Thank you very much.
My testimony this afternoon will address three issues.
First, proposed section 482.01 of Bill C-65 is, in my view, a violation of section 2(b) of the charter. This is because it may be utilized in the same manner as the election laws of Hong Kong to repress protected expression of citizens and the media.
Number two, proposed section 358 of Bill C-65 does not effectively rule out all spending by foreign actors in Canada to influence federal elections. This is because a sophisticated third party may simply have all donations funded from a foreign actor at least two years before a general election.
Number three, the role of the Chief Electoral Officer should be better depoliticized, first by prohibiting the Chief Electoral Officer from changing an interpretation of the act between elections unless directed otherwise by Parliament or the courts, and, number two, by repealing part 18, division 4, of the Canada Elections Act. That is the part that regulates nomination contests.
First, then, I will address freedom of the press.
Proposed section 482.01 should not go forward. It should be removed because it is prone to abuse and violates section 2(b) of the Charter. Recent election law enforcement in Hong Kong should give members of Parliament pause as they consider the authority that this would give civil servants to regulate expression.
Just a week ago, the Canadian media focused intensely on this issue. Proposed section 482.01 is contrary to the charter because it punishes false statements made in connection with the democratic process. In my view, the courts in Canada will not uphold this legislation.
Proposed section 482.01 is nothing more than a restatement of the law of sedition or lèse-majesté. The United Kingdom abolished these laws in 2010, and the Belgian constitutional court overturned a similar law in 2021 because it violated the Belgian constitution.
In our courts, Justice Pedlar, in Ontario in 2006, in 790R3-515, said this about prosecution of a defamation action by the government:
...I find that it is inconsistent with section 2(b) of the [charter] for a government entity such as the plaintiff [here] to bring a civil action for defamation against one of its citizens. The risk of a governing body using defamation as a tool to inhibit criticism of institutional government activities, and thereby inhibiting free speech outweighs the risks of allowing such criticism, even if intemperate.
Then, speaking, on behalf of a unanimous court, Justice Côté in the Supreme Court of Canada, in 1704604 and the Pointes Protection Association—that's 2020 S.C.R. 587—said that even vexatious expression will be protected from SLAPP lawsuits where it involves “public participation in democracy”. That's at paragraph 30.
On the subject of foreign influence, I note that sections 349 and 349.4 are going to be amended here. That is a good step, but section 358.1 is undermined by proposed subsection 358(2) in Bill C-65, and that's because, under subsection 358(2), a sophisticated third party could simply avoid all of the limitations of this section by ensuring that third party or foreign actors funded the third party at least two years before a scheduled federal election.
Finally, I note with respect to the issue of the participation of the Chief Electoral Officer in the internal governance of a political party, that has been condemned by the Ontario Court of Appeal in Longley and Canada. That's the 2007 Ontario Court of Appeal, ONCA 852. Paragraph 74 is the operative section or paragraph. In that paragraph, the court said:
Care should be taken to ensure that the impartiality of this critical public role is not unnecessarily compromised--actually or potentially, in the eyes of the public--by enacting a regime that would call upon the Chief Electoral Officer to make judgment calls on how a political party is conducting its internal affairs or spending its [money].
By including nomination contests—