Bill C-76 (Historical)

Elections Modernization Act

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

This enactment amends the Canada Elections Act to establish spending limits for third parties and political parties during a defined period before the election period of a general election held on a day fixed under that Act. It also establishes measures to increase transparency regarding the participation of third parties in the electoral process. Among other things that it does in this regard, the enactment
(a) adds reporting requirements for third parties engaging in partisan activities, partisan advertising, and election surveys to the reporting requirements for third parties engaging in election advertising;
(b) creates an obligation for third parties to open a separate bank account for expenses related to the matters referred to in paragraph (a); and
(c) creates an obligation for political parties and third parties to identify themselves in partisan advertising during the defined period before the election period.
The enactment also amends the Act to implement measures to reduce barriers to participation and increase accessibility. Among other things that it does in this regard, the enactment
(a) establishes a Register of Future Electors in which Canadian citizens 14 to 17 years of age may consent to be included;
(b) broadens the application of accommodation measures to all persons with a disability, irrespective of its nature;
(c) creates a financial incentive for registered parties and candidates to take steps to accommodate persons with a disability during an election period;
(d) amends some of the rules regarding the treatment of candidates’ expenses, including the rules related to childcare expenses, expenses related to the care of a person with a disability and litigation expenses;
(e) amends the rules regarding the treatment of nomination contestants’ and leadership contestants’ litigation expenses and personal expenses;
(f) allows Canadian Forces electors access to several methods of voting, while also adopting measures to ensure the integrity of the vote;
(g) removes limitations on public education and information activities conducted by the Chief Electoral Officer;
(h) removes 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
(i) extends voting hours on advance polling days.
The enactment also amends the Act to modernize voting services, facilitate enforcement and improve various aspects of the administration of elections and of political financing. Among other things that it does in this regard, the enactment
(a) removes the assignment of specific responsibilities set out in the Act to specific election officers by creating a generic category of election officer to whom all those responsibilities may be assigned;
(b) limits election periods to a maximum of 50 days;
(c) removes administrative barriers in order to facilitate the hiring of election officers;
(d) authorizes 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;
(e) removes the prohibition on the Chief Electoral Officer authorizing the notice of confirmation of registration (commonly known as a “voter information card”) as identification;
(f) replaces, in the context of voter identification, the option of attestation for residence with an option of vouching for identity and residence;
(g) removes the requirement for electors’ signatures during advance polls, changes procedures for the closing of advance polls and allows for counting ballots from advance polls one hour before the regular polls close;
(h) replaces the right or obligation to take an oath with a right or obligation to make a solemn declaration, and streamlines the various declarations that electors may have the right or obligation to make under specific circumstances;
(i) relocates the Commissioner of Canada Elections to within the Office of the Chief Electoral Officer, and provides 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;
(j) provides the Commissioner of Canada Elections with the authority to impose administrative monetary penalties for contraventions of provisions of Parts 16, 17 and 18 of the Act and certain other provisions of the Act;
(k) provides the Commissioner of Canada Elections with the authority to lay charges;
(l) provides the Commissioner of Canada Elections with the power to apply for a court order requiring testimony or a written return;
(m) clarifies offences relating to
(i) the publishing of false statements,
(ii) participation by non-Canadians in elections, including inducing electors to vote or refrain from voting, and
(iii) impersonation; and
(n) implements a number of measures to harmonize and streamline political financing monitoring and reporting.
The enactment also amends the Act to provide for certain requirements with regard to the protection of personal information for registered parties, eligible parties and political parties that are applying to become registered parties, including the obligation for the party to adopt a policy for the protection of personal information and to publish it on its Internet site.
The enactment also amends the Parliament of Canada Act to prevent the calling of a by-election when a vacancy in the House of Commons occurs within nine months before the day fixed for a general election under the Canada Elections Act.
It also amends the Public Service Employment Act to clarify that the maximum period of employment of casual workers in the Office of the Chief Electoral Officer — 165 working days in one calendar year — applies to those who are appointed by the Commissioner of Canada Elections.
Finally, the enactment contains transitional provisions, makes consequential amendments to other Acts and repeals the Special Voting Rules.

[Chris Bittle, Liberal, St. Catharines, ON]

Professor Turnbull, back in 2014, you were one of 450 professors who signed an open letter to describe the Fair Elections Act as an irremediably flawed bill that should be completely rewritten. Do you believe that Bill C-76, if passed, will undo what was done in the Fair Elections Act?

[J. Randall Emery]

Well, certainly the expat community would have welcomed that to move forward.

We are where we are. We hope that Bill C-76 moves.

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

One of the questions—and forgive me if I've missed this—is the cross-mixing of money, that you can have a Canadian entity set up a Canadian bank account, which this bill requires, yet you can commingle the financing. They can have foreign money in their core financing. When we asked the minister and Elections Canada how you pursue it to the end of the conversation to find out how much is commingled, is any money displacing....

I'm having a hard time articulating questions today. I'll give you a scenario. If an organization has a $2-million budget, normally, an operational budget, and they get an extra $1-million donation from the United States, Russia, it doesn't matter, and they displace their core budget and spend all of their $2 million now on elections or to the prescribed limit, $1.5 million, it's essentially using through a loophole foreign money to advocate a position. I don't see under Bill C-76 how we'd catch that scenario. Do you follow?

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Thank you, sir.

Dr. Turnbull, thank you for coming here today. I have just one broad, general question to begin with.

I notice your book that you co-authored with Mr. Aucoin and Mr. Jarvis, Democratizing the Constitution. Are we a step towards democratizing the Constitution in Bill C-76?

[J. Randall Emery, Executive Director, Canadian Citizens Rights Council]

Thank you, Mr. Chair and members of the committee.

I'm the executive director of the Canadian Citizens Rights Council, which brings together organizational and individual members to invest in a vision of a renewed Canada leading the world in citizens' rights and freedoms.

Our comments today centre on universal voting rights. Bill C-76 does the right thing by restoring full federal voting rights to Canadian citizens abroad. Canadians support this universal right. We urge you to preserve these provisions in the bill and support a timely and fair implementation.

First of all, supporting the right to vote from abroad is the right thing to do. It's the right thing to do because doing nothing harms Canadians. Canadian history has been marked by a steady progression towards universal voting rights, beginning with the enfranchisement of women, then racialized minorities and people who don't own property, Inuit, first nations peoples, federal judges, people with mental disabilities, people with no fixed address, and lastly, prisoners, yet the current five-year rule at issue before the Supreme Court of Canada denies at least one million citizens the right to vote and sends a clear message of exclusion.

These are not hobby voters. Canadians abroad are subject to tax laws, criminal laws, foreign anti-corruption laws, and special economic measures, and they benefit from the right of entry to Canada from foreign soil, Canada pension benefits, citizenship laws, and immigration laws.

Moreover, it's the right thing to do because Canadians abroad benefit Canada. Canadians living and working abroad are directly and indirectly responsible for billions of dollars in bilateral trade. They are exceptionally well educated, linguistically adept, and culturally bilingual. They are our cultural and economic ambassadors. The more we as a country engage them, the more Canada will prosper.

Second, Canadians get this. Over time, Canadians maintain an overwhelming connectedness to Canada, but less so to their home province or municipality. Correspondingly, in 2011, the Environics Institute found that 69% of Canadians thought Canadians abroad should vote in federal elections. This bill strongly aligns with public opinion.

Finally, we ask you to support enfranchising provisions in this bill and to support a timely and fair implementation. When amendments are offered at clause-by-clause consideration, we ask members of this committee to preserve enfranchising language as is, without amendments that would limit the population of eligible voters. We also ask you to support a timely and fair implementation.

Recognizing Elections Canada's time constraints, we urge swift passage of this bill. We also urge members to avoid new identification or other requirements that have been demonstrated to reduce turnout elsewhere.

This is a historic opportunity to let all Canadians vote. It's the right thing to do, and Canadians support it. We applaud the enfranchising provisions of this bill and urge their preservation and timely implementation.

Thank you. I welcome any questions you might have.

[Dr. Lori Turnbull, Associate Professor, Dalhousie University, As an Individual]

Thank you very much for the invitation to appear before the procedure and House affairs committee on Bill C-76.

Before I get into the bill, I'll make some general comments about political finance regulation in Canada. We've been regulating spending and contributions for candidates, parties, and third parties in some form or another since 1974. Every once in a while, the rules get reviewed or reconsidered in light of new realities with respect to democracy, elections, political culture, and things like that. At the heart of all these debates about political finance are some fundamental questions about democracy and political expression. It's always a balancing act between freedom of expression and the public interest, and maintaining a level playing field for political competitors. Neither of these is pursued by regulation to the complete detriment of the other: we need the balance, and that's where the charter comes in. The charter protects that.

It's been the norm historically, in connection with the charter, for political finance laws to end up in court, and there's been some very thoughtful jurisprudence on the role of the state in regulating money in politics. The terrain is shifting now, however, and I would say that money is no longer a reliable proxy for political expression. It used to be that debates and paid prime-time ads were the way to reach people, but now—and in connection with Mr. Cullen's comments—it's Twitter, Facebook, clickbait, Instagram, and micro-targeted email messages. This type of political expression poses a completely new regulatory challenge because, for the most part, it is low cost or free. Talking about spending limits and contribution limits is a little bit offside. Spending limits only get to part of the issue, and, I would suggest, an increasingly smaller part as we go on.

Nevertheless, here we are on Bill C-76. The theme is modernization. Democracy is changing for many reasons, and the law needs to catch up. The bill, as members are aware, covers a lot of ground. Some major areas of concentration, like establishing pre-writ spending limits for parties and third parties, aren't a huge surprise. We've seen this in Ontario. Given the constant campaign, campaigning all the time, imposing limits only once the writ is dropped is seen as arbitrary. The bill limits the writ period to 50 days. It increases transparency around the activities of third parties in a few ways: by requiring third parties to identify themselves in political advertising; by requiring them to keep separate bank accounts to allow their political activity to be seen a bit more clearly when you open up the books; and including things like polling in the expenditures that are limited, which is not the case now. It's an area where third parties are now able to spend in a way that's unlimited, but political parties are not. Also, there are measures to make voting more accessible, including the creation of a register of future electors.

I have a couple of comments on what the bill doesn't do. Third parties can still take unlimited donations from organizations, while political parties and candidates cannot. For over a decade now, contributions coming to candidates and parties from organizations, as opposed to individuals, have not been allowed. This creates an unbalanced playing field and perhaps creates an incentive for wealthier people or organizations to make unlimited donations to third parties.

The issue of foreign money is very tough to regulate, and largely because third parties are often doing many things. They're not just political actors, and they're not just contesting elections. They're also doing charitable work, advocacy work, educational work, and working with partners in other countries. So it's very difficult to impose particular rules during the campaign period or for election spending by third parties. You used to be able to take foreign money for some things, but now for this purpose, during this time, you can't. It's very difficult to police. On some level you don't want to go too far with it because then you're choking off funds used for other purposes, and we want organizations to be able to do those things, presumably. It comes down to how to regulate third party spending and activity that relates to elections.

Many observers have expressed concern over the possibility of foreign involvement in Canadian elections. We have to work on that. We have to be able to make Canadians feel that it's not going to be a problem, and that we are aware of what foreign influence could look like. Again, I think this relates significantly to issues of digital democracy, cybersecurity. Regulating money is not really going far enough and it's not really getting at what people's major concerns are.

I'll leave it there and allow my colleague to speak.

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

We're under the gun, as you know. Elections Canada has told us already that they can't implement all of C-76 if we were to pass it tomorrow. Does that cause you any concern?

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Well, that was my question, sir. My goodness, you're smarter than I ever realized.

I don't have much time left, but perhaps you want to comment on that part. One of the things, in addition to that, is to allow Elections Canada to have more freedom to go beyond just telling people where and when to vote, which was the contentious issue. We also have the fact that we're allowing people between the ages of 16 and 18 to register to vote—or is it 14 now? Nevertheless, they can register to vote.

Do you see how Elections Canada can do more on the education aspect now that in Bill C-76 they have the freedom we just talked about?

[Prof. Henry Milner]

At this point, I think, in adopting Bill C-76, adding things like political debates and so on is what I would recommend. I would think, though, that we shouldn't say the issue is closed especially on the political knowledge side. I think there are things we could do.

One of the problems.... I shouldn't call it a problem. The situation in Canada, which is not the case in the other countries we've mentioned, is that we have two different levels of government, and education is at the provincial level. In those other countries, linking political knowledge to the educational system through civic education is done through the same people who are concerned about national elections and so on.

Here, of course, education is provincial. Although Elections Canada does have some relationship to the schools, and I don't think provincial governments have a problem with that, nevertheless in the countries that I know there's a very close relationship between—

[Prof. Henry Milner]

Let me say to the specific aspects of Bill C-76 that I think we're doing what we can. We're not going to change our entire institutional system to be like theirs, but within our institution, I think we are applying it appropriately. They have other institutions. I can't speak for every country, but essentially they would certainly not be inhibited in terms of informing people and making various kinds of institutional access available, especially to young people.

I could talk about my last book, The Internet Generation, and some very interesting examples from other countries I've been to, including Norway, Sweden, Finland, and so on, in terms of how to inform young people about politics. In fact, if we do have a bit of extra time, I'd love to tell you about it because it's really quite interesting. It's not directly relevant to this but it's very interesting, and it's something that a version of which we could actually do at both the provincial and federal levels.

Specifically, of course—this brings me back to my last point—one of the things we could learn is to change our electoral system. I've argued and written about how I think a proportional system does in fact result over time in a more informed citizenry. It's a long academic argument based on evidence and so on, but I have made it in the past, and I think it can be made.

If one is interested in a citizenry that—again, none of these things are absolute and black and white—is more likely to inform themselves about relevant issues before an election, I would argue that we can learn from these countries. Most European countries, as you know, have proportional representation, as does New Zealand now, and Australia has it for the upper chamber. There is a relationship, but again, that's not the issue of importance at this committee.

[Professor Henry Milner, Associate Fellow, Department of Political Science, Université de Montréal, As an Individual]

I was under the misapprehension that I was going to be one of five, but it turned out that the five are the entire morning session, rather than just this hour. That is okay with me, but it means that I haven't prepared an exhaustive critique or analysis of Bill C-76. I'm just going to talk about the things that are of particular interest to me and where I think I can make a contribution.

The first thing is you will see in my presentation that I've done this before. It's nice to come to such a situation and be basically positive, rather than be here to criticize and be negative, which is the more normal situation for people like me. Much of my efforts have been around electoral reform. That experience was slightly less positive, if I may say, than this one will turn out to be, I think.

I think that I was in front of the same committee—although I think it was across the street from Parliament—being critical of the Fair Elections Act for various problems with it that seemed to have been rectified in Bill C-33, which I was happy to see presented way back when. I had assumed that this issue was now going to be resolved, but it turns out it's only now that the process continues. It has been widened, as I don't have to tell you, with a number of other areas.

From my point of view, the crucial aspect is access to make it easier for people to inform themselves. That's my specialization, political knowledge. I've published a great deal about that, including the political knowledge of young people, by comparing different countries, including Canada, and physical access to the voting booth in terms of some of the restrictions that were brought into the Fair Elections Act that have been removed in Bill C-76.

In my own work, my particular concern has been on the political knowledge aspect, so I was very concerned with the Fair Elections Act's efforts to reduce the ability of Elections Canada to provide information, especially to young people, but not only to young people, so they would be more able to participate in an election at the right time. I think that those aspects of Bill C-33 have found their way into Bill C-76, in terms of the role of Elections Canada, in terms of allowing registration before the age, in fact, encouraging young people to register before the age of 18, as well as other aspects, which are not just for young people, but for people with handicaps and so on. I'm very happy to see that.

In terms of what I would like to see added, there's only one aspect that seems to me to be missing. Once one is really looking at the entire electoral process—and I know there was some discussion of it in the consultation process that took place—perhaps regulate the question of leaders debates during the election period. Set up a process that would be standardized, so that people could expect it. I know that's a complicated issue and I certainly don't want to delay the implementation process, but I do think it's missing from a law that tries to be quite comprehensive about the way we run election campaigns.

My other problem wasn't part of the Fair Elections Act, but with the way the last election was run. It was that it was so long. I don't have to remind you that it lasted more than 11 weeks, I think. That was tied to a change—a change which I had something to do with—namely, fixed election dates. I testified before that, especially in the Senate committee, that was responsible for that issue. I have talked about that in other places, including the House of Lords in London.

When fixed election dates were adopted—and the 2015 election took place under fixed election dates—this silly idea of now doubling the time for the campaign was combined with it, which of course made us look bad, those of us who favoured fixed election dates. People were saying now it's a free-for-all, that it lasts forever, and all kinds of money is being spent. I'm glad to see that we're going back to a seven-week campaign like in the Fair Elections Act. That's the one additional factor that I think is very important, and there are some other specific procedures around this that I'm in favour of. I don't have anything particular to say about them.

My real concern is that this happen. We have an election coming up in a year and a half and I'm concerned that the necessary aspects of this law won't be implemented early enough so that they can actually work appropriately. I'm torn between wanting to improve Bill C-76 in any possible way and wanting it to move quickly. Having it move quickly is, I think, in many ways more important, especially the information aspect and so on. We would like to see Elections Canada again able to implement its various information programs.

I have to tell you—and I don't know how many of you are aware of this—that there's a very absurd thing taking place next week in Toronto. I'm not sure how many of you are aware. Probably none of you are aware, but a citizens' group tied to the Canadian Federation of Students.... I think I have it here if you'll just give me a minute. The Council of Canadians, the Canadian Federation of Students, and some individuals hired a law firm to contest the Fair Elections Act. I was one of those who wrote affidavits for this contestation, which is only now coming before the Ontario Supreme Court. All of us—there are several of us, though not as many as you'll be hearing from—those of us who opposed the Fair Elections Act, are required now to be cross-examined by government lawyers to defend our criticism of the Fair Elections Act, which, of course, will no longer exist, hopefully, very soon.

I guess the business of Parliament moves slowly. I found it quite strange, but when I was speaking to the law firm that's running all of this, I asked them why they wouldn't just drop it. They said they weren't sure that the new legislation replacing the Fair Elections Act would be implemented in time, so they had to go ahead. This will all be taking place in Toronto next week.

Finally, I want to stress that I am anxious to see this move ahead, so that it will all be in place in time for the next election.

I have to say that one of the reasons I'm a little bit cynical about how this body moves on it with what seems to be happening or should be happening is my experience with the electoral reform. I was one of a great many political science and other experts in this area who came before this body. We were a very large majority of experts who testified in favour of electoral reform, and it seemed that our voices were going to be heard as part of the process, and then, as I don't need to tell you, we know how that came out.

I don't want to be too cynical but I do want to stress the importance of moving forward with this so that this bill will be in place in time to be implemented correctly for the next election.

Thank you very much.

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

Would you agree that Bill C-76 will result in more voter participation, that the provisions are in there to increase voter participation with things like accessibility, voter information cards, and the like? Would you agree with that?

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

Thank you, Mr. Chair.

Thank you, Mr. Gunn and Mr. Conacher, for being here today. I'll start with Mr. Conacher.

I know that your passion is democracy and ensuring that people have an opportunity to participate in the democratic process. Can you speak about the way you believe Bill C-76 will contribute to voter participation? What are the strengths in Bill C-76 that you see?

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

Right now, under Bill C-76, what responsibility do they have?

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

Let's talk about social media for a second. As it is right now, you call it self-regulation. If some foreign entity or someone breaking one of the laws in Bill C-76 buys $500,000 of Facebook ads, which would be a lot, to advocate for a political party or for an issue, unless Facebook reports that, unless the third party, the foreign entity, reports it, how would we know it happened?