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

[Stéphane Perrault]

No.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Never?

[Stéphane Perrault]

As far as I remember, this wasn't discussed.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Thank you.

My other point relates to my concern regarding clauses 25, 27 and 38, which deal with assistance for an elector.

I've experienced many elections. I'm afraid that we're heading towards a danger zone. A number of old‑school political organizers could be tempted—I'm sure—to revert to some of their old habits of trying to get people to vote against their will. I wanted to bring this concern to your attention. I've been told that this used to happen in the old days. It would be a shame if a change in the legislation resulted in a return to this old habit. Some individuals could get a number of people to vote.

I don't need an answer. I just wanted to share my concern.

[Stéphane Perrault]

Provisions in the legislation cover intimidation tactics and dirty tricks that force people to vote in a certain way.

I think that the change discussed here involves replacing the word “friend”, which voters find offensive.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

We'll see how many individuals bring people to vote. I urge you to keep a close eye on how many people will be brought to vote by the same individuals. I think that this should be monitored on election day.

May I give the rest of my time to my colleague so that he can ask one last question?

[The Chair, Liberal, Ben Carr]

He has 30 seconds if he wants them.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

I'll do my best.

Mr. Perrault, this committee has been seized with foreign interference issues regarding our elections in the past. I've had private members' bills in the past that have tried to clamp down on foreign money influence.

On the changes in Bill C-65 that are already there, are there any amendments or any further things that you think this committee should be doing to close any of the loopholes? I still see a lot of loopholes where foreign money can actually be used through third party organizations and so on, even from foreign state actors using those kinds of organizations to influence.

Is there anything else we can do to tighten up these rules and loopholes?

[Stéphane Perrault]

In my recent report on threats to the electoral process, which I presented to the Speaker a few weeks ago, there were some small additional elements. For example, it is an offence for a third party to use foreign funds, but it's not an offence for the foreign entity to make that contribution, so there are things that could be tied up in that regard.

I don't think the provisions of the bill allow for that, but the changes to the third party regime that are proposed I think go a very long way in closing opportunities for foreign funding.

[The Chair, Liberal, Ben Carr]

Thank you very much, Messieurs Berthold and Calkins.

Ms. Romanado, you have two and a half minutes.

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

Thank you very much, Mr. Chair.

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

I want to clarify one area.

Monsieur Perrault, you mentioned the longest ballot initiative. I'm going to ask you to correct me if I'm wrong. Years ago when someone wanted to present themselves as a candidate for a federal election, was there not an amount that was required? I think it was a thousand dollars to be a candidate.

I don't think that applies anymore. I don't want people who want to run for office to be prohibited from doing so because of monetary reasons, but would that be something that would reduce the number of, I don't want to call them "fake candidates" because they are legitimate candidates, people who are making up a 91-name ballot?

[Stéphane Perrault]

There was a $1,000 deposit. It was refunded upon the submission of the financial returns. Basically, in a way, it was a sort of performance bond for the candidates. It was struck down by the courts on charter grounds on the basis that it allowed wealthy, but frivolous candidates to run and prevented poor, but serious candidates from running. It's difficult to see any significant amount being imposed as a prior condition.

I understand you have experts coming after who may have a view on that.

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

I just wanted to clarify whether it's still in effect. I don't think it is.

[Stéphane Perrault]

It was removed following a Court of Queen's Bench of Alberta decision.

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

I have just one quick follow-up question.

With respect to campus voting, when we talked about it when you were here previously, we talked about involving the education system, which is under provincial jurisdiction, not only to increase the awareness of students to vote, but, as you mentioned, to entice young people to vote. Sometimes, even at the high school level, we have students who are doing mock elections and so on and so forth.

I know we're not referencing any of that in this bill, but is there anything you would also like to include, or recommend that we include, in terms of outreach to young people?

[Stéphane Perrault]

You mentioned mock elections. We've done those for many years. They're not provided for in the act. They could be, and we could provide clear authority for them.

We spend money to have Civix, as an organization, run the student vote program. It's a very well received program and has been for many years. It makes a difference. We know that people who participate in those programs tend to vote more, so becoming familiar with the process early is something I think we all must encourage.

[The Chair, Liberal, Ben Carr]

Thank you, Mrs. Romanado.

Thank you very much, Mr. Sampson and Mr. Perrault, for being here with us today.

That concludes this hour of witness testimony.

Colleagues, we're going to very briefly suspend to turn to our new panel, and we will resume with our second hour very soon.

[The Chair, Liberal, Ben Carr]

Colleagues, we're going to continue.

We have a number of new witnesses with us, both online and in person.

I would like to welcome, appearing as individuals, Colin Bennett, professor emeritus and associate fellow, department of political science, Centre for Global Studies at the University of Victoria, who is joining us online; Gerald Chipeur, a King's Court lawyer; Michael Pal, professor, faculty of law, from the University of Ottawa; and, from the Indo-Caribbean Canadian Association, Alim Lila, vice-chair, and Ayesha Khan, management board member.

To the witnesses from the Indo-Caribbean Canadian Association, if you can hear me, we can't see you, so please make sure that you turn your video on as soon as possible. Thanks very much.

Each witness will have five minutes. The Indo-Caribbean Canadian Association will have five minutes between the two of you.

With that, Mr. Bennett, I'm going to start with you. Please make sure that you're unmuted and that you have your microphone kind of midway between your nose and your mouth. The five-minute clock will begin now.

[Professor Colin Bennett, Professor Emeritus and Associate Fellow, Department of Political Science, Centre for Global Studies, University of Victoria, As an Individual]

Thank you very much, Mr. Chair.

Good morning, committee.

I have studied and researched privacy protection nationally and internationally for over 40 years, and in recent work I've researched the uses and abuses of personal data in election campaigns. I wish to address my remarks entirely to the requirements of section 444 on the “Personal Information Collected by Political Parties”.

First, I doubt whether the Elections Act is the appropriate statutory vehicle for imposing privacy obligations on federal political parties. Contemporary privacy law is complex and requires far more than the obligations for transparency included in Bill C-65. The required amendments fit uneasily within a statute designed to regulate the conduct and financing of elections.

If the government really wanted to establish “a national, uniform, exclusive and complete” privacy regime for FPPs and the organizations that work for them in response to the litigation that's currently under way in B.C., it would either bring the parties into the current Bill C-27, amending PIPEDA, or legislate a separate national privacy protection statute applying to them.

Second, privacy law, as the Privacy Commissioner has pointed out to you in his communication, should include all of the internationally accepted privacy principles, supplemented with serious and enforceable provisions for oversight and accountability.

The current provisions essentially permit the FPPs to collect whatever personal data they wish from whatever sources and to process it in any way they please, provided they are transparent about it, provided they give illustrative examples and provided they don't sell it.

They do not allow individuals any rights of access and correction, and these provisions therefore amount to little more than self-regulation, entirely at odds with the contemporary international consensus about how to protect personal information in the modern digital age.

Third, contrary to the claim in proposed section 444.1 that these amendments “provide for a national, uniform, exclusive and complete [privacy] regime” for FPPs and the organizations that work for them, I think they do nothing of the sort.

There's a recent report from OpenMedia, based on analysis of national and provincial filings on campaign expenditures, which reveals over 90 companies in Canada that work for political parties at federal, provincial and municipal levels. Nothing in these amendments obliges the political parties to obtain consent when they collect personal data from Canadians, yet companies that work for the parties under contract and are governed by federal and provincial privacy laws must ensure that personal data is collected in compliance with those laws. That's according to a 2019 decision from the B.C. and federal privacy commissioners. I think section 444 is likely to create confusion for the companies that process personal information on behalf of political parties.

Fourth, there really is no meaningful, independent oversight. Obligations for compliance are based on the notion that the Chief Electoral Officer could and would cease a party's registration if it did not submit a valid privacy policy. The system for administrative monetary penalties for those who commit violations is also ineffective.

Further, there's no indication of what an individual is supposed to do if he or she is dissatisfied with the response to a complaint from the party's privacy officer. With all due respect to Elections Canada and the Commissioner of Canada Elections, I don't think they possess the resources or the expertise to monitor the complex technical environment of modern digital campaigning. The Office of the Privacy Commissioner does and should be given a collaborative role in the oversight regime, which would be a similar arrangement as exists in B.C.

Finally, there's no effective mechanism for reporting data breaches. We've already witnessed a number of data breaches from political parties, and they're likely to continue. The current provisions only require the parties to inform the individuals affected if they judge that there is a “real risk of significant harm”. There must also be a duty to report such breaches to an independent body, such as the Privacy Commissioner.

Canada is just one of a few democratic countries where national privacy law does not apply to political parties and to the sensitive information on political opinions they collect. There is no evidence, despite assertions by the parties, that compliance with these laws in other countries and jurisdictions, including B.C. and Quebec, hinders political engagement, constrains their ability to recruit volunteers or otherwise prevents them from communicating with the electorate.

There is also no credible reason why Canadians should enjoy enforceable privacy rights with respect to government agencies and commercial organizations and not with political parties.

At root, this issue is not just about privacy rights; it's about the health and resilience of our democracy.

Political campaigning is changing dramatically as elections increasingly become more data-driven and the voter analytics, predictive modelling and artificial intelligence tools, which you discussed earlier with the Chief Electoral Officer, drive campaign communications. The need to develop and apply a strong and consistent set of enforceable privacy rules for federal political parties is urgent, and the provisions in Bill C-65 do not achieve those goals, in my judgment.

Thank you so much.

[The Chair, Liberal, Ben Carr]

Thank you very much, Mr. Bennett.

We'll now turn the floor over to Mr. Chipeur for five minutes, please.

[Gerald Chipeur, Lawyer, As an Individual]

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—

[The Chair, Liberal, Ben Carr]

Sir, we're over the time, so I'm going to ask you to wrap up right away.

[Gerald Chipeur]

Thank you very much. That's where I will quit. You have the section, and I'd be happy to answer any questions.

[The Chair, Liberal, Ben Carr]

It's much appreciated. Thank you very much.

Professor Pal, we'll go over to you for upwards of five minutes.

[Professor Michael Pal, Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you very much, Mr. Chair, to you, the committee and the clerk for the invitation to appear today. I'm a professor down the street in the Faculty of Law at the University of Ottawa, working in the areas of election law and constitutional law.

There are a number of items of interest in Bill C-65, given what a significant piece of legislation it is. I want to focus my comments in the time I have on the same topic as Professor Bennett, the rules around voter privacy, because I think that's an area where amendments would be of use.

Political parties, as is obviously well known to everyone around the table, use data very extensively. Traditionally, though, federal political parties have fallen in between private and public sector federal privacy legislation. There were some provisions, or are some provisions, in the Canada Elections Act around misuse of the voters list, but other than that, restrictions were relatively minimal and certainly nothing approaching what we would understand as the fair information or generally accepted privacy principles that apply through most of the private and public sector.

Recent amendments to the Canada Elections Act have been moving towards a privacy regime applicable to political parties, particularly with the Elections Modernization Act in 2018 obliging parties to have a policy. The problem with the Election Modernization Act was that it was one step forward but it did not actually impose substantive limits on the use, collection, retention and analysis of sensitive personal information of the kind that would give Canadians confidence in how their data is collected and used.

It is worthwhile going through some specific provisions of Bill C-65, some of which I think are an important step forward and some of which need, in my view, significant amendment.

Proposed section 444.2 will allow authorized parties to “collect, use, disclose, retain and dispose of personal information” as long as that is done “in accordance with the party's policy”. Again, the rule is tied to the particular policy rather than independent principles tied to other privacy values. Parties and entities acting on the party's behalf “must comply with the policy” or potentially be subject to administrative monetary penalties. Parties must now also protect personal information under their control “through [proportionate] physical, organizational and technological security safeguards”. I think that is a positive development, but more definition is likely needed as to what counts as a “proportionate” safeguard. That is spelled out more directly in the legislation.

Most significantly, parties are now prohibited from carrying on the activity of “selling personal information”; parties are prohibited from disclosing sensitive information “for the purpose of causing harm”; and parties are prohibited from “providing false or misleading information” about their collection practices. Those three measures, I think, are certainly welcome and a step forward from the 2018 amendments.

The main problem that remains, however, is that the amendments are targeted at ensuring parties and their volunteers and representatives adhere to the party's policy without actually requiring substantive limits on how the data can be collected and used, apart from those specific ones around selling or disclosing.

In conclusion, I would say that this is an important step forward. More remains to be done. The overall concern certainly is in facilitating democratic participation. It is a good thing for Canadian democracy and elections that parties collect data and use it. It helps with communication to voters, advertising and being responsive to the public, but Canadians have an increasing expectation for how sophisticated entities in Canadian society will protect their data, and there is still some way to go, even if the amendments in Bill C-65 are passed.

Thank you.