Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12, Evidence - June 4, 2014
OTTAWA, Wednesday, June 4, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23, An Act to amend the Canada Elections Act and other acts and to make consequential amendments to certain acts, met this day at 4:16 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome, colleagues, invited guests, members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are here today for our first meeting on Bill C-23, the fair elections act. This bill proposes amendments to numerous aspects of Canada's electoral law, along with related amendments to the Telecommunications Act, the Electoral Boundaries Readjustment Act, and the Director of Public Prosecutions Act, among other acts.
Before we begin, I want to remind those watching this meeting that on April 7, 2014, the committee began a pre- study into the subject matter of Bill C-23. Pre-studies are a unique feature of the Senate that allow committees to get a head start on their examination of a bill and to provide input to the Commons before the bill is introduced in the Senate. With that in mind, the committee held eight meetings and heard from 27 witnesses on the pre-study.
On April 15, the committee tabled an interim report that included a number of recommendations for possible amendments. The bill we have before us today is a product of some of those recommendations, and our task now is to study the amended bill.
Before we begin, I would like to inform you that a short time ago the clerk was notified that one of the witnesses for our second panel, Simon Rowland, the Chief Executive Officer of Direct Leap Technologies, has missed his flight and is unable to be here. The steering committee — Senator Baker, Senator Frum and myself — had a quick meeting, and we agreed that Mr. Rowland, if able — and we think he is able — will begin the proceedings tomorrow morning. We're going to slot him in to be the first witness, the only witness that we hear from tomorrow before we move into clause-by- clause consideration of the legislation. I just wanted to bring you up to speed on that.
For our first panel today, to begin our review of the amended bill, please welcome the following officials from the Office of the Privy Council: Marc Chénier, Senior Privy Council Officer, Counsel, Democratic Reform; and Natasha Kim, Director, Democratic Reform.
Ms. Kim, I believe both of you have opening statements, but we will begin with you. The floor is yours.
Natasha Kim, Director, Democratic Reform, Privy Council Office: Honourable senators, Mr. Chair, thank you for inviting us as part of the committee's legislative review of Bill C-23, the fair elections act.
We understand you are interested in having an overview of the amendments to the bill that were adopted in the House of Commons since this committee concluded its pre-study of the bill. As honourable senators are aware, the fair elections act proposes comprehensive reforms and updates to the Canada Elections Act across a range of areas. The amendments are also wide-ranging. During approximately 17 hours of clause-by-clause consideration in the House of Commons Standing Committee on Procedure and House Affairs, there were 47 amendments adopted, as well as 3 clauses that were deleted. These changes can be roughly categorized into 14 areas, which I will now turn to, briefly summarizing, generally in the order in which they appear in the bill.
First, in clause 3, an amendment was made to make the 10-year term of the Chief Electoral Officer non-renewable, similar to that of the Auditor General.
Second, amendments were made to the new process introduced by Bill C-23 whereby the Chief Electoral Officer must issue an advance ruling or interpretation note regarding the Canada Elections Act on request from a political party following consultation with the advisory committee of political parties.
These provisions were amended in three ways: to increase the time that the Chief Electoral Officer has to issue an advance ruling or interpretation note from 45 to 60 days, while also reducing the consultation period from 30 to 15 days; to require that the Chief Electoral Officer also consult with the Commissioner of Canada Elections before issuing an advance ruling or interpretation note; and to give advance rulings precedential value for the Chief Electoral Officer and the Commissioner of Canada Elections with respect to similar activities carried out by other political entities in order to better promote consistency in the application.
The third area of amendments clarified the ability of the Chief Electoral Officer and the Commissioner of Canada Elections to disclose information to each other and to the public. The bill sets out that the Chief Electoral Officer may disclose information and documents to the commissioner where he or she considers it useful. The commissioner can require information and documents from the Chief Electoral Officer where he or she considers it necessary to the performance of his or her duties; and the commissioner can publicly disclose information about investigations where he considers it in the public interest.
The next area of amendments was to the public information and education mandate of the Chief Electoral Officer. The amendments clarify that the Chief Electoral Officer may communicate with the public, but where he or she advertises to inform electors about the exercise of their democratic rights, the advertising must relate to how to be a candidate; when, where and how to vote; and what tools are available to assist disabled electors. The amendments also enable the Chief Electoral Officer to continue to implement civic education programs for primary and secondary school students.
The fifth area of amendments relates to the voter identification provisions. As introduced, Bill C-23 removed the option of having one's identity and residence vouched for by another elector. The amendments adopted by the house established a new option for those without documentary proof of their residence. Under this option, an elector may register or vote by showing two pieces of identification with their name and by swearing an oath as to their residence. Another elector from the same polling division must also swear an oath attesting to the first elector's residence. To ensure the integrity of the vote, amendments will also require that the oath would be in writing, the written oaths would be kept in separate envelopes, the returning officer would compile the oaths after polling day to permit the identification of potential cases of double voting or of illegal attestations of another's residence, and an audit of compliance with registration and voting rules would be done after every election and reported to Parliament. Amendments also clarified that all those who apply for a special ballot and vote at the office of the returning officer must prove their identity and residence, as they would at a polling station.
The sixth area of change was to delete proposed changes to the appointment of central poll supervisors. As introduced, the bill implemented a unanimous recommendation from the Procedure and House Affairs Committee to have the central poll supervisor appointed in the same manner as the deputy returning officer; that is, from a list of names provided by the candidate who finished first in the last election, or that candidate's registered association or party. These changes are no longer in the fair elections act.
The seventh area of amendment relates to the new part of the act proposed by the bill to provide greater regulation around voter contact calls. An amendment was made to increase to three years the period during which a calling service provider is required to keep copies of scripts and recordings.
Eighth, as introduced, the bill pro-rated the spending limit for parties and candidates where election periods are longer than 36 days. Through amendments, the minimum writ period was corrected from 36 to 37 days; and the pro- rated increase to spending limits was extended to third parties as well.
Ninth, the fair elections act requires a third party to have a clear link to Canada in order to register, which all third parties must do in order to spend $500 or more during an election. The amendments added a clear prohibition against a third party from incurring $500 or more in an election if they are unable to show any link to Canada.
[Translation]
Tenth, as introduced, the bill proposed an exception as to what constitutes an election expense in the case of expenses incurred to solicit monetary contributions from contributors who had made at least one monetary contribution of $20 or more in the last five years. This exception has been removed from the bill.
Eleventh, the bill was amended to remove any threshold that the commissioner must meet before beginning an investigation.
Twelfth, in relation to limitation periods for offences, amendments clarified that no limitation period would apply for offences that require intent under the Canada Elections Act.
Thirteenth, the bill amended the Director of Public Prosecutions Act so that a report on the activities of the commissioner would be included in the DPP's annual report. Through amendments, it was clarified that this section of the report would be provided by the commissioner in order to reflect the independence between the offices.
Finally, there were a few amendments made as corrections to the bill or as consequential to the substantive amendments just discussed.
[English]
Honourable senators, that completes the summary of the amendments made in the House of Commons. If there are any questions, we would be pleased to provide any additional information of a technical nature regarding the bill and the amendments to it.
The Chair: Thank you, Ms. Kim.
We will begin the questions with the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you to the witnesses and for your summary of the changes made to the legislation.
Whenever government legislation comes before this committee, we normally confirm whether the legislation has cleared the constitutionality question prior to the introduction of this final version of the bill. Are you able to answer that question?
Marc Chénier, Senior Privy Council Officer, Counsel, Democratic Reform, Privy Council Office: Mr. Chair, the bill was introduced in Parliament, and if it had not been constitutional, the government would not have introduced it.
Senator Baker: Yes. That verifies, of course, what the minister had said in his opening remarks. So let me be more specific.
The vouching provision, the provision that was declared unconstitutional in the British Columbia accord, as referenced by Senator Moore in his speech to the Senate a couple of days ago, the constitutionality of the provision of vouching was maintained in the original legislation as a fail-safe; that is, somebody could vouch for somebody else to vote.
The change that you just described to me doesn't sound like the change that I read in the media. Does the media have it wrong or does the minister have it wrong? Could you repeat that again? The change made, as far as vouching is concerned, you said two pieces of information. The media and the minister, to my recollection, were talking about one piece of ID. Could you clarify that?
Mr. Chénier: In order for an elector to have his residence attested to by another elector, they will need to present two pieces of ID that establish their identity.
Senator Baker: Then, not only that, but complete —
Mr. Chénier: Then they must take a written oath as to their residence, and another elector in the same polling division must also take a written oath as to that other elector's residence.
Senator Baker: The confusion over one piece of ID and two pieces of ID, which you've said now is in the legislation, do you know where that originates from? All of the media in Canada were reporting one piece of ID.
Mr. Chénier: I'm unable to answer, senator. The bill does state that an elector must present two pieces of ID that establishes his or her identity.
Senator Baker: Okay. As far as the other important provision — and I'm only speculating on amendments that may undoubtedly arise in this committee tomorrow. Of course, I'm not guessing what Senator Moore is going to propose because he's in charge of the bill as far as the other side of the Senate is concerned. On the matter of compelling witnesses, is there any change at all in that particular provision?
Mr. Chénier: No. The bill, as introduced, did not give the Commissioner the ability to seek a court order to compel witnesses, and there was no amendment made to the bill in the House of Commons with respect to this.
The Chair: As for the provision regarding the voter identification card, were there any changes made to that particular section?
Mr. Chénier: No, the bill —
Senator Baker: Except that it removed the voter identification card.
Mr. Chénier: The bill, as introduced, provides that the voter identification card cannot be authorized as a piece of identification, and that was not changed in the House of Commons.
Senator Baker: The fourth of what I would say are the four top matters is Treasury Board approval, that section. Was that changed at all?
Mr. Chénier: No, this is a clause that allows the Chief Electoral Officer to enter into personal contracts for services, and the bill provides that the Treasury Board approval must be obtained with respect to the rates to be paid and the expenses paid, and there was no modification to that provision in the House of Commons.
Senator Baker: So those are four potential amendments that this committee will probably have to deal with tomorrow.
Let me ask you two consequential questions relating to what you said concerning the report of the Director of Public Prosecutions. When he makes his annual report, he'll also be reporting on the activities. It says "activities of the Commissioner." Is that what the legislation says is amended, the activities? Can we glean from that any idea of the particularization that is going to be given to the activities of the Commissioner in the Director of Public Prosecutions' annual report?
Mr. Chénier: The change that was made in the House of Commons to this provision is just a specification that the part of the annual report of the Director of Public Prosecutions that deals with the activities of the Commissioner is actually drafted and provided to the DPP by the Commissioner, and the bill provides that it's a report on the activities, whatever the mandate of the Commissioner is, but does not give details about specifics of an investigation.
Senator Baker: So it's what the Commissioner decides? That's what the Director of Public Prosecutions will present.
Mr. Chénier: That's right.
Senator Baker: Final question, if I could, chair.
The Chair: Yes.
Senator Baker: The limitation period for indictable offences is specified, particularized, if you want to call it that, as being indefinite. They require intent under the Canada Elections Act. Of course, that's the normal procedure with indictable offences in Canada. Was there any change made to the limitation period for summary conviction offences under the Canada Elections Act?
Mr. Chénier: When the bill was introduced, the intent had been to have no limitation period for any offence requiring intent, be they summary conviction offences or indictable offences, but there was a technical glitch in the way the provision was drafted. That was corrected in the bill, just to specify that there will be no limitation period applicable to summary conviction offences that are committed with intent.
Senator Baker: So you're saying that summary conviction offences with intent have no limitation period?
Mr. Chénier: That's correct.
Senator Baker: Indictable offences with intent have no limitation period. For summary conviction offences that don't require intent, is that maintained at 10 years, or are you knowledgeable on that?
Mr. Chénier: Yes. The provision lowers it to six years, I believe. The same as exists right now, there's a provision that makes an exception in case somebody is outside of the country.
Senator Baker: So the 10-year provision has been changed to six years. That's interesting. That's a major change in the legislation. Are we certain of that, Mr. Chair?
Mr. Chénier: It's six years from the day of the offence.
Senator Baker: When the Commissioner became aware of the —
Mr. Chénier: No.
Senator Baker: No, it's from the commission of the offence?
Mr. Chénier: That's correct. Six years from the day of the offence.
Senator Frum: Can I ask you about the sections relating to foreign third parties? So the act now says that foreign third parties must have a clear link to Canada. We discussed, in our pre-study, that that is a difficult term to define. Are you satisfied that the language is clear enough? Also, how does this section differ from what is already in the existing elections act?
Mr. Chénier: There's currently nothing in the Canada Elections Act with respect to foreign third parties. This is something that is being introduced in the bill, and the wording is actually very explicit. It requires, for instance, that, where the third party is an individual, the third party either be a Canadian citizen, a permanent resident or somebody who resides in Canada. It has specific rules like that for corporations and other associations.
Senator Frum: So you're satisfied that the intent of that section will be covered by the language?
Mr. Chénier: That's right. There will be a clear link to Canada, in some way, for each type of third party.
Senator Frum: Okay.
On the identification, because that's obviously been a huge part of the discussion around this bill, are you satisfied that the requirements that are being put in place with Bill C-23 are reasonable for Canadians to satisfy their constitutional right to have access to the vote?
Mr. Chénier: The provisions will allow electors to be able to vote in one of three ways. The first one is if they have a government-issued piece of ID that contains their photograph, their name and their address. The second way is if they present two pieces of identification that have been authorized by the Chief Electoral Officer, both of which must contain the elector's name and one of which must contain their address. The third method now is for an elector to be able to show up with two pieces of identification that establish their names and a written oath as to their residence, provided that another elector in the same polling division also attests to their residence by signing a written oath. So this will allow different ways for electors to be able to prove their identity and residence before voting.
Senator Frum: And you're satisfied that these are reasonable requirements?
Mr. Chénier: I think that they will allow people to be able to vote.
Senator Frum: Thank you very much.
Senator Plett: Could I ask a supplementary question?
The Chair: Yes, go ahead, Senator Plett.
Senator Plett: As to the person doing the attesting or vouching, if you will, did you say he has to be from the same riding association or just —
Mr. Chénier: It has to be somebody from the same polling division.
Senator Plett: Polling division.
Mr. Chénier: That's right.
Senator Plett: Thank you.
Senator Moore: Thank you, witnesses, for being here. I want to follow up on Senator Baker's question with regard to vouching.
In the British Columbia case, are you familiar with that which he mentioned?
Mr. Chénier: The Henry case, I believe?
Senator Moore: Yes. The government has made application to the Supreme Court of Canada to be heard there. In that case, the position of the government was and continues to be that vouching is the fail-safe voting process to ensure that the maximum number of Canadians can exercise their franchise. How do you square that with this provision about vouching under Bill C-23?
Mr. Chénier: It's true that, under the current legislation, vouching is the fail-safe. Again, I have mentioned the other two ways that an elector has to prove their identity through the production of documentary proof. Vouching currently is the fail-safe. If they don't have documentary proof that establishes their identity and residence, then they can be vouched for. I believe witnesses who appeared before this committee mentioned that the problem that electors will face under the bill, as it was introduced, was that they would not be able to prove their residence because there are very few pieces of identification that actually contain an address. So this is the new fail-safe under the legislation that was introduced, and, as I mentioned, it will allow people to vote without any piece of identification that establishes their address if another elector is able to attest to their residence.
Senator Moore: The process that is under appeal in the Henry case did not have these current provisions as being the vouching process. Therefore the government is saying that the process that existed in 2007 was the fail-safe. They're not arguing these pieces. These aren't the facts. That's what I'm asking you. How do you square that with what is in this bill?
Mr. Chénier: I think the court in the Henry case is faced with the provisions, as they were at the time the application was made.
Senator Moore: That's right.
Mr. Chénier: At that time, vouching was a fail-safe that was provided for in the Canada Elections Act and through this bill there will now be different fail-safe measures that still ensure that electors are able to establish their residence without producing documentary proof of their residence.
Ms. Kim: What was at issue in the Henry case is the scheme for voter identification. As my colleague set out, there are three different options. It's the scheme that was under review by the court, which was upheld under the Charter by both the trial court and the Court of Appeal and permission is being sought for leave to the Supreme Court of Canada. Now there is an adjustment to that scheme that's being made under Bill C-23, but it wasn't vouching in particular that was at issue in that case.
Senator Batters: Several of the changes that were made in these amendments that have been brought to the fair elections act were made because of helpful suggestions unanimously agreed to by this committee after some diligent and effective work. Could you explain which particular types of amendments you've described here today in those 13 or 14 categories that were made as a result of the Senate committee's recommendations? Could you elaborate as well on how our committee's work and the extensive hearings that we conducted assisted your work on this substantial package?
Mr. Chénier: Mr. Chair, a number of amendments to the bill that were made in the House of Commons are similar to recommendations that were made by this committee. I have your sixth report in front of me, and the first item was to specifically authorize communications between the Commissioner of Canada Elections and the Chief Electoral Officer. There was a change in the bill to accomplish this.
Number 3; remove the provision on spending during an electoral period that allowed for parties to communicate with past supporters without it giving rise to an election expense. There was a change that coincided with this recommendation.
There was a recommendation to extend the retention by calling service providers of the scripts and recordings of voter contact calls to three years, and there was an amendment made in the House of Commons that coincided with this recommendation.
There's a minority report as well.
Ms. Kim: In terms of the recommendation for allowing continued support of the student vote and other specific education activities for primary and secondary school students that was also adopted by the amendments, and then the recommendation regarding the commissioner and its Chief Electoral Officer being able to communicate with the public, that was also adopted.
Mr. Chénier: Also in the minority report, the inability of the Commissioner Canada Elections to disclose information relating to investigations. There was an amendment made to allow for the Commissioner of Canada Elections to disclose information that he feels is in the public interest to be disclosed.
Senator Batters: With respect to Senator Baker's earlier question to you, Mr. Chénier, when he discussed that two pieces of identification were required to establish identity if they didn't have another way to establish residence, we heard evidence at our committee hearing from Professor Lee I believe it was who elaborated for us the many types of identification that are available to establish someone's identity, and particularly dealing with people who are in lower income brackets, the number of different pieces of identification that are required to establish their ability to be eligible for certain government programs like social assistance or unemployment insurance, all of these kinds of things.
I wanted to point out for those who may be viewing this or reading the transcript later that though there is that requirement, if you don't have any identification to establish your residence and you now have to show two pieces of identification to establish your identity, I would invite people to look back at the substantial testimony of Professor Lee to show all of the different types of identification that are available for people, even in certain disadvantaged groups.
Mr. Chénier: Mr. Chair, I believe the Chief Electoral Officer has developed his pieces of authorized identification with a view to ensuring that specific segments of the population that would have difficulty in producing pieces of identification are able to do so. As I think was mentioned, there are 39 pieces of ID that can be used, and a lot of them were specifically put on the list in order to allow certain segments of the population that might otherwise have difficulty proving their identity.
Senator Joyal: I would like to come back to the issue of vouching so that everybody understands the process well.
If I understand the process correctly, it means that if an elector comes to a polling station and he or she has some identification paper — let's take the passport. The passport doesn't include my address. No passports include the address of any Canadian, but of course the identity is well established. In order to vote that person would have to have somebody to vouch for him or for her. They would vouch for the identification of the address of the person.
Suppose I live in an apartment or wherever, a house or any dwelling, and I live with a spouse and a child. I say a child, but a person over 18 who is entitled to vote. It means that my neighbour, who is on the electoral list and has proof of identity, will have to choose to vouch for only one person living at that address even though he or she knows the three of us because he happens to be the landlord, for instance, living on the ground floor or living beside the house.
What is the logic of limiting the vouching to a person who, in all reasonableness, would be able to testify that the three persons I'm giving as an example are real persons and they are real electors and should be allowed to vote?
Mr. Chénier: Mr. Chair, under the current legislation an elector can only vouch for one other person. You can't vouch for more than one person under the bill as amended in the House of Commons. An elector will only be able to attest to the residence of one elector. This part of the equation hasn't been changed.
Senator Joyal: What is the rationale? It seems to me it makes sense that the example I'm giving you is a reasonable example. It is not one, as we say in French, pulled from the air. It's not a totally fabricated, unreasonable case. It could be something very normal in the proceedings that I'm describing to you.
Mr. Chénier: I believe that the concern when Parliament initially adopted this provision was to reduce the possibility for electoral fraud. If somebody vouches for one person and they're not available to vouch for them, then at least the problem is minimized to only one case, one elector who is being vouched for.
Senator Joyal: I know the procedure existed before, but since we are trying to make the act contemporary, there were other aspects of the act that have since been, as you know, set aside by a court, and I'm referring to the case of Frank v. Canada (Attorney General) in Ontario, which precluded people who live outside Canada for more than five years from being allowed to vote. The decision of the Ontario Superior Court — which is a recent decision, May 2, in fact, almost a month ago — is this reflected in the proposal that you bring forward that now the act will be amended to give effect to the decision of the Superior Court of Justice in Ontario to allow expatriates to vote even though they have lived more than five years abroad?
Mr. Chénier: The bill does not address this question. I believe that the government filed a notice of appeal last week on this issue, so it will be in the courts for a little bit longer.
Senator Joyal: In other words, in that case, we're still where we were before.
In the case that my colleague Senator Moore raised, the one in British Columbia, the Henry case, which is also a recent case — it is the beginning of the year; it was at the end of January — did the government also file an appeal at the Supreme Court, petition one of the parties to be heard by the court, the BC Civil Liberties Association, or Ms. Henry, I understand, and Mr. Wright, who are the petitioners in the case?
Ms. Kim: The petitioners in that case filed an application for leave to appeal, and because the legislation was upheld, the Attorney General did not seek an appeal.
Senator Joyal: He didn't seek an appeal. Of course, if the petition is granted, the government will have to come forward and stand by the principles.
I read carefully the decision of the Ontario Superior Court, and I invite my colleagues who have an interest to review section 3 of the Charter, which is the right to vote. I thought there was a demonstration of the scope of section 3 that is very important, in fact, because the court established that citizenship is the essential link to the right to vote. It is not the identification or the residential requirement — even though I agree with the residential requirement — but the essential link is the citizenship principle that attaches one person to the country. That's essentially the principle at stake.
Don't you agree that this principle, in fact, determines the scope of all the other conditions that Parliament can put in order to make sure that it limits fraud and all the other consequences that we want to refrain from happening to make sure that the democratic process remains credible? Do you accept the principle that citizenship is the key link to the right to vote?
Mr. Chénier: Mr. Chair, I'm not ready to discuss the Frank decision today. We are here today to discuss the technicalities of Bill C-23. Unfortunately, I'm not able to answer this question by the honourable senator.
Senator Joyal: I accept that, but I thought you had an understanding of section 3 that you could share with us generally.
Mr. Chénier: We're unfortunately not the Department of Justice.
Senator Joyal: But you come to explain amendments to the act.
Mr. Chénier: That's correct.
Senator Joyal: So you have an understanding of the law, probably; I hope so.
Mr. Chénier: We have an understanding of Bill C-23.
Senator Joyal: Which deals with section 3 of the Charter of Rights, which is the right to vote.
I have another question in relation to the public information mandate of the Chief Electoral Officer.
The Chair: We will come back to you.
Senator McIntyre: Thank you both for your presentation. My question has nothing to do with the 14 amendments. It has to do with the engagement of an auditor. I draw your attention to proposed sections 143 to 149 and 161 to 162 and 169, which has to do with an audit in order to ensure compliance with the act.
Under proposed section 164.1:
. . . the Chief Electoral Officer shall engage an auditor. . . to perform an audit and report on whether deputy returning officers, poll clerks and registration officers have. . . properly exercised the powers conferred on them. . . .
In other words, the CEO can hire an expert; however, the CEO has to go to the Treasury Board and obtain his approval before engaging any experts. I was just wondering if the act applies to this specific situation. I think it does.
Ms. Kim, perhaps you can answer. I think it does, because if you go to proposed section 20(1), it provides contracting authority, which is subject to the Treasury Board.
I'm looking at 20(1). It says:
The Chief Electoral Officer may engage on a temporary basis the services of persons having technical or supervised knowledge of any matter relating to the Chief Electoral Officer's work . . . and, with the Treasury Board's approval, may fix and pay those persons' remuneration and expenses.
My question is this: Does the act apply to this specific section?
Mr. Chénier: The proposed section 20 would apply, so the Chief Electoral Officer would engage an expert, or an auditor, who has specialized knowledge to perform the audit. The requirement in the proposed section 20 is for approval to be obtained with respect to the rates of pay of the person retained, not of the contract itself. This is a common clause in legislation when we're dealing with agencies like this. It is, first of all, just to clarify that they do have power to enter into contracts for professional services, despite the requirement in the Public Service Employment Act that people be hired through the Public Service Employment Act, and the requirement to obtain prior Treasury Board approval of the rates to be paid is merely to ensure that the rates are commensurate with the rates that are otherwise paid in the public service.
Senator McIntyre: In other words, the CEO can hire an expert, but he has to keep running back to the Treasury Board for approval.
Mr. Chénier: My understanding of the way that this is done by Treasury Board is that they have scales established. So if people are hired for a particular type of service and their rates of pay are consistent with that scale, then there's an automatic approval, so it is a preapproval.
In any event, I guess it is not inconsistent with other requirements of the act. In the Canada Elections Act, all remuneration that is paid to elections officers is first approved by the Governor-in-Council. So there's always government approval of rates of pay to be paid somehow, just to ensure that they're not unreasonable and that they're consistent.
Senator McIntyre: Perhaps just a follow-up. I notice that the word "audit" is not defined in the act. However, it is used in other acts, such as the political financing and returns and audits of standards. I understand the purpose of the act is to ensure that compliance is achieved, but my question is this: What does the word "audit" mean? There are different kinds of audits. Does it mean an audit in the 338 ridings? If so, the cost would be rather heavy.
Mr. Chénier: It has to be interpreted, as the honourable senator mentioned, in context with what the requirement of the act is. In this case, it is an audit of the compliance of elections officers with registration and voting identification rules.
This is not something that came out of nowhere. The Chief Electoral Officer has actually carried out an audit like this during the 2011 general election, and in that case he chose to have a sampling of different polling stations and different electoral districts. The person who was retained to do the audit extrapolated from that to see how widespread polling day irregularities were. So it's reasonable to suspect that the Chief Electoral Officer would continue to do as he did for the 2011 general election.
[Translation]
Senator Boisvenu: Ms. Kim, Mr. Chénier, thank you for being here. I want to commend you for the quality of your presentation, which was very clear with regard to the majority of the amendments that were made in the House of Commons.
I would like to go back to point 4 which concerns the mandate of the Chief Electoral Officer. The matter of public information and education was one of the points the Chief Electoral Officer was relatively critical about when he came to submit his brief. Could you give us more details regarding the powers or right to communicate with the public the Chief Electoral Officer used to have before? What would his responsibilities be under the current bill? That is my first question.
My second question is the following: Can you confirm to the committee the rationale behind this amendment to limit, according to the Chief Electoral officer in any case, his communication with the public?
Mr. Chénier: Mr. Chair, section 18 of the Canada Elections Act sets out a public education and information mandate for the Chief Electoral officer. Subsection 1 states that he may implement public education and information programs to make the electoral process better known to the public, particularly to those persons and groups most likely to experience difficulties in exercising their democratic rights.
Subsection 2 provides that the Chief Electoral officer may, using any media, provide the public with information relating to Canada's electoral process, the democratic right to vote and how to be a candidate.
Subsection 3 provides that he may establish programs to disseminate information outside Canada concerning how to vote under part 11.
The bill contains provisions, firstly, to better define the power of the Chief Electoral Officer to communicate information to the public; thus, it provides that he may use publicity to inform electors regarding their democratic right. However, when he does so, the communication must relate to how to be a candidate and to where, when and how to vote, as well as to the tools that are available to allow persons with disabilities to exercise their franchise.
Senator Boisvenu: Would you say that the bill provides a framework for responsibilities or activities that were not subject to guidance previously, in the sense that the CEO's possibilities were to some extent unlimited and that he or she could do just about anything? Thus, the current bill sets out guidelines for his communications with the public.
Mr. Chénier: Regarding publicity, that is indeed the case; he is given a very specific communications mandate. I think the minister indicated that this was in reaction to polling which took place where voters, including voters of less than 24 years of age, indicated that they had not voted because they had not received the information they needed regarding where, when and how to vote.
Senator Rivest: Did the Chief Electoral Officer ever abuse his powers by divulging information that was not pertinent?
Mr. Chénier: I do not believe that there were ever any abuses; it is simply a reaction to the fact that there were indications that electors did not have the information they needed to exercise their right to vote. So his mandate is being tailored to ensure that they obtain that information.
[English]
Senator Plett: I have one brief question going back to the vouching. Clearly, the opposition's biggest argument or complaint in this legislation has been around the vouching and their fear that there will be five or six people in the country who won't be able to vote because of the legislation.
When the minister was here they raised scenario after scenario after scenario about who would not be able to vote, and the minister actually had a good argument and showed how these people all would be able to vote.
Now that we have further improved this and created a situation where we do have one-for-one vouching, do you believe that every Canadian will now be able to vote if they make the effort to go and get somebody who will vouch for them, that they will have the identification necessary to go and be able to cast their ballot?
Mr. Chénier: I think the act, first of all, as we were just discussing, refocuses the Chief Electoral Officer's education mandate so that electors will have the information that they need in order to be able to vote. Part of the requirement is for the Chief Electoral Officer to advertise on what is required to vote, what types of identifications are required. That information will be available before polling day, and people who want to vote will be able to do what they need to do in order to be able to obtain those documents before polling day.
Senator Plett: Thank you very much.
The Chair: Well handled, Mr. Chénier.
We're going into a second round here, and we'll begin with the Deputy Chair, Senator Baker.
Senator Baker: Perhaps Senator Moore will get into the main question. He is concerned about the position of the Government of Canada.
Senator Moore: Yes.
Senator Baker: By the way, on May 15, the Supreme Court of Canada allowed the appeal. Permission was sought on April 1, and, on May 15, permission was granted by the Supreme Court of Canada for the appeal to be heard before the Supreme Court of Canada.
Senator Moore will get into the sentence that says what Canada's position is.
Senator Moore: You can read it.
Senator Baker: Canada's position is that vouching, without having any ID, is the fail-safe that saves the legislation, and, of course, we have new legislation now. Anyway, let me leave that. That's going to be a problem for the lawyers to sort out. It's a very serious problem, of course.
I'm concerned about this change as to summary conviction offences. You just said that there's a change here that says six years is the new rule. Before, it was 10 years after the event had taken place but five years after the Commissioner became aware that there was an offence. Are you saying now that, under this legislation, it's just six years after the event took place?
Mr. Chénier: That's correct.
Senator Baker: Something like the Criminal Code says that, six months after the commission of an offence, the charge must be laid. In administrative law and in regulatory law, this presents a problem because the auditing of the books of an election takes a long period of time, and that's why the 10 years was put in there in the beginning, the argument from the Chief Electoral Officer that they required 10 years because, sometimes, it took four or five or six years for them to discover that a mistake had been made. This was what the testimony before this very committee said. I objected to the provision at the time because it was extraordinary. No other piece of legislation in Canada had 10 years. In the Environmental Protection Act, yes, there's two years and, in the Fisheries Act, two years, but that's for the very reasons that were outlined, that you had a period of time to investigate.
So we could arrive at a situation where the Commissioner discovers that an error was made five years and 364 days after the election took place and then charge the person because it's within the six-year deadline, and the person would have no prior knowledge of it. So that's a concern, and I'm wondering: Is there any other background material you have as to the rationale for this particular change?
I know the records of the robo-call companies can be kept for three years under an amendment — isn't that correct — that is made in the legislation, but now it leaves six years from the occurrence of the event for them to lay charges. But the same legislation is saying after three years you can destroy the evidence.
Do you have any comment to make on that, or is that outside of your realm of comment?
Senator Moore: He's a lawyer.
Mr. Chénier: Just a little correction.
Senator Baker: Okay.
Mr. Chénier: There wasn't the 10-year limitation period. That was introduced in 2006 with the Federal Accountability Act. It was not a recommendation of the Chief Electoral Officer. It was a government initiative as part of the Federal Accountability Act.
Senator Baker: That's right. It was in the Accountability Act, but it was on his recommendation.
Mr. Chénier: No, it wasn't the recommendation of the Chief Electoral Officer.
Senator Baker: Well, I was the one who cross-examined him, but anyway, you're the witness. Go ahead.
Mr. Chénier: In terms of those offences that would now be subject to a six-year limitation, they are all strict liability offences, so they're offences that tend to be very regulatory, so the government is of the view that the six years is long enough to ensure effective enforcement of these relatively minor offences.
Senator Baker: Yes.
Mr. Chénier: In terms of the retention period for the scripts and recordings, it's to be expected that any investigation would happen soon after an election, and so once the investigation starts, presumably the Commissioner would be able to obtain the relevant documents from these service providers at that time. I don't foresee that there would be a problem with —
Senator Baker: In other words, they get the evidence prior to the three years being up, which is your submission?
Mr. Chénier: That's correct.
Senator Baker: They would then have up to a six-year period to lay the charge?
Mr. Chénier: That's correct.
Senator Baker: Yes. Did anybody put forward the proposal that perhaps the three years should have been extended to six years to comply with the strict liability offences where strict liability offences like driving over the speed limit, you either did it or you didn't do it? Was there any consideration given to your knowledge to make the robo-call companies keep the evidence for six years with this change now in six years after the occurrence of the event in the case of summary conviction offences?
Mr. Chénier: The House of Commons decided on three years and I note that this committee also recommended that the period be three years, so I think there was a consensus that three years would be sufficient.
Senator Moore: I don't understand your response with regard to the Henry case, because in that case Canada said that these pieces of identification were not necessary and that vouching was permitted and it was the fail-safe, so I don't understand how today they're saying it's not. I don't understand that.
More than that, with regard to the question of Senator Joyal in connection with that issue, under section 3 of the Charter is the right to vote if you're a citizen. The example that he put forward, if somebody lives across the hall from these three people and they go in to vote and that person across the hall can only vouch for one person and he knows the other three people, don't you think that's a bit unreasonable and would be open for a charge under the Charter? It's unreasonable to think that the neighbour across the hall knows the three people but he can't vouch for them. Where is the reasonableness in that? Where is the meeting of the Charter in that?
Mr. Chénier: Mr. Chair, the prohibition against vouching for more than one elector was one of the provisions that was contested in the Henry case, and both the trial judge and the Court of Appeal held that it was a reasonable limitation on the right to vote.
With respect to the fail-safe nature of the new attestation process, I believe that the vast majority of witnesses who appeared before this committee were of the view that the real problem in proving identity and residence using documentary proof was with respect to the element of residence because there are very few pieces of ID that contain an address. By allowing for an elector to have their address attested to by another elector, the government is responding to that concern.
Senator Joyal: What the court decided in Henry is not exactly what you said. I'm sorry to distinguish this. The court didn't say only one vouching per person is constitutional. The court stated and recognized very clearly that the vouching system is proper and it is one way to have the identification and the residential requirement being served. It didn't say the constitutionality of section 3 limits that to one person to vouch for another one. That's not what the court said. I'm sorry to differ with you.
Mr. Chénier: Although I do believe that the provision that restricts vouching to only one elector per voucher was one of the provisions that was being challenged and the court did not strike it down, so personally I take it to mean that they found it to meet constitutional muster.
Senator Joyal: That's going to be debated in court, as you know. The other one is about how the Chief Electoral Officer is allowed to advertise, and I will read your text: "To inform electors about the exercise of their democratic rights." That's a pretty large expression. Could you expand on what we should understand about the exercise of their democratic rights?
Mr. Chénier: Yes. When he does advertising with respect to the exercise of their democratic rights, the new provision would limit the messages that he can convey to those that are listed in that provision, such as how to become a candidate, how to vote, when to vote, where to vote and what tools are available to assist disabled electors.
Senator Joyal: Should I understand that to mean he could publicize the list of the documentation that a voter would be invited to have to identify himself or herself?
Mr. Chénier: That is one of the things that is listed as something that he can advertise about.
Senator Joyal: But on nothing else?
Mr. Chénier: The provision limits his ability to advertise with respect to the exercise of democratic rights to those items that are enumerated in the provision.
Senator Joyal: Thank you.
The Chair: Thank you, Ms. Kim and Mr. Chénier. I gather we'll see you tomorrow as well.
As I explained earlier, Mr. Rowland can't be with us and will be attending tomorrow. Professor Colin Bennett is here via video conference. Professor Bennett is from the Department of Political Science at the University of Victoria.
Welcome, sir. Do you have an opening statement?
Colin Bennett, Professor, Department of Political Science, University of Victoria, as an individual: Yes, I do.
Good afternoon and thank you for this opportunity. I am a professor of political science at the University of Victoria, but I appear not as an expert on elections and electoral law but as someone who has been studying privacy protection issues for nearly 30 years in Canada and internationally. Of most relevance is my recent report on privacy and political parties for the Office of the Privacy Commissioner.
I would like to address some of the specific privacy implications of Bill C-23 today. It seems to me that the cumulative and perhaps unintended effects of the bill are that party representatives will have the opportunity to access more personal information about voters than before. I do not believe that enough attention has been given to this aspect of the legislation. The risks to privacy also need to be understood in the context of broader trends in voter surveillance in Canada and overseas.
Two provisions in Bill C-23 give me some concern. The first relates to what are commonly called the bingo sheets. The act proposes the preparation of statements every 30 minutes of who has voted, the provision to a candidate's representative on election day, and the delivery of these summaries to the parties after election day.
Under this new provision, parties will be able to methodically collect and document, for all registered voters, who has voted and who has not. As the CEO testified:
Collecting fundamental personal information in this way about whether or not people have voted goes beyond the operational purpose related to voting on polling day. Information on who has voted should not be shared with parties further than it already is.
He recommended the removal of that provision, and I agree with that.
Second, the bill states, in the context of these new rules about voter identification, that a candidate or their representative may examine, but not handle, any piece of identification presented under the relevant section.
That will no doubt upset some voters, particularly if a scrutineer from a party that the voter does not support views one of the authorized identification documents, some of which might contain quite sensitive personal information.
Opposition amendments were introduced in the house to ensure that:
For greater certainty, an elector's refusal to have a candidate or their representative examine the piece of identification that they present does not preclude the elector from exercising his or her right to vote.
I support amendments along those lines.
In conclusion, senators, however, I would like to stress a broader point. These provisions would be less controversial if political parties in Canada were subject to Canadian privacy laws, but they're not. Parties are largely unregulated under the Personal Information Protection and Electronic Documents Act, PIPEDA, or substantially similar provincial laws, with the exception of the one in B.C. They are not government agencies, and therefore not covered by the Privacy Act; and they are also largely exempt from the new anti-spam legislation which comes into force in July, as well as from the do-not-call regulations administered through the CRTC.
Thus, for the most part, individuals have no legal rights to learn what information is contained in party databases; to access and correct those data; to remove themselves from the systems; or to restrict the collection, use and disclosure of their personal data. For the most part, parties have no legal obligations to keep that information secure, to only retain it for as long as necessary, and to control who has access to it.
We know that Canadian parties operate extensive voter management databases, and more of that is in my report. The foundation of those databases is the list of voters provided under the authority of the Elections Act. An increasing range of other personal data is then added, from telephone polling, traditional canvassing methods, petitions, commercially available marketing databases, social networking services, and so on. A disparate and fluctuating number of employees and volunteers might also have access to those data, individuals who have no privacy or security training.
The CEO has recognized this broader problem, and, in his March 2013 report on issues arising from improper telecommunications with electors, he suggested that the application of the main privacy principles in PIPEDA be applied to political parties, with the requirement that a privacy certification would be required to continue to receive the lists of electors from Elections Canada.
I note that, in his original recommendations on Bill C-23, the CEO advised that the bill should include a provision extending commonly accepted privacy protection principles to political entities and requiring that parties exercise due diligence when giving out personal information contained in their databases. This same requirement was introduced as an amendment to Bill C-23 in the house committee on April 14. The amendment also stated that the CEO might withhold from a political party any information contained in the lists until the party could demonstrate compliance with those privacy principles.
For the government, Mr. Lukiwski responded that the amendment would be voted down because the CEO had already indicated that he would be consulting with the newly appointed Advisory Committee of Political Parties on these privacy questions. The government believes that the consultative approach would be preferable to premature legislation. That approach might be sensible, but it is important to ensure that that consultation does indeed take place.
In conclusion, I respectfully urge this committee to emphasize some of these privacy implications of Bill C-23 and strongly urge the Chief Electoral Officer and the political parties to begin this consultation to develop a common set of privacy standards and sound privacy-management practices to which all political parties should adhere. Other public and private organizations have to be accountable for the processing of personal data, and there is no reason why political parties should be any different. In the final analysis, these questions are not just about privacy protection. Lack of attention to the protection of personal information can erode the trust that Canadians have in political parties and in our democratic system.
Thank you very much, senators.
Senator Baker: Professor, thank you for your presentation to the committee. You have made some very interesting points concerning privacy. Your major recommendation is that political parties, under the Canada Elections Act, be subject to PIPEDA. You noted certain changes that were made, certain amendments made in the House of Commons that you agree with, and you explained those.
Were there any possible amendments that the minister could have made or the House of Commons or the Senate could make outside of PIPEDA and the privacy question? Is there anything else that you are concerned about in the final edition of this bill?
Mr. Bennett: To emphasize, I am not really an expert on the broader electoral law and some of the other issues that you have been addressing with other witnesses, but I wanted to clarify something on the PIPEDA privacy principles.
When the CEO was investigating what has come to be called the "robo-call scandal," it was quite clear that there were far broader implications, and that it was necessary to begin to think about how political parties could be made to be more accountable for the personal information that they process, which, as I said, is extensive. There is a dilemma. Political parties are a restrained breed of organization. They fall between the cracks. They're not commercial. They're not government. Therefore, it was suggested, as an interim measure, that it might be a good idea to begin the process of negotiation of a code of practice that would be based on the PIPEDA principles, and the new advisory committee on political parties would, I think, be an appropriate venue for that.
The government's position — and I quite understand this — is that, with all of the complexities of this legislation, they do not want to introduce more privacy principles in this and complicate an already complicated law. Nevertheless, it is the hope, I think, of the CEO, and certainly of me, that the general debate about the Canada Elections Act and Bill C-23 will bring this issue of privacy to the attention of the house, the Senate and the general public, and it will be possible, then, to use this process as a spur to get the political parties to engage in a consultative process and to begin to think seriously about the privacy issue.
I hope that responds to your question.
Senator Baker: Yes. The major problem, professor, is with convincing the political parties that are represented in the House of Commons of the wisdom of your comments. It wasn't that long ago that we received a bill before this committee, and the bill was an all-party-agreement bill that would have released the dates of birth of every single voter in Canada. That is, a political party could release this information from the Chief Electoral Office down to their representatives in the ridings.
Mr. Bennett: Yes.
Senator Baker: The Senate had to take the extraordinary measure of amending the bill to remove the dates of birth of electors for the very reasons that you are enunciating here today. It is an uphill battle to convince politicians who want to be able to access all of the private information possible in order to identify their voters in their ridings. It is very difficult for the Senate or for you or anybody else to convince them to bring themselves under the guise of PIPEDA or any other privacy legislation. I imagine you understand that.
Mr. Bennett: I do indeed, but I do have some things to say in response. First, political parties have already developed certain voluntary privacy policies, particularly with respect to their online activities.
Senator Baker: Yes.
Mr. Bennett: So, to some extent, commitments have already been made. Second, there have been a number of complaints and stories about the inappropriate collection and processing of personal data by political parties that have reached the attention of the Privacy Commissioner. We document those in our report, and one of those big concerns is the possibility of data breaches. Every other organization in Canada has been subjected to that, and it would be difficult to imagine that political parties are somewhat immune to that problem.
Third, many of the provisions in the PIPEDA privacy principles are actually quite noncontroversial in the sense that they are common sense. They're the sort of things that any organization would want to do in order to gain the trust of voters.
I take your point about legislation, and, furthermore, it is extremely difficult to know how, in the current climate, you would amend either PIPEDA or the Privacy Act in this regard. That is why the CEO and others have suggested that there's an interim step here, which is to try to negotiate a common standard that parties could sign up to, if you like, in a voluntary manner, so that they can be a bit more transparent about what they do and do not do with people's personal data.
As you know, privacy and surveillance issues are in the headlines all the time. I think that, as new technologies develop, this issue about the processing of data on voters is only going to become more important and significant and come to the attention of the general public.
Senator Frum: I want to ask you about your comments to do with privacy issues due to scrutineers examining personal pieces of identification. By definition, identification is meant to be a public item. It has a purpose.
Mr. Bennett: Yes.
Senator Frum: I can imagine that what you are referring to is that if someone brings in, let's say, their mailed bank statement that would be potentially sensitive. But there's nothing preventing the voter in that instance from blacking out figures or from folding the identification in a certain way. All the scrutineer needs to see is the logo of the bank, the name and the address. Everything else can be folded for privacy.
I'm wondering how real an issue this really is.
Mr. Bennett: I take your point. I suspect that some voters might have the wherewithal to do that; others would not.
It is a concern, and if it comes to the point where somebody says, "I'm not providing you that sensitive data, and therefore I'm not going to bother to vote," that may be very concerning.
On the other hand, and to my broader point, I would be less concerned about party scrutineers looking at that kind of sensitive information if I were confident that all the people who work for political parties had had some training about privacy and security; and because they're not subject to privacy law and they do not have to develop the kind of privacy management programs that other organizations have to develop, then that training, I don't think, takes place.
Senator Frum: You mentioned that political parties are exempt from the anti-spam legislation and the do-not-call regulation.
Mr. Bennett: Yes.
Senator Frum: Do you think that's inappropriate?
Mr. Bennett: I do, yes. Let me clarify something about the do-not-call legislation. Political parties are supposed to be developing internal do-not-call lists. They're exempt from the regulation of the CRTC on most issues, but they're supposed to be developing their own internal lists so that if a voter says, "Please do not call me," they do not call them.
There are a number of difficulties, however. They do not make the ability to opt out particularly public. You don't see, for example, on the main websites of the main political parties, "If you do not want us to call you, give your name and address here." Furthermore, it is somewhat difficult when you have households with people in those households who may affiliate with different political parties. One person might be happy to have a call from the Conservatives; one person might not.
I do recognize that there are difficulties in implementation here, but it is in somewhat of the interests of the political parties not to be harassing and intruding on people who do not want to receive either the calls or the emails that they no doubt will get during the next election cycle.
Senator Frum: That last point is precisely right. No one is more sensitive to keeping their membership happy than political parties.
Mr. Bennett: Yes.
Senator Frum: Equally, one has to defend the democratic dialogue that is essential.
Mr. Bennett: Exactly, and that's a point I want to make. Political parties have a crucial role in our democratic process. They have a right to process personal data for the purpose of getting out the vote and sending across their message. There's a very interesting and delicate balance that needs to be struck here.
That balance between the public interest in democratic participation and privacy is very different from the balance that needs to be struck when you are talking about privacy in the context of a bank or a telemarketing company or government or whatever.
We need to have that debate. That's why I think if the Advisory Committee of Political Parties could start that debate and get representatives from the political parties around the table with relevant experts, we begin to understand some of the ways in which the very basic high-level principles in PIPEDA could be brought into the context of the political realm.
As I say, we have had discussions about this in the context of Elections Canada. I don't think a lot of it will be controversial, but it is a question of getting people in the political parties to put their attention to this problem, and I don't think that's really happened yet in a serious way.
Senator Frum: I take your point. Thank you very much.
Senator Moore: Thank you, professor, for being here.
I want to ask you to expand a bit on the second item, which is at the bottom of page 1, leading on to page 2, about the new rules about identification:
A candidate or their representative may examine but not handle any piece of identification presented under this section.
I thought that would be the role of the DRO, the deputy returning officer. Wouldn't that person decide whether or not the piece of ID was valid?
Mr. Bennett: I agree with that. It's just that in my reading of the legislation it also entitles candidates or their representatives to examine that. I cite a couple of the provisions: clauses 54 and 161. I think there are others where that provision is included.
I do not quite see the purpose of it. I agree with you that it seems to me that the validity of another piece of identification can be checked quite appropriately by the returning officer, but I do think that this provision, if a representative of a political party were to insist on seeing such a piece of identification, I could see that that would upset some voters. The Chief Electoral Officer made the same point in his initial recommendations on this bill.
Senator Moore: It would certainly possibly upset a voter. It is going to add time to the voting process.
Mr. Bennett: Yes.
Senator Moore: What if the candidate, or his or her representative, didn't like what they saw? What happens then? Do we have a Mexican standoff in the polling station? What happens?
Mr. Bennett: Senator, that's a very good question. I do not know. I thought that myself.
Senator Moore: Why is this in there? Now we will have two possibly competing opinions.
Mr. Bennett: Maybe more, if there's more than one party who has their representative at the polling stations.
Senator Moore: Exactly.
Mr. Bennett: That's why I draw this to your attention. I do not understand the point of it, and I think that it may be more trouble than it is worth.
Senator Moore: I didn't know that political parties were not subject to the do-not-call regulations until I read that today. I thought that they are subject to that.
Mr. Bennett: Let me be precise. They're subject to certain do-not-call regulations. This is very complicated, and we're getting out of the subject matter here to some extent. If they're using a polling firm, for example, they have to declare who they are, the rules about identification, and so on and so forth.
It is the do-not-call list that is the issue here. They're not legally required in the same way that a direct marketing firm is legally required to look at the do-not-call list administered by the CRTC and not call that person. Political parties are supposed to be developing their internal lists, the argument being that political parties are somewhat different from direct marketers, and that there is a better justification for telemarketing and direct mail, et cetera, from political parties than there is from the commercial messages that you get.
I don't have the exact details of that in front of me, but those details are explained in the report that I made to the Privacy Commissioner in more detail, senator.
Senator Batters: Thank you very much, professor.
First of all, your comment early on in your opening statement about the provision that gives you concern, the provision of who has voted to candidates' representatives.
Mr. Bennett: Yes.
Senator Batters: I'm sure you're aware that a listing of who has voted is already provided to parties by Elections Canada. I don't know when that came into being. I know that it was definitely in place as of the 2004 election, when the Liberals were in power. What is being provided here is simply putting it into more easily understandable format and probably getting the information to people in a quicker fashion than it is already provided.
Mr. Bennett: There's a distinction, senator, between providing that information on election day so that that candidates and their representatives can get out the vote for people who have not voted and providing it as a permanent record that can be integrated into the existing voter-management systems.
That gives me some concern. I wasn't aware, and I'm not aware, that that is done at the moment. Just to be clear about these various systems, there's the SIM system for the Conservatives, the Liberalist for the Liberals, the NDP Vote, and those systems are becoming more and more complex as more and more elements of data are included in them in order to profile voters and to prioritize the targeting of messages by e-mail, by text, by phone and other things.
The problem, however, is that, as these systems are not subject to audit investigation by the Privacy Commissioner, we really do not know what is in them. We do not know the extent to which the information that is legally provided by Elections Canada, under the authority of the Elections Act, is then used and matched against other forms of data that come from other sources. So I think there's a little bit of confusion about this.
Senator Batters: Yes. Just to explain a little bit further, my husband was a member of Parliament. He first got elected in 2004, and I know that there are very strict requirements on the use that can be made of that type of information. I am not just talking about the bingo sheets and the information that is collected on election day.
Mr. Bennett: Yes, that's right.
Senator Batters: After the election, usually substantially after — I can't remember how many months it was after — I think it was a computer disk or something like that that was provided by Elections Canada that provided information about who had voted in that election.
Mr. Bennett: Yes. I'm not sure. I do not understand the public interest in doing that. That's what I'm saying.
Senator Batters: Just so you are aware, that was done going at least back to 2004.
Mr. Bennett: I know, but I do not understand the public interest in doing that. I think, in the context of the far more sophisticated databases than we had 10 years ago that we have now, along with the Chief Electoral Officer, who raised the concern about this, it just increases the amount of information that political parties have on voters. Again, if they were subject to privacy rules, I would have less of a concern, but they're not.
Senator Batters: The other thing that I wanted to draw to the attention of this committee is the discussion that you had a little bit earlier here about scrutineers and why scrutineers would need to see the type of identification that is being provided to justify someone being able to prove their identity and residence and that sort of thing.
Having been involved in many, many elections and having been a scrutineer for many elections as well, for people who are scrutineering in elections, the reason that that is provided in this particular section is because a scrutineer needs to make a decision as to whether they would launch a challenge to the deputy returning officer's decision to allow certain identification, and then that would be made note of. Usually, at the end of the night, when they're doing vote counts and that sort of thing, those types of matters are brought up. That's the reason they would need to be able to see, but not handle, that identification.
Mr. Bennett: I understand that, and I agree. I am just pointing out that the process of checking by scrutineers of that kind of information is somewhat more complex under the new provisions in Bill C-23 than it has been in the past, as the discussion earlier with your colleague demonstrated, I think.
Senator Joyal: Welcome, professor. Professor, do you know how many registered political parties in Canada are entitled to have the Canadian voters list?
Mr. Bennett: I don't have that number at the top of my head, no, senator. It is a large number, I know.
Senator Joyal: That is what I wanted to stress. There's one list that the political parties will save as their safety valve, which is what we call, in French, "the pointed list."
Mr. Bennett: Yes, that's right.
Senator Joyal: In other words, the list and the allegiance — let's put it in neutral terms — the political allegiance of the person. This list they cherish, and they save it like the, as we say in French, la prunelle de leurs yeux, the centre of their eye. The rest of the list, as you know, today, as my colleague Senator Batters has said, is on a computer. At a computer, you can, of course, put on the list what you want and subtract what you don't want. Once you have purged your list of the political allegiance, you can then subcontract that list to a fundraising company. You can subcontract that list to another company that, for instance, would make calls on your behalf, general calls to all of the voters, thinking that, on the whole, they will benefit from reaching those people. Then they can contract that list to any other kind of company that will make phone calls in the guise of a polling company to try to finally come down to where you are defined in terms of general issues of public interest, to come down to some kind of a bottom list. Those lists circulate around, and the list could be split on the riding association basis, with a certain number of identifications and so on. The lists are multiplied. You would be surprised how much the list is multiplied and given to all kinds of sources and groups.
The political parties find or conclude that they have an interest in doing that. In my opinion, what you propose to try to more or less polish the use of lists is a wish list because I don't see how political parties would benefit from submitting themselves to more the rigorous regulations or framework of not disseminating the list.
In fact, the rules will be strong as the violations would incur some kind of punishment or some kinds of penalties. Otherwise, it will be up to everyone to play with the list the way they want, but, as you said, Canadians will be surprised to see how much their names are cut into bits and pieces and used by political parties, especially now that we have the computer system that, as you know more than me, can organize and recoup all kinds of information that political parties deem useful because, instead of doing it by hand and trying to call the person, they can do it electronically.
It saves them money and effort, and it is much more efficient. I don't expect that the political parties will ever come to terms with what you suggest. I would like to accept your conclusion. I don't want to be cynical, but I doubt that, in the near future, that will change.
Mr. Bennett: Can I try to convince you otherwise, senator?
Senator Joyal: It's not that I don't want to be convinced. I'm questioning you on the reality test here of real politicking.
Mr. Bennett: I understand, but I think that there are a few other realities. It is important to realize that the parties do have to abide by certain very strict privacy rules that are already in the Elections Act, but those rules only apply to the information that they are getting under the authority of the Elections Act from Elections Canada.
What I'm concerned about is, as you say, that very practice of taking that list and using it as a foundation for a far more sophisticated voter-profiling system. Many of the practices are imported from the United States. Many of them are also being developed as a result of the use of social media, and in other countries, particularly in Europe, information about political affiliation is considered, under law, highly sensitive and should not be processed without positive consent.
So although I understand what you're saying about the political realities, that political parties don't like to regulate themselves, I think I will counter by saying that there are certain reasons why I think political parties might want to think about the reality of facing, for example, a massive data breach in the context of an election where a file containing thousands and thousands of pieces of information on voters is lost and then having to say, "Well, we didn't have a privacy policy or we didn't have a chief privacy officer or we didn't have any systems in place in order to prevent this from happening."
Every business in Canada has to abide by what is in PIPEDA, and we were told when PIPEDA was introduced that this was going to kill business and it would be hurting many businesses. That has not happened. I would stress that a lot of what is in PIPEDA still applies to the political parties. I think there are ways in which you can develop a set of rules which would allow parties to do what they need to do — which is to target, to prioritize the voters they need to target and to communicate with those voters about their messages and encouraging them to get out to vote — without unnecessarily intruding on people's privacy and, at the same time, allowing those individuals who do not want to be contacted and who do not want to be contained to have their information processed by political parties be removed.
At the moment, individuals do not have those rights, and I don't see why political parties should be treated in any other way than any other organization in Canada. I think experience of our privacy laws in the private sector suggests that much privacy protection is in the interests of organizations and is not opposed to their interests. That would be my response to your question, senator.
Senator Joyal: In the context of developing a set of rules or, I will put it in broader terms, ethical behaviour by political parties, I think that it can be done only on a voluntary basis because political parties dominate Parliament.
If you ever expect that there will be movement in that direction, they have a vested interest to protect their interests, their political interests. How can we really come to a point whereby Canadians and voters generally will arrive at what you express and which makes sense will be received as being the norm of democratic behaviour in Canada?
Mr. Bennett: I would say two things. First, Canada is virtually alone in the Western democratic world in not covering its political parties with privacy law. The United States doesn't, Australia doesn't, but every other major democratic country does.
Second, I reiterate that political parties have already made some declarations about privacy. If they do have privacy policies on their websites, they are incomplete. We analyzed them in our report, but they have already made some statements in this regard.
So I don't think it's new territory, but I would like to see those voluntary principles extended so that they include all of the principles that are in PIPEDA, and harmonized in some respect so that there's a common set of standards about what is considered appropriate action in terms of the processing and dissemination of sometimes quite sensitive data about citizens. And I feel if that does not happen it will happen as a result of some kind of publicity scandal, a data breach and, therefore, ultimately some rules will develop as a result of that kind of publicity.
The Chair: That wraps it up, professor. Thank you very much for an interesting and thought-provoking contribution to our deliberations. We very much appreciate it.
Mr. Bennett: Thank you so much. Good afternoon.
The Chair: We will reconvene tomorrow at 10:30 a.m., same time, same station.
(The committee adjourned.)