Procedure and House Affairs Committee on June 5th, 2018

[Justine De Jaegher]

To my understanding, it is. I would confer with our lawyers in that event. However, our concern with the court case, unfortunately again, is more one of timing. We're fairly concerned that by the time this legislation would be implemented, it might not be fully implemented by Elections Canada for the next election, whereas a court ruling—unfortunately, because it's not the route we'd want to go down—might push that deadline up, and at this point, we just want more students and more people, generally, to have access to the vote.

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

I appreciate the timing piece—I get that—but your remedy is contained in Bill C-76. That's the answer.

[Justine De Jaegher]

That is our understanding, yes.

[The Chair, Liberal, Larry Bagnell]

Thank you very much for appearing. We really appreciate it. This is very interesting and helpful information.

I would ask that we change witnesses quickly because I think there are a lot of questions for the next witness, so we'll get started as quickly as we can.

We'll suspend for a minute.

[The Chair, Liberal, Larry Bagnell]

I think we'll get started.

Good afternoon, and welcome back to meeting number 111 of the Standing Committee on Procedure and House Affairs.

For our second hour this afternoon, we are pleased to have with us Daniel Therrien, Privacy Commissioner of Canada. He is accompanied by Barbara Bucknell, Director of Policy, Parliamentary Affairs and Research; and Regan Morris, Legal Counsel.

Also appearing on this panel is Colonel Vihar Joshi, Deputy Judge Advocate General, Administrative Law, from the Canadian Forces.

Thank you all for coming today. I know there is great interest in your appearance, so I'm sure it will be a very interesting session.

Maybe we will start with Mr. Therrien.

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

Good afternoon. I would like to thank the committee for the invitation today to discuss the privacy implications of Bill C-76.

As you are well aware, citizens' concerns have been voiced globally around how their personal information is being gathered from online platforms and used in the political process. Allegations about the misuse of the personal information of 87 million Facebook users are a serious wake-up call that highlights a growing crisis for privacy rights. Not only is consumer trust at risk, so too is trust in our democratic processes.

As you know, no federal privacy law applies to political parties; British Columbia is the only province to cover them. This is not the case in many other jurisdictions. In most regions of the world, laws provide that political parties are governed by privacy laws. This includes jurisdictions such as the E.U., the U.K., New Zealand, Argentina, and Hong Kong. Canada is becoming the exception.

We recently reviewed the privacy policies of political parties. While these policies have some positive features—for instance, all make provisions for people to update personal information or correct details that are out of date—they all fall way short of globally accepted fair information principles.

Similarly, the standards alluded to in clause 254 of Bill C-76 also fall short. In fact, Bill C-76 does not prescribe any standards. It simply says that parties must have policies that touch on a number of issues, leaving it to parties to define the standards that they want to apply. In terms of privacy protection, Bill C-76 adds nothing of substance.

For instance, the bill does not require parties to seek consent from individuals, limit collection of personal information to what is required, limit disclosure of information to others, provide individuals with access to their personal information, or be subject to independent privacy oversight.

By contrast, in British Columbia, parties must apply all generally applicable privacy principles, and B.C. otherwise has very similar legislation to the federal legislation. In B.C., consent applies, but it is subject to other laws, such that consent is not required for the transmission of lists of electors under electoral laws.

I've heard much support, including from federal politicians, for the idea that political parties should be subject to privacy laws. The government, meanwhile, appears to think that political parties are not similarly situated to private companies as they relate to privacy.

For instance, ministers seem concerned that applying privacy laws would impede communications between parties and electors. This is an interesting proposition, but I have not yet seen any evidence to that effect. That evidence may exist, but it has not been presented for public discussion.

I would note that in Europe, however, political parties have been subject to privacy laws for over 20 years. I understand that such protections have now become part of the culture of how elections are run.

What we know at the end of the day is that democracy appears to still thrive in those jurisdictions where parties must comply with privacy laws.

The precise law where privacy rules should be found does not much matter. It could be the Elections Act, the Personal Information Protection and Electronic Documents Act, PIPEDA—in other words, an act governing privacy protection in the private sector—or another act.

What matters are that internationally recognized privacy principles, not policies defined by parties, be included in domestic law and that an independent third party, potentially my office as we have expertise, have the authority to verify compliance.

Independent oversight is necessary to ensure that privacy policies or principles are not just empty promises but actual safeguards applied in practice.

Together with Elections Canada, we have developed amendments that would achieve these goals. We provided these suggestions to the committee today. If you wish, I can explain them during the question period.

In conclusion, the integrity of our democratic processes is clearly facing significant risks. If there ever was a time for action, this is it.

I welcome your questions.

Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you very much. That's very helpful.

Now, we'll have Colonel Joshi.

[Colonel Vihar Joshi, Deputy Judge Advocate General, Administrative Law, Canadian Forces]

Thank you.

Mr. Chair, I'd just like to thank the committee for the opportunity I've been given to speak to you about Bill C-76 and its positive impact on members of the Canadian Armed Forces.

I am Colonel Vihar Joshi. I'm the Deputy Judge Advocate General, who is responsible for the Administrative Law Division of the office of the JAG and I'm the coordinating officer designated by the Minister of National Defence for the purposes of section 199 of the Canada Elections Act.

I'll first make a few opening remarks and then I will gladly answer any questions the committee may have.

The special voting rules, presently set out in division 2 of part 11 of the Canada Elections Act, were developed at the end of the 1950s and have undergone very few significant changes since then.

Currently, Canadian Forces electors must complete the statement of ordinary residence upon enrolment and maintain it for election purposes. Exceptionally, the statement of ordinary residence allows these voters to choose the electoral district in which they will vote during federal elections. For example, they may choose to vote in the riding in which they were living when they enrolled, the riding in which they currently reside because of their military service, or a riding in which a loved one lives and with whom they would be living, if not for their military service.

However, once an election is called, members can no longer modify this address during the election period.

Canadian Forces electors who wish to exercise their right to vote must do so within their unit during the military voting period, which is between 14 and nine days prior to the civilian election day. When they vote in a unit, Canadian Forces electors are not subject to any identification requirements. Only the few members who qualify may exceptionally vote at a civilian polling station and may only do so on polling day.

In the most recent federal general election, the participation rate of Canadian Forces electors was significantly lower than that of the general population. There are certain factors that may explain this.

In his report entitled “An Electoral Framework for the 21^st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election”, the Chief Electoral Officer of Canada recommended a complete review of the special voting rules that apply to Canadian Forces electors. Mr. Chair, I understand that the members of the committee unanimously supported such a review.

Over the past two years, we have been working hard to review the provisions of the Canada Elections Act that affect Canadian Forces electors.

The aim of the amendments to Bill C-76 that are of interest to us is to make the federal electoral system more accessible to members of the Canadian Armed Forces. These amendments also help to ensure the integrity of the vote and maintain the flexibility the Canadian Armed Forces require as they operate around the globe in a broad range of security and operational contexts.

Mr. Chair, before taking questions from committee members, I would like to draw your attention to certain key amendments Bill C-76 makes to the special voting rules that apply to Canadian Forces electors.

First, the bill eliminates the statement of ordinary residence, or SOR, procedure. This measure will allow our members to register on the National Register of Electors, as all other Canadians do, and to update their registration during the election period. In so doing, Canadian Forces electors will be required to register in the riding of their ordinary place of residence or, if they reside outside Canada, their last ordinary place of residence before leaving the country. This change will allow our members to vote in the same riding as their loved ones, in addition to preventing certain Canadian Forces electors from having to vote in a riding to which they no longer have a connection.

The bill also eliminates the obligation for Canadian Forces electors to vote within their unit. Our members may now choose to exercise their right to vote by using the voting method that best meets their needs.

As all other voters, they will be able to vote at advanced polling stations, at polling stations on polling day, at the offices of returning officers across Canada, or by mail from Canada or abroad. When they choose to vote elsewhere than at their unit, members of the Canadian Armed Forces will be subject to the same identification rules as other voters, including proof of residence.

The bill does, however, maintain the possibility for full-time members of the Canadian Armed Forces to vote within their unit, whether in Canada or abroad. Bill C-76 will also allow our part-time members to benefit from this opportunity, which is currently not an option for them.

At the military polling stations, Canadian Forces electors will now be subject to new, clear, and consistent identification rules. Using identification documents issued by the Canadian Armed Forces, they will be required to prove their name and service number in order to receive their voting ballot. Our members who are participating in operations or exercises in Canada or abroad, on land or at sea, generally cannot bring documents that show their residential address with them. This security measure aims to ensure the protection of our members and their families. As a result, Canadian Forces electors voting within their unit will not be required to provide proof of address. They will, however, be required to declare that they are voting in the riding where their ordinary place of residence is located. Any misrepresentation may be subject to an investigation and could lead to charges before civil or military tribunals.

The bill also allows for a more fluid exchange of information between Elections Canada and the Canadian Armed Forces. These exchanges will lead to increased integrity of the vote, in particular by ensuring that the names of Canadian Forces electors voting at military polling stations are removed from the list of electors used at civilian polling stations.

Lastly, I would like to draw the committee's attention to one more significant legislative modification. Many civilians accompany the Canadian Armed Forces abroad: for example, foreign service officers, members of the Royal Canadian Mounted Police, civil support staff for the Canadian Armed Forces, and dependants of these individuals and our members. Currently, these civilians could have difficulty exercising their right to vote by mail from abroad, in particular because of restrictions related to postal service in certain areas of the world. Bill C-76 would correct this imbalance by giving a clear mandate to the Canadian Armed Forces and Elections Canada, which must work together to help these electors exercise their right to vote.

To conclude, members of the Canadian Armed Forces demonstrate courage, determination, and resilience in their service to Canada. They do this in Canada and abroad. The Canadian Armed Forces is therefore enthusiastic about this Parliament's modernizing the provisions in the Canada Elections Act that affect the Canadian Forces electors.

I would be glad to answer any questions you might have.

[The Chair, Liberal, Larry Bagnell]

Okay. Thank you very much to the witnesses for the very helpful things we are listening to.

Nathan, because you have to slip out, through the generosity of the other parties you may go first.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Chair. I had only asked my Conservative colleagues, but I appreciate it from the Liberals as well.

First, Colonel Joshi, thank you very much for your testimony. There's nothing in what you've said, nor in Bill C-76 as it pertains to our women and men serving overseas, that we object to. I'm glad these reforms have come about. I'm going to devote much of my questioning to Mr. Therrien. Don't take any offence. It's hard to ask questions of someone when you're agreeing with them a lot.

It's not that I disagree with what you said, Mr. Therrien, but there are some things in this bill that cause concern, and that's what I would hope to get at.

To clarify, in Europe, for 20 years, political parties have been subjected to some privacy provisions and some limitations.

[Daniel Therrien]

Yes. Essentially under the 1995 directive adopted by the European Union, political parties are subject to that directive in the same way as private corporations are.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

They are in the same way that crown corporations are?

[Daniel Therrien]

It's corporate organizations, companies.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Oh, it's not crown corporations but companies. Okay. That's interesting.

Would you or your office now or later—and later couldn't be too much later, because this bill is under some urgency, obviously—provide us with any information as to what the impact has been on those political parties? Has there been an inability to perform their function and their aspirations as political entities?

That's been one of the worries, that there could be some sort of politically motivated bad behaviour by people trying to slow political parties down if we were subjected to similar rules.

[Daniel Therrien]

We can do that more fully, but I will say that our colleagues in the U.K., as well as in the province of British Columbia, who have similar legislation and have had it for some time and who have been in discussion obviously with political parties on the application of privacy laws, are not hearing many, if any concerns, from political parties that their work—the work of parties—is impeded by being subjected to privacy laws.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I assume that the last election in B.C., then, was run under these provisions?

[Daniel Therrien]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It's interesting. I engage with all three political parties in the legislature and I've never heard anyone raise with me anything about just running the election and trying to contact voters.

[Daniel Therrien]

That's what we are told by our colleagues, that the situation is that parties are not raising concerns.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

So when we're asking the security experts how secure our data systems are within the parties, would it be fair to say that political parties—certainly ambitious ones, certainly ones that use a lot of social media and mine data from social media—gain access to a fair amount of specific information about individual Canadians. Is that a fair...?

[Daniel Therrien]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

If that information were ever acquired illegally, not only in terms of misinforming voters, disinforming voters about elections, or trying to sway voters but also the actual gaining of that type of detailed information about individual Canadians, we heard from our security experts that it would have significant commercial value.

Let's take it outside politics and look at the commercial aspect. Being able to hack into a political party's database and achieve the information they have acquired over time about individuals would be of high commercial value, our security experts told us today.

Is that a concern to you, as Privacy Commissioner?

[Daniel Therrien]

Yes, this information is of high commercial value, but beyond being of commercial value, it is sensitive information. Political opinions of individuals are sensitive personal information, deserving of even higher privacy protection than other types of personal information.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That personal political information....

[Daniel Therrien]

Yes.