Evidence of meeting #33 for Procedure and House Affairs in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was political.
A recording is available from Parliament.
Liberal
Conservative
Grant Jackson Conservative Brandon—Souris, MB
Thank you, Chair.
Thank you to the witnesses. It's nice to see you both again.
Dr. Turnbull, I'm going to direct most of my questions to you.
You've testified at this committee in previous Parliaments on this topic, and I've gone back, because when the minister and his team were here, I was trying to get to the bottom of a scenario that, as a new member of Parliament, I find a bit odd. I would argue that most Canadians probably have no idea that foreign money ends up in third party hands, which they can then use for election purposes; I don't know that it's widely understood by the Canadian general public. Under the provisions of the act, there's still the 10% loophole that they're arguing is necessary.
When you were being questioned by Mr. Richards, you said, “I'd be happy if for political contributions that are kept in a separate bank account, like the bill is advocating, those limits applied all the time. I fear that's not going to survive a court challenge.”
I'm curious if you could outline your thoughts on that in more detail.
Professor, Faculty of Management, Dalhousie University, As an Individual
I think that was probably in 2018.
Professor, Faculty of Management, Dalhousie University, As an Individual
Not knowing exactly what was in my head at the time, I will to try to extrapolate what I would say to that now.
Conservative
Grant Jackson Conservative Brandon—Souris, MB
The minister and his team said that having third parties be allowed to use zero contributions would not survive a court challenge. I'm trying to understand why it would be a charter infringement for third parties to not be allowed to use foreign money in Canadian election activities. I just don't understand.
Professor, Faculty of Management, Dalhousie University, As an Individual
I don't know why it would, either. I wonder if it has to do with what the third party would have to prove: that if they have the money, it's part of their own funds and it's there for a period of time. At a certain point, if this foreign money got into the account with their own funds and it was there for a while.... What if, at some point, if there's a 10% threshold, it was used for something in the space of regulated activity? Would a third party be held to account for that after a certain period? Could it be proven that's exactly what they intended to do?
I'm going to have to look this up, because I'm not 100% sure why, but I wonder if it has to do with being able to be fully accountable for that, especially after enough time has gone by.
Conservative
Grant Jackson Conservative Brandon—Souris, MB
My additional concern here.... We were talking about the year prior to a pre-writ period; that is the period for which they're going to hold accountable the financing from foreign contributions. Foreign actors are going to read this bill, when it becomes law, and they're going to understand that, now that we're in a majority situation, there's a set election date. There's obviously some flexibility in that, but they'll have a general sense of what year the election is going to be in. If it's not contributions.... Let's say a foreign actor contracts services with a third party for $1 million in the year prior to the year prior. That would be considered revenue rather than a contribution, because they've purchased a service. That money could still theoretically be used three years down the road by the third party to work on campaigning.
Professor, Faculty of Management, Dalhousie University, As an Individual
Yes.
Conservative
Grant Jackson Conservative Brandon—Souris, MB
Their revenue has now increased. That 10% becomes higher, because the revenue of the organization is higher, based on the contracting of those services.
Professor, Faculty of Management, Dalhousie University, As an Individual
Yes.
Conservative
Grant Jackson Conservative Brandon—Souris, MB
Is there a way to deal with that? I think that's a backdoor loophole too, which should be addressed. The foreign actors are smart. They're going to catch on to this provision very quickly.
Professor, Faculty of Management, Dalhousie University, As an Individual
Of course they're smart. This is their business. They want to do this, 100%. This is not a hard code to crack, obviously.
The only way you're going to be able to make sure that none of those foreign funds get into the election orbit at all is to absolutely enforce a separation of accounting, wherein all of it goes into this fund over here and is not allowed to cross-pollinate with any money that could legitimately be used for regulated expenses.
Now, groups would be affected differently by this, obviously. A lot of groups that act as third parties in elections have whole other lives, with whole other services they provide. They might have entirely legitimate reasons to receive funds from outside Canada in order to do whatever their operations are, whereas some third parties probably have no interaction at all in their operations with foreign entities. They would get no foreign money for legitimate reasons. Putting the onus on third parties by saying, “You have to keep your money separate”, and thinking that this is important enough.... It's a loophole, 100%.
Liberal
Matt Jeneroux Liberal Edmonton Riverbend, AB
Thank you, Chair.
I was going to start my questions with Ms. Lawlor, but I might follow up on some of that, because some of it pertains to the first hour of questioning, as my colleague from across the aisle indicated. In response to a question in the first hour today, it is my understanding that the charter argument referenced by the minister and the Chief Electoral Officer relates to freedom of speech. The argument is that it's important that the door be kept open by 10% to enable third parties to use their own funds when they're generally generated from Canadian sources—for example, things like membership dues.
Ms. Turnbull, I'm hoping you can speak to some of that.
Professor, Faculty of Management, Dalhousie University, As an Individual
Thank you.
That part makes sense to me. I completely get the freedom of expression argument.
However, it strikes me that you could have that in place and still ask for separation in the organizing of funds. If you want to make sure that none of that 10% of the owned funds includes money that comes from a foreign entity, you could ask for a separation of funds. That would make sure they don't make it into the 10%. I'm fine with the 10%. I don't think that's a problem.
I think the freedom of expression argument holds fine, but if we want to make sure none of the foreign funds are used for that, we have to ask for a separation of those funds altogether.
Liberal
Matt Jeneroux Liberal Edmonton Riverbend, AB
I appreciate that. I wanted to throw that into the context and terms of the conversation we're having.
Ms. Lawlor, I want to get to you, particularly when it comes to your dissertation, entitled “Administering Electoral Democracy: The Administrative Constitutionalism of Canadian Federal Election Law”.
You indicated your support for the commissioner of Canada elections being able to enter into information-sharing agreements, as proposed by Bill C-25. I'm hoping you can expand on some of your testimony to this committee and why that's an important measure.
Associate Professor, Department of Political Science, McMaster University, As an Individual
Yes, I do agree with the changes that have been made to the act that empower the commissioner of Canada elections to a greater degree, both in terms of the investigative powers that they'll now possess and in terms of the powers to transfer information in reciprocal relationships with other governments or actors.
This is part of the recommendations that came out of the foreign interference commission that suggest that the commissioner should have greater latitude in order to do the work that is traditionally done by the office of the commissioner. Often in the past, as I believe the commissioner indicated this morning, there's been a certain amount of discretion that has been exercised by that office so that, while people are being caught by the act, the appropriate mechanism for dealing with a contravention is set up to address the type of contravention and also the nature of the actor.
For example, there was a past instance wherein a number of university students ran afoul of the act, likely in ways they did not understand. In that case, is a large administrative monetary penalty the right move? No. We wouldn't want to suppress the activity of university students, who are becoming acclimatized to the political ecosystem. In that sense, it is important that the commissioner has that sort of discretion to issue smaller orders or letters or use other approaches to dealing with contraventions.
What Bill C-25 does contemplate is the fact that the commissioner is a very powerful actor—or has the potential to be an even more powerful actor—in making sure that the information circulating in the background with respect to potential data breaches, potential misuse of funds, undue foreign influence, undue influence even in the domestic context.... The commissioner can be more proactive in addressing these types of potential infractions or contraventions of the act.
Liberal
Matt Jeneroux Liberal Edmonton Riverbend, AB
That's great. You've covered my second question, so I'll skip down.
In some of your testimony, you talked about why you agree with the provisions in Bill C-25 to extend to leadership contests the existing prohibition of third parties from using foreign funds for partisan activities related to elections and nomination contests. I'm hoping you can elaborate on some of your comments there.
Associate Professor, Department of Political Science, McMaster University, As an Individual
Generally speaking, I believe the laws that exist around third party finance regulation have been quite strong in Canada. There's always room for improvement. I think Bill C-25 gestures in this direction, particularly with the own funds provision.
I'm pleased to see that the act is bringing in nomination contests and leadership contests to a greater degree in a number of dimensions, in terms of protecting both the activities of the parties themselves and also the Canadians who make up these parties.
I do think that one of the advantages of the own funds provision, as you asked Dr. Turnbull, is the fact that it does make some space for third parties to continue to engage in political expression, as contemplated by section 2(b) of the charter and as the Supreme Court of Canada has mentioned in much of its jurisprudence around third parties, from Figueroa to Harper and Working Families. We see evidence that the third party regime continues to promote that egalitarian approach to third party finance while still providing opportunities for organizations—
Liberal
The Chair Liberal Chris Bittle
I'm going to have to cut it off there. I do apologize. You'll have other opportunities.
We'll turn to Madame Normandin.
You have the floor for two and a half minutes.
Bloc
Christine Normandin Bloc Saint-Jean, QC
Thank you very much.
Ms. Turnbull offered her comments earlier. I'd like to hear yours, Mr. Burton, on the idea of reinstating public funding for parties, potentially capping the possible donations or eliminating the tax credit.
Without commenting on the philosophical aspect of the matter, could a reflection on these issues have a positive impact on the fight against foreign interference?
Senior Fellow, Sinopsis, As an Individual
It's similar to what Ms. Brière was saying. The Chinese and the Russians have enormous resources that they're dedicating to this kind of work. The United Front Work Department of the Chinese Communist Party is a couple of times the size of the entire Chinese foreign ministry. They're dedicating a terrific amount of effort to this.
I feel that they will always find some way to do an end run around us or find some kind of loophole that will allow them to exert influence where they feel it should be exerted. Certainly, this particular scheme about getting a lot of people to donate and then get the refund is one. Other methods of funding also can arise. I just think that they will do more and more.
As I said in my opening statement, they are expanding their resources to their Canadian operation significantly. AI and other computer-enhanced methods allow them to do it much better. This includes the very serious problem of disinformation, particularly within the community that get their information in the Chinese language.
Bloc
Christine Normandin Bloc Saint-Jean, QC
Ms. Turnbull, you raised the idea of having more regulation for nomination contests, particularly through means other than financial regulation.
Do you have any ideas or theories on that?