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.

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

If I'm a Russian billionaire and I spread $500,000 across 20 different groups, they can coordinate efforts on an issue that I care about or attempt to elect somebody I want to elect. Is that a workaround as to how Bill C-76...? Is that a loophole in the bill right now?

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

That's interesting. So right now with Bill C-76 the bar to prove that a third party is essentially using its influence to affect an election is a standard of collusion rather than a standard of coordination?

[Prof. Michael Pal]

There's one other area, which might seem small, but we have a brief period of time. The standard legal language in the act is mainly about preventing collusion between third parties trying to evade the existing rules, or between a third party and a political party. Collusion is a high legal standard and it's something that is hard to actually prove. The legislation supplied by the Federal Election Commission in the U.S. and the Ontario legislation that came into force in 2017 use what you would call a coordination standard. It actually sets out some activities that are permitted in terms of what can transpire between a political party and a third party, and what activities are deemed not to be permitted.

One of my concerns with Bill C-76 is that it talks about sharing information between a third party and a political party. The other legislative regimes give great detail on what that means. You as a political party might want to say you're having an event at this place and time to discuss this issue. That's sharing information but it's not what we would typically understand to be collusion. In the situation of, say, someone who works for a political party who then goes to work for a third party—and that does sometimes happen—what do we imply from that?

Other legal regimes go into much more detail on what the standard is for collusion or coordination, so that is one area where more could be done. Other than that would be to specify what sharing information means under the act, or to consider moving to a coordination rather than a collusion standard, because it's easier to prove and it perhaps provides more clarity to political parties and candidates and to third parties.

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

I mean the coming into force of Bill C-76.

[Andrea Furlong]

It would. We're mostly concerned about the timeline.

As you know, Bill C-33 stalled, and now we have Bill C-76. Our timeline is very intentional, because we want this to be provided for the next federal election, and for Elections Canada to be able to have the time. Our understanding is that they need at least six months, so we're going to continue with our court challenge until the bill has reached royal assent.

To answer your question, yes, it would.

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

Thank you, Chair.

Thank you, guests, for joining us today. I really appreciate this as we delve into Bill C-76.

Ms. Furlong, does the gist of Bill C-76, the main thrust of it and all that it's hoping to accomplish, also satisfy what will be in front of the Ontario superior court in the fall of 2018?

[Andrea Furlong, Executive Director, Council of Canadians]

Good morning. Thank you for the opportunity given to the Council of Canadians, and me as executive director, to present today to the Standing Committee on Procedure and House Affairs regarding Bill C-76.

I speak to the committee today as we prepare to go to court to defend the constitutional right of every Canadian of age to vote in next year's federal election.

The issues of greatest concern to us in the current legislation are those provisions that will rescind amendments to the Canada Elections Act made by the previous government in passing the so-called Fair Elections Act, which made it more difficult for the Chief Electoral Officer to communicate with Canadians about the electoral process and their right to vote; stripped the Chief Electoral Officer of his ability to authorize the voter information card as a means for proving an elector's residence or identity; diminished the independence and accountability of the Commissioner of Canada Elections; and effectively eliminated vouching as a means for people without the necessary identification to obtain a ballot.

In response to the Fair Elections Act, the Council of Canadians partnered with the Canadian Federation of Students to file a charter challenge, not only to repeal those problematic elements of the act but also to defend the most fundamental right in a democratic society: the right to vote. We launched the charter challenge because the Fair Elections Act made it harder for students, people who are de-housed, seniors, indigenous people, and others who have difficulty proving their identity and residence to vote. That application is to be heard by the Ontario superior court in October 2018, a date chosen so that the Office of the Chief Electoral Officer will have the six months he requires to implement the necessary changes, should we succeed, before the 2019 federal election. We certainly hope that the provisions of Bill C-76 will address the issues now before the court and will come into force in time to obviate the need for that hearing.

Until the bill receives royal assent, our case will proceed. We have amassed a substantial body of expert opinion, including from Harry Neufeld, the former chief electoral officer of British Columbia, stating that the Fair Elections Act effectively limits ballot access by increasing the administrative burden for any voter who does not possess acceptable documentation that proves their current address of residence. It has made the vouching process more intimidating to participants. It's difficult for all to understand and cumbersome for election officers to administer.

This also eliminates the discretion of the Chief Electoral Officer to allow any use of the voter identification card as a legitimate form of address identification. Elections Canada has described the problem in this way:

With regard to accessibility, a continued challenge in the identification regime is the difficulty some electors face in providing documentary proof of their residence. Among the larger challenges is that no piece of identification issued by the [federal government] contains all three elements required in a single piece by the Act: the elector's photograph, name and address.

The difficulty electors may encounter in proving their current address falls disproportionately on certain groups. As described by Elections Canada, these groups are indigenous people; electors living on first nations reserves; electors living in long-term care facilities, including seniors; youth, including students; the de-housed, also known as homeless electors; and electors who have recently moved or who have difficulty proving their physical address.

The Harper government's declared objectives in enacting the Fair Elections Act were to protect against fraud and to uphold the integrity of our electoral system, but study after study has shown that claims about in-person voter fraud have no foundation and serve as a pretext for measures intended to prevent unfriendly voters from being able to cast a ballot. In fact, public concern about voter fraud, as we saw following the 2011 election robocall scandal, was about organized efforts to deter people from voting, not about individuals seeking to vote fraudulently.

The groups I have highlighted who are disproportionately challenged to prove their identity and residence are electors who care deeply about a host of public policy issues, particularly those that affect their daily lives and that often become important electoral issues. They would have strong views about what government should be doing to deal with the problems they confront, and are keen to participate in the electoral process.

Under the Constitution, all Canadians are guaranteed the right to vote, yet for many, including tens of thousands of electors who are on the voter list, the voter identification requirements of the act are a significant impediment to exercising their democratic franchise.

In summary, the Council of Canadians is strongly supportive of those provisions of Bill C-76 that will reverse the anti-democratic reforms of the previous government, including an expansion of the Chief Electoral Officer's mandate to include public education campaigns; a reversal of changes that disallowed the use of a voter information card as a piece of eligible identification at polling stations; a reversal of changes that disallowed one voter vouching for another; and more independence to the Commissioner of Canada Elections.

Thank you.

[Professor Michael Pal, Assistant Professor and Director, Public Law Group, Faculty of Law, University of Ottawa, As an Individual]

Thank you very much, members of the committee, for having me. I really appreciate the invitation to speak to these important issues.

I'm a professor of constitutional law and election law at the University of Ottawa, just down the road. I'm going to focus on what I think are four or five of the key take-aways in the bill. It's 349 pages, by my count, so I'm happy to discuss issues other than the ones I raise in my initial presentation.

The first one I want to flag, which Mr. Mayrand discussed, is the pre-writ spending limits. As of June 30 in an election year, there will be a spending limit, with the inflation factor, of about $1.5 million for political parties and $1 million for third parties. I think this is an extremely important and overdue amendment to the Elections Act. We've seen third parties and political parties from across the political spectrum—I think it's a non-partisan issue—using one of the large loopholes that exist in the Elections Act.

We have very tightly regulated spending during the election campaign period. That was found to be constitutional by the Supreme Court of Canada in a case called Harper. The obvious loophole was that spending rules were not applied in the pre-writ period, so you could simply spend millions of dollars, unregulated, uncapped, prior to the start of the official campaign. Third parties have increasingly been doing that in Canada, especially since the 2011 election, as have political parties, so having a pre-writ limit is extremely important.

If anything, I would have liked to see an even longer pre-writ period. I know there are constitutional concerns. The Harper case was about spending limits during the campaign period. This is pushing the constitutional envelope a little bit by putting in spending restrictions in the pre-writ period. The bill tries to deal with that by having it start only on June 30 rather than earlier, as occurs in some jurisdictions; changing the definition of “election advertising” to call it “partisan advertising” so that it will capture less advertising; and then also having quite generous, I would say, spending limits in terms of the total amount that's permitted in the pre-writ period. All those provisions in the act to try to manage the constitutional risk make sense to me, but I think that given the example we have in the United States and given the data we have about spending by third parties and political parties in recent Canadian elections, the bill could have been even more aggressive in pushing out a longer pre-writ period. I do think it's very necessary to have in the pre-writ period spending limits of the kind the bill has put in place.

I should say it would also apply to some activities beyond just advertising, which is important given that third parties are now doing many of the things we would traditionally understand political parties to have done in the past. There's been tons of evidence in the United States, in a number of recent election cycles, of their version of third parties doing things like Get Out The Vote, organizing campaign events, doing messaging—all the sorts of things that parties traditionally have done. I think that's an important feature of Bill C-76.

The second aspect of the bill that I'd like to discuss is the non-resident voting provision. Previously, you would lose your right to cast a ballot if you lived overseas for five or more years. The bill would get rid of that restriction. I also think that's a long overdue change and a really positive development for the more than one million Canadian citizens who may wish to exercise their right to vote. Even among those Canadians who are abroad for fewer than five years, there's been a small percentage voting. I think this will encourage parties and encourage citizens to be more engaged in the electoral process, and hopefully, will drive voter turnout up.

There is a Supreme Court case, which the committee will be aware of, Frank v. Canada. We are waiting to hear what the Supreme Court will say about the constitutionality of the five-year limit. Even if the court decides it's constitutional, it is still within the jurisdiction of Parliament to decide whether or not to get rid of the rule. Another feature of Bill C-76 that I applaud is expanding the right to vote to non-residents who are abroad for more than five years.

One area in which I'm a bit more critical of the bill is voter privacy. I paid great attention to Mr. Mayrand's comments. As you'll know, the bill requires parties simply to have policies and to address certain specific issues in those policies. Political parties do already have policies on privacy.

I would like to see provisions expanded so that parties will be obliged to actually follow specific rules, to not just have a policy on an issue but to meet certain standards, which the public and private sectors more generally do. Political parties are one of the only exceptions to PIPEDA and the Privacy Act. I think that is an anomaly that needs to be rectified, because parties, as you well know, now collect, use, and analyze enormous amounts of personally sensitive data.

In the earlier round of questions, there was a question about how it could be adapted to political parties. I think people should have a right to be notified if there is a breach of the rules. They should have a right to know what information a party holds about them.

Also, under very limited circumstances, I don't think political parties should be permitted to sell the data they collect. We want to facilitate the connection between citizens and parties. That's something we don't want to stop, but part of the trust mechanism there is that voters believe their data is going to be used for the political process, not for profit-making.

Second-last, on social media platforms, there is a new offence in the bill in terms of how social media platforms or advertising platforms generally should not be able to sell space to foreign entities. I think that's a very positive move. I would just draw the committee's attention to the current rules in the Elections Act that are imposed on TV broadcasters. They cannot charge more than the lowest basically available rate to any political party seeking to advertise. What this effectively means is that it gives political parties a right to have advertising time at a reasonable rate, but it also means that the same rate has to be charged to all political parties.

Political advertising is now happening to a great extent on Facebook. There is nothing in the current Elections Act or in Bill C-76 that would prevent Facebook, through what they call their “ad auction system”, from charging differential rates to different political parties. The current rule for broadcasters is in the Elections Act for a reason. There's no principled reason why that shouldn't also apply to social media advertisers, which may have commercial interests at heart when they're making decisions about their algorithms.

I would just conclude by saying that one of the other very positive features in the bill, which I don't think has gotten enough attention, is the 90% reimbursement for child care expenses for candidates. That is an important and quite practical measure to try to encourage a more diverse array of candidates in the political process.

Those are my initial comments. I look forward to your questions on any of those issues or the other matters in the bill.

Thank you very much.

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

I'm very glad to hear your support for that. I've worked with youth for over 20 years, and I think their engagement is extremely important.

There has been some concern raised with respect to the privacy of information with regard to the early registration of youth. Do you have any concerns in that regard with respect to Bill C-76?

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

Good morning. Thank you for your presence here today. We really appreciate your expertise and your testimony.

Let me begin with this. Overall, what's your feeling on this legislation? How do you feel about Bill C-76?

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

You say “hopefully”. Hope is a wonderful thing to have. Does Bill C-76 require parties to seek the consent of voters before selling their data?

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

Let me go to privacy. I'm thinking through your testimony, and I think this was the one aspect that you were most clear on in terms of the shortcomings of the bill.

In terms of the application of basic privacy laws to the political parties, you've said this bill fails to set proper standards and lacks oversight—I'm paraphrasing—but there are no significant penalties. Why is this so important? A lot of Canadians would ask why it matters that parties are not subject to privacy laws. All Bill C-76 does is say “please post your policy on the web”, but that's it. It doesn't change any of the fundamental wording....

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

Because I like specific examples, let's look at that. Let's say somebody is setting up a misinformation robocall scheme, sending voters to the wrong polls and putting out misinformation. Does Bill C-76 do enough to prevent that threat from happening again?

[Marc Mayrand]

As I said, I think this has been achieved mostly through the misuse—I characterize it as that, as “misuse”—of social media and electronic media. In that context, I'm not sure Bill C-76 does make a difference there, honestly.

I think the issues are broader than the electoral process.

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

Does Bill C-76 go far enough in terms of our being able to go into the next election knowing that there is no similar circumstance that could take place in Canada with misinformation or with the amount of money that can flow through Canadian organizations who are participating in our election?