Procedure and House Affairs Committee on Nov. 5th, 2024

[The Chair, Liberal, Ben Carr]

Welcome to meeting number 131 of the Standing Committee on Procedure and House Affairs.

This is a friendly reminder to witnesses who may not be used to appearing. You have a headset and, if it is not in use, for the protection and well-being of our interpreters, we ask that you place it face down on the stickers in front of you. Obviously, if it's in use, there's no problem.

Colleagues, this is our second meeting on the study of Bill C-65, an act to amend the Canada Elections Act. We will have two different panels today. From 11 to 12, we have with us Peter Loewen, professor, department of political science, University of Toronto, who is joining us virtually. From the Canadian Labour Congress, we have Siobhán Vipond, executive vice-president, and Mike Luff, national coordinator, government relations. Joining us virtually from Democracy Watch is Duff Conacher.

Thank you very much, witnesses, for being here with us today. Mr. Loewen will have five minutes. The CLC will collectively have five minutes, and Mr. Conacher will have five minutes. With that, I'm going to ask Mr. Loewen to start us off.

The floor will be yours for five minutes.

Witnesses, if you have your cellphones and you're able to do your best to keep track of your time, that would be appreciated. If not, I'll cut you off about 30 seconds before to give you forewarning and then ask you to wrap up. With that, we're going to begin.

Mr. Loewen, the floor is yours for five minutes, sir.

[Peter Loewen, Professor, Department of Political Science, University of Toronto, As an Individual]

Thank you very much to the committee for the opportunity to testify before Parliament today.

I am joining you from Ithaca, New York. I am now a member of the faculty at Cornell University, and I'm pleased to be joining you nonetheless.

I'll open by saying that considering laws around elections is an exceptional act by members of Parliament because, unlike other pieces of legislation, considering the Canada Elections Act directly affects your prospects of re-election. There is inherent in this work a conflict of interest, so it must be undertaken with care and with transparency.

I thank the committee for having these hearings and for doing this work of carefully considering the legislation in front of all Canadians. Thankfully, most changes to election law are likely to have small effects to which parties will respond strategically, hopefully cancelling out any differential effects or any effects that advantage one party or another, but big effects or small, it's important that this be carefully considered, so kudos to the committee for its careful consideration of this legislation.

For background, I've been a close observer and researcher of election laws for nearly 20 years. Indeed, the first time I had the honour of appearing before this committee was in 2007, when the committee was considering changes to advance voting days. I've since continued research on electoral systems and elections, have appeared before Parliament on other occasions and have been an expert witness in several cases related to election law.

I wish to make three brief observations about the legislation under consideration. Then I look forward to members' comments.

The first is that all of the measures that are proposed are likely to increase voter turnout, but the effects of this will be small. Increasing voting days and increasing ease of voting by mail can increase voter turnout, but members should not expect large effects. There is an implied trade-off here between the capacity of Elections Canada to deliver on all these changes and the value of increased voter turnout. Elections Canada is a highly competent organization, but there are limits to what can be done in our locally volunteer-administered elections. I would hope that the members would keep in mind that all of these changes impose strains on the capacity of Elections Canada to deliver on elections.

Second, these changes will undoubtedly increase what I believe is a worrying trend. Elections are increasingly isolated, atomized, individualized exercises, where voting is held up as a matter of convenience rather than a matter of duty, something that is done by individuals when it's easy for them rather than being done all at once as a collective action. It leads to elections in which voters are encouraged to implicitly or explicitly arrive at a decision sooner than later, rather than being open to all the information that an election can provide. At some point, this strikes me as an undesirable thing and not something that we should be encouraging.

Third, more careful regulation of third parties is a good thing. I think there are two emerging considerations for parliamentarians to consider in this. The legislative framework in Canada has for a long time done two things. The first is that it has limited who could speak during elections, largely limiting speech to political parties with a little bit of a carve-out for third parties. Second, it has regulated speech by using spending limits with the idea that it is money that propagates speech so, if you limit money, you can limit the advantage of some parties over others in speaking.

This is problematic in the emerging world because the cost of creating and distributing ads or distributing content is racing towards zero. That's the first reason why it's difficult, and the second is that we generally regulate humans, and it is possible that people, through writing algorithms, will in the future create non-human entities that may soon be intervening in elections by creating content that's used to persuade voters.

I ask members to consider that as they consider this legislation.

I have nothing more to say than that, but I look forward very much to the testimony of other witnesses and to the questions of members of Parliament.

Thank you.

[The Chair, Liberal, Ben Carr]

Thank you very much for your introductory remarks, Mr. Loewen.

I'm going to turn the floor over for five minutes to the CLC. I believe it's Ms. Vipond who will be speaking.

The floor is yours for five minutes.

[Siobhán Vipond, Executive Vice-President, Canadian Labour Congress]

Thank you, Chair, and good morning to the committee members.

We, the CLC, represent three million workers in virtually all sectors, industries, occupations and regions of Canada. We have two major concerns about Bill C-65. Both concerns relate to third party participation in elections.

We and many of our affiliate unions actively engage in federal elections. The Elections Act requires that we register as third parties and follow all regulations for third party communications and activities during elections. We understand the crucial objective of regulating communications between third parties and the general public to ensure electoral fairness and informed debate. However, the current act includes a major overreach that restricts our ability to communicate with our own members during elections.

The act includes three categories of regulated activities for third parties—election advertising, partisan activities and election surveys. There's an inconsistency between these categories with respect to communications between a third party and its members. The first category of election advertising contains an explicit exemption for unions to communicate with their members and not have to register as a third party, but the other two categories—partisan activities and election surveys—do not include an exemption. Elections Canada has interpreted this to to mean that a wide range of communications and activities with our members, such as phone calls, emails, texts, websites, mailings, organic social media content, rallies, surveys and door-to-door canvassing, are regulated third party activities.

We believe these restrictions on our ability to communicate with our members are a violation of the Charter of Rights and Freedoms. It's a violation of the charter's freedom of thought, belief, opinion and expression, freedom of peaceful assembly and freedom of association.

At the core of a union's mandate and function is the ability to communicate freely and effectively with its members. This is essential to representing and protecting their interests, not only at the bargaining table but also about and during elections. Communicating with our members about elections is essential for unions representing federal workers within the federal jurisdiction. After all, the federal government is their employer, and a change in government can have profound consequences to the terms and conditions of employment. More broadly, the decisions made by federally elected officials about labour laws, employment standards, health care, pensions, skills training, child care and education have a direct impact on the working conditions and quality of life of our members.

We believe that all communications during an election between a union and its members should be exempt from all third party regulations. Unfortunately, C-65 does not address this concern. We urge the committee to amend the bill to ensure that the act contains an explicit exemption from the definition of partisan activity and election surveys for trade union communications and activities with our members.

Our second concern relates to the section that will prohibit unions from making contributions to third parties in the future. Clauses 54 and 59 of the bill add new provisions to the act that will restrict a third party to use only contributions from Canadian individuals for regulated expenses. In addition, subclauses 52(3) and 57(3) of the bill repeal provisions of the act and will eliminate unions and all other current lawful classes of contributors to third parties. We oppose this unwarranted prohibition against domestic unions from contributing to third parties.

The act already has strong constraints on foreign union involvement in elections and needs no supplementation by an absolute ban on the ability for domestic unions to contribute to third parties. Section 349.02 already states, “No third party shall use funds for a partisan activity for advertising, for election advertising or for an election survey if the source of the funds is a foreign entity”, and subsection 282.4(1) already prohibits “a trade union that does not hold bargaining rights for employees in Canada” from unduly influencing an elector. In addition, the act already prohibits a trade union from contributing to candidates and political parties, and it already prohibits third parties from acting in collusion with a candidate or political party.

The current act already has ample and effective constraints on both foreign and domestic unions from improperly influencing an election. Therefore, the changes proposed in Bill C-65 are completely unwarranted. We urge the committee to delete clauses 52, 54, 57 and 59 from the bill.

Once again, thank you for this opportunity. We look forward to your questions and comments.

[The Chair, Liberal, Ben Carr]

Thank you very much, Ms. Vipond.

Mr. Conacher, the floor is yours for five minutes.

[Duff Conacher, Co-founder, Democracy Watch]

Thank you very much for the invitation from the committee to testify on this very important bill, Bill C-65, and the overall issue of election reform.

I am going to make my statements today in English.

My French still needs quite a bit of work.

I welcome your questions.

I'm going to quickly summarize what I think you can change in the bill. Unfortunately, the bill was not referred to the committee after first reading, as past bills have been, so you're constrained to making amendments within the framework of the bill. I'll set out things that I think fit within that framework, and then I'm going to also summarize what else needs to be changed. There are many other things that this bill does not address that Democracy Watch has called for in its many appearances before the committee since 1997—that is, over the past 27 years.

First of all, with regard to what is in the bill, I won't refer to section numbers. Democracy Watch will be filing a written submission with details, so I'll quickly summarize some of the key areas.

First, do not increase the registration threshold for third parties to $1,500, as the bill proposes. As Professor Loewen noted, the cost of informing voters has decreased, not increased, significantly. If you increase the registration threshold, you're just allowing for secret third party activity. With less than $1,500, you could reach every voter in a riding—tens of thousands of voters—and voters have a right to know the third parties who are doing that. The registration threshold should be decreased to something like $200.

The bill changes third party spending rules. One of the most important things the bill does not address is that, still, even if it were enacted as proposed, one individual or a business could spend $1.6 million to influence an election. That's one voter. Allowing one voter to spend as much as a citizens group that has tens of thousands of supporters is not democratic. It's also unethical. It allows that voter to have greater influence and do huge favours for a party. Bill C-65 does not close that loophole.

I disagree with the Canadian Labour Congress's position that groups should be able to flow money to other third party groups. That has been used to hide who is actually spending and trying to influence an election through the use of front groups across the political spectrum. It's good that the bill closes that loophole.

The bill should also be amended to require third parties to register for nomination and party leadership contests and disclose their donors and spending. We're here on election day in the U.S., and lots of people think the rules in Canada are better than the rules in the U.S., but for PACs—third parties, or political action committees as they're known in the U.S.—our rules are much worse. A third party individual—again, one voter, business or interest group—can spend an unlimited amount of money, in secret, to support or oppose a nomination contestant or a party leadership contestant. It's one of the biggest loopholes that allows for foreign interference, and it can and should be closed with amendments to this bill.

The bill changes voting rights. You should amend the bill to prohibit voting by foreigners and anyone under the age of 18 in nomination contests or party leadership contests, in the same way that only citizens who are 18 and over are allowed to vote in elections and by-elections currently.

The bill prohibits various further types of disinformation. The problem is that there are huge loopholes that allow candidates and party leaders to mislead voters and huge loopholes that allow voters, interest groups and lobbyists to mislead other voters about candidates and party leaders. You should simply change the provisions—we'll set out in detail, in our written submission, how to do this—to prohibit all false claims. There is no right to mislead voters. It's not part of the freedom of expression right, and it causes enormous harm and needs to be prohibited.

The bill mandates Elections Canada to do reports, and you should add three reports to the list: one on the cost to inform voters, because every spending limit or donation limit has been set arbitrarily, and we need a study of how much it costs to actually inform voters; a second one on how much it costs to operate a party in between elections and during an election, and then all the limits could be changed to fit with what those actual realities are; and the third would be on electoral reform.

Finally, on larger questions, our system allows for legalized bribery and allows for foreign interference that is secret, undemocratic and unethical. Many more changes are needed to the election law and other laws to stop secret, unethical lobbying and all sorts of other secret, unethical and undemocratic influence in our elections and all our political processes.

I hope that after the Hogue commission inquiry reports you will return with another bill to close all of those loopholes, as well as to strengthen enforcement and penalties.

Thank you, again.

[The Chair, Liberal, Ben Carr]

Thank you, Mr. Conacher.

Colleagues, we will now enter into our first round of questions.

Mr. Cooper, the floor is yours for six minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Mr. Chair.

Thank you to the witnesses. I'll be asking some questions relating to third parties and the use of foreign funds.

Professor Loewen, would you agree that it is problematic that registered third parties can use foreign funds to influence Canadians during an election?

[Peter Loewen]

Yes. I think it's certainly inconsistent with the spirit of the law. We don't allow foreign donations directly to members of Parliament, so one would have to raise the question of why foreign funds could be used for third party influence.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that.

Mr. Conacher, would you agree that this is problematic?

[Duff Conacher]

Yes. The bill does a lot to address that, except for leaving the loophole open that still one individual is exempt from the rules and would be able to use their own money, which could easily be funnelled to them from a foreign government, foreign entity or foreign individual, or a business that has only a couple of shareholders, and still be allowed to spend $1.6 million to influence an election. It's just ridiculous and undemocratic.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that.

As you do note that the legislation is an improvement from the status quo, insofar as the Chief Electoral Officer identified at least two existing loopholes in the law for third parties to use foreign funds. The first loophole is the melding of funds, whereby monies donated to a third party can be treated as part of the general revenue of the third party. A second loophole, as Mr. Conacher rightly noted, is that a third party can accept contributions from another entity that in turn collects contributions. That can be used as a means to hide the actual source of funds. That's what happened in the 2015 election, when there was a funnelling of millions of dollars in U.S. money through a series of third parties such as Leadnow, which used those foreign monies to influence Canadian voters.

Now, as you note, Mr. Conacher, there is a loophole remaining in this bill. The requirement that third parties set up a separate bank account during the pre-writ and writ periods and accept donations only from individuals would not apply to third parties if their contributions did not exceed 10% of their revenues.

Professor Loewen, I'm wondering if you have any thoughts on the reasonableness of that exemption, or the lack of reasonableness. What are your thoughts on it? It would seem to me to be a loophole that is problematic.

[Peter Loewen]

Yes, I think generally the trajectory of this legislation in Canada has been increasingly tightening third party participation in elections. That's been opposed by various people across the political spectrum over time, but we've arrived at that conclusion. I don't see any benefit that's not outweighed by issues of transparency and foreign interference that would come from leaving that loophole open.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

It would be your recommendation to close the loophole entirely and simply require that all registered third parties engaged in elections set up a separate bank account and accept donations only from individual donors, similar to political parties. Is that your recommendation?

[Peter Loewen]

I don't want to comment on the mechanism in terms of the ease of setting up a bank account, etc. It might be too difficult. Whatever you want to do in terms of the mechanism of it, that's up to parliamentarians. I don't have strong feelings on that. I think with regard to the principle of limiting the capacity of third parties to accept and then reuse foreign funds, it's very reasonable to close that loophole.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Conacher, do you wish to comment further on this loophole and how it should be closed?

[Duff Conacher]

Yes. I think you're not going to have a citizen group that has, from products or sales or services, anywhere near 90% of their revenue coming in. I don't think it is, in effect, a loophole, the 10% threshold that you're talking about, but yes, it could be lowered to zero. There's nothing wrong with that.

There is something else that I should point out. The bill only takes into account whether you received more than 10% of your revenue from contributions during the previous calendar year or fiscal year. You can choose. That means a third party could receive the money at any time past the previous 12 months and be able to use it. You'd only have to establish that for one year and have those contributions for that one year. It really doesn't close the loophole. It still allows for the funnelling, as long as it happens 12 months before the election occurs.

[The Chair, Liberal, Ben Carr]

Okay.

Thanks very much, Mr. Cooper.

Mrs. Romanado, the floor is yours for six minutes.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you very much, Mr. Chair.

Through you, I'd like to thank the witnesses for coming today.

My first question is for the Canadian Labour Congress, and I want to make sure I'm understanding this correctly.

You mentioned that one of the areas of concern for you is the major overreach for election advertising services and partisan activities, and that it would impact communications with your members. From my understanding—and I'd like to get your opinion on this—Bill C-65 does not actually make any changes to existing rules with respect to partisan communications, so they're not prohibited under the act. It is regulated but not prohibited. I just want to make sure that I'm understanding your point because, from what I understand, they are not included in this. We're not making changes to that.

[Siobhán Vipond]

Yes, you're correct. What we're saying is that this bill is not fixing a major problem that currently exists, and that is the overreach of those two parts in terms of limiting a union's ability to talk to its members.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Could you give me an example? What would you mean by that? In a typical writ period, what would be some of the communications that you would like to communicate to your members that you are currently prohibited from doing? I want to get an understanding of what kind of communications we're talking about.

[Siobhán Vipond]

We have protections, as unions, to represent our members, and our members decide what that looks like. It's various unions. We have the challenge where, if a union is in bargaining and that happens to fall within a writ period, then the union has to register as a third party if it's going to talk publicly. There's that part of it. That is a problem. That means that we're not doing the work that we need to do for our members, which is to represent them.

The other part of it is that our members have set goals for us in terms of what issues we need to win on and what issues we need to look at. The reality is that our ability to work happens because we collectively come together and fight for these issues. If we're not able to have the discussion with our own members about whether they decide to do partisan activities or election surveys, that all gets limited. We've been registering; we've been following it. However, it makes it very challenging for us to do the work with our members. We're not just any groups; we are unions. We're very transparent about the work we do and where we spend our money. That's why we think there's an opportunity here to fix that so that we're able to do the work for the members.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you for clarifying because there's nothing mentioning that change. Removing articles clauses 52, 54, 57 and 59 would assist in that regard. Is that correct?

[Siobhán Vipond]

Those clauses have to do with the.... What we would like to do is to make what we see in election advertising, where we're allowed to communicate with our members, explicit in the other two so that Elections Canada has clear direction and so that it is understood that unions have a special relationship with their members. We're not talking about the relationship with the general public.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

That's perfect. Thank you so much for clarifying. I appreciate it.

My next question is actually for Democracy Watch.

Mr. Conacher, you mentioned a number. I looked around the table, and a few of us were looking a little strange. The $1.6 million that you referenced.... When I go on the Elections Canada website and look at third party advertising contributions, I don't see $1.6 million. Could you explain a little bit where you get that number? I just want to make sure that I'm understanding correctly.