Bill C-65

Electoral Participation Act

An Act to amend the Canada Elections Act

This enactment amends the Canada Elections Act to, among other things,
(a) provide for two additional days of advance polling;
(b) authorize returning officers to constitute polling divisions that consist of a single institution, or part of an institution, where seniors or persons with a disability reside and provide for the procedures for voting at polling stations in those polling divisions;
(c) update the process for voting by special ballot;
(d) provide for the establishment of offices for voting by special ballot at post-secondary educational institutions;
(e) provide for new requirements relating to political parties’ policies for the protection of personal information;
(f) establish new prohibitions and modify existing prohibitions, including in relation to foreign influence in the electoral process, the provision of false or misleading information respecting elections and the acceptance or use of certain contributions; and
(g) expand the scope of certain provisions relating to the administration and enforcement of that Act, including by granting the Commissioner of Canada Elections certain powers in respect of any conspiracy or attempt to commit, or being an accessory after the fact or counselling in relation to, a contravention of that Act.
The enactment also provides that the Chief Electoral Officer must make a report on the measures that need to be taken to implement a three-day polling period, a report on the measures that need to be taken to enable electors to vote at any place in their polling station, a report on the feasibility of enabling electors to vote at any polling station in their electoral district and a report proposing a process for the determination of whether a political party has as one of its fundamental purposes the promotion of hatred against an identifiable group of persons.

[The Chair, Liberal, Ben Carr]

Colleagues, I feel like I've returned to second-year political philosophy class today. It was a very fruitful discussion.

I went around the table briefly. There seems to be agreement that we have another meeting on M-109 to invite the House administration and potentially others. However, what I did hear from colleagues is that there is a desire to make sure that Bill C-65 is tended to before we call another meeting on M-109.

I'm looking around. I feel as though head nods are telling me that there's an implied majority here. If colleagues want to vote, we can do that. There's a majority that says yes. Is that clear to everybody?

[The Chair, Liberal, Ben Carr]

Good morning, everybody.

We are here for the 135th meeting of the Standing Committee on Procedure and House Affairs. Typically, I remind witnesses—although I think Mr. Reid is well aware—that we put our earpieces, when not in use, on the stickers in front of us to protect the well-being of our interpreters.

Colleagues, we are here today on M-109, an instruction to the Standing Committee on Procedure and House Affairs regarding amendments to the Standing Orders, and on the study of Bill C-65, an act to amend the Canada Elections Act. We will return to C-65 in the second hour of our affairs here today.

For the first hour, we have our colleague Scott Reid, the MP for Lanark—Frontenac—Kingston, with us. It's always nice when we have a colleague from the House of Commons join us in their capacity as a witness.

Mr. Reid, we very much look forward to hearing from you today, sir. Thank you for making yourself available to the committee. I'll turn the floor over to you for five minutes. If you feel like you need a little bit more time, that's not a problem. Then we will head into our opening rounds of questions.

With that, colleagues, we will begin.

Mr. Reid, you have the floor for five minutes.

[Prof. Michael Pal]

That was a question on democratic electoral integrity.

Democracy in elections is under significant threat around the world, so we are all searching for solutions to try to have more integrity in our elections. There are some areas in which Canada is doing very well. There are other areas where more can be done, particularly around nomination contests.

Particularly on the question you asked earlier about adjusting to new technologies, such as AI and others, I'll go back to my testimony at the foreign interference inquiry. It's about adapting to the ever-evolving techniques of those who are hostile to democracy writ large. I think there are a number of different mechanisms in Bill C-65 that, overall, move us closer toward that ideal of electoral integrity, but I believe the Chief Electoral Officer mentioned periodic updates to the act. We had a big one earlier for the Fair Elections Act, in 2018. I would suspect that this committee will be studying another big change in future years, because we'll need to keep on updating to deal with those new challenges.

I think I'll leave it there.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

I can only speak for myself, Mr. Chipeur, but I was horrified to see some of the revelations from this very committee's study and, now, from the public inquiry into foreign election interference. I don't believe that Bill C-65 actually goes far enough to address some of those concerns. I do believe there are some steps in the right direction.

I'm going to shift gears a bit from foreign influence and foreign funding. Clause 43 of the bill amends the act such that a single person can assist an unlimited number of electors in marking their ballots. Do you see any concerns or questions about that when it comes to the integrity of our process? Do you have any concerns with that?

[Prof. Michael Pal]

In terms of partisan and election advertising, the strongest tool that exists in the Elections Act is spending limits. I believe the Chief Electoral Officer mentioned that there are quite generous spending limits for third parties in the pre-writ period. They're stricter during the writ period.

Spending limits have been upheld as constitutional by the Supreme of Canada on multiple occasions. There's the Harper case, the Libman case and the B.C. FIPA case. There are a number of cases.

The tool is, in some senses, less effective because technology has made it so much cheaper to engage in political communications. That is a positive thing. It has democratized people's ability to communicate with large numbers of voters, but it means that the third party spending limits and the political advertising and partisan advertising spending limits are less effective when entities are using technology to communicate at a very low cost.

Part of the reason why we have these offences about false statements and other things is that they are trying to target the communication in the advertising, rather than the amount that is being spent. I think where it puts us is we need to come up with new mechanisms for the responsible use of technology. Parliament did so in relation to social media companies in the Elections Modernization Act. We didn't know what ads were being run on Facebook, so now there's a repository of ads.

I think we need similar updating of election laws in relation to artificial intelligence and other new technologies. There is some of that in Bill C-65, but I think there's a lot more thinking, frankly, that we all, as Canadian society, have to do to try to address that. The technology and techniques are changing so quickly that it's a matter of trying to respond in real time.

[Prof. Michael Pal]

Artificial intelligence in elections is a very serious issue. The big picture to me is that it makes all of our problems worse—disinformation, misinformation, campaign finance issues and foreign interference. I don't see Bill C-65 addressing that directly, so I think there's much more to do on artificial intelligence in elections.

[Prof. Colin Bennett]

I'm sorry. Okay. Thank you.

OpenMedia did some work on a number of the companies that were employed by political parties at federal, provincial and municipal levels. It came out to be about 90 different enterprises.

My point is this: Those companies have to comply with federal and/or provincial privacy law, principally PIPEDA, the Personal Information Protection and Electronic Documents Act, at the federal level. Many of them will not be processing personal data from political parties, but some will, so they have to ensure that this information is provided with appropriate consent, typically. That has been stated by the federal and provincial privacy commissioners in a decision involving AggregateIQ, which was the company that was implicated in the Cambridge Analytica scandal.

My point about Bill C-65 is that however much you amend it, it's still going to be inconsistent with the rules that companies are going to be having to abide by. Therefore, it is not providing the uniform regime for political parties and the use of personal information in political campaigning that the bill claims to achieve.

I hope that's clear.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you very much.

With respect to external threats, as you mentioned, you elaborate on that as sowing those seeds of distrust in our democracy. We saw that south of the border in previous elections, where the validity of the election was an issue that was brought up over and over again. Do you think that Bill C-65 goes far enough to ensure that Canadians can have faith in our democracy and can have faith in our elections?

We did hear a bit about the question, when we were looking at foreign interference here at PROC, on whether the outcome of the last federal election was impacted. We understand from the Chief Electoral Officer that the final results were not impacted. What are your thoughts on this specific issue of sowing the seed of mistrust on the validity of an election?

[Prof. Michael Pal]

Thank you very much for that question.

Freedom of political expression is one of the foundational values in the Canadian Charter of Rights and Freedoms, so we should be very careful in passing electoral legislation that restricts freedom of political expression. Since disinformation and misinformation now are so prevalent and are deliberate tactics, frankly, often by foreign actors, state or non-state actors, who are hostile to Canadian democracy, these are very pressing problems.

Bill C-65 has clarified some of the offences that exist, partly from the Elections Modernization Act, where there was some ambiguity. The language was broad, but it wasn't clear that deepfakes necessarily were covered. It has clarified that, so I think that is quite welcome.

Where I might have a different view from my fellow witness today is on section 482.01. Again, I'm a constitutional law professor. I start from the point of view that we should absolutely protect freedom of political expression. However, one of the tactics around the globe, by actors hostile to democracy, is to try to undermine confidence in the electoral system by spreading disinformation about the quality of the election, about how it is administered. Therefore, section 482.01, I think, is a useful attempt to try to address some of those concerns.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you very much for clarifying that.

My next question is for Professor Pal.

I want to get your thoughts on what we've been hearing about disinformation and misinformation campaigns. Our previous witness was the Chief Electoral Officer, who brought up the question of how deepfakes and AI can impact voters' decisions to support or not to support a candidate.

Could you elaborate a bit on whether you think that Bill C-65 addresses some of those issues with respect to misinformation and disinformation, and/or would you have any recommendations for us on how to improve that?

[Ayesha Khan, Management Board Member, Indo-Caribbean Canadian Association]

Thank you, Alim.

Thank you, committee members, for having us here today.

Bill C-65 includes several measures to ensure that more Canadians have access to participate in the electoral process. It is of crucial importance to our democracy to work towards eliminating obstacles to Canadians participating in elections.

As a nation that proudly professes to benefit from a multicultural society, we must modernize our democratic institutions to reflect and respect this. When barriers to democracy are identified, progressive societies rectify them.

Rightfully, polling stations must be accessible. Voting options must be broader to accommodate the working populace. Such is the way of a modern society that respects the voice of the people who comprise it. Ensuring that a general election is not held on Diwali is a significant step toward this.

As of 2024, 2.3 million Canadians reported as South Asian in ethnicity. India was the top source for immigrants to Canada between 2016 to 2021. These statistics also do not include the growing Indo-Caribbean community in Canada.

The Indo-Caribbean Canadian Association endorses the proposal to move the set election date so as to not conflict with Diwali. In many Caribbean countries, such as Guyana and Trinidad, Diwali and other religious dates, such as Eid and Christmas, are national holidays.

We are not calling for that today, but we believe our government should recognize the massive significance of Diwali and make it so that Canadians who observe this religious occasion do not have to choose between practising their religion and their democratic right to vote. It is important to note that this barrier is not limited to voters, but holding an election on Diwali or any major cultural or religious date is unfair to candidates, campaign staff, political organizers, volunteers, supporters and election staff who observe said occasion.

During the Ontario municipal elections held on Diwali in 2022, the City of Brampton had to implement measures to address—

[Professor Michael Pal, Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you very much, Mr. Chair, to you, the committee and the clerk for the invitation to appear today. I'm a professor down the street in the Faculty of Law at the University of Ottawa, working in the areas of election law and constitutional law.

There are a number of items of interest in Bill C-65, given what a significant piece of legislation it is. I want to focus my comments in the time I have on the same topic as Professor Bennett, the rules around voter privacy, because I think that's an area where amendments would be of use.

Political parties, as is obviously well known to everyone around the table, use data very extensively. Traditionally, though, federal political parties have fallen in between private and public sector federal privacy legislation. There were some provisions, or are some provisions, in the Canada Elections Act around misuse of the voters list, but other than that, restrictions were relatively minimal and certainly nothing approaching what we would understand as the fair information or generally accepted privacy principles that apply through most of the private and public sector.

Recent amendments to the Canada Elections Act have been moving towards a privacy regime applicable to political parties, particularly with the Elections Modernization Act in 2018 obliging parties to have a policy. The problem with the Election Modernization Act was that it was one step forward but it did not actually impose substantive limits on the use, collection, retention and analysis of sensitive personal information of the kind that would give Canadians confidence in how their data is collected and used.

It is worthwhile going through some specific provisions of Bill C-65, some of which I think are an important step forward and some of which need, in my view, significant amendment.

Proposed section 444.2 will allow authorized parties to “collect, use, disclose, retain and dispose of personal information” as long as that is done “in accordance with the party's policy”. Again, the rule is tied to the particular policy rather than independent principles tied to other privacy values. Parties and entities acting on the party's behalf “must comply with the policy” or potentially be subject to administrative monetary penalties. Parties must now also protect personal information under their control “through [proportionate] physical, organizational and technological security safeguards”. I think that is a positive development, but more definition is likely needed as to what counts as a “proportionate” safeguard. That is spelled out more directly in the legislation.

Most significantly, parties are now prohibited from carrying on the activity of “selling personal information”; parties are prohibited from disclosing sensitive information “for the purpose of causing harm”; and parties are prohibited from “providing false or misleading information” about their collection practices. Those three measures, I think, are certainly welcome and a step forward from the 2018 amendments.

The main problem that remains, however, is that the amendments are targeted at ensuring parties and their volunteers and representatives adhere to the party's policy without actually requiring substantive limits on how the data can be collected and used, apart from those specific ones around selling or disclosing.

In conclusion, I would say that this is an important step forward. More remains to be done. The overall concern certainly is in facilitating democratic participation. It is a good thing for Canadian democracy and elections that parties collect data and use it. It helps with communication to voters, advertising and being responsive to the public, but Canadians have an increasing expectation for how sophisticated entities in Canadian society will protect their data, and there is still some way to go, even if the amendments in Bill C-65 are passed.

Thank you.

[Gerald Chipeur, Lawyer, As an Individual]

Thank you very much.

My testimony this afternoon will address three issues.

First, proposed section 482.01 of Bill C-65 is, in my view, a violation of section 2(b) of the charter. This is because it may be utilized in the same manner as the election laws of Hong Kong to repress protected expression of citizens and the media.

Number two, proposed section 358 of Bill C-65 does not effectively rule out all spending by foreign actors in Canada to influence federal elections. This is because a sophisticated third party may simply have all donations funded from a foreign actor at least two years before a general election.

Number three, the role of the Chief Electoral Officer should be better depoliticized, first by prohibiting the Chief Electoral Officer from changing an interpretation of the act between elections unless directed otherwise by Parliament or the courts, and, number two, by repealing part 18, division 4, of the Canada Elections Act. That is the part that regulates nomination contests.

First, then, I will address freedom of the press.

Proposed section 482.01 should not go forward. It should be removed because it is prone to abuse and violates section 2(b) of the Charter. Recent election law enforcement in Hong Kong should give members of Parliament pause as they consider the authority that this would give civil servants to regulate expression.

Just a week ago, the Canadian media focused intensely on this issue. Proposed section 482.01 is contrary to the charter because it punishes false statements made in connection with the democratic process. In my view, the courts in Canada will not uphold this legislation.

Proposed section 482.01 is nothing more than a restatement of the law of sedition or lèse-majesté. The United Kingdom abolished these laws in 2010, and the Belgian constitutional court overturned a similar law in 2021 because it violated the Belgian constitution.

In our courts, Justice Pedlar, in Ontario in 2006, in 790R3-515, said this about prosecution of a defamation action by the government:

...I find that it is inconsistent with section 2(b) of the [charter] for a government entity such as the plaintiff [here] to bring a civil action for defamation against one of its citizens. The risk of a governing body using defamation as a tool to inhibit criticism of institutional government activities, and thereby inhibiting free speech outweighs the risks of allowing such criticism, even if intemperate.

Then, speaking, on behalf of a unanimous court, Justice Côté in the Supreme Court of Canada, in 1704604 and the Pointes Protection Association—that's 2020 S.C.R. 587—said that even vexatious expression will be protected from SLAPP lawsuits where it involves “public participation in democracy”. That's at paragraph 30.

On the subject of foreign influence, I note that sections 349 and 349.4 are going to be amended here. That is a good step, but section 358.1 is undermined by proposed subsection 358(2) in Bill C-65, and that's because, under subsection 358(2), a sophisticated third party could simply avoid all of the limitations of this section by ensuring that third party or foreign actors funded the third party at least two years before a scheduled federal election.

Finally, I note with respect to the issue of the participation of the Chief Electoral Officer in the internal governance of a political party, that has been condemned by the Ontario Court of Appeal in Longley and Canada. That's the 2007 Ontario Court of Appeal, ONCA 852. Paragraph 74 is the operative section or paragraph. In that paragraph, the court said:

Care should be taken to ensure that the impartiality of this critical public role is not unnecessarily compromised--actually or potentially, in the eyes of the public--by enacting a regime that would call upon the Chief Electoral Officer to make judgment calls on how a political party is conducting its internal affairs or spending its [money].

By including nomination contests—

[Professor Colin Bennett, Professor Emeritus and Associate Fellow, Department of Political Science, Centre for Global Studies, University of Victoria, As an Individual]

Thank you very much, Mr. Chair.

Good morning, committee.

I have studied and researched privacy protection nationally and internationally for over 40 years, and in recent work I've researched the uses and abuses of personal data in election campaigns. I wish to address my remarks entirely to the requirements of section 444 on the “Personal Information Collected by Political Parties”.

First, I doubt whether the Elections Act is the appropriate statutory vehicle for imposing privacy obligations on federal political parties. Contemporary privacy law is complex and requires far more than the obligations for transparency included in Bill C-65. The required amendments fit uneasily within a statute designed to regulate the conduct and financing of elections.

If the government really wanted to establish “a national, uniform, exclusive and complete” privacy regime for FPPs and the organizations that work for them in response to the litigation that's currently under way in B.C., it would either bring the parties into the current Bill C-27, amending PIPEDA, or legislate a separate national privacy protection statute applying to them.

Second, privacy law, as the Privacy Commissioner has pointed out to you in his communication, should include all of the internationally accepted privacy principles, supplemented with serious and enforceable provisions for oversight and accountability.

The current provisions essentially permit the FPPs to collect whatever personal data they wish from whatever sources and to process it in any way they please, provided they are transparent about it, provided they give illustrative examples and provided they don't sell it.

They do not allow individuals any rights of access and correction, and these provisions therefore amount to little more than self-regulation, entirely at odds with the contemporary international consensus about how to protect personal information in the modern digital age.

Third, contrary to the claim in proposed section 444.1 that these amendments “provide for a national, uniform, exclusive and complete [privacy] regime” for FPPs and the organizations that work for them, I think they do nothing of the sort.

There's a recent report from OpenMedia, based on analysis of national and provincial filings on campaign expenditures, which reveals over 90 companies in Canada that work for political parties at federal, provincial and municipal levels. Nothing in these amendments obliges the political parties to obtain consent when they collect personal data from Canadians, yet companies that work for the parties under contract and are governed by federal and provincial privacy laws must ensure that personal data is collected in compliance with those laws. That's according to a 2019 decision from the B.C. and federal privacy commissioners. I think section 444 is likely to create confusion for the companies that process personal information on behalf of political parties.

Fourth, there really is no meaningful, independent oversight. Obligations for compliance are based on the notion that the Chief Electoral Officer could and would cease a party's registration if it did not submit a valid privacy policy. The system for administrative monetary penalties for those who commit violations is also ineffective.

Further, there's no indication of what an individual is supposed to do if he or she is dissatisfied with the response to a complaint from the party's privacy officer. With all due respect to Elections Canada and the Commissioner of Canada Elections, I don't think they possess the resources or the expertise to monitor the complex technical environment of modern digital campaigning. The Office of the Privacy Commissioner does and should be given a collaborative role in the oversight regime, which would be a similar arrangement as exists in B.C.

Finally, there's no effective mechanism for reporting data breaches. We've already witnessed a number of data breaches from political parties, and they're likely to continue. The current provisions only require the parties to inform the individuals affected if they judge that there is a “real risk of significant harm”. There must also be a duty to report such breaches to an independent body, such as the Privacy Commissioner.

Canada is just one of a few democratic countries where national privacy law does not apply to political parties and to the sensitive information on political opinions they collect. There is no evidence, despite assertions by the parties, that compliance with these laws in other countries and jurisdictions, including B.C. and Quebec, hinders political engagement, constrains their ability to recruit volunteers or otherwise prevents them from communicating with the electorate.

There is also no credible reason why Canadians should enjoy enforceable privacy rights with respect to government agencies and commercial organizations and not with political parties.

At root, this issue is not just about privacy rights; it's about the health and resilience of our democracy.

Political campaigning is changing dramatically as elections increasingly become more data-driven and the voter analytics, predictive modelling and artificial intelligence tools, which you discussed earlier with the Chief Electoral Officer, drive campaign communications. The need to develop and apply a strong and consistent set of enforceable privacy rules for federal political parties is urgent, and the provisions in Bill C-65 do not achieve those goals, in my judgment.

Thank you so much.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

I'll do my best.

Mr. Perrault, this committee has been seized with foreign interference issues regarding our elections in the past. I've had private members' bills in the past that have tried to clamp down on foreign money influence.

On the changes in Bill C-65 that are already there, are there any amendments or any further things that you think this committee should be doing to close any of the loopholes? I still see a lot of loopholes where foreign money can actually be used through third party organizations and so on, even from foreign state actors using those kinds of organizations to influence.

Is there anything else we can do to tighten up these rules and loopholes?