Honourable senators, I rise to speak on Bill C-76. Before I get into the details of the bill itself, please allow me to make a few general remarks on the way that this Parliament has made changes to the Elections Act.
I truly believe that, as much as possible, election reform measures must be well thought out, thoroughly debated and arrived at through consensus. For a very long time, this is exactly how it was done. I can only regret that this tradition seems to be a thing of the past. It is even sadder when you think that the true threat to the integrity of our elections is not petty fraud committed by one party or the other, but rather it is a threat of special interest groups, lobby groups and foreign actors trying to influence the results of Canadian elections. Canadians should work on these issues together.
I must also stress that the Legal and Constitutional Affairs Committee did not have enough time to study all the questions raised by this bill, nor did we have the opportunity to suggest how the Elections Act could have been improved. I believe that all members of the Legal Committee would like to have drilled deeper on some of the issues presented by this bill. Some issues were not even discussed at all because we were limited to three meetings at committee.
As the report of the committee stated, there is definitely a need to go back and review these topics sooner rather than later.
That being said, Bill C-76 brings welcome changes to the Elections Act, as I pointed out in my speech at second reading.
There is the modernization of the way Canadians will be able to vote and how elections Canada will manage the election. More importantly, what we saw in 2015, where foreign special interest groups targeted the Conservative Party and spent millions of dollars to defeat it, will no longer be legal. In Bill C-76 there is definitely some attempt to curb the influence of lobby and special-interest groups, particularly of foreign entities, and I strongly support this.
But this bill is wrong on some specific points, as I will explain. On several other aspects it is incomplete, as the members of the Legal Committee agreed. Allow me to elaborate.
Voter identification. In my speech at second reading, I raised my concern about the government plan to reintroduce the voter information card as acceptable proof of a voter’s address. After the testimony heard in committee, I’m even more concerned. The last election in which the VICs were used was 2011. There were a considerable number of voter information cards that had wrong information or were sent to the wrong address. Various testimonies pegged the number in the range of 1 to 2 million incorrect cards.
In his testimony, the Chief Electoral Officer did not dispute those numbers. He explained that when VICs are wrong, it is because the electoral list is wrong. This is where I have a problem with the logic of the whole system. People are asked to show ID to confirm that the address on the list is indeed their address, and they can use the VIC as proof. The VIC shows the address that is on the list. If that address is incorrect, then an error on the list will be confirmed by an error on the VIC.
Just so I am clear, I am not asserting that there will be a vast network of fraudsters using VICs to overturn an election. But in a democracy, people will accept the result of an election if they have confidence in the system.
Bill C-76 reintroduces a flawed system of ID in the rare event individuals who may be without one of the 30-plus pieces of legal ID, find themselves prevented from voting. It is not in my mind an optimal solution to a limited problem. We can and should do better. Let’s not wait until there is an actual election where the result is contested because of this flawed system before we come up with something better.
Bill C-76 reinstates the flawed VIC as ID. I don’t agree with those provisions of the bill.
The second problem I have with Bill C-76 is how it changes the rules regarding the voting rights of Canadian expatriates. The Supreme Court is now deliberating in the Frank case. The Ontario Court of Appeal upheld the validity of the current rules that have been in place since 1993. Right now, what is in place in the law respects the Charter. Indeed, Minister Gould admitted in committee that the changes to law regarding non-resident voters is a purely political decision to increase the number of potential voters in the next election by several hundreds of thousands. It is clear, these changes were not made because of a court decision, they were not made because of protected Charter rights. They were made, said Minister Gould, because they are part of the Liberal election platform of 2015. However, that is not so. The policy change was not, in fact, in the Liberal platform.
Beyond the “we think it is the right thing to do” argument of the government, the motivation for this decision is suspect. What is more intriguing is there is no logic in the changes brought by Bill C-76. The sacred right to vote is given only to a certain segment of non-resident Canadian citizens, those who previously resided in Canada. This supposedly universal right, protected by the Charter, is actually only given to some Canadians. Why? According to the minister, the government decided to withhold the right to vote from some Canadian citizens because our electoral system is based on residency. Yes, senators, the same criteria of residence that should not be used for one part of the rule — every Canadian should have the right to vote even if they don’t reside in Canada — is now the defining criteria for another part of the same rule, only those who reside in Canada can vote.
Another bizarre change to the electoral law is the government not imposing a minimum time of residency in Canada for a citizen to be eligible to vote. As we have heard, even someone born here who left after one month would have the right to vote under Bill C-76. The minister says that all Canadians who resided here before should be able to vote because they have an emotional connection to Canada. Really? Someone who was born here and left after one month has a connection to Canada beyond his or her passport? This is not serious.
The rules for non-resident voting in Bill C-76 are not only illogical, they have been drafted in the absence of data. No one knows how many potential new voters we are empowering, where they are or how to reach them. From the testimonies we heard, it is clear Elections Canada is hoping that only a fraction of the 2 million non-resident Canadian citizens actually do register and vote. Their system would be quickly overloaded if more than the 30,000 expected actually do register and vote.
I do not believe that Elections Canada would have the time and resources to thoroughly process and vet applications if hundreds of thousands of non-residents register at the last minute. This is opening a huge hole in our electoral system. We will potentially have 2 million voters outside of Canada residing in jurisdictions where Elections Canada cannot enforce the rules as the Commissioner of Canada Elections, Mr. Yves Côté, admitted.
Some of these voters will reside in countries where the state surveils their movements and will not hesitate to exercise undue influence, to use the euphemism employed in Bill C-76.
In committee, Elections Canada admitted that a non-resident will not have any interaction with a human representative of the Canadian government to register to vote. No one will actually be able to verify the identity of the voter. The potential for abuse is great.
Why are we making this opening? To satisfy the demands of a few litigious expats who decided a long time ago that life was better away from Canada. These new provisions on the vote of non-residents are dangerous, and their application could be messy. They’re also unfair to residents of Canada, those who would actually be affected by the decisions of the duly elected government. It is easy to vote for a Prime Minister who is cool but imposes taxes and deficits that you do not have to pay. All you get is the frosted side of the Mini-Wheats.
The provisions of Bill C-76 go against the social contract that the Ontario Court of Appeal so aptly described in the Frank decision and supported by the Trudeau government itself in the factum filed by the Attorney General in the Supreme Court.
People accept the decisions of the government because they have a say in electing the government. I am not sure they would so easily accept and be subject to the decisions of a government elected by the votes of people who do not share in the impact of those decisions. For example, people who left Canada a long time ago and don’t pay a cent of taxes here. We are, in fact, giving to these people representation without taxation.
That is why I believe Bill C-76 should be amended to put a limit of time that a voter has been away from Canada and to put a minimum of time that non-resident voters reside in Canada.
I outlined in my second reading speech the problems I have with the provisions of Bill C-76 regarding how lobby groups and special interest groups can influence an election. I am convinced that we will see creative minds exploiting the loopholes that exist in Bill C-76 and that were confirmed at committee. Let’s hope there are not too many of those creative minds and that the true influence of the special interest groups will be limited. But I am certain that after the 2019 election, we will have to make another round of amendments to the Elections Act.
Too often the bureaucracy is fighting the last war, only correcting the problems after they arise instead of seeing them coming ahead. Unfortunately, Bill C-76 is just such a case. Regarding the influence of third parties, Bill C-76 is correcting the abuses of 2015 but not anticipating the next round.
I hope the next time Parliament is amending the Elections Act, we will try to correct the problems before they arise and not just correct them afterwards.
Also, we have to have debate in Canada about our levels of tolerance for the influence of special interests in elections. The Supreme Court of Canada, in the Harper case, put forward this notion of a level playing field in debate on public policy during an election. The courts discussed how spending caps are necessary to limit the ability of one side or one group in a public debate to have an overwhelming advantage.
We can discuss the caps on expenses, what is included in the calculation of expenses, and how the rules are enforced, but the principle of spending caps for political actors, including special interest groups, is now well established in Canada. What is left to debate, however, is how we can truly create a level playing field in the financing of those political actors.
There are strict rules on who can finance political parties, and there are strict limits to donations. We do not put such limits on how lobby groups are financed.
Also, the idea that monitoring the expenditure of funds as the only measure of a lobby group’s interest is clearly outdated. There are several examples of PR campaigns with low or even zero budgets that have been very successful. We must also be cognizant of that and try to adjust our elections rules accordingly.
I think it’s time to review this, and Mr. Perrault, Chief Electoral Officer of Elections Canada, agreed in his testimony.
This is just one area where Bill C-76 could have been better. However, because of the time constraints imposed on us, it is practically impossible for the Senate to improve this bill in a meaningful manner. Sadly, we will have to wait for the next round.
I said in my second reading speech that Bill C-76 would not stop foreign influence. I am sad to report that there is consensus on this: the minister said so, Mr. Perrault said so, and the members of the Legal and Constitutional Affairs Committee said so.
There will be attempts by foreign entities to influence the Canadian election of 2019. The Ministers of Democratic Institutions and of National Defence confirmed that recently. This week, the Centre for Cyber Security said “foreign countries are very likely to try to advance their agendas in 2019 by manipulating Canadian opinion with malicious online activity.”
There are two possible sources of foreign influence: special interest groups and foreign governments or their surrogates. We are vulnerable to the two types of influence.
Clearly, Bill C-76 is a very timid attempt to fight this global threat. Again, I have the impression that the drafters of Bill C-76 tried very hard to correct the weaknesses of the Elections Act as they pertain to election 2015. Since then, the threat to the integrity of our elections has eroded. It is now clear there are organized movements from the left and right that want to influence elections in all Western democracies. It is very clear that some foreign powers are using subversive means to either influence results of elections or referendums or just sew discord to discredit the electoral systems and undermine the credibility of democratically elected officials.
To go back to the theory of the social contract that I outlined, those foreign powers are trying to convince voters that the contract between them and those who govern them has been broken and that they should not support their government because the election was tainted.
Bill C-76 barely addresses these threats. It bars foreign governments from using undue influence during an election, but creates exceptions so large they’re almost an invitation to use them.
Also, with the unclear language of Bill C-76, the loopholes embedded within it and the extremely limited ability of Elections Canada to enforce the rules, foreign funded special interest groups will still be able to intervene in the next election. They will not be able to do it in quite the same way they did last time, but we would be naive to think these groups will stay on the sidelines and not try and steer the results.
Let me quote the Chief Electoral Officer at the Legal Committee:
We have to be clear that the notion that we can monitor all the activities that occur across the planet is not realistic, and it’s not even realistic in Canada. We’re not monitoring in real time all of the activities that any third party, which is any individual in Canada, any association, any group. If they are organizing a meeting, a parade, an activity, we can’t monitor that.
As we hear more and more about what happened in the Brexit and New Caledonia referendums, in the last campaigns in the U.S. and other democracies, we have good reasons to be fearful for election 2019.
It is very concerning that on the eve of our next election, we are not better prepared. It is like the government indulged in wishful thinking when drafting Bill C-76. Most of the provisions in the bill on foreign influence were added at the last minute in committee at other place.
Colleagues, I wanted to remind you Bill C-76 was tabled in the spring of 2018, long after the spectre of foreign influence in elections became a dangerous concern in several other democracies. The government did not take this question seriously. Bill C-76 leaves us vulnerable and woefully unprepared.
Obviously, in the little time it had, the Legal Committee could not come up with a comprehensive plan to address this issue. As our chair, Senator Joyal, pointed out several times during our meetings and again here today on the floor, the committee had tabled a report in June 2017 with detailed recommendations on this precise issue. Why those recommendations of the committee and at the committee of the house that dealt with the same topic were not followed by the government is a mystery to me.
That being said, we still have the opportunity today to make some modest changes to Bill C-76 that would at least close what I consider to be a glaring loophole in the bill.
Under Bill C-76, a Canadian citizen living outside of Canada is not a foreigner for the purposes of defining foreign influence. Even if he has dual citizenship and has been living abroad his entire adult life, that person could spend $1.5 million of personal funds during the pre-writ and writ period while being a resident of Moscow or Beijing, so long as he is a Canadian citizen who has resided in Canada at some point and is registered with Elections Canada.
I said the law requires that those expenses must be covered by his personal funds, but, of course, Elections Canada’s ability to actually verify this information is limited to none.
In committee, we heard testimony about generous donors to political campaigns in Europe who also happened to have benefited from lucrative arrangements with the Russian government.
Also, under Bill C-76, a group is considered a foreign third party if no person who is responsible for the group is a Canadian citizen. There is no definition of what constitutes a group and the meaning of what is being responsible for a group. Someone could create a loose band of five people, give it a name like Friends of Canada, and so long as one of the persons holds some kind of undefined responsibility in the group, they can spend $1.5 million between July 1 and October 21, 2019, to try to influence the election. I don’t know why the government is leaving such a large loophole in our election law.
I remind honourable senators that the Chief Electoral Officer admitted that Elections Canada would not monitor the activities of third parties during the election. I presented him with some scenarios during the committee hearings and he seemed genuinely taken aback by these gaps in the bill. When I asked if he had made a recommendation that third parties be prohibited from operating outside of Canada, his answer was no and the reason was, “This is not a concern that was brought to my attention, that I was cognizant of, until you raised it.”
The fact that the committee adopted an amendment at the request of the government means that Bill C-76 will be sent back to the House of Commons from the Senate. We should take that opportunity to improve the bill. I will therefore suggest an amendment that would correct the weakness of Bill C-76 I just outlined. Only residents of Canada will be included in the definition of “third parties.” This will help to reduce the risk of foreign influence. Also, the notion of “group” would be changed to require the group be principally based in Canada.
Honourable senators, I know there is not one of us in this chamber who does not agree that it is our duty to do everything in our power to protect the sanctity and integrity of our democratic process. I deeply appreciate the words and leadership of Senator Joyal on this issue.
I urge honourable senators to support this amendment that I’m about to propose so we can buttress our electoral system against the possibility of foreign influence.