Procedure and House Affairs Committee on June 4th, 2018

[The Chair, Liberal, Larry Bagnell]

Good morning. Welcome to the 109th meeting of the Standing Committee on Procedure and House Affairs.

Today, as we continue our study of Bill C-76, an act to amend the Canada Elections Act and other acts and to make certain consequential amendments, we are pleased to be joined by Marc Mayrand, the former chief electoral officer.

Thank you for being here, Mr. Mayrand. We had you here at the beginning of our study on this, and it's great to have you back. I hope you're enjoying retirement.

[Marc Mayrand, Former Chief Electoral Officer, As an Individual]

You bet.

[The Chair, Liberal, Larry Bagnell]

This should be a fun event for you. We look forward to your comments today. I'm sure they'll be very helpful.

[Marc Mayrand]

Thank you, Mr. Chair.

I am pleased to be here—

[The Chair, Liberal, Larry Bagnell]

One moment, please.

Do you have a point of order, Mr. Bittle?

[Chris Bittle, Liberal, St. Catharines, ON]

I have just a quick point of committee business. I know that we might have five hours of votes lined up tonight, so I was wondering if the witnesses for this afternoon could be notified and perhaps rescheduled for later on in the week, rather than having them sit around for hours.

[The Chair, Liberal, Larry Bagnell]

Are there any comments?

[Blake Richards, Conservative, Banff—Airdrie, AB]

Obviously it would be nice to hear from the witnesses. If in fact we'll be cutting through their time, it would only make sense that we would schedule them for another time.

[The Chair, Liberal, Larry Bagnell]

If that unfolds, we will reschedule.

I'm sorry, Mr. Mayrand.

Let's go.

[Marc Mayrand]

Thank you, Mr. Chair.

I am really happy to be before this committee, which has been part of my professional life for close to 10 years. I am here today as an individual, so any views or comments that I may make as part of this appearance are my personal views only and do not represent the views of Elections Canada.

In my opinion, Bill C-76 manages to significantly modernize services to electors. It makes the electoral system more accessible and inclusive, and it improves the fairness of our system.

You will not be surprised that, consequently, I very much endorse the proposed legislation. Bill C-76 was informed by the feedback of electors, the experience of the 2015 election, and the experience of field officials, candidates, parties, which fed into my recommendations report of 2016, which was itself reviewed and the object of three reports by this committee. My point here is that much in the bill has already been extensively studied and generally endorsed by this committee.

I have heard there are new issues—issues that have emerged or become more acute since the various studies. The third party regime has become seen as overly exposed to foreign influence, as well as being somewhat unfair in the context of fixed-date elections. Foreign influence or interference in national elections in some countries suggests that Canada needs to be proactive. Social media and technology bring great value to public discourse and civic engagement, but as you all know, we are increasingly finding that they can be used to disinform and manipulate opinion and undermine confidence in our institutions.

There are a few key areas that I would like to stress for the committee today. The first one is the privacy regime. Bill C-76 proposes to establish a requirement for political parties to set and maintain a privacy policy as a prerequisite of their registration. It's a good but very small step, given our context. It fails to set clear standards that would be consistent with universal principles of privacy protection. It lacks independent oversight and an effective compliance mechanism.

A possible approach would be to set out clearly that parties must adhere to PIPEDA principles; provide an independent review, either by the Privacy Commissioner or an independent auditor; and provide for appropriate remedies for failing to adhere to the principles.

The third party regime also sees significant and very substantial, probably the most substantial, reform that is contained in Bill C-76. It expands the regime to include not only advertising but also partisan activities as well as election survey expenses, setting a limit of $350,000 during the writ period and $700,000 during the pre-writ period, excluding, in that case, issue advertising. It does require three reports to be filed by a third party. I'm not sure why this is needed. It seems to be a lot more than is required from candidates or any other participants in the electoral process. They must maintain a separate bank account to pay for their expenses. They are prohibited from using foreign funds and are subject to anti-collusion provisions to circumvent spending limits. Their returns must be audited, and the auditor must certify that no foreign funds were used.

What Bill C-76 does not do is put an effective restriction on the commingling of funds. Foreign money may be laundered through various Canadian entities to make it look Canadian—that's also an issue, to my mind. There's no limit on the source or amount of contributions except that they cannot be from foreign entities, of course.

A possible approach to addressing those concerns would be difficult to conceive in the context of Bill C-76. Designing a new system would require that we set up a system of contributions analogous to what exists for other political entities, yet it would be fraught by challenges in meeting the test of the charter. With the time being what it is, I am not sure this can be done effectively, but who knows? I am sharing that with the committee.

Foreign influence is another issue that is being addressed by Bill C-76, which does prohibit contributions by foreigners. Foreign third parties are forbidden to spend on advertising or partisan activities, including election surveys, during the pre-writ and writ periods. It prohibits the sale of electoral advertising to foreigners, and many of the new generic provisions would, of course, apply to foreigners.

What Bill C-76 does not do is prevent the circumvention of the prohibitions, especially relating to the flow of funds to Canadian entities. A possible approach here would be making sure that a solid anti-collusion provision is added to the act. Beyond that, we would need to look, I believe, at a coordinated international approach to limit the interference and prevent the interference of foreigners in national elections.

The last emerging issue I want to raise with this committee today is the one regarding social media platforms and technology. In my view, Bill C-76 does little regarding the abuses in this area, possibly because issues are much larger than electoral matters and may be better handled through other legislation. Also, it is a truly emerging issue that few countries have successfully regulated today. It is compounded by the fact that social media and technology have no frontiers. It adds to the challenge of regulating those activities.

Bill C-76 does not prevent disinformation, propaganda, or artificial promotion of pseudo-info through trolls and bots. Maybe that's something this committee should consider, or at least provide clarity in this regard. A possible approach would be to create a repository of all digital advertising related to an election. Make sure that platform owners are accountable for illegal use of their platforms, and—to my mind quite important—task an organization to undertake public education on how to assess the reliability of information that you see on the web or on various platforms. I think the more Canadians are aware of the issue and the traps of misinformation, the better they are at recognizing it and the better they are at exercising their judgment during the election.

Finally, I have a few other considerations. They're maybe not of significant importance, but I would like to raise them for the attention of the committee.

The first one is vouching. Bill C-76 does reintroduce vouching in our electoral system. Personally, I would have liked to see it extended to staff in seniors homes and long-term care facilities. I am struck by the Etobicoke case where a nurse, serving electors in a long-term care facility, out of her goodwill simply vouched for the electors who were present there and who had insufficient or inadequate ID or documentation. When the case proceeded before the court, all the judges who looked at it—the case went up to the Supreme Court—found that there was no leeway there. Since the nurse did not reside in the same polling division as the residents in the long-term care facilities, the ballots were void, yet there was no question about the eligibility of those electors.

I put that on the table for your consideration. I think the risks in those confined, closed residential establishments are very limited in terms of possible fraud. All the people can be tracked easily. The worst thing is that Elections Canada visits those long-term care facilities to establish who resides there during the election. It's unbelievable that two weeks later, we can't recognize those people. I leave that for your consideration.

The other issue that I'm not sure was an oversight but I thought was concurred in by this committee was the provision of a subsidy to candidates' official agents. I think quality official agents are difficult to find and difficult to retain. They bear the crux of the burden imposed by the act in terms of reporting and tracking expenses, and I feel very strongly that these people—who devote an exceptional number of hours, these days mostly as volunteers, for well beyond 36 days and in fact, sometimes off and on for a year easily—would greatly benefit from a small compensation for the service they provide, because they make such a contribution to you as candidates but also to the integrity of our system. Again, I thought this matter had been agreed to in committee. I proposed it in 2016, and I'm bringing it back again today as I have this occasion.

I know also that there is nothing in the bill on the leaders debate. My only point here is not suggesting it should be part of this bill at this point, but certainly time is pressing to address the issue if we are to have any independent framework set up for 2019.

In closing, the points that I made earlier this morning should not be seen as undermining the importance of Bill C-76, which is a sound piece of legislation that is squarely anchored in the core values underpinning free and fair elections. Like any draft legislation, it is susceptible to improvement through the work of parliamentarians. I hope, however, that the best does not become the enemy of the good, as we say, in the quest for improvement.

Thank you, Mr. Chair.

I will be happy to take questions.

[The Chair, Liberal, Larry Bagnell]

Thank you very much, Mr. Mayrand.

Mr. Simms, you may go ahead.

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

Mr. Mayrand, it's good to see you again, sir. It's always a pleasure. I always enjoyed your testimony back then, as today.

I have a quick question about the last thing you said, because it's on my mind, and I remember you saying this about the official agent. Are you proposing having something similar to what we do with the auditors, which is the receiver general in the sense—

[Marc Mayrand]

Yes. It would be the same model as the subsidy that's available to the auditors. The amount remains to be determined by the committee, and may vary depending on the type of work or the types of returns.

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

Okay, I just wanted to clarify that.

I want to go back to the beginning. When I say “beginning”, I want to go back to when we first met, which was a discourse you and I had about the Fair Elections Act some time ago. You used the term “meeting the test of the charter”, and we were quite fearful at the time that, in many cases, changes being made in the Fair Elections Act would mean that a lot of people out there would be in a vulnerable state when it came to voting, with things like the voter information card and so on and so forth.

What was so particularly egregious to you? What was the one part that caused you the most concern when the Fair Elections Act was put in place?

[Marc Mayrand]

I think I expressed it quite loudly at the time. My concern was that it was depriving legitimate electors of their right to vote without sufficient rationale to justify it.

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

I remember that clearly, and I'm glad you said that, because the rationale seemed to be missing at the time. The phrase we used at the time was “why are we creating a solution for a problem that does not exist?”

That being said, voter fraud has come up quite a bit not just in Canada but in the North American context as well. What would your opinion be about voter fraud in this country? Is it getting worse? Does it exist? Is it a problem? What should we do about it?

[Marc Mayrand]

There is very little evidence—in fact, no evidence—of any systemic abuse or fraudulent voting in our system. As far as I know, that's true at the federal and provincial levels. There has been much discussion in the U.S. since the last election. Also there has been a substantive lack of evidence to support any allegation of systemic fraud.

There were a few cases, and Elections Canada had controls in place before, during, and after the election to validate any potentially doubtful votes. Again, these cases rarely reflect fraudulent activity, and when they do, they are referred to the commissioner, and after investigation, rarely bring about any charges.

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

Thank you, sir.

The other part of it is that you've mentioned vouching and the reintroduction at this level of vouching. Notwithstanding the point you made about the nursing homes, however, which I thought was a good point, vouching is certainly something that some people would look at suspiciously. Some people would look at this and say that it's a place where abuse could run rampant. You disagree.

[Marc Mayrand]

First of all, it's rarely used. At the end of the day, it's a safety valve for those who are in extreme conditions and could not establish properly their identification or their qualifications as electors. Secondly, it's done very publicly and openly in front of officials, who take detailed records of the proceedings there so they can be checked afterwards if need be. It's also done in the presence of observers from candidates, who can challenge and certainly bring matters to the attention of Elections Canada if they have concerns about the legitimacy of the procedure that has taken place.

Again, I'm not sure that the risks there, which to me are minimal—truly minimal—warrant denying a legitimate elector to cast a ballot. That's another charter issue.

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

Thank you.

You also brought up—and passionately as well—the influence of foreign money and how this bill is a step in the right direction. You feel that more work should be done in this regard. Obviously, you've pointed out ways in which this is very difficult to keep track of, and one of the things you said was about solid provisions for “anti-collusion”. Were you talking about the foreign money aspect when you said that?

[Marc Mayrand]

In the bill, there's an anti-collusion provision regarding spending limits, but there's nothing regarding the flow of money. My concern is that money can be laundered, in a way, to give it a Canadian colour. At the end of the day, you don't know if it's truly Canadian money or if it's the original foreign funds. I'm saying that there should be a provision that clearly prohibits doing indirectly what you cannot do directly. I think it would help the commissioner in the cases where the matter may arise.

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

Very quickly, on social media, you mentioned tasking an organization for the reliability of social media. Do you think Elections Canada within itself can do something in that regard, or is that too onerous?

[Marc Mayrand]

They could do it in the context of elections, that's for sure. There could be other organizations out there that are also well suited to do it in a broader context.

The issues with social media are not only related to elections, of course, and that's why I'm suggesting.... It may be Elections Canada during the context of an election that does a bit on this in their campaign about informing electors about how and where to vote. They also could inform them about how they can assess the reliability of the data or the information that comes to them.

[The Chair, Liberal, Larry Bagnell]

Thank you.

We will now go to Mr. Richards.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Thanks, Mr. Chair.

Thank you for being here, sir. It sure brings back a lot of good memories.