Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 17 - Evidence - November 23, 2016
OTTAWA, Wednesday, November 23, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:20 p.m. to examine and report on the reports of the Chief Electoral Officer on the 42nd General Election of October 19, 2015 and associated matters dealing with Elections Canada's conduct of the election.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, colleagues and invited guests.
Members, earlier this fall the Senate authorized the committee to study the reports of the Chief Electoral Officer on the forty-second general election of October 19, 2015. This is our first and I believe only meeting on this study.
Today we have with us Marc Mayrand, Chief Electoral Officer. Thank you for being with us today, sir. I believe you have an opening statement. The floor is yours.
[Translation]
Marc Mayrand, Chief Electoral Officer, Elections Canada: Thank you, Mr. Chair. I'm pleased to be here today to discuss my reports following the forty-second general election.
As required by the Canada Elections Act, on February 3, 2016, I submitted to the Speaker of the House of Commons an initial report on the forty-second general election. It provides a description of key events as they relate to the preparation and the delivery of the election.
This was followed last September by a comprehensive retrospective of the election, which offers an assessment of the election and the experiences of electors and political entities.
The findings from the independent audit of poll worker performance and Elections Canada's response to that audit are also included in this report.
Finally, on September 26, 2016, I submitted to the Speaker of the House of Commons a report containing recommendations for legislative changes. The report is currently being reviewed by the Standing Committee on Procedure and House Affairs.
The 2015 election was historic from several perspectives. It was the first fixed-date federal election and the longest in more than 140 years. Compared to the previous election, some three million more Canadians voted, resulting in the highest turnout in more than 20 years. Voter participation increased among all groups, including those that typically vote less than the general population, such as Indigenous people and young Canadians.
There was a 74 per cent increase in advance voting. For the first time, it was possible to vote in an advance poll on a Sunday. This confirms a changing pattern in the way electors choose to cast their ballot.
Overall, multiple lines of evidence show that our service improvements were successful. These included the online voter registration service; enhanced outreach and voting opportunities for young voters and students; more stringent accessibility criteria for polling locations; training for candidates and their officials; and the issuance of written opinions, guidelines and interpretation notes for political entities.
The improvements were generally well received by electors, political entities, returning officers and poll workers. There was no evidence of any systemic incidents having interfered with voter participation. As well, the vast majority of electors and political entities continued to express confidence in the administration of the election and in the voting results.
That said, the election demonstrated in many ways that a limit has been reached regarding what election workers can achieve under the current electoral framework. Increasing staffing to meet the changing needs of voters is no longer sustainable.
Returning officers faced significant challenges in recruiting and training competent workers and in responding to long lineups at polls. The current regime provides little flexibility to scale services to a sudden and pronounced increase and is not amenable to the automation of the most basic, repetitive and tedious tasks.
I've therefore made recommendations for legislative changes on this and other aspects of the administration of the act. These amendments are essential to bringing the Canada Elections Act into the 21st century, irrespective of any change to the voting system.
The recommendations are inspired by three main themes.
[English]
The first is accessibility and inclusiveness. Several recommendations are made in this regard. Of note are those aimed at facilitating the full participation in the electoral process of electors with disabilities. While a lot was done to increase accessibility at the polls for electors with disabilities, more is required.
Also, young Canadians should be allowed to preregister when they are 16 or 17 so that their registration activates on their eighteenth birthday. This way, more youth would be registered to vote when an election is called.
The second main theme is flexibility and effectiveness in election administration. In moving toward the forty-third general election, Elections Canada's goal is to modernize the voting service model to better align with Canadians' expectations. To do this, the voting process must be simpler, more efficient and more flexible for electors. It must also be easier for election workers to administer while maintaining key controls and safeguards to ensure the integrity of the process. A number of recommendations are made to achieve these goals.
The act should continue to outline the functions at polling places, but the activities and labour should be divided among staff according to instructions from the Chief Electoral Officer. The act should also allow for the use of computerized lists to speed up processes and permit electors to vote at any table in a given polling place. The new process would also make it easier to give candidates and parties information on who has voted. Instructions to election workers would continue to be made public ahead of the election.
From a voter's standpoint, these changes would result in faster service in a more modern and efficient environment. Also, having the flexibility to assign tasks to meet demands would improve working conditions for election workers.
The Chair: We do have your written statement. If you could wrap up, please.
Mr. Mayrand: I will just point out briefly the theme of fairness, of integrity, where I propose a number of changes regarding the compliance mechanism, as well as other changes regarding certain offences and provisions of the act.
I will simply conclude, Mr. Chair, that by most measures, the election was a success. Returning officers and their staff delivered a successful election, but they are clear areas, as described, where the current electoral framework is under severe pressure. Legislative changes are required to make sure that electors' evolving expectations continue to be met in the future.
The Chair: Thank you, sir. We'll move to questions now, beginning with our deputy chair, Senator Baker.
Senator Baker: Thank you to the witness. In trying to save time here, we have Senator Frum who has shown a great deal of interest to in this subject and asked us to call this matter. We have Senator Lang here as well. I'm going to give up my time to whatever list you have accumulated to try to make sure Senator Frum and Senator Lang get on the list.
The Chair: Thank you for that, Senator Baker.
Senator Joyal: Thank you, Mr. Mayrand, for your presentation. Can you explain to us how the voucher system operated in the last election? Did you notice any major irregularities or if it needs to be revisited? As you know, in the amendments to the Canada Elections Act, it was a subject of great concern around this table. Can you inform us where we stand with that?
Mr. Mayrand: The preliminary reports indicate that about 1 per cent of the total electors, or a bit over 150,000, rely on the attestation regime that was introduced in 2014. It seems to have worked well for those. There's no indication.
That being said, I'm making a number of recommendations in my third report, seeking to bring a little more flexibility there — for example, allowing a father or mother of children to attest for the identity and address of their children. It is attesting for more than one elector living under the same roof.
There are those types of amendments being proposed for the consideration of Parliament.
Senator Joyal: In terms of irregularities like somebody trying to bring somebody who should not vote and trying to identify the person, were you in a position to conclude on the number of irregularities or report to your service that there was something there to investigate?
Mr. Mayrand: There were no cases reported with regard to the attestation proceedings.
As you know, Pricewaterhouse did an independent audit of the procedures at the polls, and they came to the conclusion that, generally, poll workers did comply with their duties and functions. They performed well. There are still issues regarding recordkeeping that need to be improved, but there was no major issue or integrity issue regarding how the voting proceeded.
Senator Joyal: Can you report to us on the changes that were included in the last legislation — the group of amendments passed by Parliament — in relation to the identification of the voters, such as the number of papers and documentation needed, new regulation and obligations? How did they perform?
Mr. Mayrand: Again, the reports indicate that for the vast majority of electors, it worked well. They were able to meet the requirements, and they were processed smoothly at the polls.
In a few cases, again, there is anecdotal evidence as well as results from a Statistics Canada labour survey that suggest around 170,000 people did not vote because they could not meet the ID requirement, particularly the address. Out of those 170,000, 40,000 showed up at the polls and were turned away.
Senator Joyal: In comparison with previous elections, is that a number that is in the same bracket or is it outstanding in terms of numbers?
Mr. Mayrand: It looks like the same bracket, yes.
Senator Joyal: It's roughly comparable to previous elections?
Mr. Mayrand: Yes. For some electors — a small number — proof of address remains an issue.
Senator Lang: Colleagues, I'd like to turn our attention to the question of registered third parties and their involvement in elections. First of all, before I go directly there, I just want the confirmation for the record here: Can you confirm that registered political parties are not allowed to accept money from foreign donors over the course of an election?
Mr. Mayrand: You have to be a citizen to provide a contribution.
Senator Lang: A Canadian citizen?
Mr. Mayrand: Yes.
Senator Lang: That leads me to my second question. We have now seen where third parties can do much more than political parties, such as raising money from foreign interests in the United States and elsewhere to influence public policy and elections in Canada. This past election, in fact, registered third parties, like the Dogwood Initiative and Leadnow, have publicly admitted that they received foreign monies, run campaigns and even published push polls under the interpretation of the act, the way I understand it. All they can't do, the way it has been described to me, is advertise over a set amount during the writ.
Can you tell me, Mr. Mayrand, was it the intention of the act as interpreted by the Supreme Court to allow third parties to actively campaign prior to and during elections?
Mr. Mayrand: During an election, within certain limits — I think within spending caps. The third parties, provided they register, if they spend more than $500, they are allowed to do political advertising during the campaign. That's specifically provided for in the legislation.
Senator Lang: Just following up on that, if I could, what you just told us is that a registered third party, during the course of a political campaign, except for a restricted area, can accept foreign money to help run and be involved in a campaign. Is that correct?
Mr. Mayrand: They can, yes.
Senator Lang: It has also come to my attention that there are a number of these third party registered organizations that have been, it would appear, willfully circumventing the Canada Elections Act or acting as a party to circumvent the act.
Can you tell us how many complaints you've received from Canadians up to now? Have you received complaints from Canadians across the country or from major political parties related to third party groups or third party advertising? If so, how many are you actually investigating?
Mr. Mayrand: Most of those complaints would have been directed to the Commissioner of Canada Elections, who is tasked with ensuring compliance with those provisions. I would not be aware of the type of complaints the commissioner has received on this matter.
Senator Lang: So this type of activity wouldn't be discussed with you in any manner? It seems kind of strange it wouldn't be.
Mr. Mayrand: No. With the separation of the offices, we can no longer have those types of discussions, so I'm not aware of what type of feedback, comments or complaints the commissioner would have received on this matter.
Senator Lang: Mr. Chairman, I'd like to speak very briefly and then I'll go to second round. What I don't quite understand is why you wouldn't be aware of this type of thing occurring. When I read your report, you talk about investigations, various aspects of the Canada Elections Act and contraventions of the act.
Mr. Mayrand: These were the files that were referred to my office during the election. They were matters that were brought to my attention mostly by Canadians during the election that made allegations that could potentially be an offence. In that case, I can refer the matter to the commissioner, but I have no sense how he will handle those files. He will handle them according to his own protocols. I'm not aware of complaints directly addressed to the commissioner.
Senator Lang: When are you made aware of complaints addressed to the commissioner?
Mr. Mayrand: Only if Canadians bring something to my attention and if it actually raises the matter of a potential offence regarding the act, then I will refer it to the commissioner. It's not a two-way communications process.
Senator Lang: So, for the record, you have no knowledge of the questions I just asked?
Mr. Mayrand: Not with respect to the commissioner.
Senator Lang: I'll go on second round.
Senator Jaffer: Thank you for the work you do on our behalf.
I have two questions. First, there were a lot of issues around the niqab and head coverings. You must have set up a process, as happens in other countries, where people are identified before they vote. Can you tell us what process you set up?
Let me clarify. If I understand, somebody comes and says, "This is my ID,'' but you can't see, you obviously don't accept that. There must be a side room or something. How do you handle it?
Mr. Mayrand: The process right now is that the individual must take an oath as to their identity and their qualification to vote. They still must provide documentary evidence of their identity and address, but again, there's no requirement to show a photograph.
Senator Jaffer: My second question follows what Senator Joyal was saying. I heard you say that 40,000 people who came to vote were turned away. That's spread across the country. I get that.
In my younger days, as a student or a younger person, we used to take homeless people to vote. How do you deal with that now? Can they not vote? What happens?
Mr. Mayrand: They need to establish their identity and their address. For the purposes of their address, it would be the last place they had lodging, or a meal if they don't have lodgings anywhere. That would be established by an attestation letter of the administrator of the refuge.
In addition to that, they will have to provide another piece of documentation establishing their identity. We accept prescription bottles if they have medication, or other types of documents they may have. Again, there is a list of 44 pieces of documentation that are acceptable.
Senator Jaffer: We were studying the bill about the identity, and there was these 44 identification pieces. I can only talk about Vancouver, but often people have no ID and then could not vote. They could bring a note from the person where they had their last meal, indicating that they were there, but they still need another piece of identification.
Mr. Mayrand: They still need another document, yes, because the attestation establishes, yes, their name and address, but the legislation requires another document to confirm their identity.
Senator Jaffer: I will ask a general question. Of those you did talk about parents living in homes and generally, did you identify any particular group in the 40,000? Who are the 40,000? How does one get a handle on that?
Mr. Mayrand: I must say I don't know. We know from experience and by anecdotes that these people are often younger. I think some data suggests that out of the 40,000, maybe up to 20 per cent were young people.
We know that on First Peoples reserves, it is an issue. I also mentioned in the past that for some seniors it's becoming problematic to produce the documents needed.
Senator Frum: Mr. Mayrand, thank you for being here today. This morning in the Hill Times you are quoted as saying that Canadians would be shocked by Canadian's out-of-date referendum spending law. You state that the yea and nay camps of the referendum would have no limit to contributions, meaning that corporations would be able to fund one side or another depending on their interests.
That makes me wonder if you don't believe that Canadians would be shocked to know that registered third parties are allowed unlimited spending during election periods for activities that are not defined by Elections Canada as advertising.
Mr. Mayrand: Advertising is defined by the legislation, not by Elections Canada. It's prescribed by the legislation, and my responsibility is to administer the legislation as it is, and I think these things are known publicly.
Senator Frum: In the case of referendums, you think it is shocking that there is unlimited spending.
Mr. Mayrand: Yes, because people are not attuned to a referendum, which happened some time ago, way before the political financing regime was established as we know it today.
Senator Frum: My question is, why is it a concern of yours that referendum spending should be unlimited? It's a concern of mine too, by the way. Do you have a concern that in the case of third parties during writ periods, they have the exact same latitude, minus advertising, that a corporation would have during a referendum?
Mr. Mayrand: The Elections Act is reviewed periodically; it was reviewed in 2014. Parliament did not find it appropriate to amend these rules regarding third parties.
My point about the Referendum Act is that Parliament has not looked at it since 1992, and maybe, when we take a bit of dust off it, we would find it significantly out of sync with the evolution of the Elections Act. That was my message there.
Senator Frum: I'm just asking about why third parties during an election are different than that.
However, you are right. In section 319 of the Canada Elections Act, there is a definition of advertising. It says:
. . . the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.
That's the definition of advertising. Funds that are spent on advertising during elections by third parties fall under that category, and those funds must be reported to Elections Canada.
In trying to understand how Elections Canada defines advertising, I have here a report from Leadnow, a registered third party, entitled Defeating Harper: Reflections on the Vote Together campaign. In this report they say they raised over $100,000 to conduct polls, polls they say were the most comprehensive local polling ever done. How did they raise that $100,000 for polls? They advertised for money. Here is a copy of an ad that they ran explaining that it cost them $2,200 per poll and inviting people to contribute to this. That's an ad that asked for donations. Once they got the donations, they produced, they say, 75,000 of these flyers. These flyers — here is an example of one — specifically invite the flyer recipients to vote for the Liberal candidate and to vote against the Harper Conservatives.
Given that this is a flier, it transmits a message to the public during an election period; it promotes a registered candidate, Mr. Maloney; and it opposes a registered party. Is the cost of the production of this flier, including the poll behind it, an advertising cost?
Mr. Mayrand: The production and distribution of the flier, the costs associated with that, if it's done during the election, would be electoral advertising. Again, I haven't seen the document here. This is the first time I have heard of this. But again, if it actually opposes or supports a candidate or a party, as you read, it looks like it would be electoral advertising —
Senator Frum: Right.
Mr. Mayrand: — which is allowed within certain limits.
Senator Frum: Just so I'm clear — this is the other side of the flier — this flier promotes, explains —
Mr. Mayrand: I can't see it from here, senator.
Senator Frum: That's fine. I'm just showing an example. There was a poll taken. The point of this campaign was to strategically target voting. The choice of the candidate to vote for was done through a poll, and then this flier was produced to promote the results of that poll and inform Canadians how they should vote if they wanted to defeat the Harper Conservatives. The cost of that poll to produce this flier, do you think that the cost of that poll is part of the cost of the advertising of this flier?
Mr. Mayrand: I would need to have more facts. In fact, I would suggest that if you believe it's the case, the best course of action would be to bring it to the attention of the commissioner. I'm not aware of all the facts. I can't provide a ruling in an appearance on a specific case for which I haven't had the chance to review all the facts and circumstances.
Again, the general rule is that advertising, as defined by the act, the cost of this advertising, the production cost and the distribution costs, are counted against the spending limit that third parties can incur during an election.
[Translation]
Senator Dagenais: Mr. Mayrand, in chapter two of your report, which contains recommendations resulting from the forty-second election, you indicated that the act seeks to level the playing field among competitors for public office. You recommended that the third party regime be changed and be made consistent with the candidate and party regimes. Can you elaborate on this recommendation?
Mr. Mayrand: The act contains a deficiency that ensures the expenses incurred are applicable in the leadership campaign and in the case of third parties. The expenses incurred before the election, even if the products are used during the election, are not considered in the calculation. Only the expenses incurred during the election are considered in the calculation, which is different for the parties and candidates. I think this amendment should be made to the act to ensure that the third parties are treated the same way and that the parties and candidates are not placed at a disadvantage.
Senator Dagenais: At this time, a political party must disclose all its expenses, including the purchase of pens and pencils, any work involving websites, and travel costs. In the recent elections, third parties clearly behaved more like political parties in some ways, in particular when they went from door to door and made telephone calls. To ensure fairness, do you think the third parties should also be required to disclose their expenses?
Mr. Mayrand: They could be required to do so. The parliamentarians should make the decision, because the issue is a matter of public policy. When the third party regime was implemented, I suppose the parliamentarians decided it wasn't necessary. Perhaps this public policy should be reviewed in 2019.
Senator Dagenais: You're saying they could do so?
Mr. Mayrand: Parliament could certainly focus on these issues.
Senator Dagenais: Are there restrictions that prevent a third party from receiving money by means of a government subsidy and using it, for example, during the election period?
Mr. Mayrand: Not in the Canada Elections Act. They're free to use their funds up to the limits set out in the act.
Senator Dagenais: Is there an oversight mechanism?
Mr. Mayrand: A mechanism is in place for the candidates and parties. The financial reports are posted on the Elections Canada website. They're reviewed and processed like all the other financial reports of political entities.
Senator Dagenais: So nothing prevents a third party from using government subsidies to oppose or support a candidate. Is that correct?
Mr. Mayrand: There are no restrictions in that regard. Third parties are not subject to the contribution regime that applies to the candidates and political parties.
[English]
Senator Batters: Thank you for being here, Mr. Mayrand. When you appeared before this committee on April 8, 2014, you referred to certain aspects of the Fair Elections Act as "deeply concerning.'' The first of those that you discussed was doing away with voter information card as a source of identification. Given the numbers that you raised in response to Senator Joyal's question today, I wanted to remind you of an area of questioning I raised with you in April 2014. I said:
Another aspect that you dealt with at the House of Commons PROC committee was your preference for the use of voter information cards. But you also indicated to that committee that there was up to a 10 per cent error rate on those cards. I personally have experienced that. Several years after my husband and I moved into our current home, we received five different voter identification cards in the mail. I believe there was one for him, one for me, one for me with my maiden name, and one for each of the previous owners of the house who hadn't lived there for several years. That is one example.
I am just asking for your confirmation. You testified before PROC that there are 23 million voters in Canada. Up to a 10 per cent error rate would be 2.3 million errors on voter information cards.
Mr. Mayrand: I think I testified also that after revisions and targeted revision, that rate of accuracy goes to 93 per cent; you are right, it is still 7 per cent.
Senator Batters: Out of millions of people, yes.
Mr. Mayrand, my experience in assisting a candidate in polling locations all across Regina on election day 2015 was that the people well-informed about the new identification requirements, and I commend your office for that.
Regarding the new identification requirements, people knew what was required, they came to the polls ready to vote, with their ID, and I didn't see any problems in that regard all across Regina, all day long. Why persist, then, Mr. Mayrand, with the recommendation — you didn't bring it up today but it's in the report — to try to have inaccurate voter registration cards used for voter identification?
Mr. Mayrand: There are two elements I would like to point out. First, my recommendation is that the voter information card would be used with another piece of identification. I never recommended that it be used alone.
The other point is that, again, I believe it would be a useful way for those electors who are disenfranchised to be able to establish their address.
Senator Batters: In the 2015 election, paragraph 2 of page 1 of your report — and you also referred to it in your opening comments today. You referred to the 2015 election having the:
. . . highest voter turnout in more than 20 years. Early indications point to increased voting among groups who typically vote less than the general population, such as Aboriginal people and young Canadians. Across all communications channels, Canadians increased their engagement with Elections Canada significantly over the last election.
The 2015 election did have a 68.3 per cent turnout, significantly higher than the 61.1 per cent turnout in 2011. Would it not be fair to say that your primary concern in wanting to retain voter information cards as a source of ID was the potential impact to decrease voter turnout? Given the major increase of voter turnout in 2015, would we not say in response to Chicken Little that the sky didn't fall? In fact, we had a positive result in 2015.
Mr. Mayrand: I'm sorry. I may have been misspeaking or misunderstood. My concern is not about that at all. My concern is that some people in this country who have the right to vote cannot meet the standard established by Parliament. I'm bringing it to the attention of parliamentarians.
I mentioned earlier — and if you look through the report, you will find it — 172,000 people who could not vote because of the ID requirement. I'm saying a solution — maybe not the only one, unless the government comes out and provides an ID piece for every Canadian citizen. I am waiting for that. I'm suggesting the voter information card could be helpful to those electors who could not vote because of a lack of documentation to establish their address. That's all I'm saying.
Senator Batters: Right, but I was just pointing to the remarks you made in the forward of your report about voting among those often disenfranchised groups, like Aboriginal people and young Canadians, and you thought student and senior voting was up, and you were happy to see that. Didn't it turn out that people prepared themselves? They took their act of voting seriously and prepared themselves well? Why wouldn't we instead look forward to trying to and inform them better next time?
Mr. Mayrand: Some people don't have the documentation necessary. That's my point.
Senator Plett: Senator Batters actually asked my question, but I still want to follow up on it a bit. Senator Batters has talked about it and you have said it: The forty-second general election had the highest voter turnout in a decade. You are saying that you have simply raised some concerns that not everybody can vote. You talked about First Nations because their status card does not include address information and students moving frequently without documents to prove their address. My question is not whether the system is perfect. My question, sir, is do you feel that First Nations and students were disenfranchised after the changes resulting from the Fair Elections Act were put in place?
Mr. Mayrand: I would not generalize. All I have been saying all along is that for some Canadians who are entitled to vote — they have the franchise — it is impossible for them to meet the two requirements in the absence of the state providing identification documents. And it's true that if you look through our list of pieces of ID, we have very few government pieces. Most of them are issued by all sorts of institutions.
Senator Plett: When is the last time we had a 68 per cent voter turnout?
Mr. Mayrand: Twenty years ago.
Senator Plett: Twenty years ago. We tightened the regulations in the last election, correct?
Mr. Mayrand: In some respects, yes.
Senator Plett: And yet the voter turnout went up?
Mr. Mayrand: Yes. But, again, I'm bringing it to your attention.
Senator Plett: You're saying it's not perfect. We all realize nothing is perfect in this world. We need to continue to make sure that all legitimate people that live in the legitimate area have the legitimate right to vote, but we have to make sure that they do live where they say they live and there has to be some way of determining that.
From what I hear, you just simply want us to say if somebody walks in the polling station and says, "I am Mr. Jones, I live here and I want to vote,'' that we should let them vote.
Mr. Mayrand: Not at all.
Senator Plett: That's what I'm getting from what you're saying.
Mr. Mayrand: I think people still have to produce two pieces of ID.
Senator Plett: You stated voter turnout among seniors would be affected. Do you now agree that those concerns were maybe a little misplaced?
Mr. Mayrand: No. As I indicated earlier, there were 172,000 people who were eligible to vote but could not vote because they did not meet the ID requirements. I'm bringing to your attention that something should be done about that.
Senator Plett: There were 172,000 who showed up at the polls and were turned away?
Mr. Mayrand: Forty thousand of them showed up at the polls.
Senator Plett: Where are you getting the 172,000 from?
Mr. Mayrand: That's a labour workforce study from Statistics Canada in October.
Senator Plett: How did they establish that?
Mr. Mayrand: They looked at 50,000 households that they surveyed right after the election, at the end of in October, to ask them a few questions about the election.
Senator Plett: Then they just averaged that out?
Mr. Mayrand: I think it was done scientifically, but you may want to ask them how it was done.
Senator White: Thank you very much for being here. One of the recommendations that came forward speaks to the authorized Commissioner of Canada Elections to lay charges and not be required to have the approval of the Director of Public Prosecutions. In fact, the Commissioner of Canada Elections actually works within the office of the Director of Public Prosecutions. Is that correct?
Mr. Mayrand: Correct.
Senator White: Not being one to change or fix things that don't appear to be broken, I'm trying to figure out what the problem is. Is the Director of Public Prosecutions interfering in the laying of charges? Were charges recommended that were stopped?
Mr. Mayrand: I don't have reason to believe that. This is a recommendation that was brought to my attention by the commissioner. Again, it would align the practice to what exists across the country at the provincial level, where it is the equivalent of the Commissioner of Canada Elections that lays charges.
Senator White: So there isn't a problem; it's just the commissioner would like to not have oversight on the laying of charges, even though in some provinces, every single charge under the Criminal Code requires the Attorney General's office to approve every single charge. A prosecutor actually has to approve it.
Mr. Mayrand: The charges are laid but they have to be approved afterward.
Senator White: In some provinces, they can't be laid until the prosecution approves it. New Brunswick and British Columbia do it differently.
Mr. Mayrand: Again, I would suggest you can ask the commissioner in that regard.
Senator White: You haven't identified any problems?
Mr. Mayrand: Not that I'm aware of. I think it's strictly a streamline procedure.
The Chair: I was curious about prisoners voting. How does that process work? You obviously have polling stations in the institutions?
Mr. Mayrand: They vote by special ballots. For a period of time during the election, we set up a kiosk where prisoners can vote by special ballots, which are ballots on which they vote for the candidates in the riding where they lived before they were incarcerated. There are various choices in the act. Normally they would be voting for the candidates who are contending in the riding they resided before their incarceration.
The Chair: Those results are built into a poll outside of the prison setting, so there's no way to determine the votes coming out of a particular institution?
Mr. Mayrand: No. You are correct. Those votes are sent to Ottawa at the count centre where all special ballots for groups are accounted for on election night.
The Chair: So they're not built into the results for the particular constituency that the institution is housed in?
Mr. Mayrand: The constituency would have a general number of special ballots that were counted in that particular riding.
The Chair: So the results would impact that particular riding?
Mr. Mayrand: No.
Senator Meredith: Thank you, Mr. Mayrand, for being here. I appreciate the work you do with respect to running Elections Canada and ensuring that, again, we had a successful forty-second election.
One of the things you talked about was with respect to recommendations on accessibility and inclusiveness. My question is about the challenge of new Canadians, some of them voting for the first time and having the opportunity to cast their ballots in this country. I know part of your recommendation is looking at CIC and how it should exchange information with respect to those individuals coming forward to take the citizenship oath.
Mr. Mayrand: We do some work with Citizenship and Immigration, especially at the ceremonies where citizenship is granted. There is basic information about the electoral process.
We also publish information in 30 or so heritage languages. We also have community relations officers in various parts of the country who are recruited to reach out to various communities. As much as possible, we try to recruit people from the community, so they speak the language of the community, which has proven useful from time to time.
We have a variety of measures that are designed to reach out to new citizens and make sure that they understand the voting process in Canada.
Senator Meredith: We saw an increase in voter turnout among the youth and indigenous populations in the last election. Do you keep track of these in terms of statistics, as well in terms of attracting and encouraging those visible minority groups to ensure they're participating in the elections?
Mr. Mayrand: The act, as currently written, does not allow us to collect demographic data. Because of the need to establish the age of citizens, it does allow us to collect the age of voters. That's why we can provide some analysis by age group. Similarly, the data we have on First Nations is basically only geographical data. It's only for Aboriginals living on reserve. The data that you see in those reports does not cover Aboriginals living in urban areas.
Senator Meredith: You talked about a recommendation with respect to those individuals living with disabilities and their participation at polling stations that don't accommodate them. If those recommendations were accepted, how would you see that being rolled out? What kind of investment would we be talking about with respect to how that would come about?
Mr. Mayrand: There are several recommendations in our report with regard to Canadians with disabilities voting, but also with regard to their participation as candidates in campaigns. There are also recommendations regarding making sure that campaign information from parties is accessible to disabled electors. There is a range of recommendations.
What I put forward in terms of voting expands the notion of home-bound electors as defined in the current legislation. I also propose that we allow for curbside voting for those who would have difficulties. It would resolve a number of issues in terms of navigating a polling site.
There are close to 10 recommendations that deal with being more inclusive regarding electors with disabilities.
Senator Meredith: Thank you.
Senator Lang: I'd like to move back and follow up on my first two questions and this issue of Canadians complaining about registered third parties and what occurred in the last election.
I just want to get it clear for the record here. How many complaints have you received about the last election that you have referred to the commissioner?
Mr. Mayrand: The report points out that there were 500 cases that were referred to the commissioner.
Senator Lang: I want it clear for the record that there were no Canadians who came to you to complain about how registered third parties conducted themselves over the course of the last election. Is that correct?
Mr. Mayrand: There's a breakdown of the complaints in the report. If there were, it was a minimal number. It would have been in the other categories. But I can come back to the committee and confirm.
Senator Lang: I'd appreciate that.
I want to confirm, from my understanding of the act, that you have an advisory board that provides guidance on aspects of the act. The way I understand it, it is comprised of appointees. Those appointees are appointed by you and they are not recommendations by registered political parties. Is that correct?
Mr. Mayrand: Correct. I've got two committees. One consists of political parties, and it's mandated by the act, and we meet at a minimum twice a year, but also more often, depending on what is happening. We engage regularly on various aspects. They were consulted on many of the recommendations that are part of the report. They are also very much consulted on administrative initiatives that may affect operations or voting. We need to regularly meet with them.
Senator Lang: I want to go back to the question of financing for third parties. For background, I know that, for example, in countries like the United States and other democratic countries, it's very clear by law that no one outside the country can directly or indirectly influence the conduct of an election, financially or otherwise.
In your report, you're recommending the repeal of section 331 of the Elections Act, which clearly prohibits non- Canadians from seeking to influence elections in Canada. What is the reason for this recommendation? Perhaps you can tell us why you feel it's a good idea to allow foreigners to be able to, for example, bring money into this country, unbeknownst to the general public and Canadians, and influence our public policy and electoral results at a time when Canadians are limited in the donations they can make to a political party. Any Canadian listening to this is limited to $1,500. Yet, as we understand it today, if I'm a third party, other than for advertising during the course of an election, I can have as much off-shore money, foreign contributions, as I want and not have to account for it. Explain to us how that's fair. Would you not think that would be detrimental to the public policy and electoral process in this country?
Mr. Mayrand: There are a number of things. With respect to the limitation on the spending, these were set by Parliament. Again, it could be reviewed.
Senator Lang: But you have the right to recommend changes.
Mr. Mayrand: No. Parliament itself is not limited by the recommendation I put forward. There have been many other things that could have been added to ensure that the House Affairs Committee, in reviewing my recommendation, will seek to expand or omit or add. That's not something that is restricted.
The provision you mentioned about section 331 has to do with freedom of speech. If you look at 331, it doesn't deal with third parties or foreigners being able to make contributions. A contribution is illegal. To give an example, there is nothing currently illegal in the Elections Act about a foreigner that is paid to work for a campaign by the campaign. I just want to be clear. A foreigner doing canvassing, is that influencing the vote? Again, do we want to treat that as volunteer work, according to rules under the Elections Act, or do we want to treat that as a contribution?
But for someone around the world making a comment on an election, which is the purpose of section 331, it's not clear in this day and age that we can even prevent that and whether we should. I leave that to Parliament to decide.
Senator Jaffer: I know some of the recommendations you've made, and I appreciate that what you are looking at is accessibility. Those are very commendable suggestions — for example, curbside voting for people with disabilities. We've all observed the American election lately. In some states, like Wisconsin, they only vote by writing in or sending in their ballot. They don't have to come to a polling station, if I'm not mistaken.
Mr. Mayrand: You can already do that. I have an advisory body of groups representing disabled electors, and they want to be included and to participate in the process to the same degree and level as any other Canadian. They have that option, yes. Anyone can vote by mail.
Senator Jaffer: It was interesting. The other thing you talk about is access level. It differs, and that's your concern.
My last question to you is on the reducing of the prescriptiveness of oaths to lessen complexity. Can you explain that, please?
Mr. Mayrand: There are currently seven oaths that deal with slightly different situations, but basically they are meant to affirm your identity, citizenship and your qualification as an elector. Some of those oaths are two pages long and must be read at the poll. It can become, one, a little intimidating; two, it takes time; and it's not clear that reading a two-page oath to an elector at the polls is necessarily always effective. I'm not saying we should get rid of it, but we need to look at how we can streamline it.
Pricewaterhouse did the independent audit and recommended that we look at streamlining extraordinary procedures because they are a significant source of errors at the polls. We need to make it simpler and more effective for election officers while preserving integrity.
Senator Frum: Just to follow up on Senator Lang's question, for clarification, Mr. Mayrand, on the issue of foreign financing, are there any restrictions to prevent an organization in the United States, or anywhere, perhaps an organization that's against pipelines, from providing funding to third parties in Canada for use during an election?
Mr. Mayrand: Once the funds are mingled with the organization in Canada, it's the Canadian organization's funds. That's how they act as structured right now, and they can use their funds.
Senator Frum: So the funds can come from China, Iran or Saudi Arabia? They could come from anywhere, they get mingled with Canadian funds, and there are no restrictions on the intake of money?
Mr. Mayrand: Between or during elections, unless there are other regulations or legislation restricting funding of those organizations, the Elections Act doesn't apply the contribution regime.
Senator Frum: For a very specific example, the American environmental organization the Tides Foundation does provide money to the Dogwood Initiative, which was a registered third party in the last election. There is nothing that would prevent that American organization through the funding they give to Dogwood to carry out election surveys, to set out election websites or to do phone banking, or they could, as a registered third party, pay individuals to do canvassing.
Mr. Mayrand: The organization has to be Canadian, but, yes, they can use those funds.
Senator Frum: So it is possible for a third party to pay for phone banking, polling, to pay staff to drop off flyers — that's allowed? That's an unregulated activity?
Mr. Mayrand: Again, we need to look at it closely. If it has to do with advertising, that becomes advertising spending.
Senator Frum: Let's say I am dropping off a flier that you would agree is advertising, but I'm paid to distribute it door to door. Am I part of the cost of the ad?
Mr. Mayrand: That's part of the costs, so it would be counted against the spending cap.
Senator Frum: All right.
I want to ask about the 2000 Supreme Court decision Harper v. Canada by Justice Iacobucci. The Supreme Court said it was clear that it was not the intention of the Canada Elections Act to allow registered third parties to spend unlimited amounts of money. I'm just wondering, as the Chief Electoral Officer, how does the Harper decision impact the way you interpret the Canada Elections Act?
Mr. Mayrand: That decision validated the provision of the Canada Elections Act that limits third party spending during an election. They have generally low thresholds in terms of spending. Normally, in a regular campaign, it's about $3,000 per riding.
Senator Frum: Just in advertising?
Mr. Mayrand: Yes, yes.
Senator Frum: And everything else is unlimited, as we just discussed?
Mr. Mayrand: Yes, that's the act of Parliament.
Senator Frum: You also, as Senator Lang said —
Mr. Mayrand: I cannot try the legislation, I'm sorry.
Senator Frum: No, but you can make recommendations. You can have an opinion on it. You have an opinion about it when it comes to referendum spending. How come you don't have opinion on third party spending?
Mr. Mayrand: There is no evidence. Again, if you look at the report, there is nothing in the third party regime that suggests that it is not working. There is not a single third party that came even close to the spending limit that's set out by the legislation.
Senator Frum: And that's self-reported, correct?
Mr. Mayrand: Yes, like parties, candidates and every political entity.
Senator Frum: We have the issue of trying to find advertising. We see that there is some grey area around what is advertising. You have acknowledged that.
Mr. Mayrand: Yes, especially in this day and age with social media. It could become more confusing.
Senator Frum: Let's say I'm the returns officer from a third party. I submit to Elections Canada what I think constitutes advertising, and I submit what I think my legitimate expenses are. What happens then? You just told me they are all under-reporting from the allowable amount. Is that the end of story? They report, and you make sure it's under the allowable amount?
Mr. Mayrand: Yes. It's the same as for candidates. We'll look and see if it's in compliance with the Canada Elections Act. We will have assurance about that, and if we are satisfied, that will be the end of it. There is nothing to stop a third party or someone with a specific case to bring the matter before the commissioner if you believe the act was not —
The Chair: Thank you. We'll move on.
Senator Joyal: Mr. Mayrand, did you review the impact, as you just alluded to, and it's part of the what we are discussing generally with third party involvement, of social media and how social media can distort the very fixed ideas we have? Before, each one was in his or her riding, there was the local newspaper and you buy publicity. Today, with the net, there are no more borders on anything. I could be in New York, Vermont or Maine and have a site and flood the net with all kinds of publicity or all kinds of accusations against one candidate or the other. How would you be able or what kind of tools would you need to make sure that the election doesn't become a jungle?
Mr. Mayrand: Many people around the world are wondering whether the Internet should be and whether it can be regulated at all.
Our act is not very well adapted for the trends in new media. We make changes. During the election, we provided guidance to parties and candidates indicating that tweeting or putting things on Facebook did not constitute advertising per se. It would become advertising only if you paid for it. Putting a notice on a page on the Internet and paying for that placement — paying Google — would constitute advertising, but tweeting from your account or your supporters tweeting and supporting your views does not constitute advertising.
Again, it is an issue, because with telecommunication now, the cost of participating and trying to influence electors is going down dramatically. Anybody can open a Twitter or Facebook account or other social media account, and there is basically no cost. Our whole regime is based on the notion of spending limits.
On the other hand, and this is what I think parliamentarians need to balance here, if we start trying to regulate this course, we will possibly infringe upon freedom of speech. We need to find the right balance there.
With the Harper decision, the Supreme Court found that it was reasonable to impose certain limits on the freedom of speech of third parties to ensure that no one would be overwhelming the discussions during a campaign. There may be some guidance there as to how we can approach this very difficult area.
Senator Joyal: You have not made any specific recommendation?
Mr. Mayrand: No, because, honestly, I think that would require a very in-depth study that goes beyond the capacity or even the mandate of Elections Canada in that regard. We made some amendments that basically tried to tweak the provisions of the act that made them at least workable. But, again, it doesn't change the fundamental dynamics of what is happening in the media world.
Senator Joyal: What do you consider as the major flaw of the 1992 Referendum Act if the other place were to come forward with a proposal of holding a referendum, for instance, on the reform of the Canada Elections Act?
Mr. Mayrand: There are two things that I have pointed out. We must look at the spending rules for the various camps, and the organization of those camps also needs to be looked at. The other thing is very basic: The returning officer cannot recruit anyone to work on the referendum unless either of the camps recommend people. That could be a severe constraint.
The other thing that the 1992 — for those of with I think we were all there — but having referenda run under different rules can complicate things. In 1992, there were two referendums, one in Canada and one in Quebec, governed by different legislation and different eligibility criteria. I would be careful having two regimes apply for the same event.
Senator Batters: I want to go back to the latter part of Senator Frum's last question that deals with the self-reporting aspect of third parties. Wouldn't you acknowledge, Mr. Mayrand, that the difference between a third party self- reporting and political parties and candidates self-reporting is that, with parties and candidates, it's very obviously who you, as the Chief Electoral Officer, are to be looking at and ensuring compliance, given that you are the one printing the ballots with all of those parties' and candidates' names on those ballots. But with the unlimited nature of the Internet and social media, you may not even know what particular third parties you should be looking at or for.
Mr. Mayrand: Again, they have to be registered.
Senator Batters: If they've registered, then.
Mr. Mayrand: Our system is built on the vigilance of participants in the system. If you see the activities of third parties that do not support your views, I'm sure you will bring it to the attention of the commissioner if you believe that those people are not complying with the legislation.
Senator Batters: If you know about them, right.
Mr. Mayrand: That's how the system is built. I cannot watch millions and millions, so we have to rely on what we see in the media and what we sometimes see in social media. That's what we did in the last election. We rely on Canadians themselves and on participants in the political process to bring matters to our attention, if it's administrative. If it's with regard to a compliance matter, bring it to the attention of the commissioner.
Senator Batters: Just because we've had a lot of numbers thrown around here today, and it took me a little while in your report to find the exact number, can you remind Canadians how many millions of Canadians voted in the 2015 election?
Mr. Mayrand: It's over 17 million out of 26.5.
Senator Batters: That was up about 3 million from 2011?
Mr. Mayrand: Yes.
Senator Batters: There was another interview of yours published in the Hill Times earlier this week about political fundraising. In an article published Monday, you said:
The more constraints are starting to be seen as unreasonable, the more people will be inclined to go underground, and that's the concern I would have. That's what I mean by striking the right balance.
In light of the serious concerns that have recently been raised about cash-for-access fundraisers attended potentially by Prime Minister Trudeau and his ministers, that statement is pretty alarming. I just want to give you an opportunity to explain it. I'm wondering if you're saying that attempts are made to tighten up the funding raising rules we have now in light of the serious cash-for-access concerns that have been raised. Are you saying that the possibility for corruption with government ministers could worsen?
Mr. Mayrand: If you read the full statement, I said it's more a matter of ethics and ethical conduct, and possibly a matter that governs lobbying.
My point in that article is that I'm not sure it's a matter for the elections law. Electoral law doesn't govern the reason why contributions are made. That belongs to matters of ethics, matters of lobbying and matters of influence. The Canada Elections Act recognizes that Canadians can make contributions up to a certain limit. They can do it only once, and they can do it only to certain members of a political family. That's the regime we have.
My point also in the article is that we can certainly have more restrictions, but we have to understand what the repercussions of those restrictions will be. That's how the regulatory regime functions.
Senator Batters: Absolutely, but you're saying it would make more things go underground; that it could be even a worse situation if we try to actually improve it and strengthen the regime.
Mr. Mayrand: No, that's not what I'm saying.
Senator Batters: I'm giving you a chance to explain.
Mr. Mayrand: We need to be careful. If the immediate reaction is to say, "We will reduce contributions from $200,'' and I think in Quebec it's now $100, we have to understand or be conscious of the other repercussions that may have. That means you have to increase public subsidy. That means parties become more based in the state as opposed to their own organization, independent of the state.
It's a balance, and that's the point I was trying to make through that article.
[Translation]
Senator Dagenais: Mr. Mayrand, according to my understanding of the discussion, under the current regime, external contributions may in fact fund websites or surveys. Obviously, this could influence the result in favour of a party or candidate. I gather that you can't necessarily control these contributions, since they are abundant.
Mr. Mayrand: The contributions aren't regulated at the moment.
Senator Dagenais: Do you intend to ask for more powers to make the act stricter in this regard?
Mr. Mayrand: I didn't look at this aspect of the act, but that doesn't prevent the parliamentarians from doing so. I tried to base my recommendations on the evidence, documents and data in my possession. In terms of the third party issue, I don't have any indication that they went over their limit. I also don't know where their money comes from. I know they spent a great deal less than they were authorized to spend. Generally, this follows the rules of the act.
At this time, if the rules aren't clear, the parliamentarians are responsible for saying that the regime has deficiencies, which will raise other issues. Should third parties be subject to contribution regimes at all times? If so, for what period? How will the funds be distributed? In my view, these are public policy issues.
Senator Dagenais: If I understand your answer correctly, there is a desire to implement a stricter act and the parliamentarians will be responsible for deciding and not necessarily —
Mr. Mayrand: The parliamentarians can always do so.
Senator Boisvenu: I want to know your opinion on advance voting. Some aspects strike me as significant. For example, advance voting seems to have increased in all democracies. It has exploded and created major problems. It's a bit like a grab bag. We don't know how much there will be, but we can look at the historical trend, which is always rising.
Mr. Mayrand: Absolutely.
Senator Boisvenu: What measures should your office take to properly support advance voting? My other question concerns the modernization of the voting system, in particular the arrival of computer systems and instant communication tools.
Mr. Mayrand: Yes, information is becoming instantly available.
Senator Boisvenu: I think our voting system is archaic in light of the new technologies that are drastically changing our lives. How do you think advance voting can be managed to properly support Canadians and deputy returning officers? What do you think about the modernization of the voting system?
Mr. Mayrand: You're right about advance voting. It increased by 14 per cent in the last election. That's very significant, since the trend is strong around the world. In Canada, the trend is rising at a historic pace. Special ballot voting, which can take place at any time up until the last week of the election, also increased by 117 per cent. Canadians have made it clear that they want to take advantage of other ways to vote. The legislation must be modernized to meet their expectations.
The report includes a number of recommendations for how to modernize the voting system by arranging advance voting to avoid long lines. We're looking at a special ballot system that would enable voters to receive their ballot electronically. However, they must return their ballot by mail. In the United States, voters are now allowed to return their special ballot electronically. We need to keep looking at what is done elsewhere. We have modernization plans, but the act must be amended.
Senator Boisvenu: So we'll see you again.
Mr. Mayrand: I think so, or you'll see my successor. In terms of the future of technology in the voting process, I would ask Parliament to better define Elections Canada's directions.
Some groups of voters would benefit greatly from electronic voting system tests, in particular persons with disabilities; citizens abroad, whose ballots often arrive late; and military members around the world. Before heading down this path, we need to hold discussions. I need to know what directions Parliament would want us to follow.
Senator Boisvenu: It's clearly inevitable.
Mr. Mayrand: Yes, in the long term. That's a good reason to start the work immediately. The initiative will evolve. In principle, an electoral cycle lasts four years. We're at least one election away from conducting tests, and several elections must still be held before a general electronic voting system can be implemented. Technology is constantly changing, and security keeps being strengthened. Many issues are at stake. We need to start gradually taking an interest in the issue and conducting the necessary research and tests to maintain the confidence of Canadians. That goes without saying.
[English]
The Chair: I'd like to follow up on the special ballot question I asked about prisons. You said the special ballots are send back to Ottawa, to your office?
Mr. Mayrand: Yes.
The Chair: Are they counted at your office?
Mr. Mayrand: On our premises, yes.
The Chair: And then you pass them on to the electoral district.
Mr. Mayrand: Yes.
The Chair: So it's possible to know how the prison population voted.
Mr. Mayrand: No, because they are amalgamated with other groups of special voters, so you don't necessarily know.
The Chair: If I had a freedom of information request, are you telling me that you couldn't give me that information?
Mr. Mayrand: Parliament has thought about these things, and these documents are sealed and cannot be opened.
The Chair: Okay.
Senator Meredith: My question concerns your advocacy and being a strong advocate for vouching with respect to individuals participating. Given the controversies in the last election, is that still your position, and why do you hold such a strong position on that?
Mr. Mayrand: I made recommendations for consideration of Parliament about vouching. I'm not sure why we need two pieces of ID for someone who already has problems establishing their identity, which is the requirement now. I'll give you an example that was real.
In a case that went to court a few years back, there was voting taking place in a senior's home, and in that senior home there were 71 people who were full-time residents. These people, for whatever reason, did not have documents to establish their identity at the time of voting. The nurse at the home vouched for them. That vouch was illegal because the nurse does not reside in the nursing home, which is a requirement of the act. Therefore, the court, in the first instance, invalidated those ballots; yet there was no reason to doubt the legitimacy and the eligibility of those seniors to vote. So some of the recommendations I'm putting forward in the report seek to address the situation of that nature.
I don't think Parliament really intended to stop seniors from voting because they could not be vouched by someone who was residing in the same poll location. I think we should fully trust the officials of the nursing home, especially the nurses there who know the patients for sure. That nurse should be allowed to vouch for those seniors. That's the sense of the various recommendations in this area.
Senator Meredith: Thank you so much.
Senator Lang: I'd like to go back to the subject I raised at the beginning, just so things are clarified on the record regarding exactly where things stand.
Before I get into registered third-party financing, I'd like to go back to my questions about the committees that report to you. I don't think you explained how the second committee was comprised, how you appointed it and what it does.
Mr. Mayrand: Political parties committee is one, and the other committee of senior people I formed a few years back to advise on strategic matters and strategic direction for Elections Canada. The composition of the committee is published on the website, as are the minutes of the meetings.
In the last meeting, we discussed some of the same things we discussed here this afternoon: advanced polling and where to go into terms of how we should approach the introduction of more technology in the voting process in Canada. This is the sort of advice that they provide to guide us in where we will focus our activities.
Senator Lang: Those are your appointments, and they are recommended to you and are your responsibility.
Mr. Mayrand: Yes.
Senator Lang: I'll move on to the question of the registered third parties' activities and follow up on Senator Frum's question. Let's take the poll that she mentioned. If a registered political party does a poll during the election period, they have to register that as a campaign expense.
Mr. Mayrand: It's a campaign expenditure.
Senator Lang: If a third party does the same poll, gets the information, tracks voters and uses it for all the same purposes that a political party uses them for, they don't have to register that as an expense. Is that correct?
Mr. Mayrand: Correct, because only their advertising is regulated by the act.
Senator Lang: I think this is where we're going here. I wonder if you have any concerns about this, because when you say, in chapter two, "Improving the Political Finance Regulatory Regime,'' you said:
. . . the Act seeks to level the playing field among various competitors for public office. This is achieved primarily through spending limits on parties, candidates and nomination contestants, and by controlling some spending of third parties.
Maybe you can clarify this for me: How is it fair that a political party has to register the expense of that poll, and a third party that's using that poll for the same political purpose doesn't register it as an expense? Doesn't that cause you some concern for a level playing field?
Mr. Mayrand: Possibly. Again, I point to the legislation there.
Second, I would point out that if the poll is used by a party or candidate, it becomes a contribution from the third party, and an illegal one, by the same token. But the act chose not to regulate these matters. Again, if third parties are undertaking work that could be seen as a contribution to a candidate or a party, it would have to be treated as a contribution.
Senator Lang: In other words, it's not a level playing field. Quite frankly, the registered third parties were, in this last election — I'm sure you were watching it — better organized, in some cases, than the registered political parties and in some cases would appear to have had more money. Now, any thinking Canadian would say that's not a fair or level playing field.
Mr. Mayrand: I would suggest, sir, that the real concern here should be about fixed election dates and the campaign. If you look at what happened in the last election, the third parties did their spending before the writ. I think the real issue for parliamentarians is whether there is a need to regulate spending before the writ is issued.
Senator Lang: Let's go back to the writ. That's a red herring because the writ was 80 days. The point being that you just said to us that a third party can get unlimited money from outside the country — from American foundations, Saudi Arabia maybe, or Qatar — and as long as they stay within your definition of advertising, they don't have to account for that money. Would logic not follow? They receive all this money from whatever source, but they only register in a riding, for example, for some signs because they don't have to register the poll or the number of people that they've hired for the purpose of the election. They don't have to register any of most of the expenses that a normal political party has to register.
I would ask you: Is that a reasonable interpretation of the act? Are we not going down the slippery slope where outside interests are going to decide the outcome of our elections, and Canadians won't know about it because it doesn't have to be registered or accounted for?
Mr. Mayrand: I don't see any evidence of that, but you may certainly wish to amend the legislation. The legislation is pretty clear in that regard.
Senator Lang: It is pretty clear in this regard because a third party can receive as much money from anybody.
Mr. Mayrand: It is up to Parliament to change the legislation.
Senator Lang: In view of the seriousness of the situation and what we've witnessed in the United States of America over the course of the last year or year-and-a-half, where the amount of money spent could only be described as obscene, would it not be in our interests in Canada, in view of what has taken place with the third party interests in this country, the political involvement they have and the fact that we do know that they do receive foreign financial contributions from outside this country, to recommend to Parliament that they review the role of foreign financing of third party groups as they relate to influencing public policy in elections? Do you not think that maybe it's time, before we go too far down this slippery slope?
Mr. Mayrand: This committee may very well wish to study this matter in more depth. I would be happy to provide all the data and evidence we have on this matter.
Senator Frum: Well, as a codicil to that question, I have a similar one that picks up on the theme I have been asking about. You said earlier, in response to a question, that the third parties in Canada in the last election spent less than allowed, but we are acknowledging that the declared spending was only for advertising. You've acknowledged that advertising spending is a grey area. What constitutes advertising is a grey area.
Mr. Mayrand: It could be, at times. That's why we issue guidelines and interpretation on that matter.
Senator Frum: Maybe this is also something that Parliament needs to establish greater clarity on.
Mr. Mayrand: It is always welcome.
Senator Frum: I don't want to belabour it, but here is a real example: A third party hosts a public rally. They fly in speakers from across the country; they hire musicians; they rent a hall; they hire people to staff the event; they send out advertising to get people to come to the event, and the advertising includes the message, "Come help us defeat X or Y.''
Do you think that follows the definition of advertising? Reminding you, as you know very well, that the definition of advertising is:
. . . the transmission to the public by any means during an election period . . . an advertising message that promotes or opposes a registered party . . .
Mr. Mayrand: If it meets that, it is, yes. I cannot provide you a ruling on something that you just throw at me in an appearance.
Senator Frum: It's common sense that if you have a rally and you incur —
Mr. Mayrand: Are you asking me if the rally is an advertisement? I'm not sure it is.
Senator Frum: Are you sure it is not?
Mr. Mayrand: I doubt that a rally would be an advertisement. It is certainly a campaign activity. Is it advertising?
Senator Frum: Is it the transmission to the public by any means of a message that promotes or opposes a registered party?
Mr. Mayrand: Yes. What is the message? How is it transmitted?
Senator Frum: Defeat Harper. That's the message.
Mr. Mayrand: Who is doing it? When, where, and how much does it cost?
Senator Frum: Let's say it costs hundreds of thousands of dollars. There were such events that cost hundreds of thousands of dollars.
Mr. Mayrand: Again, if you find it is advertising, it is governed by the act, but I'm not sure I fully understand your example.
Senator Frum: I think it is advertising, but I'm not the Chief Electoral Officer, unfortunately.
Mr. Mayrand: You should bring that case to the attention of the commissioner, with all the facts and circumstances, so that a proper investigation can be done to determine if the act was breached.
Senator Frum: Would it be up to the commissioner to interpret the act?
Mr. Mayrand: He's the one tasked with ensuring compliance with the act.
Senator Frum: Would it be a judgment call on his part?
Mr. Mayrand: He will look at the statute and all the facts and circumstances to determine what constitutes advertising in the case at hand.
Senator Frum: One last one. I know it's late and we have been asking a lot of questions. I appreciate your patience; thank you.
We acknowledge that a political party, to run a website, has to declare all the expenses associated with that: staffing, management and content. Let's say the party wants to commission a poll and put it on the website: They have to register all those expenses.
Leadnow, in that report I mentioned in the beginning, said they had 1.1 million people visit their website. Their website recommended which candidate to vote against, and in specific ridings they said vote here for this one or that one. Advertising, or not advertising?
Mr. Mayrand: It's not advertising. That's the official position that was taken on that. However, it is a campaign expenditure.
Senator Lang: I want to follow up on that, because that's a very important statement you just made. Should those expenses be registered for the purposes of their legal filing with Elections Canada?
Mr. Mayrand: They are not advertising expenses; they are campaign expenditures. I'm not defending. I'm trying to explain the rules, and you will determine if they need to be changed. Parliament, in its wisdom, said that, with regard to third parties, it wants to regulate their speech. How they decided to do that was through limiting the amount that they can spend on advertising. For candidates and parties, Parliament said it needs to control the influence of money in politics, and it said not only will it control or limit spending with regard to advertising, but also all campaign expenditures.
Organizing a concert could be seen as a campaign expenditure. It's not advertising.
Now, we don't have to agree with that 100 per cent. We can change the rule. But I'm trying to explain that there is a clear distinction, normally, between advertising and other expenditures that are considered campaign expenditures.
Is that fair? Are third parties playing such a role in our elections that it should be revisited? Are we going to treat third parties as campaigners? I leave that up to you.
Senator Lang: I would like to ask you this question, then: Do you not think it is serious enough to look at it if a third party declares, at the end of the election, that they are the ones responsible for the successful election of at least 25 members of Parliament? Is that not our concern?
Mr. Mayrand: All sorts of people make all sorts of claims. Had they provided you the data that's available on these matters, you would be able to find the gaps that would be needed to complete the data requirements so that you can decide whether, and to what extent, you would want to regulate third parties.
Again, it's purely a thought that I'm sharing with you. If you undertake that study, you need to look at what is happening before the writ is issued. It was very clear in my mind that the strategy of third parties was to incur expenses way before the writ was issued.
Senator Lang: Was that not a concern to you?
Mr. Mayrand: I understand that Parliament will be looking at spending before and between elections. I think it's for Parliament to determine the appropriate regime that should regulate it, if it needs to be regulated.
Senator Joyal: Coming back to the issue of referendum, would it be easier, considering the need to amend the Referendum Act, to have a plebiscite attached to the next election, supposing that the House of Commons would want to go forward with an amendment to the electoral system in Canada?
Mr. Mayrand: It would require a change to the Referendum Act, which specifically prohibits a plebiscite to be run in parallel to an election.
Senator Joyal: In other words, whatever option we would need to amend the Referendum Act.
Mr. Mayrand: If Parliament decides to run it in parallel, I think it would be cheaper, but we need to make sure that the political financing regime is adapted.
Senator Joyal: Exactly. What is the budget for the campaign —
Mr. Mayrand: My point about political financing is it would even be more significant.
Senator Joyal: The last time Canada had a plebiscite, we had no limits on spending as we have today.
Mr. Mayrand: There was no limit on the source, either.
Senator Joyal: We would have to put in place a system of financing totally separate from that of the election to distinguish between the two sets —
Mr. Mayrand: To distinguish a referendum expenditure —
Senator Joyal: — to complicate the issue.
Mr. Mayrand: Definitely.
Senator Joyal: Thank you.
The Chair: Members, Mr. Mayrand, thank you very much. We appreciate your time. Members, we will discuss, at an early date, whether we feel there is a need to report back with respect to today's discussions.
(The committee adjourned.)