Procedure and House Affairs Committee on June 4th, 2018

Liberal

The Chair Liberal Larry Bagnell

We're sort of running out of time here. Are you almost finished?

National Coordinator, Council of Canadians with Disabilities

Okay.

Liberal

The Chair Liberal Larry Bagnell

Great. You can mention this when you get asked a question. Don't answer the question, just finish your speech.

Voices

Oh, oh!

Liberal

The Chair Liberal Larry Bagnell

We'll go on to Mr. Lavergne for some opening comments.

June 4th, 2018 / 12:30 p.m.

Réal Lavergne President, Fair Vote Canada

Thanks very much.

Thank you for inviting me. I see a few familiar faces in the room. I'm happy to be here.

I thought I'd help out by handing out my speaking notes, but I understand that if they are not translated, you're not going to see them for a while. But I would like to point out one thing in particular, which you'll find on page 5. I've actually listed a few items in which we have comments on how the bill might be easily amended, if you were interested in doing that.

I know you are busy. You have a 350-page document in front of you. This would hopefully make it easier. I'm happy to email this to anybody who'd like to see it. Just be in touch with me and I can send you the link. It's a Google doc.

You know what Fair Vote Canada is. I'm not going to go into any detail about that, but as a representative of Fair Vote Canada here—I'm the president—I'd like to address mainly issues of third parties, because there is some new material here and I'd like to express a few thoughts about that, which I think you will find useful.

Before I get into that, I'd like to acknowledge a couple of things with regard to our general issue, which is equal opportunity in the electoral process, levelling the playing field. I'd like, first of all, to acknowledge how much the bill actually does, without going into detail—because you already know what it does—in terms of ensuring greater access for a wide range of specific groups of people, including people with handicaps.

One thing I have to acknowledge, and that we all have to acknowledge, that it does not do—and my colleagues would not forgive me if I didn't mention it—is, of course, anything to ensure that every vote counts equally in terms of effectiveness regardless of where you live and who you vote for. The only way you could get that is with proportional representation, and this act doesn't deal with that. I'm putting it on the table, but I'm not going to harp on it. I know that's not what you want to hear today.

Let's talk about the third party issues. Here I'd like to speak about five different points. The first one is whether Bill C-76 is restrictive enough with regard to third parties. There is one important point to be made on what we in Fair Vote Canada and, I think, many others would think it is not restrictive enough, and that is with regard not to how much third parties can spend, which is fairly generous, and I'm okay with that. We can't spend that much money anyway. We couldn't spend a fraction of what the ceiling is, so it's not a problem for us. However, there is no restriction that I could find on contributions to third parties, so what you have is a system whereby moneyed interests can channel large amounts of money to third parties. They can create more third parties if they want to, and therefore, have a disproportionate influence on the results of elections.

I would like to point you to the B.C. Election Act, which I think is a very good example of restrictions that can be added with regard to third parties. I'm familiar with it because we're working on the referendum there. It restricts contributions to third parties in the same way as it restricts contributions to political parties, with a maximum of $1,200 per individual. I believe there are also restrictions on corporate and union donations as well. I think that is worth looking at. I don't know if you have time to look at it, but I'd like you to put that issue on the table as one that needs to be dealt with in the future.

I am speaking now as a representative of a third party, and I turn to whether the bill is too restrictive in any way. I have four points to make. From my very careful reading of the bill, it is not too restrictive on these two points, but it's not very clear. I'd hate for us, in Fair Vote Canada, to spend hours arguing back and forth on whether it applies to us or does not apply to us, so I have a couple of suggestions on how to make it clearer, assuming that my understanding of what's intended is correct.

First of all, with regard to the pre-election period, third parties have to register if they engage more than $500 in partisan activities, partisan advertising, and election surveys. Never mind election surveys; we don't do a whole lot of those, but maybe that's something we'd have to do. Partisan activities and partisan advertising, the way they're defined here, we do. We are a multi-partisan organization and we focus strictly on the issues, and the bill seems to exclude from consideration advertising that's focused on issues.

It sounds as though we're off the hook, but where it's not clear is whether we can name parties and candidates and the position they have taken when we provide information on our issues.

Does that constitute partisan advertising or is that simply informing the voter? I think it's only informing the voter, and I think the bill is intended to allow naming provided that it's with regard to the issue. That needs to be clarified. It could be clarified with some very simple wording where, when you talk about it with reference to “an issue”, it actually says, “otherwise than with reference to an issue”. If you're referring specifically to an issue, you can name and you can describe, and that's okay. That needs to be clarified: which is it? That's the first point.

With regard to the “election period”, the election period is more demanding. In terms of the election period it says that even when you're dealing with the issues, if you are promoting or opposing a candidate or a party, that counts as election advertising. Fine. I think that makes perfectly good sense.

What we're concerned about here, and I think it could be useful—we ran into this with the Ontario election, where there are similar clauses—is what happens with a general brochure that doesn't promote or oppose any party or candidate but advocates for proportional representation. It's clearly about the issue, but it doesn't promote or oppose. The spirit of the bill seems to be, no, that's not election advertising; that's general advocacy around an issue.

For almost any issue in the country, there's going to be an advocacy organization that works on it. Do we expect every advocacy organization in the country on any issue to register whether they promote or oppose? I think not. If you could be clear about that, it would be really useful. I've proposed that in those “not including” clauses—there are five of them now—you add a clause that refers to business-as-usual advocacy that does not oppose or promote. That's my suggestion on that one. Make it clearer. That will make everybody's lives a lot easier.

The third point has to do with the $500 trigger before a third party has to register. This is nationwide. If we spend more than $500, we have to register. If we spend more than $500 on election advertising, we have to register. Now, that depends on what you consider to be election advertising, hence my two points that I've made and that are important to clarify.

The point is this. For example, in P.E.I. right now, they're discussing Bill 38. Bill 38 is about the referendum. Their trigger for a third party to have to register is $500. They have a population that is about equivalent to that of a riding anywhere else in the country, and here we're talking about a whole country and you want the same threshold of $500. To me, that's way too low. You should be talking about probably at least $5,000, which is 10 times that much. I'd like you to consider that having to register is a huge burden on a third party. We have to hire a financial officer. That's expensive. It's going to be more than $500, I can tell you that; it will be several times that much.

Basically, then, if you say that if we spend more than $500, we have to register, you're basically saying that we're not in the game at all. I think we need to be fair. I think it's going to have to be higher than that. That's worth thinking about.

Finally, there are the new clauses on collusion. There are clauses in the Canada Elections Act—or a clause—on collusion already. The logic of it is obvious. If third parties are working with a political party in order to circumvent limits on election spending, that's against the law. That's collusion.

The existing Canada Elections Act is as clear as day on that. You're not allowed to circumvent limits on spending. You're not allowed as a third party to make in-kind contributions. If you own a storefront, you're not allowed to just lend it to a party. That's obvious. It's included already in the Canada Elections Act. However, for an advocacy organization like ours, Fair Vote Canada, we have to work with politicians or we are never going to get electoral reform in this country.

If we are not allowed to talk to politicians to find out what they're prepared to do if they're elected.... Are they prepared to take some leadership on proportional representation? If they are, we might want to consider endorsing them and supporting them. We need to talk to them to do that, just as politicians need to talk to voters. They're prepared to tell voters what they're prepared to do and not do, and voters are prepared to push back. There has to be that kind of dialogue with third parties as well, without circumventing the electoral spending limitations.

I think, and my colleagues in Fair Vote Canada think, that the new clauses on collusion are over the top. They should simply be struck out. They're not necessary. They are handicapping third parties from doing what they need to do, which is to be part of the political process and to talk with politicians to see where alliances can be forged in order to pursue our reform agenda.

Thank you very much. You have the notes. As I said, if you need them more quickly, just contact me. There is a summary. There are proposed amendments. The definitions I was talking about are included at the back. I think you'll find this useful.

Thanks very much.

12:30 p.m.

Liberal

The Chair Liberal Larry Bagnell

Thank you very much.

Now we'll go on to Mr. O'Connor.

Ryan O'Connor Lawyer and Director, Ontario Proud

Thank you, Mr. Chair, and thank you to the committee members for inviting me here today.

My name is Ryan O'Connor. I'm the lawyer for and director of Ontario Proud, which is a registered third party political advertiser in the province of Ontario for the current provincial election. We're a social media-based political advocacy group. We're not-for-profit. We promote ethics and accountability in government, fair taxes, personal freedom, and Ontario culture. We started in February 2016 as just simply a Facebook page, and have grown to over 400,000 supporters on the web. Millions in Ontario and throughout Canada view our content online, to the point where Ontario Proud is one of the most engaged and popular Facebook pages in Canada and is the most engaged and popular Facebook page in the province of Ontario.

Since November 9 of last year, Ontario Proud has been registered as a third party political advertiser in Ontario. That was the first day we were required to do so under that province's Election Finances Act. We've advertised on television, but we've largely focused our efforts on non-traditional fora for political advertising, including YouTube, Facebook, and Instagram, in order to maximize our reach in the most efficient manner possible while remaining compliant with the very strict spending and disclosure requirements of the Ontario Election Finances Act. We receive support from donors throughout the province of Ontario. We also comply with the legislation by not accepting contributions for advertising expenses from anyone outside of Ontario.

The legislation on election procedure and campaign finance is arguably some of the most important legislation that Parliament enacts. It sets the ground rules for the exercise of our constitutional right to a free and fair franchise and sets the ground rules for those who participate in the electoral process. Because such legislation is so important, Parliament must carefully and properly consider any changes to the conduct of Canadian elections. This is especially so with Bill C-76 as proposed. Neither this committee nor the House and Senate should expedite the passage of this legislation before the House rises in the summer if it cannot give due consideration to the serious infirmities contained in the legislation as proposed. These infirmities, if not rectified, will have as their result the opposite effect of what the legislation intends and will work to stifle political discourse, discourage third parties from participating in issue advocacy, and perhaps more alarmingly, cause them to ignore the requirements of the legislation altogether.

I will focus my remarks on two primary areas of concern. First, the onerous registration rules, compliance costs, and spending limits outside of elections in relation to third parties are likely unconstitutional. Secondarily, the attempts at limiting the foreign funding of political advocacy will have no measurable impact on the foreign influence that has occurred previously in the Canadian political discourse.

With respect to the constitutional concerns, the legislation as proposed will, for the first time, impose spending limits and registration and donor disclosure requirements on third parties outside of election periods and for a specified pre-election period that commences on June 30 of a fixed-date election year. The legislation goes further than most regimes in the country insofar as it will not only regulate third party political adverting spending; it will also regulate “partisan activity expenses” and “election survey expenses”. The former specifically refers to, in the draft legislation, holding rallies, canvassing, and encouraging electors to vote.

Furthermore, the proposed legislation purports to expand the government's role in policing election advertising, partisan activity, and survey spending even before the pre-election period by requiring third parties, after registering with Elections Canada once incurring expenses, to file an interim return if the third party has received contributions or incurred expenses for regulated activity of $10,000 or more from the time of the preceding election until the time of registration.

The leading Supreme Court of Canada case, which I'm sure many members of this committee are familiar with, is the 2004 case of Harper v. Canada. In that case, the majority of the court found that although the third party spending limits that currently exist in the Canada Elections Act violated paragraph 2(b) of the charter, which is the right to free expression, those were justified, under section 1 of the charter, as reasonable. However, it's critical to note that the spending limits, which remain in the legislation but are indexed to inflation, are only applied during the writ period and only applied to advertising spending. The majority of the court in Harper v. Canada found that the limited time period within which these limits applied was minimally impairing of the right to free expression and proportionate to the objective of promoting electoral fairness. In disagreeing with the minority's position, in that case, that spending limits meant that—to quote from the decision—“citizens cannot effectively communicate their views on election issues”, the majority said that “this ignores the fact that third party advertising is not restricted prior to the commencement” of the campaign period.

More recently, the B.C. Court of Appeal found in a 2012 case, the Reference re Election Act (BC), that the proposed third party advertising spending restrictions on a 40-day period prior to the writ period violated the charter right to free expression and was not justified under section 1 of the charter. Part of the rationale of the court in that decision was that the B.C. government had advanced no evidence that restrictions on third party advocacy had the benefit of ensuring electoral fairness outside of a period when electors would actually be voting.

Currently in Ontario there is a coalition of trade unions that has initiated a constitutional challenge to the third party spending restrictions of the Election Finances Act. A constitutional challenge is inevitable, I would say with all due respect, if the legislation as drafted passes in its current form.

When organizations regularly participate in the political discourse in this country and are forced to comply with onerous regulatory requirements such as those proposed in the legislation, they may simply refuse to do so. They will do so in two ways. They will either ignore the legislation—which in any event is impossible to police in an era of digital campaigning—like many third parties are currently doing in Ontario, or they'll simply not participate in the democratic discourse. Parliament shouldn't be prioritizing the political expression of candidates and parties at the expense of ordinary citizens.

Parliamentarians also need to consider how Bill C-76 will affect issue advocacy. Any trade union that publicly advocates on labour legislation outside of a pre-election period will now have to account for its spending on that issue to Elections Canada. An environmental advocacy group that wishes to organize a rally related to forestry development would have to do the same. Also, a small citizens advocacy group that supports lower taxes will simply stop participating in the public discussion of issues, both during the pre-election period and during the writ period, because it is afraid of running afoul of the legislation or cannot afford the significant compliance laws that Mr. Lavergne had alluded to. This is hardly the intent of the proposed legislation, but that's going to be its effect, and its effect is an unconstitutional one.

I want to turn now briefly to foreign finance loopholes that exist in our current electoral financing legislation. Foreign influence in elections has been a concern in western democracies over the last half a decade, although that may be putting it mildly. One of the most common examples cited is the previous presidential election in the United States. Canada has not been immune to foreign influence in our elections. Foreign-funded groups have bragged about funding third party campaigns against parliamentarians, most recently in the 2015 federal election. Senators—notably, Senator Frum—have been encouraging Parliament to close any loopholes that allow foreign financial influence in our elections.

The proposed legislation before you prevents foreign entities from financing third parties for their advertising efforts or their partisan activity; however, it only does so during the pre-election period and the writ period. It doesn't specifically prohibit financial support for third parties outside of these periods. It would still be legal for foreign foundations, governments, corporations, and trade unions to financially support third parties.

Going further, it would allow third parties to avoid the disclosure requirements of the act altogether if they simply chose not to register during an election period. If members of this committee really wish to address the mischief of foreign involvement in Canadian politics, it would do well to completely close this loophole and either ban or heavily restrict foreign involvement in our electoral system at all times, not just between June 30 and election day.

The government that proposed this legislation often refers to itself as the party of the charter. If it truly wishes to live up to that mantle, it would support amending the proposed legislation, limit any domestic third party spending requirements to the writ period, and defend the right to free expression instead of causing its suppression.

Thank you.

12:35 p.m.

Liberal

The Chair Liberal Larry Bagnell

Thank you very much.

We'll go to Mr. Simms for the first round.

12:35 p.m.

Liberal

Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL

Thank you, Chair, and thank you, guests, for joining us. I'm going to start with the person I've met many times before.

Mr. Lavergne, it's good to see you again. I hope all is well. I want to thank you for your input here today as I know it has been through discourse, no matter what the issue is, on our elections.

You've talked about clarification, in many cases, on how you communicate. In your case, it's about naming parties or candidates, or who it is you're supporting in particular, and how that gets caught in this particular act. I'd also like to say that it's also the people who you do not want to vote for that should be clarified as well, because in going through the procedure of democracy I guess in many cases we tend to eliminate options before we get to the one that we're voting for. Also, on advocacy for promoting a specific party or the stand they take, I understand that as well.

The only issue I have is with the registration of a third party. You mentioned that you'd rather see it go from $500 to, say, $5,000. I want to give you an example of why I'm not sure I agree with that. If you take a province like mine, which has seven members of Parliament in total, if there were an advocacy group for, say, the separation of the island—float our way to the EU and have at it—they could actually mount a substantial campaign, but it's very focused. I only fear that if you have a larger number to start with, it wouldn't eliminate those local campaigns that may make a difference. They won't have to be registered as a third party. I'll let you comment on that.

President, Fair Vote Canada

Réal Lavergne

My comment on that is that normally when you have these kinds of restrictions, you'd have restrictions at the riding level and also at the national level. You wouldn't have a $5,000 limit if it were focused on one riding. It could be $500 for one riding or it could be $1,000 for one riding. I think that would help address that issue.

Liberal

Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL

I'm more concerned about the regional aspect, as I said, for smaller provinces for any particular issues that bubble up. We tend to have different issues in different areas. That's my only concern with that. I'll just leave it at that, but I do appreciate what you're saying.

Mr. Hicks, there's a lot of language in here that addresses the issue of those with disabilities. I can honestly say, as someone who is a rural member of Parliament, it seems—in fact, it doesn't just seem to be a problem; it is—the problems for a lot of people with disabilities become magnified. They increase as we have to travel over greater distances. That is not to detract from anybody living in an urban area—don't get me wrong—with a disability, but it has become quite a challenge for us to accommodate. When it comes to the franchise of voting, it's so easy for many people to just give up and say, “Meh, I'm not going to bother.” In my riding that happens quite a bit because of the distances we travel, and even more so when it comes to the disabilities part of it.

Now, this is from a voter's perspective. Assuming it will pass, what in this, that you think is long overdue, is something that needs to be accentuated and publicized once this bill is passed?

National Coordinator, Council of Canadians with Disabilities

Sorry, I'm not quite sure I heard exactly what you were asking for.

Liberal

Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL

What I'm asking for is that within Bill C-76 itself, what part of the disabilities section, the access to voting, is key to you?

National Coordinator, Council of Canadians with Disabilities

I don't know that there's a lot in here that will deal with access. That's been part of the problem. If you're looking at, in general, what needs to happen around access and what the bill should have included, I guess what we would support is that it identify that the money used around things, around different political activities that actually bring people into the public realm—whether they be debates or whatever—not have a limit on it that is included in the ceiling. Not having the supports for people with disabilities as part of that amount would then allow the parties not to use up that money, so they could use it for other things.

Liberal

Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL

If I may say so, having been a candidate in five elections now, one thing that I think will be effective is that vouching is going to become.... A lot of people with disabilities lack certain identification required for voting. It was an experience for us as campaigners, especially in rural areas...and the reintroduction of the vouching element is going to be of great benefit.

Let me go back to candidates for a moment. It's one thing to vote, but another to run. To run in an election, for those with disabilities, certainly is of benefit as well.

For people who are campaigning, there are provisions in here that help them when it comes to the reimbursement of their election expenses. Would you care to comment on that?

National Coordinator, Council of Canadians with Disabilities

If I'm understanding correctly, you're talking about people with disabilities who are running and looking at the supports they would need to move forward.

Liberal

Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL

Yes.

National Coordinator, Council of Canadians with Disabilities

I think you need to understand what the signing of the UN Convention on the Rights of Persons with Disabilities actually identifies in political activity and other things, and make sure that Canada is following those guidelines. Those guidelines have been very, very clear. Canada has signed on to that convention, so there's no reason it wouldn't use those guidelines around political activity and how people with disabilities can be involved in political activity. I would refer you to that document. Look at that.

Liberal

Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL

I will do that. Thank you.

National Coordinator, Council of Canadians with Disabilities

Use that as a guide for how you would deal with those things.

Liberal

Scott Simms Liberal Coast of Bays—Central—Notre Dame, NL

Thank you, Mr. Hicks.

Is there anything from the end of your opening speech you'd like to add that you did not get a chance to add?

National Coordinator, Council of Canadians with Disabilities

No, I think it's okay. I would probably just have reinforced that if parties continue to have to spend money to ensure accessibility and they're spending it out of their own money, they're not going to agree to that and it's going to raise the bar up high as to how much they're spending. If there were a pot of money available for politicians when they're doing a public event—or for politicians at public events with more than one politician—they might actually have access to funds that could help them ensure accessibility for people with disabilities.