Procedure and House Affairs Committee on April 1st, 2014

[The Chair, Conservative, Joe Preston]

Committee, we'll come back together for our next hour.

We have the Canadian Radio-television and Telecommunications Commission with us today, Ms. Laizner and Ms. Bombardier.

Go ahead and give us your opening statement and then we'll go to rounds of questioning.

[Christianne Laizner, Senior General Counsel, Canadian Radio-television and Telecommunications Commission]

Thank you, Mr. Chairman, and good afternoon. My name is Christianne Laizner and I'm the senior general counsel at the Canadian Radio-television and Telecommunications Commission. With me today is Manon Bombardier who is the CRTC chief compliance and enforcement officer.

We are pleased to appear before you as you study Bill C-23, which proposes a number of amendments to the Canada Elections Act. I would like to start by reminding the committee of the new responsibilities that would be given to CRTC if Bill C-23 were proclaimed.

My colleague, Madam Bombardier, will then speak about how the CRTC would be prepared to fulfill its mandate under the proposed legislation.

If the bill is adopted in its current form, the CRTC would be tasked with establishing and maintaining registration information for voter contact services. This means that any person, group, or company engaged in voter contact, including those using automatic dialing announcing devices, which we also refer to as robocalls or ADADs, for voter contact purposes, would be required to register with the CRTC. Registrations would be made available to the CRTC within 48 hours after a call is made.

The ability to verify the identity of the calling party is another important aspect of the bill. Any person or group using a calling service provider or making robocalls for voter contact purposes would have to provide identification to both the CRTC and the calling service provider.

Additionally, the bill would require recordings of messages and scripts to be retained for one year after the date of an election.

Breaches of these roles could cost violators penalties of up to $1,500 for individuals and $15,000 in the case of groups, such as political parties or companies. It is important to note that these penalties can be assigned per violation and that each day constitutes a separate violation.

Let me now open the floor to Ms. Bombardier.

[Manon Bombardier, Chief Compliance and Enforcement Officer, Canadian Radio-television and Telecommunications Commission]

Good afternoon, Mr. Chairman.

As you already likely know, the CRTC administers and maintains the national do-not-call list as a tool to protect the privacy of Canadians, but also to reduce the number of unsolicited calls that they receive from telemarketers.

To date, the national do-not-call list includes over 12 million telephone numbers that are registered to the list. There are also over 10,000 telemarketers who have registered. In the nearly six years that the do-not-call list has been in effect, the CRTC has helped those telemarketers both understand what the requirements of the regulations and rules are and comply with those rules and register with the list.

We have received to date over 800,000 complaints and conducted over 1,300 investigations under the unsolicited telecommunications rules, and we have levied over $4 million in administrative monetary penalties in relation to those violations.

I mention all of those accomplishments not only because the CRTC takes great pride in these accomplishments but also because new responsibilities that would be given to us under the new bill, if it were proclaimed into law, would follow a similar model as we have under the unsolicited telecommunications rules.

Under such a scenario, we would be able to leverage our experience and expertise in the administration and enforcement of those rules and apply them to the new provisions of the bill.

For instance, the CRTC has significant experience in building and overseeing lists of registered telephone numbers and telemarketers. We could draw on that experience if it was required to build a similar record to meet the requirements of Bill C-23.

We also maintain rigorous processes for investigating possible violations of the Unsolicited Telecommunications Rules. Under the process, complaints submitted by Canadians are assessed and used to prioritize investigations and determine whether or not the rules were complied with.

Finally, our methods for ensuring compliance with the rules—such as issuing citations and notices of violations, imposing administrative monetary penalties, and working with violators to correct improper practices—can be adjusted to suit new purposes.

Mr. Chair, it would be imprudent of us to suggest that we could simply and quickly adapt our National DNCL systems and processes to suit the requirements of Bill C-23. No new law can be administered with that degree of simplicity.

New tools would need to be purchased and processes likely created to handle complaints. We would also need to ensure candidates and telephone service providers were aware of their new responsibilities, and provide timely information to the public.

Yet we, at the CRTC, are confident that we have the expertise to meet any new responsibilities given to us under the bill.

Thank you, and we would now be pleased to answer your questions.

[The Chair, Conservative, Joe Preston]

Thank you very much.

We'll go to Mr. Lukiwski for seven minutes in the first round.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Madam Laizner and Madam Bombardier, for being here today.

Obviously, the provisions contained in Bill C-23 were to address the situation commonly known as the Pierre Poutine scandal, in which some still unknown culprit apparently attempted to use voter suppression tactics by sending out phone messages to voters, primarily in Guelph, I suspect, but perhaps on a far wider range than that. Since we haven't had the ability yet, or at least the Elections Canada investigation has not produced any evidence as to who this culprit may be, provisions were put in Bill C-23 to try to prevent that sort of situation from occurring again.

We've had the former Chief Electoral officer, Jean-Pierre Kingsley, appear before the committee. When I asked him directly whether he thought the provisions put into Bill C-23 would prevent the situation from occurring again, he just simply said yes.

I would like to ask both of you a twofold question. Number one, in your opinion, do you believe the provisions in Bill C-23 would prevent the type of Pierre Poutine situation from occurring again? Two, and perhaps even more important, perhaps you could expand upon your thoughts as to the ability of the CRTC to administer and maintain such a registry, and whether or not you have the full level of confidence within your own organization that this could be accomplished. Perhaps, finally, you could add a bit of a timeline for us, since you mentioned this could not be done overnight.

Madam Laizner, perhaps I could start with you.

[Christianne Laizner]

Mr. Chairman, the proposed legislation creates new obligations that did not exist before. The important obligations that are new and would serve to address some of the problems that occurred with Pierre Poutine would be the requirement that the group or party or person seeking the services of a calling service provider would have to provide them with identification. The identification would have to be identification that's authorized by the CRTC. That would be one of our new responsibilities to determine what is adequate identification.

At the same time, the obligation is reciprocal on the calling service provider to obtain that information. The bill also has provisions in it which require that any agreement entered into has to be entered into with a calling service provider by an authorized representative, an official agent, a chief financial officer. Those are very important provisions that we think will assist us in ensuring that these types of calls don't occur again.

The extent of the responsibilities for the CRTC is to ensure that the identification is authorized. Then the obligation falls on the calling service provider and the person who's seeking those voter contact services to file registration notices with the CRTC within 48 hours of a call being made. Those notices would contain the names of the person entering into an agreement, the name of the calling service provider, and also the type of call that will be made.

[Manon Bombardier]

If I may add to that, one of the first steps in securing compliance is to make the regulated parties and persons who are subject to the rules aware of their responsibilities. The CRTC would likely consider conducting an outreach campaign to inform both the candidates and the service providers of their new responsibilities under the bill, which would facilitate compliance.

On the second question regarding our ability to maintain and to administer a registry, I think the CRTC has demonstrated that it has significant experience in establishing and overseeing a list of registered telephone numbers and telemarketers that could be applied to meet the requirements of the new bill.

We are working with Elections Canada so that if the bill becomes law, we will make sure we are ready to implement that new registry.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

How long do you think that implementation process would take?

[Christianne Laizner]

The bill provides that the obligations fall on the CRTC as of the 2015 election, and we're confident, based on our experience under the unsolicited telecommunications rules with telemarketers, that we will be able to assume our obligations should the bill be passed.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Just to be clear, I know the current Chief Electoral Officer said that he wanted to see whatever changes were to be made implemented before, I think he said, summer. He referred to roughly June or July.

If the bill did come into effect over the course of the summer, are you saying categorically that you believe the CRTC would be in a position come October 2015 to have such a register in place?

[Christianne Laizner]

That's our goal.

[The Chair, Conservative, Joe Preston]

You have a minute left.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

This is my last question, Chair, and probably the most important.

Going back to my comments about the testimony given by former Chief Electoral Officer Kingsley who stated he felt the provisions would be sufficient to prevent the Pierre Poutine incident from reoccurring, do you share that level of confidence, or are there loopholes we haven't seen yet that might allow someone who wanted to perpetrate a voter suppression scheme in the future to be able to do that? Is this tight enough in your opinion?

[Christianne Laizner]

If the rules are followed as the provisions are set out in the bill, yes.

[Manon Bombardier]

I would add that the demonstrated record of the CRTC in enforcing the current rules that are in place and that affect the activities of political parties under the automatic dialing and announcing device rules demonstrate that we take our role very seriously and we don't hesitate to take enforcement actions when required.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you very much.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Scott, for seven minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you to the witnesses for coming.

I'm going to do something a tiny bit unusual. I have a whole series of questions I'd like to read first. That will also put them in the record in both official languages and then we'll start to get to some of them, the most important ones probably in the second round. I'd appreciate it if you could consider providing written answers to some of them if we don't get to them, but that's something we can discuss later.

I'm going to refer to them by numbers.

One, assuming that the CRTC was consulted or otherwise worked with the minister or his officials on the new division in the act that you've described, is the present text of Bill C-23 what the CRTC understood would be legislated, or are there differences, and if so, what are they?

Two, is it the case that current technology would permit technologically sophisticated persons to use their own call delivery systems consisting of their own server, intermediary proxy servers, and so on to conduct a calling operation without needing to use any calling service provider as defined by these new sections, and if so, does that mean such persons would not be registered in the new system, let alone caught by it, if they were engaging in voter suppression calls?

Three, if there is the just described coverage gap, does it stand to reason that other preventive measures and/or effective investigative tools, notably on the part of the Commissioner of Canada Elections, such as the power to seek a judicial order compelling testimony, and such as access to all receipts for national party campaign expenses, will be needed to deal with such voter suppression calling that takes place outside the system overseen by CRTC?

A lot of these will now be technical.

Four, regarding proposed section 348.01, are text messages or similar communications like BBMs covered by the definition of calls?

Five, again regarding proposed section 348.01, under the voter contact calling services definition, one purpose covered is indeed the raising of funds. There are two questions. Could you confirm that calls made within the new fundraising exemption for campaign expenses found in proposed subsection 376(3) of the act are covered by this voter caller contact services definition? Within question five, to what extent will the CRTC oversee the compliance of parties with the new fundraising exemption, as the minister has claimed it will in the House?

Six, proposed sections 348.03 and 348.07 use the language “a person enters into an agreement” and the question is, should this not read “a person or a group enters into an agreement”? In the definition, political parties and other collective entities are defined as being within the category of groups. If they're not put there, will this end up meaning they're not covered by theses duties in those two sections?

Seven, there are two pairings of provisions and I'm wondering if there's a gap. There may not be. Proposed sections 348.08 and 348.09 go together. Proposed sections 348.18 and 348.19 go together. Is there a gap here that means that groups, including political parties, do not have to account for live calls if those live calls are made using their own internal services? If so, is an amendment needed?

Eight, regarding proposed section 348.11, could you confirm that the voter contact registry will not contain phone numbers called through voter contact calling services or through the internal services of groups like political parties, and will also not contain scripts and recordings? There is no duty to provide either of them to the CRTC. For maximum effectiveness, should both of these be required to be retained by the calling services providers, as we know for a designated period, but also conveyed to the CRTC to be part of the voter contact registry?

Nine, there is nothing explicit in the voter contact registry provisions on either a CRTC duty to retain information or a period of retention. The question is whether this duty is implicit, and if so, for how long. Does the CRTC already have policies that would apply? Should the duty to retain be made explicit? If so, for what length of time? Is the 10 years suggested by former Chief Electoral Officer Kingsley a good period?

Ten, there are no tag line requirements in the bill. Should all calls have to have specified caller information that must be included in scripts and recordings, and also conveyed for inclusion in the voter contact registry?

Eleven, calling service providers must retain data for only one year. Should this be longer? If so, for how long?

Twelve, should there be an express power, as recommended by the Chief Electoral Officer, for the commissioner to apply for a judicial order for any person or group or calling service provider to retain data beyond the specified period should the commissioner believe he may need access to that data as part of an investigation?

Thirteen, is the voter contact registry public, or is it only the registration notice as referenced in proposed section 348.12 that is public?

Fourteen, is the voter contact registry accessible at will to either the Chief Electoral Officer or the Commissioner of Canada Elections, or is access limited by proposed section 348.15, which requires a request only from the commissioner, and using a necessity test?

Fifteen, according to proposed section 348.15, the commissioner must ask for documents or information. Must the commissioner know exactly what document or information he or she needs? Within the same question, there's no explicit, proactive duty on the part of the CRTC to inform the commissioner of any suspicions so as to trigger a request from the commissioner. May the CRTC do so? Should the duty be made explicit? In any case, will the CRTC be likely to discern any problems that would give rise to suspicion, given the nature of the oversight regime? Is the threshold too high for the commissioner? It's a “considers necessary” threshold. Should it be “considers helpful”? Should the bill be amended to give the commissioner unfettered access to the voter contact registry?

I'm going to skip two questions, but I'll come back to them.

There's no express clause dealing with extraterritorial service providers. Should there be?

We'll come back to these questions in the second round. Thank you.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Scott.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

That was an interesting line of questioning and answering. I think what I would very much like, though, is that if you're going to be making a recording of those or responding to those questions in written format, you provide me and possibly the committee chair with the written response so that we all have the detailed answers to those questions.

It would be very much appreciated if I could get that assurance from the members from the....

[The Chair, Conservative, Joe Preston]

Mr. Scott asked a lot of questions and there was no time for answering. So if you could respond to the committee with the answers to Mr. Scott's questions within a week, while we're still studying this, that would be fantastic.

[Christianne Laizner]

Yes, Mr. Chairman, we will do so, to the best of our ability.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

It has been an interesting process that has brought us here today.

There's no doubt the whole robocall scam upset a good number of Canadians. It's estimated that it was well into the tens of thousands of Canadians who were actually quite upset, and contrary to what Mr. Lukiwski was saying, Guelph was a very small percentage of it. Some of the concerns that were raised.... I don't know to what degree CRTC has made itself aware of some of the complaints, such as calls made at two o'clock in the morning into certain areas or constituencies, such as people being contacted and told, “You don't vote here, you vote over there.”

There were literally, I understand, over a hundred constituencies that were actually involved, where some form of mass calling was made, and it took on that label of voter suppression to discourage people from going out to vote. I think the reaction has been, well, what can we do? What should we be doing in order to prevent this in the future?

When I think of the automatic dialers, Pierre Poutine is often referenced. Pierre Poutine is a mischievous individual who we haven't been able to track.

Is there anything that prevents a future Pierre Poutine from setting up a computer in some basement and having an automatic dialer and sending out information or making a vast number of calls? What would the CRTC do if they heard of calls being made, but they're in the same situation where the caller is not registered with CRTC?

[Christianne Laizner]

Mr. Chairman, we have unsolicited telecommunication rules that exist currently. They cover automatic dialing announcing devices. For calls that are made using automatic dialing announcing devices there are rules regarding the times of day during which those calls may be made. I believe that during the week they may be made from 9 in the morning until 9:30 at night, and on weekends from 10 a.m. to 6 p.m., unless in particular provinces there are more restrictive calling hours.

The rules also provide that there has to be information provided about who the ADAD is being made on behalf of. There has to be a telephone number provided for the person called to contact the originator of the call.

Those rules exist currently for ADAD calls. My colleague can speak to complaints that have been received by the CRTC and investigations that we do.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

What happens if we have, let's say, that future Pierre Poutine who just has something set up in a basement and there is no registry with CRTC? Are you in a better position to be able deal with that than Elections Canada is, for example?