Evidence of meeting #109 for Procedure and House Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was election.
A recording is available from Parliament.
Executive Director, Council of Canadians
I don't know if it's within my expertise, frankly, to comment on that here today. We're here more to speak to the pieces we're speaking about in terms of the court case.
Conservative
Blake Richards Conservative Banff—Airdrie, AB
Okay. Might I be able to ask if you could have someone in the organization who would maybe be more the right person, I guess, provide that information to us? Could you endeavour to get to this committee the opinion of the organization on that?
Conservative
Blake Richards Conservative Banff—Airdrie, AB
Maybe it could be in writing or something. Thank you.
I believe I don't have a lot of time left, but, Mr. Pal, maybe I'll just turn to you for the remaining time. You mentioned a couple of areas in the legislation that you were quite pleased with. You mentioned one area, the privacy area, that you weren't as happy about. I know you didn't have a lot of time in your opening remarks. Are there any other areas? Obviously our main goal here is to try to determine what might need to be changed in the legislation.
Are there any other areas that you see in the legislation that you would have concerns with, about which you might have suggestions for ways we could improve?
Prof. Michael Pal
There's one other area, which might seem small, but we have a brief period of time. The standard legal language in the act is mainly about preventing collusion between third parties trying to evade the existing rules, or between a third party and a political party. Collusion is a high legal standard and it's something that is hard to actually prove. The legislation supplied by the Federal Election Commission in the U.S. and the Ontario legislation that came into force in 2017 use what you would call a coordination standard. It actually sets out some activities that are permitted in terms of what can transpire between a political party and a third party, and what activities are deemed not to be permitted.
One of my concerns with Bill C-76 is that it talks about sharing information between a third party and a political party. The other legislative regimes give great detail on what that means. You as a political party might want to say you're having an event at this place and time to discuss this issue. That's sharing information but it's not what we would typically understand to be collusion. In the situation of, say, someone who works for a political party who then goes to work for a third party—and that does sometimes happen—what do we imply from that?
Other legal regimes go into much more detail on what the standard is for collusion or coordination, so that is one area where more could be done. Other than that would be to specify what sharing information means under the act, or to consider moving to a coordination rather than a collusion standard, because it's easier to prove and it perhaps provides more clarity to political parties and candidates and to third parties.
Nathan Cullen NDP Skeena—Bulkley Valley, BC
That's interesting. So right now with Bill C-76 the bar to prove that a third party is essentially using its influence to affect an election is a standard of collusion rather than a standard of coordination?
Prof. Michael Pal
Third parties face a spending limit, so one way you could try to get around that is to divide it into two, three, or 10.
Prof. Michael Pal
Then each one would in theory have the same. That's deemed to be collusion.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
If I'm a Russian billionaire and I spread $500,000 across 20 different groups, they can coordinate efforts on an issue that I care about or attempt to elect somebody I want to elect. Is that a workaround as to how Bill C-76...? Is that a loophole in the bill right now?
Prof. Michael Pal
You can take the Russian billionaire out of the scenario. You can just have Canadian money—
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's just more interesting that way. Take another scenario; it doesn't matter.
Prof. Michael Pal
I wouldn't say it's a Bill C-76 issue. It's that the Elections Act uses that collusion standard. There are other mechanisms to try to get compliance agreements and things like that, but you don't see a lot of prosecutions and convictions for these, and not a lot of compliance agreements.
NDP
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
That's my question. The government has called this a generational change of our election laws. If we're making a generational change, let's fix the things that exist right now especially with the growing or new threats that have come as we've seen in Brexit and U.S. elections, and whatnot. Would this be one of those changes that you would argue for, to set a bar whereby we will see prosecutions if that's what people are in fact doing? Would that be worthwhile pursuing?
Prof. Michael Pal
I think a coordination type of standard provides more clarity and it's probably also easier to prove in legal terms, so it would be helpful in that sense. The problem is that if you have a rogue foreign actor, there are a bunch of other new offences in the act that get at foreign interference, which I think are very positive. It's just hard to imagine the Russian billionaire ever being held to account under Canadian law.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
No, but the groups that they use need to be held to account.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
The billionaire looking to make trouble is not going to come forward to Elections Canada and say, “Oh, by the way, I'm spreading $10 million across the next election to elect this party.”
A second question is around the type of sharing of information. It would be one thing if Ms. Furlong's group gathered data on a million Canadians and shared it with a party versus one of her chapter groups saying, “There is a debate tonight on water in Kingston. Please go.” Both are sharing information. One has quite an impact, having that kind of data-rich source given to one party over another. Another is inviting to a public forum.
Is there some distinction that needs to be made in this act before it's passed through Parliament, not to crack the walnut with a sledgehammer, but also to be able to get at the thing that we're trying to get at?
Prof. Michael Pal
Collusion is already illegal, so this just adds it into the pre-writ period, and then building into some of the other rules on foreigner interference. Bill C-76 doesn't transform what already exists.
If you do move to a coordination standard, though, you do end up needing to be very specific.
Prof. Michael Pal
Right, because if you're having a platform launch, you want to be able to invite stakeholders, right?
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Here is the frustrating thing for us, as parliamentarians. We have four days to study and another day to amend a 350-page omnibus election bill over some pretty nuanced things that are incredibly important. Is what I just said fair—that they're important but maybe subtle?
