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.

[David Graham, Liberal, Laurentides—Labelle, QC]

In the case of the copyright system, you are going ahead with a system that doesn't follow Canadian law, but has an appeal system. In the case of Bill C-76, you're saying, “We're not going to do it, because it doesn't make practical sense.”

In the copyright experience, you're not worrying about Canadian law, quite frankly, because if somebody does have a fair-dealing exemption, it shouldn't be incumbent on them to prove they have the right to do something that they absolutely have the right to do.

I'm trying to get my head around why you're going ahead with the copyright, and not following it with Bill C-76. To me, it seems like a difficult but entirely doable system to resolve. As Nate said earlier, if it was the United States, I'm sure it would be fixed already.

[David Graham, Liberal, Laurentides—Labelle, QC]

That leads to my next question. You talk about the technical limitations of implementing C-76, and I'm trying to get my mind around that, as a technical person. I have a fairly good sense of how your systems work, so I'm trying to see where the problem is, in the next five months, with adding the subroutines needed to grok political advertising so that you can actually use it.

If you can help me understand the technical side of things, I will understand it. I'd like to hear what those are.

[David Graham, Liberal, Laurentides—Labelle, QC]

That would be helpful.

Do you oppose the changes we have on C-76, or do you support the bill, from a philosophical point of view?

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you. It's nice to see both of you again.

As you probably know, I'm an early adopter of Google. I've been using Google for a solid 20 years. I think it's a good service, but it's grown massively, and become a very powerful tool. With great power comes great responsibility, so I think it's very important that we have this discussion.

The part of C-76 we're talking about is 208.1, and you want to change 15 words. What were those 15 words?

[Jason Kee]

As we have basically expressed before the Senate committee and elsewhere, and also to the minister's office, we are fully supportive of and aligned with the idea of increasing transparency in political advertising, and we had intended to actually bring the registry to Canada.

There were a certain number of extremely targeted amendments. Basically, I think it was 15 words we actually changed that would have altered Bill C-76 sufficiently, such that we actually could have accommodated the requirements.

My recommendation, if possible, would be for a future Parliament to look at those recommendations, basically look at the challenges the new provisions added—and it's worth noting, as covered by the CBC, many platforms have also similarly announced that they wouldn't be accepting political advertising because of the challenges the specific revisions are introducing—and to revisit them at that time, to see if there are tweaks that can be made to help alleviate the concerns.

[Jason Kee]

That's largely correct. I should also amend the record. We did have one discussion with the minister's office shortly after Bill C-76 was introduced, to discuss the contours of the legislation as it existed at first reading, before any of the online platform provisions were added and before any registry requirements were added. It was a robust discussion, but certainly at the time, we did not contemplate the introduction of the new provisions, so we didn't cover that. Besides that, there wasn't any engagement.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

To summarize then, you were not included in the drafting stage of Bill C-76. You were not consulted by the minister or her staff as this government went forward with Bill C-76 in an effort to determine electoral reform for Canada.

[Jason Kee]

In short, as I covered in my opening remarks, we have advertising systems that serve advertising to third party publisher sites, but we don't have a means of delivering the ad creative and the requisite information to them in real time, which would be required under Bill C-76. There are also the complications with respect to the real-time registry itself, which is why, even for our owned and operated sites like Google Search or YouTube, we also wouldn't be able to comply—at least we didn't feel comfortable we could commit to that.

Finally, there is the additional complication with respect to the inclusion of issue advertising. To be clear, the registries that we have available in other jurisdictions actually do not include issue advertising because, as I said, it is very difficult to cogently identify. Therefore, we were concerned that we would not be able to identify issue advertising for inclusion.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

In looking to introduce tools similar to what you have within the U.S., why are you not able to introduce these tools within the Canadian system, and why do they not comply with Bill C-76?

[Jason Kee]

Well certainly, they were aware of the tools that we had introduced in the U.S. mid-terms, and essentially they were hoping that with the introduction of the changes to Bill C-76, we would introduce similar tools in Canada. It was really a matter of going through the details about why the specific provisions in Bill C-76 would make this challenging, which is where we had a back and forth. Essentially, they were looking for us to introduce tools similar to what we had there.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

What was her response in regard to the tools that were rolled out in the U.S. comparative to the legislation that was presented in Bill C-76? What was her response to those tools, and did she mention if there was any gap between those two items?

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

The minister and her staff were aware that you would not be able to comply as Bill C-76 was laid out. What was her response to you at that time, when you indicated that your organization would not be able to comply with the legislation as it was presented?

[Jason Kee]

By the time Bill C-76 was amended to include the new online platforms provisions, the witness list unfortunately had already closed. As a consequence, there wasn't an opportunity to discuss that with members of the committee.

We discussed it with individual members of the committee to express some of the concerns at the time, and then certainly raised it when it was at the Senate justice committee.

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

That's pretty significant.

When you went to the clause-by-clause process of Bill C-76, I'll going to assume that was in the House procedures committee, PROC. Is that correct?

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

It's fair to say, then, that you were not consulted by the minister or by ministerial staff until Bill C-76 came to the clause-by-clause procedure, until it became public.