Procedure and House Affairs Committee on June 7th, 2018

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

Right. It's like negative billing.

[Voices]

Oh, oh!

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

That's not a bad example. Yes, that's right: military intelligence, and so on.

Anyway, I throw that out there because I actually think there is a problem with that.

Ms. Zwibel, the minority opinion reference you referred to is Harper v. AG Canada. Is that right?

[Cara Zwibel]

Yes.

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

How many justices were there? Do you remember?

[Cara Zwibel]

There were three.

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

Three, so it was almost a majority.

[Cara Zwibel]

It was a six-to-three decision.

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

It was not a panel of the whole court. Okay.

Did they use the term “monopoly of parties”? You made reference to the term “monopoly”.

[Cara Zwibel]

Yes, I'm not sure. I don't have the decision with me, unfortunately, but I think they do use that term in reference to the ability of parties and candidates to monopolize the discourse during an election because of the way the spending limits are set.

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

It raises a perspective that we haven't taken on this committee, which is the notion...we assume you're trying to create a level playing field from the prospective parties, which is why we spend so much time discussing the relative merits of setting up a debates commission that might exclude the Green Party or the Bloc. We heard yesterday that one of Canada's numerous communist parties was complaining about the fact that they would be excluded.

The other perspective the minority was presenting was that strictly speaking, elections don't belong to the parties even though they're the ones contesting them; rather, they belong to the public. I guess third parties are, in essence, groups of public-spirited citizens regardless of how they're financed, and all those other questions, who are trying to tell us to do this, do that, and they have as much of a legitimate space in there as political parties do.

Does that animate what they're saying?

[Cara Zwibel]

Yes, that's the idea, that third parties are just citizens who are trying to get out there and tell their fellow citizens what they think about during the election, and while recognizing that there may well be a need to make sure we don't...I don't think anyone wants to turn us into what we see south of the border, where money very clearly leads the way. We need to be careful about how we impose those restrictions, and base them on some evidence.

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

This gets to the fundamental problem. I can see where the court is going, and as a civil libertarian myself, I have a lot of sympathy for that idea.

The trouble is I don't know how we avoid getting to where we are south of the border, once we say we're removing restrictions on third parties spending as much as they want, and I also don't see how we avoid certain things. I'm not sure we'd want to avoid this; I merely throw this out as things it would be hard to avoid, things like money being used for demotivation of certain groups of voters or demonization of candidates. I'm not talking about making things up, saying that so-and-so is an axe murderer or a pedophile. I'm talking about discouraging people by saying that Doug Ford is the scariest human being they've ever seen; my goodness, they can't let him be Premier of Ontario or take his name out and drop in Andrea Horwath's and say the same thing. I don't see how you avoid that.

Is there a way out of that conundrum, or in the end are we forced to choose between Scylla on the one side and Charybdis on the other? I throw that back to you for comment.

[Cara Zwibel]

I don't want to suggest that it's an easy thing to solve. Our concern is that we've tipped the balance in the wrong direction and that's not to say that we should open the doors and say there are no limits, but we have to look carefully at what those limits are and what they mean. I point to the dissent because to me it's compelling when you look at a limit for a riding or a constituency and say you couldn't send mail to everyone in this constituency with this number.

To me that means the number is probably too low, which we were discussing recently in our office. The spending limits are set out in the legislation and then they're indexed to inflation. You've just been discussing having an independent commission on debates. You may not want to do this, but it may be that just like electoral boundaries, setting these spending limits shouldn't be done by sitting members of Parliament, but by those outside the system who can take a look at the media landscape, what it costs, what the trends are, and see where those limits should be set.

[The Chair, Liberal, Larry Bagnell]

Thank you, Mr. Reid.

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

Are you aware of any example of a place that has this kind of limit set independently?

[Cara Zwibel]

I don't have an example. We discussed this yesterday in the office. It struck me that it's comparable in some ways to the fact that we do this with electoral boundaries because there's a vested interest, obviously.

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

I know all about that. Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you very much.

Thank you all for coming. It's been very helpful for our study.

We'll quickly go to our next panel.

[The Chair, Liberal, Larry Bagnell]

Welcome back to the 113th meeting of the Standing Committee on Procedure and House Affairs.

For our final panel we are joined by Paul G. Thomas, Professor Emeritus, Political Studies at the University of Manitoba, who is appearing by video conference from Winnipeg; Glenn Cheriton, President of Commoners' Publishing; and from the Green Party of Canada, Jean-Luc Cooke, Member of Council, National Office.

Thank you all for being here. Now I'll turn the floor over to Professor Thomas for his opening statement.

[Dr. Paul Thomas, Professor Emeritus, Political Studies, University of Manitoba, As an Individual]

Thank you very much. I have submitted a brief to the committee, and it has been translated and circulated. I will try to stay strictly within the five-minute limit and make five brief points in five minutes so the chair doesn't have to bring down the guillotine on me.

The first point, and an integrating theme of my brief to the committee, is that Bill C-76 is an excellent illustration of how technical and complicated election law has become in response to changing social, technological, and political activities within Canada and elsewhere. Under those conditions, Elections Canada needs a very diverse and flexible set of policy tools in order to plan for and execute elections. In other words, unlike the traditional Canada Elections Act, which is very detailed and prescriptive, we need a future act that grants broader authority to the professionals within Elections Canada. Bill C-76 goes some way in this direction. It grants the CEO of Elections Canada more authority to conduct the operations of the election, it grants the commissioner administrative monetary penalties, and it makes use of written interpretations and opinions, and so on.

Second, overall, this bill is worthwhile. I endorse it in general terms. I endorse the features that are brought forward from Bill C-33 that made changes to the more problematic features of the so-called Fair Elections Act. I like some of the new features that are included within the bill, such as the creation of a pre-writ period ceiling on party and advocacy advertising, tags on all advertising, and so on.

Then I shift in my brief to three concerns I have. The greatest disappointment for me is the failure to bring political parties under the provisions of the privacy acts in Canada and to provide a route to address privacy concerns through the Office of the Privacy Commissioner. This bill essentially says that the parties will be left to regulate themselves with respect to privacy practices. Not my preferred one, but a second-best solution would require the Privacy Commissioner, not Elections Canada, to give the parties' privacy policies and practices a Good Housekeeping seal of approval. On the second part of that concern, another option I would suggest is that annually the parties publish online a statement of what has gone on with respect to their privacy activities, including the education of their members and staff, and so on, on any privacy complaints that have come up.

My fourth point has to do with the flow of foreign money and foreign influence into Canadian elections. As I read the bill, and I'm not a lawyer, there appears to be a loophole in the bill that allows for the commingling of foreign and domestic funds, including the support to advocacy groups, third parties as they're called in the bill. I don't see any easy fix to this problem through legislation or regulation, but I note the provision in the bill for a prohibition on collusion. It may be over time, through the operation of the collusion clause, that precedents will develop that will restrict but probably not eliminate completely the potential for foreign influence in Canadian elections.

My fifth point and final concern has to do with the pre-writ period beginning on June 30. The point I'm making there in the brief is the need to align the timing of restrictions on partisan and advocacy advertising with the ban on government advertising that currently flows out of an administrative policy statement. It is not based on legislation. That ban requires the ads to stop 90 days before voting day. The two periods should be aligned so that you set up a situation where the government is, in effect, in a caretaker situation and any benefit that might come to the governing party from government advertising would be eliminated.

My final observation is that this bill should have been proceeded with much earlier, or an earlier version of a bill, perhaps. It has been left late.

I know the professionals at Elections Canada do their utmost to execute the provisions of the bill, but we have to get into the habit of treating these deadlines for planning an election more seriously.

Thank you very much. I look forward to questions.

[The Chair, Liberal, Larry Bagnell]

That was perfect timing too. Thank you.

Now we'll go to Glen Cheriton, President of Commoners' Publishing.

[Glenn Cheriton, President, Commoners' Publishing]

Thank you for this opportunity.

My presentation here is based on a complaint I made a number of years ago to Elections Canada with regard to involvement of Elections Canada and their staff in a publication which was put on their website and otherwise distributed. It's dated December 2005, so it occurred during a federal election campaign. It says that the document was prepared with the support of Elections Canada, and it has a list of the staff at Elections Canada who were involved in this publication.

My complaint is that it's talking about women's political equality, and I'm hoping to make this relevant to the current bill. One of the things they were asking for in this is a change of legislation and policy so that, under certain circumstances, men would be banned from running as members of Parliament. Elections Canada looked into my complaint, the actions of their staff, and the posting of this during an election campaign. They decided that this question, this issue, had not arisen during the election campaign, and had no relevance to this. In my opinion, it has been raised in every election campaign.

They also said that this was merely editorializing during an election campaign by Elections Canada staff and that there's no reason why they shouldn't be able to do it. Bringing this into relevance to the current bill, it seems to me that if Elections Canada is going to be deciding who is in the rules, then you have to have some mechanism for ensuring that Elections Canada and their staff also follow the rules.

I should point out that I attempted a number of years ago to make this exact presentation to this committee. I was told by five members of Parliament that I was right, that this was not the thing that Elections Canada should be doing, and that this was a violation of the law, the Canada Elections Act. I was also told that they would not present me in front of the committee because they feared that Elections Canada would pull their right to run in the next election.

It seems to me that I largely support these provisions of this bill. My concerns are, in this case, that you have Government of Canada money, through Status of Women, going into this publication, and money from Elections Canada going into supporting this issue, and yet these people are deciding themselves as to whether they're in violation of the rules.

This, I agree, is a bit of a conundrum. I'm certainly concerned about foreign money. My thinking is that the Government of Canada money, and Elections Canada money and staff, also should be considered as foreign money, and should not be used to influence elections and issues that are raised during that election.

Thank you.

[The Chair, Liberal, Larry Bagnell]

Thank you very much.

Now we'll go to Jean-Luc Cooke from the Green Party of Canada, who is a Member of the National Council.

[Jean-Luc Cooke, Member of Council, National Office, Green Party of Canada]

I want to thank the committee for the opportunity to address the bill. The Green Party of Canada is especially grateful for the time allotted to prepare for this appearance.

A good portion of this bill is not so much modernization but rather restoration of the Canada Elections Act pre-Harper, which is mostly good, but the central promise of no longer voting in a first past the post system is unfortunately absent. I will not be obtuse. This is a clear promise, clearly and unapologetically broken.

In consultations across the country, the majority of Canadians favoured reform and a form of proportional representation. It is regrettable that a government without a popular mandate gets to continue perpetuating a system that silences the voices of Canadians who are not represented in a so-called representative democracy.

Some important modernization changes have been taken, though, but the Green Party of Canada wonders whether the government has given Elections Canada sufficient time to update their technologies, their administrative processes, and to put in place training programs. After all, a quarter of a million Canadians work the polls on a general election. We are 15 months away from the 43rd general election and nothing has been put into law.

Improvements that are of particular note are the use of voter information cards as a piece of valid ID. This should speed up the voting process and improve accessibility. Allowing young people, 16- and 17-year-olds, to register is a good first step toward having them vote. Studies show that engagement in the voting process at an early age translates to lifelong voting behaviour. The Green Party commends you here, and would like to draw your attention to Ms. May's private member's Bill C-401.

This being said, there are two items I want to underscore as being insufficient.

First, the privacy provisions are inadequate. Political parties possess enormous amounts of data and personal information on Canadians, and they are currently exempt from most of the provisions under the Privacy Act. Moreover, in a day and age where politically motivated hacking is no longer a possibility but a reality, it is imperative that the parties work together to ensure that their information is safe. The big political parties, if hacked, could compromise the electoral system as a whole. Our democracy is run on trust and the big parties are currently the weakest link.

The Green Party urges the parties to coordinate their efforts informally, and that Bill C-76 contain provisions that are in keeping with Canada's Privacy Act.

Second, more needs to be done in curbing the influence of money in politics. Returning the per-vote allowance would lessen the influence of donors on politicians, and be more cost-efficient than the current 75% tax credit system. We all know the distorted effect that money and donors have on American democracy. So, at all costs, we should be avoiding these excesses that we see south of the border.

The Green Party suggests that we redefine the pre-writ period as starting the day after an election and ending when the writ is dropped in the following general election. Spending limits during this redefined pre-writ period should remain the same as they are and be indexed to inflation. Redefining this reflects the realities of what some have called the permanent campaign. There are only two periods in political advertising in reality, writ and pre-writ.

We need to set limits to the election process to avoid excesses, but also to ensure that citizens, political parties, and lawmakers alike focus on the business of good, democratic governance, and not being constantly distracted by the demands and, sometimes, fanfare of politics.

Thanks.