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.

[Karina Gould, Liberal, Burlington, ON]

I think the ad registry that this committee brought forward in Bill C-76 will play a very important role in that. Facebook has stated that it will have an ad registry for the pre-writ and writ period. I think that's a really important measure, because Canadians will be able to see all of the advertisements that political actors are putting forward during that period. I think that is very important.

I also think you raise an interesting point with regard to micro-targeting. It's an ongoing conversation we're having. It's one that I imagine will also come up during the grand committee event that will happen in a couple of weeks about what that means in terms of different political actors using that and not having a full picture. One of the interesting things I always think about is that if you're advertising through more traditional means, whether it's on the radio, on TV or in newspapers, you are going to see all of the different political ads, because that's the one venue you have to look at it. On social media, you may see only one party's ads, for example, because maybe you're not part of the target demographic. That's certainly something that I think we need to reflect on further in terms of whether or not that fits within the spirit of our elections legislation.

Democratic Reform

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Democratic Institutions]

Madam Speaker, we categorically reject the premise of that entire question.

First, Bill C-76 was fundamental to ensuring the stability of the democracy in this country in response to the unfair elections act.

Second, when we are talking about elections and electoral fairness, we need to talk about online platforms, including social media companies.

Third, regarding notice to those companies, they have had adequate and ample notice.

Fourth, the resources of those companies are larger than those of most nations on this planet, for goodness' sake. To purport that they have not had the ability to address these issues is absolutely and categorically false.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and to the Minister of Democratic Institutions]

Madam Speaker, in all fairness, we will take no lessons from the other side about making changes to the electoral system. The legacy of the unfair elections act has been long, and we heard about it extensively in 2015. We acted promptly to deal with it.

With respect to the social media platforms and the position they are taking today, we find that disappointing. We know these social media platforms have the resources and the ability to take action, and to take action now. We know that Bill C-76 was given first reading well over a year ago and its long endurance within this Parliament is largely due to the blockage of that legislation by the Conservative Party at PROC.

[Jason Kee]

There are several things there.

Number one, if that were the case, it's puzzling as to why we would take a decision that is costing us money, insofar as we're no longer earning revenue from a class of ads. More importantly, vis-à-vis our publisher partners, vis-à-vis YouTube creators, we operate under a partnership model where we actually share revenue. In the case of websites, for example, that use Google's infrastructure—which is what has generated our challenges for complying with Bill C-76, because they show Google ads against their content—they earn more than 70% of the revenue for every single ad that shows because they're the ones providing the content.

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

I want to go back to Bill C-76 for a minute.

When we talk about technology, innovation, the digital economy, the first people I think of are not public servants at the Privy Council Office; they are not public servants at Elections Canada. When I think of the digital economy and things like that, I think of companies like Google, Facebook, Twitter—those that are innovating.

In your testimony, you mentioned that you weren't consulted by the drafters of the legislation. I find that troubling. Government is probably one of the worst offenders for keeping up with technology, especially when drafting legislation, when they're not consulting with those within the industry.

You mentioned that the decision not to advertise was largely a technical decision, based on the requirements of obtaining that by June 30, July 1. I can accept that, and I want to put on the record the reason why I accept that.

Elections Canada themselves said that the provisions in Bill C-76 ought to have been in law with royal assent by April 30, 2018. On April 30, 2018, the legislation was only just tabled in the House of Commons. It did not receive royal assent until December 2018.

If Google, YouTube, your private businesses decide tomorrow that you no longer want to stream cute cat videos, there is nothing that the Government of Canada can do force you to do so. I would assume it would be the same with any type of advertising. If you decide not to advertise for any reason outside of human rights violations, there is nothing requiring you to do that.

What I find fascinating, though—and it is more of a rant than a question—is that the Government of Canada, in their rush to implement this legislation at the very last minute of the time period they're able to do it within, never consulted with those who would be implementing a large portion of this legislation.

The changes were done in clause-by-clause. There were 200-plus amendments in clause-by-clause. I was part of those discussions. I missed a few of them for the birth of a child, but I was there for most of the discussions. Then, they were table-dropped at the very last minute, after the witnesses had the opportunity to discuss....

It's not a question, but you're welcome to comment on that. I am just incredulous that the government would rush this legislation—the very last possible period of time to have it implemented before the election—and then expect every private business to comply with the rules for which they have had no opportunity to, (a) be consulted or (b) make suggestions during the period that clause-by-clause happened.

I'd be happy if you have any comments on that.

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

I appreciate your point.

Mr. Kee, I talked in the last round of questions about the 15 word changes. Between rounds, I've been looking through my notes, because I do sit on PROC and I was involved with the Bill C-76 process from beginning to end. We had numerous witnesses and numerous submissions, but I cannot find any from Google. On those 15 words, how would—

[Colin McKay]

I believe the conversations around GDPR took upwards of four years to deliberate on the legislation itself and then its implementation. It's still going through implementation. The focus we had on GDPR from the outset was both on participating in the discussion about the content, the tone and the objectives of the legislation, working closely with the European Commission and their staff, and then on also ensuring we had the systems in place to be able to comply with it. That's still an ongoing process.

If you're drawing an analogy, there's an extreme distinction between the way the amendments to Bill C-76 were considered and implemented and the way legislation normally is considered and implemented.

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

Thanks.

I want to build on other questions on timelines. At the very beginning, in the first round of questions, we were trying to get a sense of whether you would be ready for the next election in 2023. That seemed to be a difficult question to answer. I never got an answer that said “yes, Google will be ready to implement Bill C-76, by the 2023 federal election”, assuming it happens at that time.

If we know that it's going to be ready for 2023 and we know it's not going to be ready for June 30, 2019, do you know? Are you actively working on it now? Do you know if it's going to be ready at some point between those two dates?

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Thank you, gentlemen.

I want to follow up a little bit on what my colleague Nate was saying. We are clearly struggling to believe you about the aspect of you being able to meet the requirements of Bill C-76. Facebook says they can meet them. Are you aware of that?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I'm not technical like Mr. Graham, but I can read Bill C-76 and I have it in front of me.

It's the publication period of the registry that caused your problem. Is that correct?

[Jason Kee]

It's simply because the systems we've deployed in the U.S., the EU and India would not have accommodated the specific requirements in Bill C-76. If we had moved forward with that, we would have actually implemented a similar system.

We actually have had preliminary conversations with Elections Canada with respect to this, but in the end, it just became clear that with Bill C-76 and the specific requirement that each individual publisher had to maintain its own registry, we would have a very difficult time accommodating the requirements.

[Jason Kee]

It's actually a combination of all of the above.

What's happening is that in order to implement the prohibition, we will be updating our ads policies. As I said, there are entire classes of ads where basically we will not accept the ad, such as cannabis advertising. There's another class of ad that goes through registration requirements. That's all governed by our advertising policies.

This decision will be reflected in those ads policies. We will have ads enforcement teams located in various places around the world who will be educated on these ads enforcement policies.

With respect to the specific issues on the use of the ad, every class of ad that you described sounds as though it would likely fall within the ambit of Bill C-76 and fall within the ambit of the prohibition.

We will have actually teams that are trained on that, but also, specifically looking at it from a Canadian perspective, informed by the advice that we have across functional teams located here in Canada.

[Jason Kee]

That was not a calculus that entered into the determinations at all. It was fundamentally down to how we would engage the requirements, whether it was technically feasible for us, given the way our systems currently work, given the time frames and, frankly, our risk tolerance, with respect to what would happen if we ended up getting it wrong. That was entirely it.

It never came down to a calculation of a cost benefit. If anything, it's worthwhile noting, we have opted out of engaging in the only thing elections-related that actually would earn us revenue. Instead, we are investing in things that do not earn us revenue, such as our engagement with Elections Canada on promoting election information through search and knowledge panels, and so forth, with YouTube and in various other measures, not the least of which was a $1-million grant to CJF on news literacy, in advance of the Canadian election.

Essentially, we have doubled down on the non-revenue-earning components of it, to compensate for the fact that we simply could not accommodate the requirements of Bill C-76.

[Jason Kee]

Essentially, the main difference, at the risk of getting slightly technical, is that fair dealing in Canada is an exception to infringement. It is a defence that one raises in response to a claim that you have engaged in an act of infringement, so the way that is managed is very different.

In this instance, Bill C-76 was introducing positive obligations—not only that you had to introduce an ads registry, but about the way it had to be done—that we simply couldn't accommodate in the time frame allowed. That's the main difference in the two.

[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.