Procedure and House Affairs Committee on June 7th, 2018

[Kelly McCauley, Conservative, Edmonton West, AB]

Thanks very much.

[The Vice-Chair, Conservative, Blake Richards]

Thank you.

You mentioned the links. If you want to share those with the committee, you can provide those to our clerk, and they can be distributed to the committee that way.

We have had a great occurrence happen that we have been able to.... It was a miracle, in my words. I guess I was a little too pessimistic. I don't predict well, apparently. I won't even tell anyone who I chose to win the election in Ontario today.

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

The Rhinoceros Party.

[Some hon. members]

Oh, oh!

[The Vice-Chair, Conservative, Blake Richards]

We'll see if another miracle occurs. Two miracles in one day might be too much to hope for, but we certainly did receive one.

We now have with us Leonid Sirota, lecturer at Auckland University of Technology. We've finally been able to patch him in. We'll go to his opening remarks now, and we still will have an opportunity for at least one round of questioning by each party.

Mr. Sirota, your opportunity is now.

[Leonid Sirota, Lecturer, Auckland University of Technology, As an Individual]

Thank you, Mr. Chair, and members of the committee. I'm terribly sorry for whatever has happened here. Thanks for having me.

I will start by commenting on one thing that Bill C-76 does, which is to lift restrictions on Canadians who are voting overseas, abroad, like me. Maybe this is special pleading on my part, but I will be happy to answer questions on why I think it's constitutionally a very commendable thing to do.

I will focus on the ways in which Bill C-76 continues or, indeed, increases some restrictions in Canadian election law on freedom of expression. Freedom of expression is central to the elections, and the elections are central to freedom of expression. This connection was recognized a long time ago by Canadian courts, well before the charter. F.R. Scott, the great constitutional scholar, once wrote that as long as the word “parliament” is in the Constitution, we have a bill of rights. That was the case before the charter, and yet no debate in Canadian society is as regulated as the one that occurs during election campaigns. Some of these regulations are important and necessary, some not so much.

I will focus on three particular restrictions on freedom of expression in Bill C-76.

The first of those is the definition of “election advertising”. The bill continues from the existing Canada Elections Act. The problem I see with it is that the exemptions it provides for communications from individuals and groups apply both to individuals and groups so long as communications are through traditional media, newspaper editorials, and that sort of thing, but so far as the Internet is concerned, only personal communications by individuals are exempted from the definition of “election advertising” and not the communications of groups. I see no good reason for that distinction. I see no good reason that, for example, the president of a union can tweet under his or her own name, but not under the institutional account of that union. I see, again, no reason for this difference. I think the definition should be amended to be technologically neutral.

The second point is the pre-campaign communications that Bill C-76 would restrict. Those restrictions are not in the current Canada Elections Act. In the Harper case, where the Supreme Court upheld restrictions on third party communications during election campaigns, the court said that one reason restriction was acceptable in a free and democratic society is that political speech is not restricted except during election campaigns.

While some people have said the absence of regulations on pre-campaign communications is a loophole that needs to be closed, in my view, it's actually an important constitutional safeguard that must be preserved. The British Columbia Court of Appeal considered restrictions on pre-campaign communications twice, and both times said they were unconstitutional. Now, the laws at issue were not exactly the same as Bill C-76—they were broader—so I'm not making a prediction on how the Supreme Court would rule on what's in Bill C-76, but at least there is a non-trivial chance that Bill C-76 is unconstitutional.

More importantly, the issue is one of principle. The problem that restrictions on pre-campaign communications are supposed to address is not called a “three-month campaign”. It's called a “permanent campaign”. The problem is that three months will not be enough to remedy the so-called issue with a permanent campaign. My concern is that Bill C-76 is a first step on the road to long-term and perhaps permanent restrictions on political communications in Canada, and it's not a road that we want to walk.

The final point I want to address is the restrictions on third party communications, both before and during the campaign. The Supreme Court has upheld what's in the Canada Elections Act now, but that's just the constitutional baseline. That doesn't mean Parliament cannot be more protective of freedom of expression than the Supreme Court. It's important to remember who third parties are. It's a term of art in election law, but what does it mean? It just means civil society. It means individuals. It means unions. It means groups. It might mean the scary rich, but in the Canadian experience, for the most part, third parties that want to communicate during elections are mostly unions.

Some people, like Professor Tom Flanagan, have said, “Great. We want to curb those people's freedom of expression.” I actually happen to agree with Professor Flanagan's dim view of unions. I don't agree with his view of freedom of expression. I think that whether or not we like people, they should be free to communicate.

The caps on third party spending in the Canada Elections Act now and those that will be under Bill C-76 are very low. They are less than 2% of what political parties are allowed to spend.

By comparison, in New Zealand, which is actually ranked higher in the transparency international corruption rankings than Canada is—it pains me as a Canadian, but there it is—the spending caps are at about 7.5%. This is a less restrictive regime. It's still a very low cap. There is no danger that third parties will interfere with communications by political parties themselves, but it's a more permissive regime than the one under Bill C-76.

The last thing I will note, also in relation to third parties, are the thresholds. For registration it is $500. As soon as you spend $500, you're required to register. Once you spend $10,000, you're required to submit to auditing. These rules are bound to be a deterrent to freedom of expression. They are very low thresholds. There is no reasonable chance that somebody spending $500, or even $10,000, is going to swing an election. They, as I said, are deterrents to public participation. These should be raised.

I will give you the figures by way of comparison. In New Zealand, the registration threshold is at about $12,000 Canadian. The reporting threshold for expenses, not auditing but just the report, must be filed once you spend about $90,000 Canadian. The electoral commission can require an audit, but nobody is obliged to submit to one.

Again, New Zealand does not seem to have a huge political corruption problem. It would be an example to at least consider it, maybe hopefully follow, in providing more room for members of a civil society to express this.

Thank you. I'm looking forward to your questions.

[The Vice-Chair, Conservative, Blake Richards]

Thank you very much.

We'll now return to our rounds of questioning.

Mr. Cullen, for seven minutes.

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

Thank you very much.

Mr. Aylward, did you want to react to Mr. Sirota's comment that he might not like unions, but he believes in your freedom to speak?

[Chris Aylward]

I don't share the dim view, obviously, on unions.

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

That wasn't part of your election campaign?

[Chris Aylward]

No, it wasn't.

I certainly share the view that we shouldn't be restricted on our freedom to speak, and to speak on behalf of our members.

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

Give me the scenario you're worried about.

To take that issue, Phoenix is, was, and sounds like it might even continue to be a big issue for a while. You go into the next campaign. You write to your members and say something about Phoenix; you share something on social media or your members, then, organize to have some sort of conversation with candidates about Phoenix.

Are you worried that your speech will be restricted to raise an issue-based campaign, under this bill as it's currently drawn up?

[Chris Aylward]

Yes, and I'm going to refer this to Ms. Ballantyne.

[Morna Ballantyne, Special Assistant to the National President, Public Service Alliance of Canada]

There's an issue of principle involved, but there are also issues of practicality.

If this law were enforced right now, first of all, we would have to try to interpret what is political activity, partisan activity, and what is partisan advertising. There's also the issue of surveys. If this law were passed, we would have to start tracking now all the activity that we're engaged in that might be considered at a later date to be partisan advertising or partisan activity.

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

I see. That, I assume, would have a chill effect on—

[Morna Ballantyne]

It has a huge chill effect, and we saw that in the 2015 election.

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

How did you see that?

[Morna Ballantyne]

What we got originally was a fair amount of confusion, first of all, on the point that was made about whether or not transmission of messages through the Internet or through social media was, in fact, advertising. It took a long time to get an interpretation. I don't know if it stands, because it's not in this bill, but the interpretation was that it wasn't advertising. For an amount of time we just stopped communicating in that way, because we were concerned it would be deemed to be advertising.

Our concern wasn't so much the financial limits, because—

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

It's the interpretation of it.

[Morna Ballantyne]

It's the interpretation, and it's the chill, it's the tracking, and it's the fear of being in non-conformity with the law and what the consequences would be if we were found to have violated the law.

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

The risk is not worth any potential benefit in being found out—

[Morna Ballantyne]

Yes, absolutely.

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

That's the chill effect on freedom of speech.

[Morna Ballantyne]

Yes, especially when we got an interpretation that if we were to hold a rally.... Remember, we were in collective bargaining. A major issue, as we know, was sick leave. This was an issue that was clearly identified with a political party, but so were other political parties talking about the issue. We would have had to—

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

Even the holding of a rally—