today.

The Public Service Alliance of Canada represents 180,000 members. We are the largest union in the federal public service.

Bill C-76 proposes extensive changes that have a significant impact on our democratic process. We strongly support the amendments in the bill that will remove barriers to voting and make it more accessible.

My comments will focus on changes related to third parties.

Our usual election activity is to inform our members about issues and encourage them to exercise their political rights and to vote. We do this by communicating with them in a number of ways, including advertising. During the last federal election and in a number of previous elections, the Public Service Alliance of Canada registered as a third party.

Bill C-76 has not changed the definition of third party election advertising; however, the definition curtails our right to represent our members' interests during an election period. Messages we transmit that can be received or seen by the public, such as information posted on bulletin boards or included in flyers, are considered to be election advertising if they take a position on an issue that a registered party or candidate is associated with or if the message opposes a registered party.

I challenge you to think of an issue that affects Canadians and our members that cannot be associated with a party, leader, or candidate at some time or another. The vast majority of our members are employed by the federal government and by federal agencies controlled or regulated by the government, and we take on issues associated with registered parties on an ongoing basis. It is our role and responsibility to advance their interests and concerns, and our right to do so has been upheld by the courts.

The existing restrictions on third party advertising, the proposed changes to the election period, and the introduction of new pre-election periods deny our legitimate advocacy role. This is particularly crucial when governments attempt to prevent our members from speaking out on issues and to restrict their political rights and activities because they are government employees.

During the last federal election period, we were in the middle of bargaining with Treasury Board for approximately 100,000 members. When we demonstrated against the government's proposals, Elections Canada advised us that the messages on our picket signs and banners might be considered election advertising under the Elections Act. They were seen as transmitting a message to the public during an election period that could be seen as opposing a registered party or speaking out on an issue associated with a registered party—in this case, the previous governing party.

Bill C-76 proposes to extend similar although not identical restrictions during a new pre-election period. The difference is that advertising during the pre-election period excludes messages that take a position on an issue associated with political parties and their candidates or leaders; however, the restrictions could still be interpreted to put limits on what we can say publicly about positions being taken by our government employers.

I refer you to the landmark 1991 Supreme Court case of Lavigne and the Ontario Public Service Employees Union. In that decision, the court affirmed the interconnected nature of political activity and union interests, or democratic unionism. The court said that many political activities, “be they concerned with the environment, tax policy, day-care or feminism, can be construed as related to the larger environment in which unions must represent their members”. Note that the court said “must represent their members” in this “larger environment”.

We are also concerned about the unnecessary burden the proposed legislation would put on unions to track and report all advertising expenses between elections. PSAC is a large organization, with 15 relatively autonomous components and over 1,000 locals; however, the third party provision treats us as a single entity. We would now be required to monitor all those parts in order to report expenses related to messages to the public amounting to $10,000 or more between an election and the pre-election period.

In conclusion, we ask the committee to review the proposed sections on third party advertising very carefully before proceeding with the bill so as not to affect the legitimate rights of unions to speak out on behalf of their members. We also ask you to consider splitting the bill and moving quickly to deal with the sections where there is general agreement and support, such as the sections that were originally contained in Bill C-33, and spend more time assessing the changes proposed by Bill C-76 before making other adjustments to the federal elections process.

Thank you for your time.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We do, too.

I'm starting to believe that, as my grandmother used to say, a lack of planning on your part doesn't make for a crisis on mine. I was eight years old at the time, but she had a point that still stays with me today when I look at this bill. With days to study it, virtually every committee meeting we've had has been interrupted by votes. We've rarely gone through an entire cycle, yet I, too, am supporting some of what you've said here. I'm in support of some of what I'll call the enfranchisement pieces of the bill.

There are a number of questions outstanding, particularly around privacy, the loophole you talked about in commingling, and some of the pre-writ conversations we've had as to whether they're fair between the government and non-government parties.

I'm wondering if the bill needs to be split. I'm wondering if we need to expedite the pieces that there has been some dispute about but more of a consensus around—the Bill C-33 components. There have been a lot of questions about the second part, the third party, the commingling loophole, and the lack of privacy restrictions of parties. What do you think of that suggestion?

[Dr. Paul Thomas, Professor Emeritus, Political Studies, University of Manitoba, As an Individual]

Thank you very much. I have submitted a brief to the committee, and it has been translated and circulated. I will try to stay strictly within the five-minute limit and make five brief points in five minutes so the chair doesn't have to bring down the guillotine on me.

The first point, and an integrating theme of my brief to the committee, is that Bill C-76 is an excellent illustration of how technical and complicated election law has become in response to changing social, technological, and political activities within Canada and elsewhere. Under those conditions, Elections Canada needs a very diverse and flexible set of policy tools in order to plan for and execute elections. In other words, unlike the traditional Canada Elections Act, which is very detailed and prescriptive, we need a future act that grants broader authority to the professionals within Elections Canada. Bill C-76 goes some way in this direction. It grants the CEO of Elections Canada more authority to conduct the operations of the election, it grants the commissioner administrative monetary penalties, and it makes use of written interpretations and opinions, and so on.

Second, overall, this bill is worthwhile. I endorse it in general terms. I endorse the features that are brought forward from Bill C-33 that made changes to the more problematic features of the so-called Fair Elections Act. I like some of the new features that are included within the bill, such as the creation of a pre-writ period ceiling on party and advocacy advertising, tags on all advertising, and so on.

Then I shift in my brief to three concerns I have. The greatest disappointment for me is the failure to bring political parties under the provisions of the privacy acts in Canada and to provide a route to address privacy concerns through the Office of the Privacy Commissioner. This bill essentially says that the parties will be left to regulate themselves with respect to privacy practices. Not my preferred one, but a second-best solution would require the Privacy Commissioner, not Elections Canada, to give the parties' privacy policies and practices a Good Housekeeping seal of approval. On the second part of that concern, another option I would suggest is that annually the parties publish online a statement of what has gone on with respect to their privacy activities, including the education of their members and staff, and so on, on any privacy complaints that have come up.

My fourth point has to do with the flow of foreign money and foreign influence into Canadian elections. As I read the bill, and I'm not a lawyer, there appears to be a loophole in the bill that allows for the commingling of foreign and domestic funds, including the support to advocacy groups, third parties as they're called in the bill. I don't see any easy fix to this problem through legislation or regulation, but I note the provision in the bill for a prohibition on collusion. It may be over time, through the operation of the collusion clause, that precedents will develop that will restrict but probably not eliminate completely the potential for foreign influence in Canadian elections.

My fifth point and final concern has to do with the pre-writ period beginning on June 30. The point I'm making there in the brief is the need to align the timing of restrictions on partisan and advocacy advertising with the ban on government advertising that currently flows out of an administrative policy statement. It is not based on legislation. That ban requires the ads to stop 90 days before voting day. The two periods should be aligned so that you set up a situation where the government is, in effect, in a caretaker situation and any benefit that might come to the governing party from government advertising would be eliminated.

My final observation is that this bill should have been proceeded with much earlier, or an earlier version of a bill, perhaps. It has been left late.

I know the professionals at Elections Canada do their utmost to execute the provisions of the bill, but we have to get into the habit of treating these deadlines for planning an election more seriously.

Thank you very much. I look forward to questions.

[Ruby Sahota, Liberal, Brampton North, ON]

She means the CEO's report, not Bill C-33.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

I thought the 30 hours was to the end of today. It's actually to the end of Thursday; by the end of Thursday we will have had 30 hours. I'm not making the point to end discussion. I'm making the point to say that a suggestion that we haven't had witnesses or listened to witnesses in a robust way I think is misrepresentative, particularly in light of the fact that Bill C-33 is also in this bill, which we also spent numerous hours on.

I'd like to get a response from the clerk, not right now, but maybe the next time we meet, as to how many hours of witnesses we heard there. I want to make that point. I don't want to drag this out. I don't want it to be misrepresented that we haven't heard from witnesses.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

As of Thursday, it will be 30 hours. I don't know what it was with Bill C-33, which is included in this. I would like the clerk to tell us.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Could we just recap?

Although the suggestion is that we haven't studied this, I feel like it's all that I've studied for months and months. Can the clerk confirm that we've had about 30 hours of witnesses? Do you have the number? That doesn't include the next few days of witnesses. It's in addition to that. For Bill C-33, we studied for....

I'm just concerned about it being suggested that we haven't studied this sufficiently. I am happy if there are witnesses who want to come forward soon, but I don't appreciate the comment that we haven't studied this. I feel that we have studied it. We have 30 plus hours already and we have another—

[Justine De Jaegher]

Again, we really wanted to emphasize that the elements featured in Bill C-33 are again featured in this bill. We're leaving some of the other areas up to other experts that you'll be speaking to.

[Justine De Jaegher]

We're generally supportive of the legislation, including those changes. The one area in which we really can't proclaim to be any kind of expert is more on the cybersecurity pieces. Obviously we're glad that you're speaking to experts in that area.

However, other than that, we're quite happy with this legislation. Again, our concern is primarily with the timing. We feel it's a bit late, unfortunately. We were hoping to see Bill C-33 passed much earlier to make sure that it came into effect before the next election.