Procedure and House Affairs Committee on June 4th, 2018

[Ruby Sahota, Liberal, Brampton North, ON]

Okay. Thank you.

Ms. Furlong, do you have anything to add?

[Andrea Furlong]

In our constitutional challenge, we've presented an affidavit from Professor Joshua Douglas, of the University of Kentucky College of Law. He is informing us, really, that the in-person fraud is not something that's happening in a way that is being created or is making us think it is happening.... It's more the voter suppression, the chill that's being put on, and how people are being prevented from voting that's the real issue we have to look at. I will provide his documentation to the committee regarding that.

[The Chair, Liberal, Larry Bagnell]

Thank you.

[Ruby Sahota, Liberal, Brampton North, ON]

Okay. Thank you.

[The Chair, Liberal, Larry Bagnell]

Now we'll go on to Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Thank you.

I think I'm only stating the obvious when I say that if you want to provide that documentation to the committee you should do so as soon as possible. The government has a very, very abrupt finish date for this committee to be considering these things. If you can get it to us this week as opposed to next week, you stand a better chance of having it seen by us, particularly as we can't accept testimony and have it circulated to the membership unless it's been translated into both official languages, which imposes a further delay. I'm offering that by way of what's meant to be helpful assistance.

[Andrea Furlong]

Thank you.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Professor Pal, it's good to have you back. My goodness, we've had you here on electoral boundaries and electoral reform, and we have you here on this. Your testimony is always very interesting and challenging.

I don't know if you'd agree with this, but sometimes I wind up being persuaded the more I think about it, so I'll ask you to start with what is not my central issue. The sale of data by parties has been brought up over and over again by a number of people, including you, as something that is permissible but ought not to be. I assume that this is really mostly simply an accidental result of the fact that the normal rules relating to the use of data don't apply to parties; that is to say, it's not something that's been put in there specifically. It's just there as a happenstance consideration.

I see you nodding. Perhaps you are just trying to understand my question, but here's what I want to ask. Is the danger really that parties will sell the data? After all, as a party, you have to reveal your sources of income, meaning that the secret sale of data is highly unlikely.

Is it not likely or more worrisome that parties will share the data with somebody else and, in particular, that they will share the data with somebody who is going to provide some kind of service to the party, but who is going to manipulate the data in some way to uncover, say, that right now is the right point in a campaign to hit people who have a particular interest in issue X versus issue Y, in whatever method is being used by the parties? That will provide a way in which nuanced data about individuals leaks out. Does that not seem like the greater risk?

[Prof. Michael Pal]

I have to say that when I read Bill C-76 the fact that the parties were required to have a position at all on the sale of data was quite surprising. I like to think I read pretty widely on what political parties do, and I don't think there was a widespread sense that the sale of data was happening at all.

I think it does really matter in the sense that parties now have a lot of information about voters. We're in a world where that data has real monetary value. I do take very seriously the point that we want to facilitate and encourage conduct between political parties and individuals, so this may mean that whatever the privacy rules are in Bill C-76—or may come in the future—they may be very different from the public sector generally or from the private sector. I think that's appropriate. The trade-off, then, is that parties need to be using that data for political purposes. A part of the rules for registration is that the party has to prove they're actually engaging in political purposes and that they're not actually a commercial entity pretending to engage, pretending to be a political party. There's case law on that.

I viewed the issue as potentially broader than what you've suggested. What did occur to me is that perhaps parties—members of the committee may know better than I do—sell data to provincial or local branches of a party because you may not be able to make a non-monetary contribution, which the giving of a dataset may be. Selling data might be the way to actually comply with provincial rules. That would be one narrow exception where I think it would be entirely appropriate, but then selling to a private entity what's collected under the offices of a public political purpose still does trouble me.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Okay.

I want to ask you about this issue. We're in a “different world”, you said, with reference to advertising and its potential to persuade. On that basis, you were enthusiastic about—maybe “enthusiastic” is the wrong word—or you were accepting of restrictions being placed on freedom of speech. Essentially, I think the argument you're making is that to better protect our section 3 right to vote we have to put restrictions on our section 2 right to speak freely, to express ourselves freely.

First, I wonder how much meaning these restrictions have in a world in which one can, via things like WhatsApp, simply communicate in a way that is not.... The fact that it even happened is hard to record, the extent to which it happened is difficult to record, and the amount of money that is spent on it is also presumably difficult to capture. There's a basic implementation issue.

Also, I want to ask this question. It seems to me that the real secret of the new media is that you can target your message so that instead of me communicating to you but also having to accidentally communicate to everybody else who is watching the Super Bowl—that's the old model, right?—now that message goes to you, and it goes at a fairly low cost. I wonder to what degree, therefore, these restrictions ultimately will have true meaning.

[Prof. Michael Pal]

We have highly regulated TV and radio advertising. Many rules that are supposed to apply on social media need to be updated, but they are definitely under-enforced because of the micro-targeting issue, as you suggested. During the Super Bowl, everybody knows the ad happened. It's almost impossible to detect if a political party or an interest group is targeting an ad just at me because it happens to know my consumer or political preferences.

What I take from all that, though, is not to throw our hands up and say, “Let's stop regulating advertising because there are new avenues.” We need to make sure that all the avenues are regulated in a way that furthers the level playing field. One practical suggestion that I've tried to make in this debate is that we might need to consider a separate spending limit for social media, because it is cheaper than traditional television advertising. As Mr. Mayrand said, these are new technologies. It's an emerging challenge. It's hard to point at one jurisdiction that's gotten it correct.

That would be one way to try to adjust to the fact that social media ads are so much cheaper, but that might not always be the case, right? I think studying how the Facebook ad auction system worked in the U.S. has revealed large differentials in the amount of money particular campaigns were spending, based on who they were targeting and the content of the ad, because the platform may have an interest in keeping your eyeballs on their platform, which encourages certain kinds of content.

There are a lot of variables in the price of an ad that I don't think we should assume should be constant. We don't always know that Facebook advertising on politics will be a lot cheaper than television advertising, for example. The cost of a print ad in The Globe and Mail has gone down pretty dramatically in the last number of years.

[The Chair, Liberal, Larry Bagnell]

Thank you very much.

Now we'll go on to Ms. Tassi for our final input.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Thank you, Mr. Chair.

Professor Pal, I'll ask my first two questions to you. If time permits, I'll direct the rest of the questions to Ms. Furlong.

You spoke about the spending limitations on the pre-writ. You were happy about that. Then you talked about the pre-pre-writ. I'm wondering if you would feel comfortable, based on your expertise in the area of constitutional law, giving us an idea of what you think would be safe in terms of the time of that pre-writ. You're making some suggestion that it should be expanded. Do you feel comfortable giving us a number in terms of the length of time?

[Prof. Michael Pal]

Now you've put me on the spot.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Yes.

[Prof. Michael Pal]

As I said, you always want to see what the record is. The Ontario legislation, which—full disclosure—I was involved in as a legal adviser, has a six-month limit. I think six months, speaking only for myself, is quite a defensible amount of time. The challenge is that there were some B.C. court cases that struck down their provincial pre-writ spending limits partly under the logic that the limits applied while the legislative assembly was in session.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Okay.

[Prof. Michael Pal]

You'll know this better than I will, but to me, June 30 looks very clearly to be when the House is traditionally not sitting, so it is taking a small-c conservative approach to try to avoid the critiques that were made of the B.C. legislation. What would the Supreme Court of Canada say to a six-month restriction or a year-long restriction? I think if there were a restriction in every calendar year, that would be seen as draconian, but six months or a year before the election, in a fixed election date, I certainly think could be considered.

You do increase the constitutional risk. There's no way around knowing how the Supreme Court will treat that until we get a record, until we get the cases, but June 30 is certainly less than what Ontario did, for example, and less than what the U.K. does, which is around a year.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

There has been some talk with respect to increasing women in politics, which we're a big supporter of. I'm pleased that on this PROC committee, which is an important committee, two women are part of this committee. In fact, the minister responsible for the file we're talking about is a woman who has given birth to a child and is back in the House, which is absolutely fantastic.

In your remarks, you mentioned originally the importance of the 90% reimbursement for child care expenses. There are many ways in which we can increase the participation of women. I would just like your comments on the importance of what is contained in this legislation, which is the ability for candidates to use personal funds to pay for not only child care expenses but also costs related to a candidate's disability or care of a person with disabilities. Now the eligibility is of increased value, 90% versus 60%, which it was previously.

[Prof. Michael Pal]

The 90% reimbursement is a very substantial one as compared with some of the other reimbursements. You mentioned the 60% that's in the act. I don't think it will initially be transformative. There are a lot of inequalities in society, and one provision in the Elections Act can't change that, but it certainly provides a really positive incentive to have more women running and to try to decrease any barriers for those with accessibility challenges.

To the extent that the Elections Act can deal with those problems, a 90% reimbursement strikes me as a very practical solution that I think will actually provide really positive incentives on the ground for candidates to run. There are broader factors, as the political science literature tells us, around why people may be reluctant to run that obviously this doesn't and maybe can't address, but I do think it's really positive. I hope it will have a really strong impact on candidates running in the next election.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Is it your opinion that it will?

[Prof. Michael Pal]

It's hard to predict. I think it will, certainly in some individual circumstances. We'll have to see what the numbers are. As I said, there are other factors—how the House conducts it business and a broader suite of considerations—but I'm hopeful that it will.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Thank you.

Is that my time, Mr. Chair?

[The Chair, Liberal, Larry Bagnell]

Yes.

Thank you very much. That's very helpful.

We're going to suspend while we have new witnesses set up. Thank you very much for coming.

[The Chair, Liberal, Larry Bagnell]

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

For this meeting's final panel, we are pleased to be joined by James Hicks, national coordinator of the Council of Canadians with Disabilities; Réal Lavergne, president of Fair Vote Canada; and Ryan O'Connor, lawyer and director of Ontario Proud.

Thanks to you all for making yourselves available to us today. We'll begin with Mr. Hicks, to be followed by Mr. Lavergne, and Mr. O'Connor, for opening statements.

Please go ahead with your opening remarks, Mr. Hicks.