Procedure and House Affairs Committee on Nov. 21st, 2024

[The Chair, Liberal, Ben Carr]

Thank you very much.

Mr. Lila and Ms. Khan, between the two of you, I'm not sure who would like to go, but whoever is representing your organization in the opening remarks will have five minutes to begin now.

[Alim Lila, Vice-Chair, Indo-Caribbean Canadian Association]

Thank you very much, Mr. Chair.

My name is Alim Lila. I currently serve as the vice-chair of the Indo-Caribbean Canadian Association. In addition, I serve as the chair of the organization's VOICE planning committee, which is the civic engagement wing of our organization. I'm joined today by Ayesha Khan, a board director of our organization.

The Indo-Caribbean Canadian Association was established on May 1, 2021, with the goal to connect, serve and amplify Canada's Indo-Caribbean community. We offer a number of community services and programs in an effort to fill a void in our under-represented and underserved community.

The Indo-Caribbean community possesses roots in the Caribbean, with ancestry from India. We represent a double-diasporic community. Our dynamic culture has contributed to many significant elements of modern Caribbean culture. Our community also comprises individuals from a variety of faith groups, including Hindus, Muslims and Christians, and that is what makes our community so special.

I joined the Indo-Caribbean Canadian Association in 2022 to support their efforts to have the date of the municipal elections in Ontario amended because of a conflict with Diwali. While I identify as a Muslim, I recognize the importance of ensuring our collective community's access to the democratic process.

Furthermore, I believe it's important that the right to vote does not conflict with one's participation in a major religious or cultural observance. Whether it is Diwali, Eid, Bandi Chhor Divas, Rosh Hashanah or Easter, we must understand and respect the diversity of our country and ensure that all people are free to participate in their cultural and religious practices while maintaining their access to participation in our democratic institutions.

With that, I will pass it over to my colleague, Ayesha Khan.

[Ayesha Khan, Management Board Member, Indo-Caribbean Canadian Association]

Thank you, Alim.

Thank you, committee members, for having us here today.

Bill C-65 includes several measures to ensure that more Canadians have access to participate in the electoral process. It is of crucial importance to our democracy to work towards eliminating obstacles to Canadians participating in elections.

As a nation that proudly professes to benefit from a multicultural society, we must modernize our democratic institutions to reflect and respect this. When barriers to democracy are identified, progressive societies rectify them.

Rightfully, polling stations must be accessible. Voting options must be broader to accommodate the working populace. Such is the way of a modern society that respects the voice of the people who comprise it. Ensuring that a general election is not held on Diwali is a significant step toward this.

As of 2024, 2.3 million Canadians reported as South Asian in ethnicity. India was the top source for immigrants to Canada between 2016 to 2021. These statistics also do not include the growing Indo-Caribbean community in Canada.

The Indo-Caribbean Canadian Association endorses the proposal to move the set election date so as to not conflict with Diwali. In many Caribbean countries, such as Guyana and Trinidad, Diwali and other religious dates, such as Eid and Christmas, are national holidays.

We are not calling for that today, but we believe our government should recognize the massive significance of Diwali and make it so that Canadians who observe this religious occasion do not have to choose between practising their religion and their democratic right to vote. It is important to note that this barrier is not limited to voters, but holding an election on Diwali or any major cultural or religious date is unfair to candidates, campaign staff, political organizers, volunteers, supporters and election staff who observe said occasion.

During the Ontario municipal elections held on Diwali in 2022, the City of Brampton had to implement measures to address—

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Mr. Chair, I have a point of order.

I know that the connection quality isn't optimal. We can understand and decipher the English comments. However, I think that the interpreters are clearly struggling to do their job. The interpreters can't do their job properly.

[The Chair, Liberal, Ben Carr]

Ms. Kahn, unfortunately, your voice is coming in a little broken up. There seems to be some weakness in the connection.

I'm going to turn it back over to you again for just a minute to finish your remarks. If we run into the situation whereby the connection remains a bit finicky, then we may just have you submit in writing the final portion of your remarks.

I'm going to turn it back over to you, but I'm afraid I may have to interrupt if it isn't clear moving forward.

[Ayesha Khan]

Thank you.

During the Ontario municipal elections held on Diwali in 2022, the City of Brampton had to implement measures to address unprecedented election resignations 24 hours before polls opened.

In 2022, I myself helped on a municipal election campaign in my home community. I was in the challenging position of supporting a candidate who I believe in, but I was unable to spend this special evening with my family. I know I'm not alone in this. I recall seeing on election night as I went door to door, traversing the community, residents leaving the house and lined up to vote in traditional garb, and cars pulled out of driveways already lined with traditional lamps. Despite the observance, there were folks in my community who felt it important to participate in their democratic right to vote. I believe that no one should have to make that choice.

Moreover, amending an election date is not a new concept in Canada. In 2007, the Ontario government amended the election date from October 4 to [Technical difficulty—Editor] because of a conflict with the Jewish holiday of Shemini Atzeret, on which some members of the Orthodox Jewish community would be unable to vote.

[The Chair, Liberal, Ben Carr]

I'm sorry, Ms. Khan, but unfortunately we've run into the same issue. There were 10 seconds remaining in your introductory remarks. I'll ask, for your own benefit and for the benefit of the committee, can you submit to the clerk the opening statement?

The clerk just mentioned to me that we have it already We'll be sure to distribute that to the committee so that they have the opportunity to be fully informed of what message you were intending to convey.

With that, colleagues, we are going to enter into our first round of questioning.

I will turn the floor over to Mr. Cooper for six minutes.

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

Thank you very much, Mr. Chair.

I'll direct my questions to Mr. Chipeur.

With respect to the third party regime and the influence of foreign money, this act proposes to require third parties to set up separate bank accounts for their election activities concerning political parties and candidates at election time, but it would only apply where the third party received more than 10% of its revenue within the previous calendar year. That, as you noted, leaves a significant loophole with the potential for a third party to use foreign money to influence voters during the pre-writ and the writ periods.

Would it be your recommendation that the solution to that is simply to require third parties to set up a separate bank account and to rely on individual contributions during the pre-writ and writ periods for regulated expenditures?

[Gerald Chipeur]

That's exactly my recommendation. Simply drop proposed subsection (2).

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

Okay. Thank you very much for that.

In the previous hour, the Chief Electoral Officer answered questions that I posed to him with respect to changes around special ballots. Presently, one must write in the name of the candidate. Under this bill, a voter could instead simply write in their preferred political party. I asked the Chief Electoral Officer, in the hypothetical: If a candidate was standing on day one and the voter had marked the “Conservative Party”, but the Conservative Party had replaced the candidate with a different candidate before the candidate filing deadline, would the vote that had indicated preference for the Conservative Party then be counted towards that second candidate?

This seems to me to turn upside down the process we have had in terms of electing members of Parliament and not voting for political parties. It seems to me to be inconsistent with the statutory scheme and, arguably, to be constitutionally questionable. Would you agree?

[Gerald Chipeur]

I would agree.

There are three concerns that I would have with that approach.

The first is section 3 of the charter. The whole idea of the right to vote is individual, and the right to run is individual. The statute itself is a statute that talks about individual members of Parliament being elected. If an individual is elected as a member of Parliament, then they are not required to stay with the party that they came to Parliament with.

Those are the three concerns. One is the statute itself, which talks about electing individuals. Number two is that the individuals, once elected, are free to go to any party. Number three is that the charter itself sets up rights that are individual in nature.

The approach of putting a party name in seems to be—at least from my perspective, and I don't have any case law on this—inconsistent with all three of those approaches.

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

Thank you for that.

You raised issues with respect to section 482.01, which establishes new offences under the act. You stated that it is your opinion, and you cited case law that it could contravene, or would likely be found by the courts to contravene, section 2(b) of the charter. I'll invite you to elaborate on that, if you wish, but I would also ask you this: Would you also have the concern that these new offences could create a chilling effect that perhaps is unintended with respect to legitimate questions around electoral processes?

[Gerald Chipeur]

Absolutely. That was indeed the concern raised by Justice Pedlar, I believe, in the Ontario courts.

The idea that one can be prosecuted for what one says.... The legal onus stays with the government, but the onus would be on the individual to prove the truth of what they were saying. If it were false and they “knew” it were false, they could be prosecuted. Without going into the issue of whether or not they were successful in defending themselves, the cost of defence, in and of itself, would be so high that individuals would simply comply with the bureaucrat or the Chief Electoral Officer without taking on a battle, when the only thing they wanted to do was participate in the democratic process.

The democratic process we're talking about here heightens the review a court would give to this legislation. I highlighted the words of Justice Côté of the Supreme Court of Canada. She said that, when we're talking about the democratic process and participation in the democratic process, that kind of expression is entitled to greater protection. When it comes down to a balance between, let's say, protecting the reputation of an individual or institution of government, the courts should come down on the side of freedom of expression, not on protecting the reputation or, if you will, the name of the institution or credibility of the process.

There's no doubt that the institution of elections is a very important thing, but the courts have come down on the side of freedom of expression in Canada. I think the courts in other free and democratic societies like Belgium and the United Kingdom have also said that there's no need to go into the protection of the Crown.

[The Chair, Liberal, Ben Carr]

Thank you 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 our witnesses for being here today.

Before I begin, I'd like to ask if it's at all possible for both Professor Bennett and Mr. Chipeur to table their opening remarks with this committee. I was trying to take notes of all the references to case law and so on. I'll be honest with you. It was very difficult to follow. If it would be possible—

[The Chair, Liberal, Ben Carr]

Mrs. Romanado, for the record, the clerk has informed me that she has them all, already. We'll make sure to get them to you.

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

That's perfect. Thank you.

[Gerald Chipeur]

Yes, she has them. However, over the last week, I added some case law, so I will provide the clerk with the full text.

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

Thank you very much.

My first question is for you, Mr. Chipeur.

At the end of your opening statement, you were starting to talk about nomination contests. I'd like to give you the opportunity to finish your thoughts on that, because it is something I am quite intrigued with.

[Gerald Chipeur]

In a case called Knox v. the Conservative Party of Canada, the Supreme Court of Canada said:

Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making.

Is not necessarily appropriate in the case of the internal operation of a political party. I think last week's events in Hong Kong highlight this even more. The Government of Hong Kong was attacking the Democratic Party in Hong Kong because of some internal elections that were taking place.

I think the decisions on Knox in the Court of Appeal of Alberta and the Longley case in the Court of Appeal for Ontario, in my view, support the view that the Chief Electoral Officer should not be given authority over the internal operations of a political party. The regulatory arm of the state—in this case, the Chief Electoral Officer—should kick in at nomination. When you have an individual presenting their name for election, that's the time when the regulatory regime should step in. Before that, in my view, it should not.

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

Thank you very much for clarifying that.

My next question is for Professor Pal.

I want to get your thoughts on what we've been hearing about disinformation and misinformation campaigns. Our previous witness was the Chief Electoral Officer, who brought up the question of how deepfakes and AI can impact voters' decisions to support or not to support a candidate.

Could you elaborate a bit on whether you think that Bill C-65 addresses some of those issues with respect to misinformation and disinformation, and/or would you have any recommendations for us on how to improve that?

[Prof. Michael Pal]

Thank you very much for that question.

Freedom of political expression is one of the foundational values in the Canadian Charter of Rights and Freedoms, so we should be very careful in passing electoral legislation that restricts freedom of political expression. Since disinformation and misinformation now are so prevalent and are deliberate tactics, frankly, often by foreign actors, state or non-state actors, who are hostile to Canadian democracy, these are very pressing problems.

Bill C-65 has clarified some of the offences that exist, partly from the Elections Modernization Act, where there was some ambiguity. The language was broad, but it wasn't clear that deepfakes necessarily were covered. It has clarified that, so I think that is quite welcome.

Where I might have a different view from my fellow witness today is on section 482.01. Again, I'm a constitutional law professor. I start from the point of view that we should absolutely protect freedom of political expression. However, one of the tactics around the globe, by actors hostile to democracy, is to try to undermine confidence in the electoral system by spreading disinformation about the quality of the election, about how it is administered. Therefore, section 482.01, I think, is a useful attempt to try to address some of those concerns.

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

Thank you very much.

With respect to external threats, as you mentioned, you elaborate on that as sowing those seeds of distrust in our democracy. We saw that south of the border in previous elections, where the validity of the election was an issue that was brought up over and over again. Do you think that Bill C-65 goes far enough to ensure that Canadians can have faith in our democracy and can have faith in our elections?

We did hear a bit about the question, when we were looking at foreign interference here at PROC, on whether the outcome of the last federal election was impacted. We understand from the Chief Electoral Officer that the final results were not impacted. What are your thoughts on this specific issue of sowing the seed of mistrust on the validity of an election?

[Prof. Michael Pal]

That is a very complex policy question because of the charter and because we do need to respect and want to respect freedom of political expression. Some of the offences try to get at that issue, offences around false statements, but that's a blunt tool. It's a tool that I think is important, but it is blunt. Education campaigns are perhaps other softer tools that I think are important.

I was invited to be an expert witness at the foreign interference inquiry a couple of weeks ago, and I expressed a similar view. I agree with my fellow witness that it would not be in the interest of Canada to have Elections Canada run nomination contests. Political parties are and should be independent from the state, but we might want to address some of the campaign finance aspects in nomination contests to a greater degree than we currently do.

[The Chair, Liberal, Ben Carr]

Thank you so much.

Madame Gaudreau, you have six minutes.