Procedure and House Affairs Committee on June 8th, 2017

[The Chair, Liberal, Larry Bagnell]

Good morning, everyone. Welcome to the 64th meeting of the Standing Committee on Procedure and House Affairs. The first hour of the meeting will be televised.

Today we are continuing our study of the Chief Electoral Officer’s report entitled “An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election”, with a specific focus on recommendations B12, publishing false statements to affect election results, and B27, foreigners inducing electors to vote or refrain from voting. If people want to raise other items with the commissioner while we have him here, or if he wants to raise items, I'm sure that's fine.

In order to assist us in our deliberations, we are joined today by Yves Côté, the Commissioner of Canada Elections, and Marc Chénier, general counsel and senior director of the Office of the Commissioner of Canada Elections.

Welcome, and thank you for coming here. This will be very helpful.

The commissioner has distributed his remarks to all of you, so you have them in writing.

I will now turn the floor over to the commissioner for his opening statement.

[Yves Côté, Commissioner of Canada Elections, Office of the Commissioner of Canada Elections]

Thank you, Mr. Chair.

I would like to thank the committee for its invitation to appear today to assist with your examination of the Chief Electoral Officer's report on the last general election.

As you said, I am joined by Marc Chénier, general counsel for our group and senior director of legal services in our office.

Before I turn to the issues of interest that you mentioned a few minutes ago, Mr. Chair, I would mention that there are several additional recommendations contained in the CEO's report on which the committee has not yet reported that have a direct bearing on the mandate of my office.

There are three: the power to apply to a court to compel testimony, the authority for the commissioner to lay charges, and the ability for contract investigators within our office to obtain production orders under the Criminal Code. These recommendations are extremely important for our office, and I dearly hope the committee will support them.

Let me now turn to the two specific issues that were identified as being of interest to the committee. They have to do with the publication of false statements about the personal conduct or character of a candidate and the prohibition on foreigners inducing electors to vote or refrain from voting. Both of these sections raise, although admittedly in different ways, issues related to fundamental democratic values. Chief among them is freedom of expression, which, as the Supreme Court has repeatedly stated, is probably at its highest in the electoral and democratic context. It is therefore essential for Parliament to proceed extremely carefully in this area.

The objective of any amendment should be clearly identified: what is it that should be prohibited or regulated, and why? And—this is extremely important—the means chosen to achieve this objective should be as minimally intrusive as possible. Otherwise there will be a risk that the courts will interfere and find that you as members of Parliament have overreached.

The vague and general language in these provisions also creates false expectations and a perception that these provisions are not enforced as they should be. As a result, it can lead to an erosion of Canadians' trust in our electoral system.

Recommendation B12 is with regard to false statements. Section 91 of the act is one example of where this problem exists. The language contained in the provision is extremely broad, and does not provide an adequate degree of clarity as to the type of false statements that are prohibited. While the public believes it is applicable to a wide variety of scenarios, from an enforcement standpoint, the circumstances in which it can be applied are actually quite limited. The reason for this is that historically, the courts have set a very high standard on the concept of falsehood. For example, judges have ruled that in order for a false statement to be captured by provisions of this nature, it must falsely impute a high degree of “moral turpitude”, to use the expression they have used, or criminality.

In addition, as it stands now, only false statements about candidates or prospective candidates are caught by section 91. As the role of political parties and party leaders has grown considerably since the section was adopted in 1908—more than 100 years ago—it may be time to consider whether the scope of the provision should be broadened to include false statements made with respect to these other key players.

A final point.

At present, when a violation of section 91 occurs and a conviction is entered, the appropriate sentence is imposed on the accused. Nothing else follows. An issue for consideration is whether other consequences should flow from a contravention of the provision. For example, should a violation of section 91 be identified as an illegal act or corrupt practice? This could provide a basis for challenging the results of an election, in cases where the false statements may have seriously impacted on the results. This is currently the case for a contravention of section 92, which prohibits the making of a false statement about the withdrawal of a candidate.

Failing such changes to section 91, I think this section should probably be repealed.

Whether section 91 is repealed or not, I would suggest that amendments to paragraph 482(b) should be considered in order to clarify its intent. This is a provision of broad application that is intended to fill any gaps in the act's offence provision concerning deceitful conduct. While it makes it an offence to use “any pretence or contrivance” to induce voters to vote in a certain way, the aim could be to prohibit, for example, attempts to influence electors using means that are fundamentally opposed to our recognized democratic values or that undermine the processes laid out in our electoral legislation.

The challenge in drafting such a provision, and this is a major challenge, will be to ensure that it does not capture typical forms of political expression and debate, which often include exaggeration and what is often referred to as political spin. The prohibition ultimately should not stifle debate or unduly limit political expression. Rather, it should aim to protect our democratic values, including transparency and accessibility. For example, it should target fake news in cases where the intent was clearly to confuse electors and undermine their ability to cast an informed vote.

Let me now turn to recommendation B27. The breadth of this provision related to inducement by foreigners also creates a number of enforcement challenges. As the members of this committee will likely recall—in fact, will no doubt recall—there were a number of examples of non-Canadians who, during the last campaign, expressed views or opinions, either through social media, in editorial comments, or during interviews.

We received at the office a number of complaints in relation to these types of incidents. Many believed that anyone who is not Canadian and not residing in Canada is prohibited from expressing support for a party or a candidate. Although a very literal reading of the provision could lead to that conclusion, it is hard to imagine that, in this day and age, in 2017, Parliament would want to make illegal the expression of an opinion by a foreigner; hence the need, in my view, to consider tightening and refining the wording of the provision.

Considering the act's focus on maintaining a level playing field, the focus should probably include elements that prohibit foreigners from incurring significant expenses to oppose or promote a candidate or party. These could include, for example, incurring expenses to pay employees to work in a call centre or to organize door-to-door canvassing during a campaign.

The CEO also recommended—in recommendation C49—that it would be useful to review the wording of the provision to make it clear that it applies to “attempts to influence electors.” The use of “induce” in the English version of the act causes confusion about what is captured by the prohibition. The reason for this is that it implies that, for an offence to have been committed, the attempt to influence had to have been successful. This gives rise to an almost impossible burden of proof for the prosecution, as you can appreciate.

Finally, I wish to briefly mention one last area of potential reform regarding third parties.

In Canada, third parties are only regulated with respect to their election advertising activities.

Provided they act independently from a candidate or party, they may incur limitless amounts of expenses when carrying out activities such as polling, voter contact services, promotional events, and so forth. They can also use whatever sources of funding, including foreign funds, to finance these non-election advertising activities.

The level of third party engagement in Canada's electoral process will likely continue to grow in the years to come. For that reason, Parliament should consider whether there is a need to re-examine the third party regime with a view to maintaining a level playing field for all participants.

In conclusion, Mr. Chair, I'd like to thank the committee for its support of a number of important recommendations concerning our office. In particular, I was extremely pleased to see that the committee had agreed with a recommendation that a regime of administrative monetary penalties be adopted. This recommendation, coupled with the ability to negotiate broader terms and conditions included in compliance agreements, will allow my office the much-needed flexibility it requires to carry out its compliance and enforcement mandate more efficiently. It would also—and I think this is a very important point—facilitate the quick and efficient resolution of a number of matters in a transparent manner, eliminating the need to take some of them to court. As criminal courts across the country are dealing with the aftermath of the decision of the Supreme Court in Jordan, this is, I would submit, a highly relevant consideration.

In closing, Mr. Chair, although I will endeavour to provide fulsome answers to your questions, I would like to remind the members of this committee that I will not be able to discuss the details of any particular matter that is or may have been the subject of a complaint to, or an investigation by my office.

I will be pleased to take your questions.

[The Chair, Liberal, Larry Bagnell]

Thank you very much. That was very helpful and you're totally correct: we're looking at having some penalties in the act, throughout the act possibly, that are not criminal. So that's a very good thing.

Just so you know, recommendations A33 and A34, which you mentioned at the beginning, the committee has dealt with already, but you have brought to our attention one that we hadn't noticed, C45, the ability of contract investigators to obtain production orders. While you're here, perhaps you could briefly introduce that recommendation for us, from your knowledge, and share any comments you want to make about it. We'll have the three recommendations to deal with after you've left: the two you outlined in great detail plus we might as well deal with C45 if you have any comments on it, because it is related to you. We haven't got to section C yet in our deliberations.

[Yves Côté]

Thank you, Mr. Chair.

Recommendation C45 is what I would describe as a rather technical amendment and that's essentially why it finds itself in chapter C of the recommendations. It has to do with the fact that we have on staff at the office a certain number of contractual investigators, people who are not employees of the public service, and as the law currently stands, they are not in a position to apply for things such as production orders under the Criminal Code, because these instruments, production orders, which, for example, we use to force a bank to give us information about financial transactions, can only be applied for before a judge by public servants.

As I said, we have a number of investigators who are contractual employees, and currently they are not covered by the Criminal Code. What it would require is simply a very small amendment to make sure that contractual employees may apply for both search warrants and production orders. Search warrants are currently already covered, but when these new provisions on production orders were introduced, I think somebody forgot to make sure that contractual investigators could also have the ability to apply for them. That's why I say it's a rather technical amendment, and I don't think it should pose any significant problems.

[The Chair, Liberal, Larry Bagnell]

Thank you. That's very helpful.

We will start the seven-minute round—seven minutes include both the questions and the answers—with Mr. Simms.

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

Thank you for your intervention, Mr. Côté.

Very quickly, this is a crude example. Today there is an election in the United Kingdom. The polls are open currently. I truly hope, although they won't win government, that the Liberal Democrats will win more seats. I've just said it publicly. If this were the other way around, would I be breaking—

[Yves Côté]

You understand that I will not comment on that.

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

I'm sorry. What's that?

[Yves Côté]

You will understand that I will not comment on that.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

Nor will the rest of us.

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

Oh, okay. I was just wondering if I would be breaking the law if it were the other way around.

I guess what I'm trying to say is, if I'm making a comment about their election the way I just did, and if a British member of Parliament did the same thing to me, would it be against the law as it is now? I'm just looking for interpretation.

[Yves Côté]

I don't think you would be committing an offence when we have the law as it is now.

I think that for any investigation, or any way in which this matter would be dealt with, we would look at the guarantee of freedom of expression that certainly the charter extends to everyone. Before we decided to move ahead with enforcement action, we would be quite conscious of the need to bear that in mind. That's one point that we would certainly consider.

On the other hand, I don't think you would be breaking our law if you did that—or if he did that or she did that.

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

All right. That's fine.

David.

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you.

Thank you for being here. We are very pleased to hear your testimony.

My question is about investigations. If you receive a complaint about electoral fraud, for instance, how do you proceed? Where will the problems arise, specifically with regard to recommendations A33, A34, and C45 and the commissioner's decisions?

[Yves Côté]

If we receive a complaint about electoral fraud, we assume it is something major and relatively big. We begin with a preliminary review of the allegations and facts brought to our attention. If we confirm that there are sufficient grounds to proceed and launch an investigation, we would open a formal investigation and would then talk to the people we believe might have been involved.

The reason for recommendation A33 is that, in certain circumstances—and I have experienced this in the past four or five years since I have been in my position—we ask persons to appear because we strongly suspect and, in some cases, know with certainty that they are aware of certain things and have information. For their own reasons, they refuse to cooperate. They say they do not want to tell us anything.

You as members of Parliament are in a position to properly assess what I am going to say. In politics, loyalty to the party and the team is often considered a fundamental value. For these people, it is very difficult to cooperate and give information that could help us move forward with our investigation.

If, for example, after contacting all the individuals to whom we wanted to ask questions, no one wanted to cooperate, a provision such as the one suggested in recommendation A33 could be useful. We could go before a judge, an independent party, and explain what is going on, what the allegations are, how serious they are, and the fact that, unfortunately, we cannot convince anyone to talk. We would then ask the judge to issue an order compelling a particular person to talk to us.

There would of course be guarantees attached to this process if the judge agreed to issue the order. To begin, it would be clear that nothing said by the person compelled to speak to us could be used against them. The person would have the right to legal representation. The meeting would be private and not public.

It should be noted that such guarantees do not mean that we would use this power left and right to conduct investigations into all kinds of minor matters. It would be for circumstances that could seriously affect public confidence in the electoral system. Citizens need to be reassured that an investigation was conducted in order to obtain the information we need to move on to the next steps.

That is my opinion on recommendation A33. In five or six provinces in Canada, the commissioner or person in an equivalent position currently has this power. I am including officials from the office of the chief electoral officer of Quebec.

This is already the case federally since the head of the competition bureau has this power and may, under certain circumstances, ask a Federal Court judge to issue an order to compel someone to testify.

This is the main point I wanted to make with regard to recommendation A33.

[David Graham, Liberal, Laurentides—Labelle, QC]

At a practical level, your office is separate from that of the CEO. You have changed buildings and you have less contact with the CEO.

What are the real effects of this change?

[Yves Côté]

As you said earlier, since Bill C-23 was passed, we have been an entity within the office of the director of public prosecutions. Officially and legally, we have been removed from the CEO's organization.

In my opinion, things are going quite well on the whole. They are going very well in fact. For the CEO and for us, however, it is difficult for technical reasons to share information more quickly, since we are now officially part of two different government institutions. Certain rules apply, which makes things a little more difficult.

That said, you probably know that the government has introduced Bill C-33 and that, if it is passed in its current form, it would return us to the CEO's office.

I would also note, importantly, that since we arrived at the office of the director of public prosecutions, this office has provide exemplary service and support in all respects, as was the case when we were part of Elections Canada.

[David Graham, Liberal, Laurentides—Labelle, QC]

Thank you very much.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Mr. Richards.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Thank you.

Mr. Commissioner, thanks for being here. I have a couple of questions for you today.

First, in regard to recommendation B27, which deals with section 331 of the Canada Elections Act, that prohibits anyone who doesn't reside in Canada or who is not a Canadian citizen or permanent resident from inducing electors—this is actually taken right from it—“to vote or refrain from voting or vote or refrain from voting for a particular candidate”. The recommendation states that you receive many complaints under this section, but indicates that overly broad wording leads to difficulty in the rule being enforced.

If many people are filing complaints, then there clearly must be some significant issues here, some real issues. I always think of the saying, where there's smoke there's fire. Can you give us an idea of how many complaints you typically receive, particularly with those last couple of elections?

Also, can you provide some suggestions on how to strengthen that section that will give you the ability to better ensure the integrity of our voting system?

[Yves Côté]

Mr. Chair, the question as put mentioned that usually where there's smoke there's fire. I have to say that sometimes where there's smoke there's only smoke. I say this because, when you look at section 331, as I said in my opening remarks, you can think that it applies to all kinds of various things.

One thing brought to our attention a number of times in the course of the last general election were the comments or editorials in the media, especially in the U.S. but also sometimes outside the U.S., and also pieces published in national Canadian newspapers but authored by non-Canadians residing outside of Canada. Many people thought this was objectionable and should not happen.

In my point of view, I don't think the intent of section 331, which was adopted, by the way, as I said, a long time ago, was to capture this kind of thing.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Sorry, I hate to interrupt you, but I have a limited amount of time.

What I was trying to get a sense of is the number of complaints you receive. You've indicated that you see some of those as smoke only being smoke, but there are likely to be some where fire is in existence. I'm trying to get a sense of how many complaints you typically receive. Maybe you could give me an idea of the numbers or percentages that you think would be legitimate complaints and, I guess, how we could look at strengthening those sections.

[Yves Côté]

The numbers we have now suggest we had 14 complaints in the course of the last general election having to do with possible infringements of section 331. A number of those were disposed of fairly quickly. I made reference to that in my last annual report. They had to to with a national political party doing business with somebody from outside the country, allegedly trying to get some strategic advice in terms of how a campaign should be run. We took the position publicly, as I said in my report, to the effect that this was not something caught by section 331.

[Blake Richards, Conservative, Banff—Airdrie, AB]

Let me move to the other question that I had for you.

When you were at the Senate legal and constitutional affairs committee in April, you indicated that you had a number of complaints about third parties. I don't know if we're talking about the same subject matter that you just indicated here or not, but I'm wondering if you can indicate whether that's become an issue, that third parties are so significantly involved there may be unfair electoral outcomes as a result.

You also stated today, and I believe at the Senate committee as well, that Parliament should consider whether there is a need to re-examine the third party regime with a view to maintaining a level playing field for all participants. You also have indicated that, when third parties are able to receive foreign funding and use that foreign funding during the election period, provided they receive the funds prior to six months before the election is called, it means that, really, third parties can use unlimited foreign funding and there's really no restriction on the amounts they can use, outside of election advertising. You said today that you believe we should look at the other expenses, like polling, voter contact services, promotional events, and these types of things.

I wonder if you could expand on that and give us an idea of any other suggestions you have that we could use to strengthen the third party financing regime to ensure that there is that level playing field you're talking about, that it is maintained in relation to foreign funding, and specifically fleshing out this idea of the other types of expenditures that are completely unlimited at this point. Do you think we need to go beyond that six-month period, so there can't just be someone at six months and a day, especially with a fixed election date, which obviously drops a bunch of money in and is able to significantly influence a Canadian election?

[Yves Côté]

Mr. Chair, I would start by quoting a judge of the Supreme Court of Canada in the Harper decision, going back to 2004, and that was Mr. Justice Bastarache writing for the majority. What he said was this: “For spending limits to be fully effective, they must apply to all possible election expenses...”. The regime that we have for third parties was passed more than 15 years ago, and yet we very well know it only applies to what is referred to as “election advertising” as defined in the act. That is pretty narrow and pretty limited, and that is the production, if you will, of advertising material and the purchase of the means necessary to transmit such materials. All kinds of other things are simply not covered at this point in time.

As I said at the Senate committee, we have received a fairly significant number of complaints, way more than we had for the previous general election. People complained that third parties in this last election did all kinds of things that had, they allege, an impact on the electoral results, and that this was not fair. What I said at the Senate committee, and what I said this morning here, is that I think that 15 or 17 years after the regime was adopted, the time has come for Parliament and for you, members of Parliament, to think about this. If we really have in mind to maintain a level playing field, should more be done with a view to addressing the role that third parties have played and, I would assume, are probably likely to play in the next general election? To me, the question as to whether or not we still have a level playing field is really an open question, and I would urge you to consider that very, very carefully.