Procedure and House Affairs Committee on Oct. 2nd, 2018

[The Chair, Liberal, Larry Bagnell]

Good morning. Welcome to the 121st meeting of the Standing Committee on Procedure and House Affairs 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 Greg Essensa, the Chief Electoral Officer of Ontario. He is appearing by video conference from Toronto.

Thank you for making yourself available today, Mr. Essensa. I know you're very busy, so I'm glad we could finally get a time together. This is very exciting for us. We have lots of great questions.

You can proceed with some opening remarks. We did get your notes, but we haven't translated them yet, which means we can't circulate them yet.

If you would go ahead with your opening remarks, that would be great.

[Greg Essensa, Chief Electoral Officer, Elections Ontario]

Good morning, Mr. Chair and members of the committee. I would like to begin by thanking the Standing Committee on Procedure and House Affairs for inviting me to provide my observations on Bill C-76, an act to amend the Canada Elections Act and other acts and to make certain consequential amendments.

I welcome the chance to offer you my insights and observations on the electoral process. When I provide comments to a committee of the House of Commons, I am very aware that I am addressing Canada's lawmakers.

Today I would like to briefly address the following topics: the provisions of the bill and my observations from Ontario's 2018 general election.

In reviewing the provisions of this bill and other bills related to elections, I always ask myself whether the change protects the integrity of the electoral process, preserves fairness and promotes transparency. I have reviewed this bill closely and I offer the following observations.

The bill offers amendments that, if passed, would improve access and reduce barriers to voting. A number of the provisions in this bill were implemented in Ontario, and I am highly supportive of them.

I specifically want to highlight the provision that allows voter information cards as a piece of identification. The voter information card is a staple of electoral administration and, in my humble opinion, a core piece of the Canadian electoral fabric. The voter information card unites every elector group, giving them the confidence that they are registered, and provides them with the information they require to cast their ballot. This proposed amendment creates consistency with Ontario's identification requirements, and I applaud this government for recognizing its importance.

Additionally, lengthening the election calendar and extending advance poll hours are important amendments to contribute to the success of the election. I appreciate the flexibility that these provisions and others provide to the chief electoral officer. Election administrators are in the best position to make decisions on how elections are delivered. Allowing the chief electoral officer to make decisions on their mandates while complying with legislation is a key factor of success in overseeing elections.

I will now turn my attention to third party regulation. In 2016 Ontario implemented substantive reform with respect to election finances. While Ontario was undergoing significant electoral reform, I had been asked, and agreed, to serve as an adviser to the Standing Committee on General Government. This committee undertook an extensive process in consulting the public by travelling Ontario and hearing from interested individuals and stakeholder groups on the proposed legislation.

I also appeared three times in front of the standing committee to provide my thoughts on the provisions in this bill. My messaging in this area has been simple and consistent. The concept of the level playing field is central to our democracy. It is also a unifying principle of election administration, tying together the voting process and the campaign process.

Election outcomes are intended to reflect the genuine will of the people. Political finance rules are in place to ensure that all political actors have an equal opportunity to raise and spend funds to advance their message and win votes. Electoral outcomes should not be distorted because of unequal opportunities to influence the electorate. Third parties are no exception to this. Creating a regulation system for third parties is critical in creating a level playing field, and I am supportive of the proposed provisions in this bill.

There are amendments in this bill that align with Ontario's model, with some exceptions. Spending thresholds differ in Ontario compared with what is being proposed in Bill C-76. While I will not comment on the specific amounts and whether it is appropriate or not, what is important to me is that regulation be in place prior to the writ period and during the writ period. In Ontario, prior to the legislative reform in 2016, we never had pre-writ regulation. It was something I long advocated for because of the lack of transparency on what could be incurred by third parties in the six months leading up to an election.

One feature of Bill C-76 that I am quite supportive of is the requirement for third parties to provide interim reports. I believe this contributes to effective oversight and better transparency.

I would also like to highlight the area of foreign spending. I strongly support restricting third parties from using funds from a foreign entity. However, this bill does not address how it will regulate this source of funding. There are no requirements to disclose where third parties are receiving funding from, which could very well be from foreign entities. I highlight that for the committee to consider.

Overall, I view these provisions as a step in the right direction.

The next area I would like to address involves the provisions related to enforcement. In order to effectively enforce, it is important to provide regulators with the tools they require.

I am pleased to see the commissioner of Canada elections' ability to issue administrative monetary penalties, compel testimony and lay charges where he or she deems fit. I also believe it is appropriate that the commissioner of Canada elections be relocated to the Office of the Chief Electoral Officer. Being equipped with these tools allows the commissioner to fulfill the mandate effectively and maintain public trust by holding political actors accountable.

I would now like to focus the remainder of my time on my observations from Ontario's 2018 general election.

This year's election saw an unprecedented amount of change. Elections Ontario operationalized four different pieces of legislation in advance of the June 2018 election. These amendments enabled Ontario to implement new boundaries, new technology, new staffing models, new processes and modern tools for all elections-related stakeholders.

The 2018 general election in Ontario, in my humble opinion, was a great success, and the legislation helped support our efforts to provide greater access and modernized services to electors.

There are a few key areas that I'd like to highlight for your consideration.

The first is privacy and security. With an increased focus on personal data and intrusion into public networks, privacy and cybersecurity were and are top of mind.

This was the first general election where technology was implemented, including e-poll books to strike off electors and vote-counting equipment to count ballots.

In order to ensure security, we worked closely with the provincial security adviser, who was appointed by Ontario's secretary of cabinet. We went to him to seek advice on ensuring our processes and systems met thresholds and limited the risk of threat. In coordination with the provincial security adviser, Elections Ontario had a security expert carry out comprehensive audits of our systems, processes and people. The report recommended a number of actions that we implemented to reduce vulnerability.

There is little evidence to suggest that the 2018 general election in Ontario was significantly affected by cybersecurity intrusions, fake news or any other form of electronic interference.

The last area I'd like to speak to is third party spending. With a new regime in place, similar to Bill C-76, third parties now had registration requirements and spending limits for both the pre-writ and writ periods. In the 2018 general election we had a total of 59 third party registrants—34 in the six-month pre-writ period and 25 during the writ period. By comparison, in 2014 we only had 37 third parties registered in the writ period. This represented a 59% increase in the total number of third parties that registered compared to 2014.

At this time it is difficult to assess the overall impact of the new regulations, as we will not receive full financial filings until December of this year. However, I am confident that regulation significantly impacted how much money was spent on third party advertising. I will give you an example. In 2014, 37 registered third parties spent approximately $8.67 million during the writ period alone. In 2018, we had 25 third parties registered in the writ period who, combined, could only have spent $2.55 million under the new regime. This represents a decrease of more than $6.12 million in spending during the writ period. This is a significant reduction, and I look forward to seeing the final expenses of all third parties in December.

One area of challenge for us, though, was in registration requirements. In Ontario, similar to the provisions in Bill C-76, a third party is only required to register once it incurs $500 in expenses. This registration requirement was a challenge for us to navigate and regulate. We received numerous complaints on third parties, many of which had not registered with us, as they kept their spending under $500. The result was unregulated third party advertising. The difficulty we encountered was that many of these parties spent money on advertising exclusively through the Internet. This made it a challenge to ascertain if and when they went past the $500 threshold.

Third party registration is an area of reform I will be commenting on to Ontario's legislators early next year, and something you may wish to consider as a review in this bill.

I would finally like to take this opportunity to thank the committee for inviting me to speak and to offer my perspectives as chief electoral officer of Ontario. I applaud the work this committee is doing on electoral reform, and I would be happy to answer any questions you may have at this time.

[The Chair, Liberal, Larry Bagnell]

Thank you very much. That certainly addressed a number of the topics that people wanted to address, so that's great. I appreciate your time.

Now we'll start some questioning with Mr. Simms from the Liberal Party.

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

Thank you, Chair.

Mr. Essensa, thank you very much for this. I thoroughly enjoyed it. You were well worth the wait, sir.

[Greg Essensa]

Thank you.

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

I'll start with the last point that you made concerning your difficulty ascertaining who went above $500 in spending. That causes some alarm

You said you were going to make recommendations to legislators in Queen's Park. Very briefly, what would they be?

[Greg Essensa]

I would actually recommend that they either take the $500 threshold off and it be a zero threshold or extend the threshold to a higher number, $3,000, $5,000, something that is a little easier to ascertain.

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

I see. So the higher dollar value, obviously.... You're saying there is basically a minimum dollar amount where it becomes detectable, if I can use that word.

[Greg Essensa]

It was very difficult to ascertain the $500 with the Internet providers.

Sometimes there were discounts on banner ads and it became a real challenge, as an administration perspective.

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

I see.

[Greg Essensa]

My recommendation to you, as you're reviewing Bill C-76, would be to consider either increasing the threshold so that it is relatively easy for the commissioner of Canada elections to ascertain whether they met that threshold or not.

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

Okay, I appreciate that.

I want to go to one of the first things you talked about. I couldn't agree with you more about the voter information card, as you put it, being a staple for our voting, the core. I want to thank you for that because I am glad it is returning.

Within this legislation we're returning some things that were taken out with prior legislation. We're also adding—I guess you could say we're updating—to today's context, and—

I'm sorry; I had to sneeze.

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

Your emotions took over.

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

I know. I'm verklempt completely.

I've been in this business now for 15 years; I've been elected for almost 15, and five elections in, so I'm always interested.... The idea about vouching. It is a right—it's in our charter—to vote, and sometimes as we get lost in the conversation about ascertaining the right identification, we keep forgetting that it is a person's right to vote. Therefore, we have to keep that in mind. I think vouching goes a long way for that.

How do you feel about the vouching contained within this legislation, or the changes that are in this legislation?

[Greg Essensa]

I think any provision in any electoral reform bill that enhances both the integrity and the transparency of the electoral process, while ensuring that we provide access to every eligible elector to exercise their right to vote, is paramount.

We don't have vouching in Ontario. We have not used that in very many years. I know it has been used federally. I have witnessed it at various elections I have attended to.

If it assists certain segments of the electorate who find difficulty with appropriate ID and other challenges I am always supportive of that.

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

There are other things contained within this legislation. For instance, you talked about a pre-writ period and throwing more transparency upon the pre-writ period. You're obviously in favour of that.

[Greg Essensa]

Yes, I have written quite extensively about that over the last 10 years, in my role as CEO. I am a firm believer that all political actors should be treated equitably and fairly. Where political parties and candidates have spending limits and expense limitations, third parties in Ontario for a long period of time had no such requirements. It meant that third parties would spend unknown amounts of money during that period because there was no transparency, there was no regulation, and there was no requirement for them to provide any information to us, as the regulator.

There were always concerns raised by a multitude of different parties that this was an unfair advantage, and sometimes it could potentially impact the electoral results.

I had advocated for a long period of time that we needed to treat all political actors fairly and equitably and under the guiding principle of a fair and level playing field.

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

Yes, and that playing field you did talk about certainly should incorporate up to six months before the election day, and not just in the precise writ period. Would that be correct?

[Greg Essensa]

I would agree. One part of the provision of your bill that I actually quite like is the requirement to have those third parties provide interim reports. The more transparency we can provide as to who is expending what type of expenditures in advertising as well as who is contributing to third parties I think goes a long way to building the health and strength of our democracy.

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

Speaking of this, it leads to my next question and the interim reports that you like, which are outlined in this legislation. Do you think there is enough interim reporting, or should there be a higher requirement for interim reports?

[Greg Essensa]

I think that, any time you make substantive electoral reform, you really need to go through one electoral cycle to be able to assess. What I said when we were deliberating Bill 2 here in Ontario is that we were making substantive reforms on the campaign in electoral financing regime here in Ontario. My recommendation was that we needed to go through one electoral cycle so that we could see how it operationalized itself. Then folks in my role could comment back to the legislators when we may have to tweak some provision or make some amendment based on the facts of what we've seen has happened.

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

Yes, I think that's a valid point, road testing any particular type of thing that we do. It could be like administrative penalties and that sort of thing, which I and obviously you are in favour of. I think maybe other agencies in the federal government should look at that model.

Nevertheless, in the few minutes that I have left, I want to talk about flexibility.

[The Chair, Liberal, Larry Bagnell]

You have one minute.

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

In the one minute that I have left, as I've been reminded.

In an organization such as yours, obviously being arm's length from the government and independent of government, flexibility is key. Can you expand on that, and not just for doing your job for voting, but also communicating to voters what your role is to promote voting and participation?

[Greg Essensa]

Ontario, not dissimilar to Canada, is obviously a large and very diverse province. I've often advocated that legislators should write legislation and provide its flexibility to their electoral administrators, because we are in the best position to make determinations.

For example, if I take this pair of glasses and the legislation tells me to put them in my right hand, put them in my left hand and then put them on the table, I find that very prescriptive. I would prefer the legislators tell me they want me to use the glasses. That's fine. I can figure out how best to use them. I can tell you that, in Ontario, how we would use the glasses in Kenora would differ from Windsor, would differ from Ottawa—Vanier and differ from Toronto—St. Paul's.