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.