Procedure and House Affairs Committee on June 4th, 2018

[Prof. Michael Pal]

Is election law subtle and important? I'll definitely agree with that. It's what I do every day, so I'm biased.

[Some hon. members]

Oh, oh!

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

You're a charter expert.

I'm wondering about freedom of speech limitations that are set out in this bill. There is a restriction on freedom of speech. Is that going to survive a charter challenge? Someone is going to challenge either the pre-writ limitations or the third party limitations on speech. By speech I mean activities.

[Prof. Michael Pal]

That is a very interesting question.

As a constitutional lawyer, I'd want to see the evidence. I'd want to see the record. It remains to be seen what the record would be into a challenge.

I said in my opening remarks that I would have been constitutionally comfortable with the legislation being even more aggressive and having a longer pre-writ period and more restrictions. I think we're in a different world than we were when the Harper case was decided. Fixed election dates have really transformed the game more dramatically, I think, than many people think.

If you're a third party and you have $5 million to spend, you don't want to waste it. If you're not sure when the election is going to be called, you're nervous that if you plan to spend it at a certain time, it will be irrelevant. With fixed election dates, you can plan that well in advance.

New technologies have transformed things. It's much easier to reach people on Facebook and through other social media platforms. Foreign interference risk is there, and with the way third parties are actually spending money, so there are a bunch of different factors that I think indicate there is a reason for the pre-writ rules, and therefore, it could be a legitimate restriction.

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

If you want to get into something specific, do you think Facebook and all those social media platforms should have the same rules apply to them that apply to TV broadcasters in terms of charging and fairness of access to their platform?

[Prof. Michael Pal]

I'm not an expert on telecommunications law. There are broader implications to face with being a broadcaster but in terms of the way broadcasters are treated for electoral purposes, yes.

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

Okay.

[Prof. Michael Pal]

There are other things that come with that in terms of licensing and Canadian content, so I'm not trying to suggest anything on those issues, but specifically on election advertising, yes, they should be treated like broadcasters.

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

Ms. Furlong, I don't know, actually, but I believe or would guess that your organization wants to have greater diversity within our politics, among those who represent us.

Let me put it more specifically. Seventy-five per cent of the House of Commons right now is male. Is the Council of Canadians okay with that ratio?

[Andrea Furlong]

They're probably not.

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

They're probably not.

The government rejected a bill earlier in this session that would have encouraged parties to run more diversity. There is nothing in this bill to do that, and in fact the government has decided to protect all their incumbent MPs, which, if they're successful in the next election, would ensure that the ratio of 75:25 stays the same post-2019.

What should we do about that?

[Andrea Furlong]

I think it's very similar to the remarks I've already made in terms of who gets to participate and who has.... It's about accessibility. As has been mentioned around child care, we have to look at what provides people the opportunity to participate, whether it's child care in making it accessible, or whether it's how we interact with people to become members of political groups or to even be able to be engaged in our electoral system. Right now, the burden is on the people to do that, but my belief is that it's on government to make it accessible for those people to be able to participate.

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

It's our responsibility—

[Andrea Furlong]

It's the responsibility of the people who have privilege—you folks, me—to create those opportunities, not to turn to those people and say, “Well, that burden is actually on you, so you have to make it happen.” Whenever we're assessing something, that's the way we have to look at it: where is the burden placed?

If the burden is placed on people who are already having difficulty participating, whether it's to become a member and run for a political party in an election or to have the right to vote, having that social justice lens makes things a lot more clear. For someone who is de-housed and is having difficulty in their everyday life, the policies we're talking about in any given election have a great impact on them. To say to that person that they have to, in all these different ways that are restrictive, determine their place of residence, and prove that and their identity, is an extraordinary burden on people who are seniors or students. Those are the people who I would imagine you're speaking of when you want to see more diversity in terms of being involved in Parliament.

[The Chair, Liberal, Larry Bagnell]

Thank you very much.

Now we'll go to Ms. Sahota.

[Ruby Sahota, Liberal, Brampton North, ON]

Thank you.

My first question is for you, Ms. Furlong. Some previous questioning that we had a little while ago almost made it seem like the motive of your organization is somehow sinister and you're taking foreign money for those sinister causes. I just wanted to reiterate that you do not take any money from government or corporations. Is that correct?

[Andrea Furlong]

That's correct. On principle, in our over 30-year history, we have never accepted.

[Ruby Sahota, Liberal, Brampton North, ON]

Also, the main motive of your organization when it comes to elections is to mobilize more people to vote, and to make sure that more people have access to voting stations and are able to be heard through the electoral process, correct?

[Andrea Furlong]

That's correct.

[Ruby Sahota, Liberal, Brampton North, ON]

In those terms, we talked a bit more about how the voter information cards can increase accessibility, but I'd like to talk a little more about the education component, because I know that's one of the components that caused some concern for your organization as well. You are currently in court fighting the Fair Elections Act, which the Harper government brought in.

I'm sorry you're having to do that, but right now for the government that is the law of Canada and that is what we have to operate under until this new legislation gets passed. I hope that will be soon so that you won't have to proceed. How will this piece of legislation further enhance the ability of the electoral officer to educate people? How is that in line with the mandate of the organization?

[Andrea Furlong]

I think that looking at students or young people in general is a really good example of that. What we know, aside from a bump in the last election, is that generally young people are voting less. What we know about education is that it would promote a really strong electorate.

With young people being first-time voters, you want to bring people in when they have their first opportunity to vote. You want to educate them on how, where, and what the process is so that they become voters for their entire lifetime. Bill C-76 would provide for them, as well as for people who haven't engaged in the system, those education pieces about what the changes are. It was very disheartening to see in the current legislation that the Chief Electoral Officer wouldn't be able to do those things to really promote a vibrant democracy in Canada. That's what we want to promote through Bill C-76.

[Ruby Sahota, Liberal, Brampton North, ON]

Why do you think the Chief Electoral Officer is best suited to do that work...or Elections Canada, not just the Chief Electoral Officer, but the department itself?

[Andrea Furlong]

Perhaps it's because I'm coming from a non-partisan organization, but I think that's critically important.

We need to have these civil society and government bodies that are non-partisan and seek to invite people to join into a process, not to tell them that they have to vote, but to invite them to vote and invite them into the democratic process. It's something that is a bedrock of our constitutional process, that democratic right to vote, and that's why it should be hosted there.

[Ruby Sahota, Liberal, Brampton North, ON]

In your presentation you spoke about the previous Fair Elections Act being brought in due to concerns of fraud, and that's why they had to act and bring these measures in. You've said that, in study after study, the concern was not about fraud in people going to the polls to vote fraudulently, but in keeping people back and withholding people from voting, such as the robocalls.

I know, Professor Pal, that you've also written a piece regarding the robocalls. What kinds of measures and steps can we take in order to avoid having situations like that occur, and that did actually occur, as we hear, in the Guelph riding, due to Conservatives...? What can we do? That question is for both of you.

[Prof. Michael Pal]

There are already in the act some provisions related to robocalls. I think the provisions in Bill C-76 that deal with foreign interference and unduly influencing Canadian elections will go some way to reducing opportunities for interference from abroad.

The act is always trying to catch up with new technologies. Robocalls were the new thing, potentially, in the 2011 election. It's still an issue, but I'm not sure that's where we should necessarily focus all our energy. I think potential voter suppression efforts, especially from foreign entities on social media platforms, are concerning. I go to a lot of events around the world on emerging electoral practices, and one of the big things that I keep hearing about is campaigning on WhatsApp.

WhatsApp is a direct messaging system that is famously end-to-end encrypted, so no government can see what is happening. That's one of the reasons why people like it, but it also means that it's very hard to regulate political advertising or campaign finance laws if people are using mass WhatsApp groups to distribute misinformation, say, or voter suppression, or incorrect information about a polling location.

I would suggest that Facebook, WhatsApp, and new platforms that are emerging are where we're going to see the problems that we have to address for 2019 and beyond.