Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 54 - Evidence - November 28, 2018
Wednesday, November 28, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments, met this day at 4:01 p.m. to continue its consideration of the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to this meeting. We are continuing our consideration of Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments.
[English]
It is my pleasure to welcome Mr. Stéphane Perrault. He is accompanied by Anne Lawson. Welcome, Ms. Lawson.
[Translation]
Mr. Perrault, you are familiar with the meetings of this committee. The senators have said they wished to hear from you once again as a number of questions relating to this bill directly concern your responsibilities. Consequently, I invite you now, if you so wish, to make your opening presentation. Then we can discuss it with you.
[English]
If you would like to proceed, Mr. Perrault, the floor is yours.
[Translation]
Stéphane Perrault, Chief Electoral Officer, Office of the Chief Electoral Officer: I’ll be very brief so I can leave more time for questions.
I am pleased to be here today to speak to you about Bill C-76, which proposes a major reform of the Canada Elections Act. Overall, I believe this is a very important piece of legislation that will allow us to modernize electoral administration in Canada, make the voting process more inclusive, and reinforce its integrity.
Bill C-76 wholly or partially implements a majority of the 132 recommendations made by my predecessor in 2016. I was very pleased to see that most of the key recommendations were unanimously supported upon review by the House of Commons Standing Committee on Procedure and House Affairs.
As I noted when I appeared in the Senate Committee of the Whole, Bill C-76 is a transformative piece of electoral legislation. Not only does it allow for more flexibility in the administration of the process at the polls, which will allow us to improve services to Canadians in the future, it also significantly improves the political financing regime in a manner that increases transparency and strengthens the level playing field. In addition, the bill offers new tools to assist the Commissioner of Canada Elections to ensure compliance with the act, including increased investigative powers and an administrative monetary penalty regime.
[English]
With respect to third parties and the possibility of foreign interference in Canadian elections, the changes contained in the bill are significant. If the bill becomes law, the activities of third parties will be much more extensively regulated both before and after the writ, and their use of foreign funds will be greatly restricted. In addition, selling advertising space to foreign entities will be prohibited. I believe that these changes are truly improvements.
The bill also contains certain amendments designed to combat emerging threats related to digital interference and disinformation. These threats are complex and cannot be managed through legislative change alone. Nevertheless, the bill contains some important new offences, as well as a requirement for online platforms to keep a register of political advertising. Although it could undoubtedly be further improved, Bill C-76 is an essential reform, and I hope to see it become law soon.
As I indicated before the Committee of the Whole, time is critical. Implementing the bill requires, amongst other things, changes to 20 of the various IT systems that we are using during an election, and, obviously, there are considerable risks in introducing last-minute changes to these systems if there is not enough time to thoroughly test them before any electoral event. Our current plan is to ready in January to start the testing of all of the IT systems. This would allow us to then run a field simulation from March to April and leave time for any necessary refinements or adjustments. As I indicated before the Committee of the Whole, I urge you to keep these dates in mind as you study this important bill.
[Translation]
I’ll be pleased to answer questions from members of the committee.
The Chair: Thank you, Mr. Perrault.
Senator Dupuis: Mr. Perrault, thank you for being with us today. Good afternoon, Ms. Lawson, and welcome to the committee.
I’d like you to help us understand how Bill C-76 will help us respond to what are called “fake news websites” so they can be prevented from spreading incorrect information or disinformation designed to mislead people in exercising their right to vote. How does Bill C-76 help you do a better job than the one you’re doing now?
Mr. Perrault: We’ll be able to do it in a targeted manner. The aim of the bill is not to legislate generally on the accuracy of information found on the Internet. That would be a very ambitious program. It provides for what I would call individual improvements. For example, we have fears about the publication of fake news websites and the fact that fake publications claim to come from a party, candidate or Elections Canada. The current provisions are not specific enough to guarantee that we can cover these components. These types of impersonation would be addressed within the framework of a particular type of offence in the bill.
The bill would also clarify certain types of fake news concerning candidates. Our current provisions are very broad, somewhat unclear and hard to enforce. The bill would help clarify them. These are targeted legislative efforts.
We also have a role to play as administrators. I’m responsible for ensuring that Canadians get the information they need in order to vote. This isn’t a legislative issue. We will be conducting follow-up, a news watch, in conventional and social media, to ensure that misinformation is corrected. However, that information concerns the electoral process. The entire issue of disinformation is a very broad social issue, which involves the actions of many players: social media, the conventional media and the parties. It’s an issue that goes beyond the administration of elections.
Senator Dupuis: Consider the 2015 election, for example. Were you engaged in work, discussions or action in cooperation with other authorities such as the Commissioner of Elections or the Communications Security Establishment? Will Bill C-76 give you new tools? I’d like to know your experience to date with regard to cooperation with other authorities.
Mr. Perrault: We’ve traditionally cooperated with our security partners. The security issues we feared, such as terrorist and other such threats, were related more to the physical security of polling stations. Before the last election was held, we developed scenarios with partners to imagine what would happen in a given situation and who would be responsible for what in order to get a clear understanding of roles and responsibilities. We completed that exercise just before the 2015 election.
This time, I engaged with our partners more than a year ago. We established a working group including the Chief Electoral Officer and the Assistant Deputy Minister. We hold meetings to develop various scenarios and to ensure there’s a clear understanding of roles and responsibilities in the event incidents occur. This time, we’ll put much greater emphasis on cyberattacks and interference-related issues, as we’ve seen in other jurisdictions. Preparatory work is being done to put us in a better position to intervene in an election. That’s a good example. The delivery of an election that Canadians trust involves much broader actions than those of Elections Canada, and I would say that’s increasingly the case.
[English]
Senator Frum: Mr. Perrault, during the Committee of the Whole on November 6, you said that to have the right to vote, expatriates “must be able to provide an address in Canada where they lived at some point in their life.” I want to clarify your statement. Can they use any address at all where they lived in Canada, or is it their last address of residence in Canada?
Mr. Perrault: Thank you for the opportunity to correct myself. Under Bill C-76, it is their last address. Under the current rules, there is a variety of options. It may be a spouse or a former address. There are a variety of options. Under Bill C-76, the only place where a person could register to vote under the special voting rules that are being proposed is their last place of residence in Canada. You are correct.
Senator Frum: Can you walk us through the registration process? How will you know if somebody is registering their last place of residence?
Mr. Perrault: This is not really fundamentally different than it is right now. Right now, there is a range of options, but it is not unlimited. It has to be one of several options, and the law provides merely that this is done through a declaration by the person who wishes to register under the special ballot rules to vote from abroad. This would be the same process under this bill.
Senator Frum: There is a difference. Right now, it is limited to people who have lived abroad five years or less. Now it’s open to people who may have been away for 50 or 60 years.
Mr. Perrault: Absolutely. You are correct. But as to the process, right now there is no documentary proof, for example, of address in Canada for proving where you resided, or one of the options, and there would not be under this bill for those who want to register and vote.
Senator Frum: To register, does an individual have to appear at an embassy or a consulate?
Mr. Perrault: No, they can make an application online.
Senator Frum: Then to vote, how do they vote? Would it be a mail-in ballot?
Mr. Perrault: Once the application is completed and we have processed it, then we send out a kit through the traditional mail, a kit with an inner and an outer envelope and some instructions, and they must return that by mail.
Senator Frum: You have just described a scenario where a potential new voter will never have contact with a human being. Everything will be done electronically and through the mail.
Mr. Perrault: As is the case right now, but, as you noted, potentially for a larger number of Canadians abroad.
Senator Frum: You will be mailing mail-in ballots to addresses that you have according to how people have registered.
Mr. Perrault: Correct. People abroad will identify where they reside abroad and where to send the ballot kit.
Senator Frum: You have to send the ballot kit to the addresses on file.
Mr. Perrault: Correct.
Senator Frum: I note that in the last election there were over 1.6 million voter information cards in Canada that were sent to the wrong address?
Mr. Perrault: That’s a different register.
Senator Frum: It’s a register. In this case, you are not mailing an information card; you are mailing a ballot for the Canadian election.
Mr. Perrault: Correct. For the last election, there were 14,000 Canadians abroad who registered to receive a special ballot, and these were mailed out to the addresses given by those persons. In those cases, there is an interaction to validate the address.
The problem we have in Canada for the register, which is used for the voter information card, is we do not necessarily have an interaction in the months preceding the election with the Canadian who has registered. The person may have been on the register and then moved. We have 3 million Canadians who move every year, and in many cases, they make the appropriate changes of address, but in some cases they don’t or there is a lag time. There is not necessarily that exchange.
In the case of voting by special ballot, we will write to these people, so the confidence and accuracy are that much greater.
Senator Frum: If I understand you correctly, you’re saying the only difference is in volume. Right now, a much smaller number of expatriate Canadians are eligible to vote, and that’s why the volume of mistakes is smaller than the volume of mistakes made in Canada. But now we’re expanding the volume of the voters up to almost 3 million, as you said.
Mr. Perrault: Perhaps I was not clear in my answer. The errors you refer to are changes of address that are not made in the national register of electors for Canadians living in Canada. These are Canadians who move.
Senator Frum: I understood that.
Mr. Perrault: In the case of Canadians living abroad, to add to my previous answer, under the current rules, with the five-year rule, we don’t necessarily write back to every elector. We will write back now in the months leading up to the election to everyone in the register to make sure that they are still at that address, and that is the address at which they will be receiving their kit. There is an interaction there.
Senator Frum: But a non-personal interaction.
Mr. Perrault: A non-personal interaction. You are correct.
Senator Frum: Can you describe the rules regarding third parties that might be targeting this group of expatriate Canadians and their ability to act? They can be located. You can have a registered Canadian third party located outside of Canada.
Mr. Perrault: Correct, that’s my understanding of the law.
Senator Frum: And the new spending limits in Bill C-76 would apply to those registered third parties as well.
Mr. Perrault: Correct, depending on whether they are targeting local or national ridings, then these rules will apply.
Senator Frum: Let’s say it’s neither because they are targeting millions of people living abroad.
Mr. Perrault: Possibly, yes.
Senator Frum: So the spending limit —
Mr. Perrault: It would be the national limit.
Senator Frum: How will you monitor that?
Mr. Perrault: It is a self-reporting and complaints-based regime. We have to be clear that the notion that we can monitor all the activities that occur across the planet is not realistic, and it’s not even realistic in Canada. We are not monitoring in real time all of the activities of any third party, which is any individual in Canada, any association, any group. If they are organizing a meeting, a parade or an activity, we can’t monitor that.
Senator Frum: So you are not going to monitor it? I just heard you say you’re not going to monitor the spending.
Mr. Perrault: We will pay attention to what we are seeing in the media. We will pay attention and we will receive complaints, but that’s how the regime is designed.
Senator Frum: In your opening statement, you say that this bill is so vigorous and such a drastic improvement over the prior third party regime, yet you just said you are not going to monitor third party spending when it is done abroad.
Mr. Perrault: We are going to review the reports and respond to complaints. The big change is that the current regime only regulates advertising, and this bill proposes to regulate a whole range of activities beyond advertising.
Senator Frum: What is the difference if you are not looking?
Mr. Perrault: There may be complaints. The law is clearly an expansion of the rules. The ability to enforce the law outside of Canada for groups that may be targeting voters outside of Canada is, as I think the commissioner has spoken to —
Senator Frum: Did you recommend to the minister to prohibit registered third parties from operating outside of Canada? Was that a recommendation of yours?
Mr. Perrault: No, it was not.
Senator Frum: Why not?
Mr. Perrault: This is not a concern that was brought to my attention or that I was cognizant of until you raised it.
[Translation]
Senator Boisvenu: Thank you and welcome to our guests. We see in this bill that the mandate of the Chief Electoral Officer will be increasingly complex and that investigations will also require much broader expertise as a result of social media, globalization and interference from outside sources.
Have your resources increased, or have you been working with the same resource levels on mandates that seem much more complex?
Mr. Perrault: It’s the Office of the Commissioner that conducts investigations, not Elections Canada. We’ll definitely have to adjust our resources to respond to the new programs that result from this bill. If the bill passes, we intend to request permission, at the appropriate time, to make a submission to Treasury Board and to make a request for additional resources.
Under a legislative authority that we have under the act, we may spend without having to obtain special parliamentary authorization, but that doesn’t concern the hiring of temporary staff. For the election, we’ll initially use this mechanism to meet needs, and then we’ll request permanent funding.
Senator Boisvenu: I’d like to go back to new subsection 482(1), which concerns the unauthorized use of a computer. It contains the following passage: “with the intention of affecting theresults of an election.” Under that provision, would a hacker attempting to undermine the credibility of the electoral process without intending to alter the result be beyond the reach of the law?
Mr. Perrault: That’s my concern. By requiring that element, together with the specific intention to affect the result of the election, the bill unduly restricts the scope of the offence. That’s what I mentioned when I appeared before the Senate Committee of the Whole. I think that provision should be expanded to cover all attempts to interfere with a system that’s used in an election.
It also undermines the ability to investigate. That’s not clear to me. I don’t want to speak on behalf of the commissioner, but, as in an investigation, we don’t necessarily know at the outset all the elements of intent that motivated the activity. We know that an activity occurred, and we know it caused harm, but was its purpose to alter the result or simply to cause harm? If we request a search warrant, for example, we have to establish the elements of the offence that give us reason to believe a violation was committed. So that restricts both the offence and the ability to investigate as well. But there again, I prefer to let the commissioner answer those questions.
Senator Boisvenu: I carefully followed the reading of your brief. Are you proposing amendments to correct this lack of clarity, if I may put it that way?
Mr. Perrault: I said I thought it would be a good thing if an amendment were introduced, either now or later, to eliminate the aspects of this provision that concern intent. I think that should be reviewed.
Senator Boisvenu: As regards interference in the electoral process, we’re talking about a fine of up to $20,000 or one year in prison if a prosecutor proceeds by summary conviction and $50,000 or five years in prison if by indictment. When someone takes action to alter the outcome of an election, don’t you think $20,000 is a relatively small amount compared to what that person might gain by not getting caught?
Mr. Perrault: It’s not high, relatively speaking. Obviously, a prosecutor might seek a prison term. You’d have to see depending on the circumstances.
Senator Boisvenu: One year with parole at one sixth of the sentence isn’t much.
Mr. Perrault: Parliament has to make a choice, and I’d definitely be amenable to increasing the fine, but I think you have to consider the fact that an offence has been committed and that powers are provided to investigate that offence, the additional powers provided for in the act and existing powers, such as the power to obtain search warrants. If we’re talking about foreign interference, can we go all the way? I believe the commissioner talked about the problems involved in conducting investigations outside Canada from time to time. Could we request that charges be filed? Could we get a conviction? We’d have to see, but I think the fact that tools are provided to investigate these offences is very important.
Senator Gold: Welcome to the committee. I can see this is a very important bill for you. You noted that more than 100 recommendations that your predecessor made have been implemented in the bill. In your brief — I’m translating the English version in front of me — Bill C-76 is an essential reform and you hope to see it become law soon. Can you describe your fears for the next election if the Senate or Parliament doesn’t pass it soon, for whatever reason?
[English]
What would be your greatest concern for the upcoming election if the bill were not to be passed?
[Translation]
Mr. Perrault: There are two parts to your question. If the bill isn’t passed, we’d be depriving ourselves of a lot of useful powers and measures both for this election and for the longer term.
Aspects of this act afford considerable flexibility. Although I wouldn’t be able to use that flexibility in all cases at the present time, these are long-term advantages. There would also be short- and long-term losses.
I’m not sure I understood the other part of your question. Would you like me to discuss the impacts if passage is delayed?
Senator Gold: Actually, you answered my question by saying there’ll be losses if the act isn’t passed.
Mr. Perrault: Significant losses.
Senator Gold: We’ll be pleased to listen if you want to comment on your current choice and needs.
Mr. Perrault: As regards losses, the bill contains some quite significant features, such as flexibility in administering the voting process.
I’m also talking about the administrative penalties regime; I know we’re concerned about that at times, and rightly so.
Is the act strong enough to address the most serious cases? We shouldn’t forget that the vast majority, the very vast majority of non-compliance cases don’t merit criminal penalties and are more or less forgotten for the moment. We can’t do anything about those offences, whereas a regime of administrative monetary penalties affords a remedy, a penalty, and ensures greater compliance with the act.
Furthermore, a series of provisions in the act are designed to increase voting accessibility for persons with disabilities. Basically, the bill contains many good measures.
As for the implementation of the bill, it’s already very late in the election cycle. We would’ve liked the bill to be adopted last spring. That’s what I had said. The fact that we’re at this stage means we have to make some compromises.
First, I won’t be able to use the bill’s flexibility to improve the process for this election. Second, aspects of the bill will be implemented, but on an interim basis, which may not be the optimum solution. For example, with respect to third-party reports, financial reports, a PDF form can be consulted online, but we won’t be able to do any historical horizontal searches on donors. The creation of this kind of database, which I consider important, will have to be postponed until the next election, for the following election.
A number of compromises have already been made. We’re now getting down to the essential core where we have to make changes. I mentioned IT systems, but there’s more than that because we have to review all manuals for election officials. They concern complex procedures that are affected by the bill. We have to review and test training. We also have to review all the information and manuals for the political entities, the parties, candidates, nomination contestants and third parties. All those manuals must be reviewed in light of the new expense categories, and most of that will be done as part of a consultation process with the political parties. Consequently, we have to prepare the new manuals in both official languages and make them accessible for persons with disabilities; and there are 45 days for consultation. We receive comments, review, translate and publish them, and respond to every one. We very often amend our manuals based on comments by the parties, and we have to publish them online. That has to be done on time so the political entities can train their own staff. We can’t do it in the weeks or months preceding an election. It takes time. So the impact will be significant.
Senator Carignan: My question concerns online platforms. How many online platforms meet the standard established in new section 325.1 of the act? I understand that a platform must have been in existence for more than a year, 13 or 14 months due to the election period. That’s 12 months before the start of the election period and with a number of visits — in French, it’s an average of one million times per month. Do you know the number of platforms that meet that standard?
Mr. Perrault: I don’t have the figure. I assume the government did an analysis when it prepared the bill, but I don’t have that information.
Senator Carignan: So we don’t know whom we should monitor. We don’t know which platforms are required to keep a registry and which ones we have to verify. We don’t know where they’re located. They may be outside the country. I read somewhere that there were 7,600 digital platforms in Europe. Technically, there are a lot in France. There are also visits that involve French-speaking Canada, for example. They can easily reach one million, and those people would be subject to the registry, but we wouldn’t be able to monitor them.
Mr. Perrault: I don’t know at this stage. That’s part of the preparatory work that has to be done to better understand the regulatory environment in which these rules will apply and to provide information to help them understand their obligations under the bill. That’s work that has to be done.
Senator Carignan: There are the known ones, but a lot of small ones will slip through the net because we don’t know them, because they’re outside the country or because they get fewer than an average of one million visits a month in French.
Mr. Perrault: Yes.
Senator Carignan: There’s a kind of dual application of the act. If, as a candidate, I publish an advertisement in the parish newsletter and report it, I’ll have to submit it. It’s easily accessible for you and can be monitored as an election expense because it’s assigned a value, whereas the digital world is a jungle. It will be difficult to monitor, won’t it?
Mr. Perrault: I would say it’s not fundamentally different. Your parish newsletter example is a good one. We don’t monitor all the parish newsletters across Canada. This is a system based on reports. Opponents in an election campaign monitor each other and hear about activities that raise questions in their mind, and they file complaints. That’s basically how the Elections Act regime works, and the commissioner intervenes on the basis of complaints.
Senator Carignan: I’m sure you’ll agree with me that it’s easier for an opponent to find the newsletter of Sainte-Marguerite parish than to determine whether digital platform X is registered and the expense has been reported. It’s virtually impossible for a candidate.
Mr. Perrault: Yes, it can be difficult. We’ll have to see what the challenges are. It’s the commissioner who’s responsible for ensuring the act is administered. My role is, first and foremost, to explain to the people who are likely to be affected by the act what their obligations and responsibilities are.
Senator Carignan: You made a few suggestions to the House of Commons. You talked about a kind of anti-avoidance rule that would apply if a third party donated money and couldn’t spend it or raised money in different ways and gave it to someone else who might spend it as a kind of third-party nominee. You proposed some amendments, but I understand not all your suggestions were accepted.
Mr. Perrault: It’s included. An anti-avoidance provision was added in response to my recommendation.
Senator Carignan: Does it fully address your concern?
Mr. Perrault: Yes, it addresses the concern I raised.
Senator Carignan: I see.
Mr. Perrault: No regime is perfectly airtight; money is fungible and fleeting. The idea of absolute airtightness obviously can’t be achieved. Could we have a tougher or softer regime? Yes. Political choices are the prerogative of Parliament. We’ll have to see, with experience, whether we should be tougher in future than what the bill proposes.
The bill represents quite a major change. It considerably tightens restrictions on foreign financing and third-party activities.
Senator Carignan: In your testimony, you seem to want improvements made to the bill, but it’s as though you were saying, “I won’t reveal them to you, and I won’t go any further, because I don’t want to delay passage of the bill because we’ll run short of time.”
Mr. Perrault: I feel a mix of hesitations here. You have to wonder whether it would be better to have a bill or not. I’m concerned about the idea that there might be no bill. It’s something we won’t have in time.
The other thing is that this matter involves legislative policy choices that are the business of Parliament. My role is to present the proposed regime to you and to draw a line. It’s much higher than in the past. You could go further. It would raise freedom of association issues for certain groups, for example. It’s up to parliamentarians to have those discussions. I don’t think there’s an objective line that’s necessarily the right line.
Senator Carignan: Parliament is us. What suggested amendments would you make as Chief Electoral Officer that would facilitate your work and limit foreign intervention to ensure greater transparency?
Mr. Perrault: If we want a more airtight system respecting money that comes in from outside Canada, we must adopt a more comprehensive regime for contributions that go to third parties. That’s not proposed in this bill. Consequently, if we allow groups to contribute themselves, since money is fungible and amassed over the years, it’s hard to determine whether it’s their money. The issue is to determine whether individuals who decide to take part in elections have donated their money for partisan purposes or whether they’re taking money they’ve accumulated over the years. Of course, money may come from outside Canada. That’s not fundamentally different from individuals who receive revenue from foreign pension funds or investments. It’s their money.
Senator Carignan: In the United States, for example, you have PACs, through which an employer may contribute to an election campaign. Employees have a PAC contribution limit to prevent any particular group from having an advantage. If a group participates as a third party, contributions by members of that group should be legislated, regulated and limited to prevent them from indirectly exceeding contribution limits.
Mr. Perrault: That’s a component that takes contribution amounts into account. The other component is the source, to the extent you allow entities that are not individuals to use their general revenues. Those are revenues that they’ve accumulated over years. There may be foreign money. Can they legitimately use revenues they have accumulated in various ways? What constraints will be placed on the freedom of association of groups in expressing their views? These are choices that fall to parliamentarians. The regime considerably increases control levels and removes a number of deficiencies from the present act but doesn’t achieve maximum control levels. So I’m bringing that to your attention as parliamentarians. A balance should be struck between a certain airtightness, which is never absolute, and the freedom of individuals and groups to take part in an election debate.
Senator Dalphond: I have two different questions. The first concerns the day on which the act comes into force.
We all know the election will be held in October 2019. That’s D-day. You say you have to conduct tests starting in January, March and April. You even have to conduct simulations involving voting returns and so on. I don’t exactly know what that is. Perhaps you could explain it.
Mr. Perrault: Yes.
Senator Dalphond: For example, if the Senate were to recommend one or two amendments to the act, would that have an impact on your preparation? Should you wait for Royal Assent before beginning preparations? If the debate continues in January, will you conduct the simulation as though you were taking it for granted that the act would be coming into force? Some amendments could be related to the systems you have to test, but, if an amendment is made and you remove intent to influence the vote from the criminal offence, as you suggest, that will have no impact on your systems.
Mr. Perrault: That’s correct. However, we always have a preference. I’m going to talk about the simulation and then go back to the deadlines. The simulation is important. In addition to the amendments under Bill C-76, we’ve made a much larger number of amendments to the systems to modernize and secure them and to better serve election officials. So an impressive number of changes have been made. We’re testing those systems in artificial environments in Ottawa.
However, what we do before the election is conduct integrated tests by simulating a 36-day election in 30 days. We will train election officials, run scenarios, test all systems and run crisis simulations on all modules over a 30-day period to conduct an integrated test of all those systems.
I think that, given the complexity of the IT systems, it’s increasingly important to do this in advance without assuming that no improvements will have to be made, that everything will work perfectly. So we’ll complete those tests in mid-April, but we may have to make some adjustments.
As I said last spring, when the bill was introduced, the fact that it was introduced at that stage required us, in return, to start making changes. We’re currently finalizing changes to the IT system in anticipation of the bill’s being passed.
We’re ready to deliver an election under the present act, and a by-election is currently being held, and if the bill doesn’t pass, the by-election will be held under the present act. However, we’re preparing systems and manuals for another election model. So we’ve begun the work.
I would note that this is a minor change to a provision that doesn’t concern our systems, manuals or training. It has less impact, but what’s difficult for me is that, where I stand now, I don’t know the extent of the changes you may want to make and I don’t know whether they would have an impact on personnel training or on the systems.
You say the election will be held in October — I don’t want to start any rumours, but I think that’s likely — but the act isn’t constitutionally binding; the election could be held at another time. So we have a date for preparations scheduled for the spring, not because we’re speculating that an election will be held in the spring, but rather because, for various reasons, we think it’s the prudent thing to do. So it’s hard to give a more specific date than that.
Senator Dalphond: Perhaps I’ll come back on another topic later, from another angle.
Mr. Perrault: With pleasure.
[English]
Senator Batters: In your response to Senator Carignan, you said that no system is perfectly safeguarded. I would submit to you that what I see from Bill C-76, it is a far cry from being perfectly safeguarded and it has some really large holes in it. You also said to him, is it better to have a bill that’s not perfect or better to not have a bill at all? Well, this is the Senate, and we are actually in the business of making bills more perfect. That’s kind of our bit.
Let me tell you about a couple of holes I see in this bill. Paragraph 282.4(3)(c) of Bill C-76 would allow a foreign government or other entity to encourage electors to vote for or against a certain Canadian party or candidate through the transmission of an official declaration. That could be printed in its entirety in a newspaper distributed in Canada or even broadcast in Canada. How much does blowing the door wide open on that avenue of foreign influence concern you?
Mr. Perrault: I would not be in a position to respond to that specific scenario. I’d be happy to consider it and come back to you on that.
Senator Batters: Does that concern you, having a foreign government or other entity have that potential influence in a Canadian election?
Mr. Perrault: I think it’s important that Canadian elections be played out within Canada with the involvement of Canadians, yes, and I think that foreign governments should keep out of Canadian elections. Obviously, that’s my firm belief.
Senator Batters: Would you recommend that that particular exemption be deleted from the bill?
Mr. Perrault: I would have to look at that provision carefully.
Senator Batters: Could you do that, please, and get back to us?
Mr. Perrault: I certainly could.
The Chair: I noticed that Ms. Lawson was looking concerned.
Anne Lawson, Deputy Chief Electoral Officer, Regulatory Affairs, Office of the Chief Electoral Officer: Could you repeat the provision, please?
Senator Batters: Paragraph 282.4(3)(c).
Let me ask about another large hole I see. When you testified before the Senate Committee of the Whole, Senator Frum was asking you about the area of foreign influence and asking you specifically about a Canadian sponsoring an event for Canadians in a foreign country using their foreign currency that they have earned in their own name. She asked you whether there was anything illegal about that.
You responded:
Many Canadians earn money through investments, for example retirement funds. That may include foreign funds as well because your retirement fund includes stocks in American stock markets. A Canadian in Canada using revenues from their pension in American stocks would be allowed, using his or her own money, to promote —
But, Mr. Perrault, we are not talking about Aunt Martha who now lives in Florida for the winter and her $50,000 RRSP when we are talking about this type of foreign influence. We could be talking about a multimillionaire celebrity rock star, born in Canada but who has lived in the U.S. for a decade, hates pipelines, decides to fund a free concert, anti-pipeline rally at Madison Square Garden, and potentially influence thousands of non-resident Canadians to vote in a certain way in this election. Under Bill C-76, if Aunt Martha decides to make a $100 political donation from her retirement income, that would basically equate to the situation of the multimillionaire rock star having this huge rally and concert. Neither would be considered foreign influence under Bill C-76. As the Chief Electoral Officer, why aren’t you concerned about that massive loophole in this bill?
Mr. Perrault: I’m not sure whether the concern you are raising is about the amount in your two scenarios or the fact that both are living in the United States.
The law allows these Canadian citizens, and both are Canadian citizens in your example, either to make contributions to political parties or to participate as a third party. If they choose to participate as a third party, they are subject to the same rules as other Canadians, even though they live abroad, and they are subject to limits and reporting obligations.
Senator Batters: But that would be allowable, having that type of a massive rock concert rally, anti-pipeline rally, all funded by a Canadian citizen who has not had any connection to Canada for perhaps 25 years?
Mr. Perrault: That’s correct. That’s what the law provides right now, and that would not change under Bill C-76. However —
Senator Batters: Although Bill C-76 proposes to curtail foreign influence, that wouldn’t change under this bill. Is that right?
Mr. Perrault: Under Bill C-76, what would change is this activity — in your example, a rock concert for partisan purpose. It is partisan activity that is regulated whereas, under the current law, if it is not advertising — and a rock concert is not advertising — it would not be regulated at all, which means that not only could this Canadian use his own money but foreigners could fund this rock concert right now.
Senator Batters: The difference being that rock star is going to have a pool of potentially two million people to draw from, whereas now it’s fewer people to draw from.
My last question to you, Mr. Perrault, would be about the declaration you talked about for non-resident Canadians to vote. Is it a sworn declaration by a commissioner for oaths or a notary public or anything like that, or is it just basically a piece of paper with someone’s signature on it?
Mr. Perrault: It’s a written declaration for which there are offences related to, and we will make sure that they understand that there is an offence for asking for a ballot when you are not entitled to ask for one. There are offences in the act —
Senator Batters: When you say a “written declaration,” though, is it just a piece of paper that says that this is my name and address, and signing? It is not sworn in front of anyone, not anything more than a piece of paper with their signature.
Mr. Perrault: Like a CRA declaration when you file your tax, you swear this information is complete and accurate to the best of your knowledge. Similarly, this would be a form that says, yes, all the information I have provided is accurate, and there are offences if you’re —
Senator Batters: Of course, yes. On that very form, right above their signature, will it indicate what the offences are?
Mr. Perrault: We will be looking into that. They haven’t been drafted at this point.
Senator Batters: They haven’t been drafted even though you are getting everything else ready for an election very soon?
Mr. Perrault: There are many things that we are preparing for this bill. We are reviewing all of the forms. This is part of the process.
Senator Batters: I suggest that would be something that would be appropriate to do.
Senator Frum: In Senator Batters’ example of the event at Madison Square Garden against pipelines, you said that was part of an activity. But section 349 excludes, from the definition of partisan activity, taking a position on an issue with which any such party or person is associated. I’m not sure what she described would be considered by you to be partisan. It is by me, but I don’t think it would be considered by you to be a partisan activity.
Mr. Perrault: I perhaps did not hear about the pipeline aspect of the scenario. I was hearing a rally for a particular party. If it were just promoting an issue with which a particular party is associated, that is excluded. I believe that you are correct.
Senator Frum: So there are no restrictions. You said the restriction was it would fall within partisan activity, but in fact it would not fall within foreign activity and it would not fall within any limited spending activity.
Mr. Perrault: Well, the range of activities that are regulated right now is very narrow. The range of activities being proposed in this bill to be regulated — I’m not saying this is a perfect bill. I’m saying the range of activities is much, much broader.
Senator Frum: I thought you said it was an airtight bill.
Mr. Perrault: And the fact these are regulated activities triggers the application of a series of rules regarding funding including foreign funding, which we do not have right now. Right now, if an entity does anything that is not elections advertising, it is not regulated —
Senator Frum: It is no different under Bill C-76. You just said so. It’s no different. The things that weren’t covered before are still not covered.
[Translation]
Senator Pratte: With respect to the new section 91 on false statements concerning a candidate, you said several times that the present section is hard to enforce, even unenforceable, and that this was why the choice was made to replace it with a section that’s much more specific but also much more limited as to types of false statements. However, since people don’t lack imagination, false statements can be made about all kinds of subjects.
When you say that section 91 is hard to enforce, are you basing that statement on actual experience? Has it already been tested before the courts?
Mr. Perrault: Yes, there have been a few court cases in which it was construed narrowly as a freedom of expression issue or perhaps as an issue concerning a a particular conception of electioneering. It hasn’t been interpreted very broadly and has become very hard to enforce. So I think it’s a very good idea to clarify it. Is it too narrow? I know the commissioner has proposed amendments that might afford a compromise; they would increase clarity while ensuring slightly broader coverage, and I would support that if possible.
However, I prefer something clear and enforceable over something that scares everyone, perhaps for the wrong reasons, that is unenforceable and that creates expectations that will ultimately be disappointed.
Senator Pratte: Is the test of intention in this clause a problem in the court cases you refer to?
Mr. Perrault: I’m thinking of one case in particular in which a candidate allegedly had connections with the IRA.
Senator Pratte: In Ireland?
Mr. Perrault: Yes. The judge wasn’t satisfied with the evidence. He agreed that the intention had been to undermine the individual’s reputation but not necessarily for the purpose of affecting the results of the election.
Senator Pratte: I see. Thank you.
[English]
Senator Pate: Last week we heard from Jean-François Morin, Senior Policy Advisor for Democratic Institutions Secretariat, about some of the measures being taken particularly to assist Indigenous people and to ensure they vote. He talked about a number of languages, the materials that are being produced in order to explain to people how they may be better supported in the electoral process. I’m interested from your perspective whether you have actually changed your strategy, what the strategy is currently and what you anticipate changing, if anything, if this bill goes through and impacts the next election.
Mr. Perrault: We are making some changes irrespective of this bill. What we are not changing is the number of languages. Right now, our material is available in 42 languages, including 11 Indigenous languages. Our advertising material is produced and published. The advertising is done in French, English, and Inuktitut, but we have other materials that we make available in local communities, and we have, for Indigenous languages, 11 of them.
We also traditionally had and will continue to have what we call an Elders program. In Indigenous communities on reserves in particular, we try to hire an Elder and a youth, and they are there to assist voters. That may include linguistic assistance and understanding the process. This is something we have done in the past.
What we are doing now is increasing the budgets and the incentives we have for returning officers. We encourage them to hire more what we call community relations officers, to set up contacts with Indigenous communities, and, in particular, to recruit within those communities. That, of course, will help on the linguistic aspect as well.
If I’m not mistaken, in 92 communities across I think some 26 electoral districts, we are doing a pilot where we are hiring community relations officers ahead of the elections. We have asked these returning officers for these districts to submit to us a plan for engaging the communities. They are starting to act on that plan and they have begun in some cases to engage locally well in advance of the election, because if you just show up at election time, often it’s too late. This is a pilot that will cover 92 communities and begin work ahead of the election. Again, one of the objectives is to, first of all, design the service in a way that reflects their expectations but also to hire more from within those communities. Based on the success of that pilot, we’ll decide after the election whether we actually need to do more at a national scale beyond those 92 communities.
Senator Pate: Thank you very much.
Senator Boniface: Welcome to the committee.
We received a brief from the Canadian Bar Association. One of the recommendations was as follows: To grant the Office of the Privacy Commissioner authority to investigate complaints related to the collection, use and disclosure of personal information by political parties. Rather than this oversight function resting within your office, the recommendation submits that you work in tandem with the Office of the Privacy Commissioner. Could I have your comments on that recommendation?
Mr. Perrault: Absolutely, and that is something that I would support and I have made myself.
I want to clarify that what is provided in this bill in terms of oversight is not really oversight of the application of whatever policies that the parties would have; it’s oversight of the fact that they have a policy and that it’s published. But it’s hard to see how, beyond that, there would be any oversight that I could do of the application of that policy, unless it’s a completely false policy that is never applied. The fact that a party may not always be compliant with a policy doesn’t mean they don’t have one or that it’s not truly their policy, so I think the amount of oversight that we are looking at in having in this bill is close to nil. I do believe that there should be oversight, and I do believe that the Privacy Commissioner, with his expertise on privacy matters, would be better situated, and I think that’s his view as well. He’s been public on that. We both agree that this would be a preferable arrangement certainly than what is being proposed.
Senator Boniface: Thank you.
The Chair: Thank you for your candid answer to that question.
Senator Dasko: Thanks for coming again to speak to us about the bill.
I hate to belabour the point, but I just want to follow up on Senator Gold’s and Senator Dalphond’s question about timing. Let’s say, hypothetically possibly, if the Royal Assent were delayed one month or two months, can I conclude from what you have said that you would be able to implement some aspects of the bill but not others? Put aside any amendments that might come. Just put that aside for a moment. If the delay were to be because of amendments, let’s put that aside. Is that what I’m hearing you say in terms of timing?
Mr. Perrault: I would be very concerned about that kind of a delay. What is critical for me is not so much the Royal Assent as to the certainty of the content of the legislation, because we need that certainty to complete not just the IT systems but also the training of the poll workers and the manuals. Everything has to be prepared and tested in advance of the election, so any late changes that affect our preparation for the election is something that I would be very concerned about.
Senator Dasko: So the delay would affect some processes, but not others? For example, if you had the delay I just described, would you still be able to implement the use of the identification cards, the provisions to help Canadians with disabilities, the vouching aspects that are in the bill and the youth register, for example? Would the accessibility aspects of the bill be able to go ahead if you had such a delay, hypothetically?
Mr. Perrault: It’s difficult to answer not knowing what changes the delay would effect in the bill. There is also a point at which we have to put those systems into production, and that means they are out there and ready to roll and be tested. At some point, we’re making it riskier to have those systems used in an election. Our goal was to have legislation in April. We’ve said we can do less and still implement. Now we are at a point where I think it’s becoming risky to further delay.
I’m not saying that any change would have an impact, but we need a point in time where we have enough certainty to close the work on the manuals. For example, for the manuals for returning officers and poll workers, we will hire people as part of the simulation, train them, send them home for a week as happens in real time during an election and bring them back after a week of soak time and run scenarios with them. Then we know what works and what doesn’t work in our training material.
The more we delay these things, the more risks we are taking with the election.
Senator Dasko: It is more of a risk process as opposed to implementing some things and not others in the bill. Thank you.
I have one more question. About two or three weeks ago, I was reading media reports about a businessman in Toronto. I will not name names but I will try to describe the situation without —
The Chair: You are protected by privilege.
Senator Dasko: I actually don’t remember the gentleman’s name, as it turns out, which is probably good. In any case, this Toronto businessman supposedly set up several non-profit organizations to support candidate and member development for one political party. It’s not clear whether this person was a citizen or not. He may have been a resident of Canada but not a citizen; that was not clear. Supposedly, one or more of these organizations did an actual fundraising event for this particular political party. How many of these things are currently legal? Would any of these situations result in a different result under the bill? I’ve tried to describe it the way I recall it, Senator Gold. Thank you.
Mr. Perrault: It’s hard to pronounce on scenarios, but I would say that there are rules right now in the law that prevent any group from splitting up to create other entities in order to circumvent spending limits for a third party.
In terms of organizing fundraisers, this may be a contribution to a party or an entity if you participate in activity, the costs of which would be normally an expense of that entity and you are deferring those costs and making what we call a monetary contribution. We have to see what is exactly happening there. The way you describe it does not sound right under any —
Senator Dasko: None of these circumstances sound possible.
Mr. Perrault: No, but I don’t want to pronounce on something that I don’t know.
Senator Dasko: Actually, I know of a non-profit organization in Toronto that already supports a different political party just in the way it carries out its activities, without funding it. You’re saying that part of it may not be legal, to set up non-profit organizations for the purpose of supporting the development —
Mr. Perrault: No. Sorry, I want to be clear. A non-profit could be set up. I’m not going to talk about the tax rules and those aspects that are outside of my mandate.
Senator Dasko: Not a charity, of course.
Mr. Perrault: Not a charity. But if a group can be set up and conduct activities supportive of a party or candidate or are opposed to a party or a candidate, that’s a definition of a third party. Under the current rules, what they cannot do is split into multiple groups to multiply the spending limits. They cannot divide themselves into more entities. That’s true under the current rules already, but they can right now.
But they would be regulated in their advertising activities. I’m not going to talk about doing fundraising for that entity, but elections advertising during the election period is regulated. That means that the funding for that is regulated. Outside the election period, it’s not regulated.
The bill would increase the scope of these regulated activities in a number of ways. It would capture pre-writ advertising starting at the end of June. It would include not only elections advertising but also partisan activities, which includes pre-writ advertising but also other activities that support the candidate or the party. Senator Frum mentioned that non-issue advertising, however, which is excluded. So there is a range of new rules that apply to those activities that cap the amount that can be spent but also have an impact on how it’s funded.
Senator Dasko: In the pre-writ period?
Mr. Perrault: And the writ period.
Senator Dasko: Not in the period before that?
Mr. Perrault: Correct.
Senator Dasko: That’s just normal life, then.
Mr. Perrault: Correct.
The Chair: Before we go to the second round, I would like to ask a quick question of Mr. Perrault. It’s in relation to the reference you make in your presentation paper on page 3 where you raise the possibility of foreign interference and you mention that what the bill contains is, in French, appréciable. In my own vocabulary, that means it’s good but not the end of the world. What I’m concerned about is that when I look into what happened in the United States and what it has triggered in terms of attention from Congress and the Senate, I’m left wanting about the way we, collectively, as a country and as a system with you as Chief Electoral Officer, consider the foreign interference.
Let me just mention to you how the United States has taken that very seriously. There are six committees of the Senate and Congress that have tried to understand the implications of foreign interference. There is the Senate Armed Services Committee that has held hearings on foreign cyber-threats to the United States. There is the Senate Foreign Relations Committee that has studied the implications for U.S. national security of foreign interference. There is, third, the Senate Intelligence Committee that has investigated the intelligence community assessment of Russian activities and intentions in recent U.S. elections. There is the Senate Judiciary Committee that has looked into the inquiry into circumstances surrounding the meddling in the last election. There is the House Permanent Select Committee on Intelligence that has looked into the recommendations to tighten the electoral system in the United States. Finally, there is the House Homeland Security Committee that has looked into the DHS’s progress in securing the election system and other critical infrastructure. That happened in the last year or so.
When I read that, I said they are really concerned about what is going on. When I listen to you and read your presentation, and when we heard the minister and the commissioner, we have the impression that we are little boy scouts in Canada. We do what we think is good and we think that, by an act of God, things will continue to evolve to our benefit, generally.
Are you part of an inter-body committee that would group Foreign Affairs, DND, CSIS, RCMP, you and all those concerned by foreign intervention so that you monitor the situation? Nobody talked to us about this. You said to us the bill is a significant provision or, as I said in French, appréciable, but it doesn’t really reassure us that we, as a country, are doing what we should be doing to protect the integrity of the Canadian electoral system. Can you comment more than just the general comments that you made in your presentation?
Mr. Perrault: Certainly. It’s fair to say that there is much more to this than this legislation. I’m not sure it’s something we should rejoice, but we have the benefit of having seen what has happened in other jurisdictions, and there is a level of awareness in Canada that I’m sure was not there in 2016 at the presidential election or even during Brexit. We are benefitting from that.
I would mention the work of the Ethics Committee in the other place, as you refer to it, that has been looking into those matters, so it’s not just the Committee on Procedure and House Affairs.
In terms of monitoring the environment in Canada, there is a deputy minister level working group, ADM working group and DG working group that comprises the Canadian security partners. It includes myself and the Commissioner of Canada Elections. It includes CSIS, the Privy Council Office, Public Safety and the RCMP. We have established a collaborative network, and we are, as I indicated earlier, looking at scenarios. We are in the process of establishing information-sharing processes so that we are able to have a good sense of what is happening.
We have also been working very closely with the Communications Security Establishment of Canada. Over the last two years, one of the things we have done is invest considerable efforts and money into revamping our cybersecurity posture at Elections Canada. A lot of the systems we will be using are new or upgraded systems. We have redone the architecture of our IT systems. We have recently migrated to a Cloud platform that is much more secure than the data centre we have used in the past. We have done this work with the advice and support of the Communications Security Establishment. They are the experts and they are providing us the advice. It’s my responsibility to make sure that I take the necessary action, based on that advice, to increase our systems.
I will not claim, in any form, that a system is bulletproof. That would be not responsible. However, based on the work of the intelligence and security communities, we have made significant improvements. The legislation is one aspect of the efforts, but you are correct to say that much more needs to be done, and I can say that more is being done.
[Translation]
Senator Dupuis: I have a supplementary question to the one our committee chair, Senator Joyal, asked you. You referred to the responsibility of parliamentarians, which I would distinguish from that of the government, because the government can make its own choices.
When you said certain things were the responsibility of parliamentarians, did you mean parliamentarians should take greater interest in cyber-threat and misinformation issues in an election setting? There’s increasing talk about transparent government. Do senators have a special responsibility both in general and to make government more transparent?
I want to make a connection with the fact that the House of Commons provides training to MPs on cyber-threats but that the Senate doesn’t. In other words, we consider bills that are introduced by a government that is alternately Liberal or Conservative and that can have its own interests and specific fears about, for example, third parties that oppose those options.
Generally speaking, should the Senate as a whole, not just this committee, find a way to conduct a serious analysis of cybersecurity risks, whether they pertain to national security, the preservation of data collected by government agencies or elections?
Mr. Perrault: That’s way beyond my mandate. I’m reluctant to give you an answer. The issues of cyber-threats and disinformation in social media and on the Internet are increasingly important global issues. I would say that Elections Canada, as an institution, can’t solve all those problems. It has a very specific mandate, and we must discharge our responsibilities in the context of that mandate.
The health of democracy depends on the actions taken and the attention given to these issues by stakeholders other than Elections Canada.
Senator Dupuis: Thank you.
[English]
The Chair: Maybe it could be a recommendation that we might append to the bill.
Senator Gold: I want to follow up on this line of questioning and try to keep you within your mandate. I appreciate your discretion.
You mentioned the Communications Security Establishment, which, under the current law, can and does provide advice to government institutions, and it has other mandates. As you may well know, there is a bill before the Senate that would enhance the powers of CSE to take more robust measures to protect our institutions from foreign threat, including threat to our democratic institutions. Would our electoral system and its integrity be better protected if the government could not simply take advice from CSE and be advised of what CSE tells us, but in fact if it could request CSE to take — with the appropriate ministerial oversight, of course — active measures to combat, for example, foreign fake news abroad that’s targeting electors in Canada? Would our system be better protected if CSE could provide greater assistance to you and your colleagues in the face of threats from abroad?
Mr. Perrault: I just want to clarify one thing at the outset. CSEC provides advice, and they have provided advice to us. They also provide some technical support. Our agreement and our requests have monitoring action of all the traffic that goes through our new data centre. It’s very sophisticated technology. There is a pipeline between returning offices and computers and our systems, and that pipeline is secured through CSEC. It’s not just advice; they actually do technical work for us.
Senator Gold: Yes, but their mandate is limited and, at least for the moment, does not allow them to necessarily take more proactive or robust measures to go after the source of the problem that might be attacking our democratic institutions through fake news, through websites abroad and things like that.
Mr. Perrault: I will defer on that one. I think there is a witness coming from CSEC, and he would be better positioned to provide that. The whole issue of fake news is a broad one. Within my mandate, there are specific offences, but there is also my responsibility to ensure that Canadians have correct information on the voting process, and for me to monitor that and to respond and to push out information quickly if there is disinformation. But the broader issue of disinformation, as important as it is, and hate speech and division is something that goes well beyond Election Canada.
Senator Frum: Mr. Perrault, to your knowledge, was there Russian interference in the 2015 election?
Mr. Perrault: I’m not aware of any interference. I’ve not been privy to any evidence of that nature.
Senator Frum: Our Prime Minister said publicly that there was not much interference. He did not say there was not any. If he knows there was not much, how come you don’t know anything about it?
Mr. Perrault: One of the things we are working on with the security partners is establishing protocols for the sharing of information moving forward. Certainly, had there been a breach of our IT systems, I would have known through CSEC. More broadly, in the past, the arrangements may not have covered — and I do not know if, in fact, there was or wasn’t; I just do not —
Senator Frum: Aren’t you interested?
Mr. Perrault: Well, of course I’m interested, but I do not have this information.
Senator Frum: To promote greater transparency and security in the United States, the Federal Election Commission issues unique identification numbers to all registered candidates, parties and third parties, which allows them to make it easier to track who is advertising and who is paying for what. As I understand it, Google and Twitter approached you and made a recommendation to your office that this would be greatly helpful to promote transparency and security in the social media advertising regime in Canada, and your office rejected this idea of these unique individual identities for advertisers.
Mr. Perrault: Senator, this is the first I hear of this. I’m interested in the notion, but it’s not something that’s been brought to my attention. It may not be a full answer to your question, but I certainly think in the United States the so-called tag line requirements were narrow or did not capture advertising on social media, for example. This is not the case in Canada, so they may be addressing other challenges. Perhaps there is merit in this notion. I’ve not heard about it.
Senator Frum: Is this potentially an area where you would welcome an amendment? I know that the social media platforms are eager to put forward such an amendment. It would make their task easier because they have onerous requirements in Bill C-76 for registering information about advertisers. They are asking for help from your office that advertisers be given these unique identification IDs. That’s what they would like to see.
Mr. Perrault: I would not want to shut the door on something that may be useful, but I can’t support it without knowing what it is exactly. I would have to consider that.
[Translation]
Senator Boisvenu: This is a very interesting topic. Mr. Perrault, my question may seem simplistic. The problems of intrusion in the judicial process are global in nature and know virtually no borders. Are you speaking with your colleagues in the United States to update your record of the intrusions that may threaten Canada during the next election?
Mr. Perrault: We have discussions with counterparts around the world. Some of our relations are more privileged than others because we have similar structures, such as our relations with Australia and New Zealand. The United States is another world. I’ll be in Philadelphia in the coming weeks, and I’ll have an opportunity to attend meetings and engage in discussions on this matter. The situation is more complicated in the United States. That’s one of their challenges. They have an extremely decentralized structure.
Senator Boisvenu: In the States.
Mr. Perrault: It’s the states that conduct the federal elections. I’ve been told that 60 per cent of election administrators serve fewer than 5,000 voters in the United States. That means there are micro-organizations that aren’t necessarily coordinated and don’t necessarily have the resources. This creates a number of issues that we fortunately don’t have.
We can find out more from Canadian intelligence when we need to understand what’s going on. On the other hand, I have relations and I meet with people from everywhere in an attempt to understand their issues and what they’re doing.
Senator Boisvenu: The bill will extend the eligibility period for foreign nationals from five years to life. That will result in a much larger pool of electors. The bill wouldn’t prohibit ministers from travelling during the election period or from conducting political activities in foreign countries. Shouldn’t there be a provision in this bill prohibiting that type of promotion or shopping around?
Mr. Perrault: The expenses of candidates and parties that organize promotional activities in or outside Canada are and will be regulated. The act draws no distinction between expenses incurred in and outside Canada.
Senator Boisvenu: You understand that a minister who travels for business and simultaneously participates in political activities will be in a grey area.
Mr. Perrault: Ministerial travel is a broader issue in Canada as well. We can have the same discussion with MPs. There are overlapping roles and duties that afford promotional opportunities. This is a long-standing problem and we try to distinguish among legitimate activities. No distinction is made with regard to this problem between the national and international levels. There may be additional opportunities. However, the rules regarding partisan expenses related to the promotion of the candidate will apply, whether they are incurred in Canada or in connection with electors outside Canada.
Senator Dalphond: My questions concern non-resident fellow Canadians. You said there were 14,000 registered non-residents at the last election. How many voted? Do you have any data that would indicate which electoral district had the largest number of non-residents? I assume that the 14,000 voted in Canada’s 300-and-something ridings, but, in reality, more so in Toronto, Montreal and Vancouver. Do we have any data on that subject?
Mr. Perrault: I don’t have any public data on the subject. I could get it. You have to be cautious about voter confidentiality in certain cases. We have close voting results in some cases. So we report the results of people who are living outside Canada as well as military personnel. We try to protect voter confidentiality. Some 11,000 registered foreign electors voted in the last election.
Senator Dalphond: Out of 14,000.
Mr. Perrault: Yes.
Senator Dalphond: When they vote, what kind of ballot do they get in the kit? Is it a blank ballot on which they write down the name of the candidate they want to vote for?
Mr. Perrault: It depends when it’s sent out. Before the confirmation period, a Canadian may vote by special ballot in Canada at the office of the returning officer, by mail or outside Canada. When a ballot is cast before the end of the confirmation period, the elector must write down the candidate’s name. Voters may not merely name a party, as is the case in other jurisdictions. These are typically the ballots they receive outside Canada.
Senator Dalphond: They don’t vote for parties because there’s no proportional representation. Consequently, they vote in an electoral district where they have to put down the name of the candidate.
Mr. Perrault: They can’t say they choose any candidate from a particular party. They have to have a name.
Senator Carignan: I was reading section 91, and I understand that the object of the present section is to prevent someone from falsely discrediting a candidate with the intention to cause harm and that the idea was to specify certain types of false information. I realized in reading it that it may also concern a candidate.
Mr. Perrault: Yes.
Senator Carignan: A candidate who would falsely say that he or she was born in one country rather than another.
Mr. Perrault: Or that he or she has a particular occupation.
Senator Carignan: It’s really the intention that you perceived, like that of candidates who exaggerate their academic records. We’ve seen that because, in every election campaign, people fudge their CVs and add degrees they don’t have. It’s not common, but we hear about it in every election campaign. I understand why that kind of candidate might be prosecuted under section 91.
Mr. Perrault: Like you, I infer from the text that “no person” would include the candidate in the provision. I don’t know why a candidate would be permitted to do what others may not. If you can’t artificially promote candidates, I don’t see how they could do it themselves. I have no objection to this covering a candidate, but I see it the same way you do.
Senator Carignan: It’s broader.
Mr. Perrault: But these are very specific classes of false statements.
Senator Carignan: Yes. In the last election, we witnessed a minister saying that she had been born in a particular country. That wasn’t false because I understand Ms. Monsef believed she had been born in that country but she was born in another country. She didn’t intend to provide false information. If she had done so intentionally, that might have constituted an offence.
Mr. Perrault: With the intention of affecting the results. That has to be proven.
Senator Carignan: Aren’t you afraid this will add a certain freedom-of-the-press element? Because we often see the media searching and criticizing candidates’ CVs. If they’re likely to be found guilty of a criminal offence, they may be more circumspect at the thought of being criticized. Isn’t there a risk? That’s an entirely different discussion than the one on section 91.
Mr. Perrault: Do the journalists intend to affect the results of the election, or do they intend to disclose a truth about candidates who lie?
Senator Carignan: It may be in the public interest.
Mr. Perrault: I’m going to refer it back to you because that’s all I can do. Would we want to allow candidates to lie when we wouldn’t let others do it? The answer seems obvious.
Senator Carignan: This is a completely different field, and its something entirely new. This provision is much broader than the other one.
Mr. Perrault: In that sense, yes, but, as I said earlier, all lies concern specific topics.
[English]
Senator Batters: In response to Senator Dalphond, I’m not sure why you think it would be confidential which particular ridings the 14,000 non-resident Canadians voted in in 2015. Whether a riding was close doesn’t indicate who those particular people voted for. Frankly, I don’t think that should have any bearing.
The riding I worked very hard in during the last campaign was Regina-Lewvan. It had a result of only 100 and some vote difference. The NDP won that riding. It was heavily targeted by Leadnow. Given their foreign influence ties, I think that it’s highly relevant to know how many potentially non-resident Canadians voted in that particular riding.
Mr. Perrault: I agree. There is no problem unless it’s down to one vote that would be cast.
Senator Batters: But you don’t know which way that person voted and who that person is, so how would that be confidential?
Mr. Perrault: I’m prepared to go back and, if there is information that I can provide on that, I’d be happy to do that.
Senator Batters: Seems like you can’t guess.
In answer to Senator Frum’s question in the second round, you were talking about sharing information moving forward. Prime Minister Trudeau received information about “not much” Russian interference in the 2015 election, but you as Chief Electoral Officer for Canada did not receive this information?
Mr. Perrault: I was not the Chief Electoral Officer of Canada at that point in time.
Senator Batters: No, but since then? Prior to getting appointed, you were also acting for quite a considerable period of time.
Mr. Perrault: Correct. I don’t know what information we are talking about and whether it would be relevant.
Senator Batters: The Prime Minister said not much Russian interference in the last election. I don’t know either, but it seems like you should know. Would you agree?
Mr. Perrault: As I said, we are working with security partners to establish protocols for the sharing of intelligence moving forward, and that’s all I can say. I have no idea what that information was and whether it would be relevant for me to have had that information.
Senator Batters: Thank you.
The Chair: Mr. Perrault and Ms. Lawson, it is my privilege to thank you. As you see, the level of interest is very great around the table.
I would like to inform the senators that I have the list of American committees I mentioned as well as the mandate and the findings of those committees. It is only in English, so of course I cannot circulate it, but it’s going to be translated. You will receive it maybe tomorrow or before the end of the week, and each of you will have an opportunity to look into what our neighbours to the south have been doing to prevent foreign interference in the upcoming elections over there. I’m sure there are lessons we can draw from their experience.
Thank you again, Mr. Perrault and Ms. Lawson. I’m sure we will be able to host you after the election to have a debriefing on what will have happened with the bill and how successful it will have been in trying to plug more loopholes in the electoral system.
Honourable senators, it is now my privilege to welcome Scott Jones, Head, Canadian Centre for Cyber Security, Communications Security Establishment. He is accompanied by Patrick Clow, Director, Incident Management and Operational Coordination. We also have, as an individual, Professor Ian Lee, Carleton University. Mr. Jones, you have the floor.
Scott Jones, Head, Canadian Centre for Cybersecurity, Communications Security Establishment: Good afternoon, Mr. Chair and members of the committee. Thank you for the kind introduction and for inviting us here today as part of your study of Bill C-76.
[Translation]
The security of Canada’s elections is of critical importance, and CSE is proud to be a part of this conversation. Of course, this discussion is much broader than the issues that we are mandated to address at CSE and the Canadian Centre for Cyber Security. With that in mind, I will focus my remarks this evening on CSE’s support of the Minister of Democratic Institutions’ mandate to defend the Canadian electoral process from cyber-threats.
[English]
As this is CSE’s first appearance before this committee, please allow me to begin with a brief overview of CSE’s mandate. For over 70 years, CSE has been mandated to provide and protect Canada’s most sensitive information.
[Translation]
In addition to our foreign signals intelligence and lawful assistance mandates, CSE is also home to the Canadian Centre for Cyber Security, or the Cyber Centre for short.
The Cyber Centre was launched on October 1, 2018 and is Canada’s national authority on cybersecurity and cyber-threat response. In line with the vision of Canada’s National Cyber Security Strategy, the Cyber Centre represents a shift to a more unified approach to cybersecurity in Canada.
[English]
The Cyber Centre continues the work of CSE’s IT security mandate and provides advice, guidance and services to federal departments and agencies and other systems of importance to the Government of Canada.
In addition, with the amalgamation of parts of Public Safety and Shared Services Canada, the Cyber Centre also continues the work previously done by several departments to collaborate with other levels of government, the private sector and academia. The Cyber Centre also helps keep all Canadians safe in cyberspace by informing Canada and Canadians about cybersecurity matters as a single, clear and trusted source of information. An example of this is the Get Cyber Safe campaign.
[Translation]
In her mandate letter, the Minister of Democratic Institutions was instructed to ask CSE to analyze risks to Canada’s political and electoral activities from hackers who have sworn to attack Canada’s political and election activities. In response, in June 2017, we were proud to release our unclassified assessment of cyber-threats to Canada’s democratic process.
[English]
The report found that Canada is not immune from cyber-threat activity against its elections. While the threat in Canada was assessed as generally of low sophistication, political parties, politicians and the media are vulnerable to cyber-threats and influence operations. Since publishing this report, CSE has held productive meetings with political parties, parliamentarians and electoral officials to discuss the findings in the cyber-threat assessment and to offer cybersecurity advice and guidance.
[Translation]
Looking ahead to 2019, CSE has been asked by the Minister of Democratic Institutions to continue our analysis of cyber-threats to Canada’s electoral process. With the advantage of a unified Cyber Centre, our analysis will continue to look at the rapidly changing technological and threat environment, and will help characterize and understand the evolving threats to Canada’s democratic process.
[English]
Bill C-76 would not change the mandate of CSE or the Canadian Centre for Cyber Security, but it is part of a broad effort to maintain the trust and confidence of Canadians and our democratic process. From the cyber-threat perspective, the aspects of Bill C-76 that relate to foreign interference and online disruption are welcome initiatives.
[Translation]
When it comes to ensuring the security of Canada’s elections, it is important to remember that cybersecurity is a team sport. To remain resilient, all aspects of the democratic process, including the elections themselves, political parties, and traditional and social media, must make cybersecurity part of their business.
[English]
Thank you. We look forward to answering your questions.
Ian Lee, Associate Professor, Carleton University, as an individual: I thank the senators for the opportunity to appear before your august committee on this very important bill.
I realize there are a number of independent senators here today. I hope you will appreciate that I have been an independent professor for many years, for I do not consult to anyone or anything anywhere in the world, although I have taught in many countries around the world, nor do I belong to or donate money to any political party.
My final disclosure is that in my 20s, in the 1970s, I was employed in banking, where I was extraordinarily fortunate to receive world-class training in banking, economics and management from British bankers, including one of the most important issues in banking, and that’s the issue of identity and identification — Who is the customer? Do we know our customer? — decades before others were discussing this.
In 2014, after I spent six weeks intensively studying identity and identification systems in Canada by reviewing multiple statutes of the Parliament of Canada and the legislative assemblies of Ontario and Alberta as my two proxies and key agencies in those three jurisdictions thereto, I wrote an op-ed published in The Globe and Mail on May 9, 2014. The title gave it away: “Canadians who can’t vote because they lack any ID? Don’t believe it.”
Allow me to quote the most important paragraph from my op-ed:
Based on extensive empirical research into government identification systems, I have found that it is legally and factually impossible today to be digitally invisible with no identity of any kind recorded in any government database anywhere in Canada.
For these reasons, I do not support watering down identification used everywhere else in all walks of life in Canada, including boarding planes, getting into the parliamentary predict, going to a bank, and writing exams in universities in order to allow voter information cards — I don’t call them voter ID cards because they are not identification cards; they are information cards — or vouching, which I believe will undermine confidence in the integrity of elections in Canada, as has occurred regularly in the United States on both sides, with the Democrats and the Republicans.
What is the evidence for what I’m saying about the identity? Let’s start at the beginning, which is the very origins of each of us. That is our birth. The vital statistics act of every province and territory compels and mandates the registration of every birth and death in its jurisdiction and is the database that is the source of birth certificates for every person born in Canada.
Moreover, a SIN, or social insurance number, must be issued shortly after birth because of the Income Tax Act, prized by you parliamentarians, which mandates a SIN in order to receive government benefits and mandates that every citizen must file a tax return to CRA if they receive any federal, provincial or municipal benefits, such as student loans, even if they owe no taxes. Last year, in 2017, over 5 million returns were filed where they received no refund nor did they owe any money. Those are deemed to be the people who are simply filing simply because they received a benefit.
Then there is the FCAC, created by you parliamentarians, that reports 99 per cent of Canadians have a bank account in 2018. You can say, “So what?” The Bank Act passed by you parliamentarians mandates a minimum of two pieces of government-issued ID, which they specify in the act, to open a bank account.
Now, let’s connect the dots. Ninety-nine per cent of Canadians have a minimum of two pieces of government ID, as required by the Bank Act, because 99 per cent of Canadians have a bank account, as reported by FCAC.
Let’s turn to health care. No person can access a doctor or hospital services without providing a provincial health card. I know from experience. My doctors refused to see me when I forgot my health card a couple of times. I had to go home and get it.
Transport Canada now reports in its annual database to Parliament 33 million cars and trucks in Canada. Each must have an ownership certificate and a separate insurance certificate that discloses name and address. That’s 66 million pieces of ID.
Now we turn to the urban legend that low-income and marginal people have no identification. An examination of Ontario Works, my proxy agency — I did look at a couple of others provincially — reveals the remarkably stringent and onerous identification requirements to apply for social assistance and other forms of government assistance that vastly exceeds opening a bank account or obtaining a passport. In Ontario Works, by my count, you need six separate pieces of identification in addition to the regular driver’s licence, OHIP card and so forth.
Finally, we turn to the claim that requiring ID depresses voting. The logic of the claim is that the act of requiring ID reduces the behaviour that needs the ID. Yet the universities require photo ID to write exams. I have been proctoring my exams for 30 years, five times a year for five courses, and the idea that the enrolment has gone down in universities is nonsense. According to StatCan, university enrolment increases year after year. To board a plane, one must present ID three times, but that has not suppressed flying with the annual numbers in Canada.
Witnesses such as myself must present a driver’s licence or passport to access the parliamentary precinct. They do not accept voter information cards, by the way, and there is no evidence that this has suppressed witnesses’ willingness to testify before the Senate or House of Commons.
But for the most conclusive evidence of this, let’s turn to the ultimate: the Canadian general election of 2015. It was claimed by multiple people in the media prior to that election that the more stringent identification would drive down voter turnout in the election. What did happen? I went to Elections Canada. I’m an empiricist and I use empirical government reports all the time. Elections Canada reports voter turnout skyrocketed to the highest level in a quarter-century. Let’s use Elections Canada’s own words to close:
In the 2015 election, the participation of voters aged 18 to 24 increased by 18.3 percentage points to 57.1% (from 38.8% in 2011). This is the largest increase for this age group since Elections Canada began reporting demographic data on turnout in 2004. . . . Participation of voters aged 25 to 34 increased by 12.3 percentage points to 57.4 per cent . . .
I’m being facetious when I say this, but if we want to increase voter turnout, it seems we should increase the identification requirements, because look at the impact it has on turnout.
I will close with a famous Latin phrase: res ipsa loquitur, or the thing speaks for itself. Thank you.
The Chair: Thank you very much, gentlemen, for your presentations.
[Translation]
Senator Dupuis: Thanks to you three for being here today. I’ll begin with you, Mr. Jones. Can you tell us the exact nature of the support you’re providing to Elections Canada in preparation for the 2019 election?
Mr. Jones: Thank you for your question. First of all, we are working together with Elections Canada.
[English]
Really, our assistance comes in a few different pieces. The first one is general advice and guidance as we get ready for things like contracting, helping them in terms of design and working with them as part of the overall architecture. One of the fundamental principles of cybersecurity is to build security in from the start. We have been working with Elections Canada since well before the last election in terms of those types of things. It’s the traditional organization mandate.
The second piece is that as the threat environment evolves, we consistently work with Elections Canada to make sure they are also aware of what we are seeing. As we are seeing changes happening around the world, whether that be from our intelligence side or our cybersecurity side, we make sure that they are aware of the evolving threat so they can continue to advance their processes.
The third piece is working on the active defence of the systems themselves, whether that be the systems Elections Canada uses as part of their administration but also as we look to defend as elections happen, how do we work together to make sure we are defending those systems actively.
Cybersecurity starts at the beginning in design. You work in to make sure that you understand the threat. Finally, you make sure you are defending as that threat evolves to the systems you have and the online systems you have today.
[Translation]
Senator Dupuis: I want to emphasize that this is the first time representatives from the centre have had an opportunity to speak before this committee. Personally, I would like this to be the first in a series of appearances that will help us establish a clearer appreciation as parliamentarians of the scope of cyber-threats and the existence of false information during elections.
In your mind, is the risk of undue influence by foreigners and foreign organizations greater than the influence of foreign funding of local or national organizations here in Canada?
Mr. Jones: That question is a bit complex for me because my field of expertise is cyber-threats.
[English]
I’m really looking at the foreign cyber-threats in terms of the influence activities, not necessarily the financing side; I leave that to the experts from Elections Canada and other places. What we are really looking at is how you can manipulate this online environment in terms of shaping opinion, but also enforcing divisions and how that could be used from foreign space directed at Canada.
Really it’s about trying to raise awareness. That’s why when we published our report last year, we were really trying to talk about not necessarily what could be done, because it’s going to take a lot of us, but how can we start to talk about this in terms of just to raise awareness. That’s really what our concentration is here. Also, of course, we are looking for the foreign side of things in terms of what could be the objective, because our mandate does restrict us. We don’t direct our activities at Canadians; we direct our activities outside of Canada.
[Translation]
Senator Dupuis: Based on your experience with the 2015 election, what can you tell us about the nature of the risks you observed, whether from foreign governments or organizations, regardless of their legal status, which were located outside Canada and attempted to influence the election?
[English]
Mr. Jones: First of all, the election itself is very robust from a cybersecurity perspective, given that it’s very much still paper-based. The processes that Elections Canada has in place for polling stations, given that everything is paper-based, makes it extremely resistant to cybersecurity threats. But with the online media, the social media, the ability to manipulate it, I would say worldwide we were very naive about what could be done there. I don’t think we had looked at social media as this tool that can be used to influence us. We looked at it as a way to share.
In 2015 the tool hadn’t really grown to that level. When we looked back we didn’t see a lot of efforts to influence us. Certainly we saw it being used a lot more to communicate, but not necessarily in the malicious way that we saw in other countries, not to the same scale anyway.
2019 is a new era, and that’s one that we have to be prepared for. How do we start to combat the influence especially of social media and the speed that it demands of traditional media in terms of the online manipulation, false news, whether that be propaganda or whether that be absolute fake material. It’s a very complicated technical environment.
Senator Frum: Mr. Jones, you say the mandate of your organization is to maintain the trust and confidence of Canadians in our democratic process. We find ourselves in a funny situation. I’m saying that as a Canadian and as a parliamentarian. We are told that for reasons of national security, we are not allowed to know about what interference or intervention or foreign interference happened in the 2015 election. How does keeping that information from Canadians raise our trust and confidence in our process?
Mr. Jones: First of all, we have been really trying to concentrate on how do we talk about the overall resiliency of the election itself. Part of that was the public report we issued last summer and will be updating early next year. From our perspective, from the perspective of the 2015 election from cyber-means, which is where our expertise is, we didn’t see really any concrete activity, but certainly there always are people on social media. It’s hard to distinguish between who is a foreign influence and who is just somebody who is trying to push forward an opinion. We didn’t see any activity that we would be pointing out in terms of the cyber-means, but that doesn’t mean that in some of the other security intelligence agencies they may have seen other activities. I think the operational or security restrictions are probably best left to them to address, but from our perspective we try to be forthcoming.
Senator Frum: I was encouraged by the point you made about our elections are still paper-based and that doesn’t have cybersecurity impact, and that helps protect the security and integrity of our elections. But it made me think about this new system and the new world we are about to enter where we’ve been told that there’s almost as many as 3 million people living abroad, Canadian expats. They can register for the election online, and they will never have to encounter a human being. Does that raise red flags or alarm bells for you?
Mr. Jones: Well, I think the crux when you are looking at any of these types of systems is how do you verify identity. We do this every day, whether it be on our online banking, et cetera. What’s the form of digital ID? We always look at any cybersecurity issue from three aspects. There is the confidentiality of the information, the integrity of the information and the availability of the system. Identity is a huge part of that. How you confirm your identity and what steps you need to take are critical as part of that.
Senator Frum: What assistance will you be giving to Elections Canada to do that work? Because if they get flooded with online registrations, our understanding is that they are just going to take them at face value, unless challenged. Or are you involved right now?
Mr. Jones: We are involved in their systems aspects. We work very closely with them. In terms of a specific system, I’d have to go back and check the details. We are involved heavily in all of their architecture work, on all of their design work, their systems work.
Senator Frum: Am I identifying an area that has been of concern to you, or is this something that’s new?
Mr. Jones: In general, we are always worried about all aspects of the cyber-environment, particularly from outside influence, so any outside actors’ ability to manipulate the system and the ability to maintain the integrity of the information in the system. We would be providing advice on all of this.
Senator Frum: For me, it’s an obvious concern. You have millions of people living in places like China and Russia and Iran and Saudi Arabia, the places that we know are actors in this nefarious space. You have Canadian citizens living in those countries who are being asked to register online. If I were in charge of cybersecurity, I would be very concerned about that. I’m just asking you: Are you very concerned about that?
Mr. Jones: What I always worry about is how do we make sure you are verifying the identity of the person, so what steps do you take to build in a system where you are confirming that who is at the other end of the computer is indeed that person. That’s one of the things we’re always looking at when we’re doing cybersecurity. That’s part of the overall system that we look at.
[Translation]
Senator Boisvenu: I have two relatively brief questions. The first is for Mr. Jones. The bill would make the intention to affect the results of an election illegal. If you affect the process, you don’t contravene the act. The fact nevertheless remains that attempting to influence an election process may be as serious as affecting its results. Should the prohibitions of the act be somewhat broader?
[English]
Mr. Jones: I’m not trying to avoid the question. It’s really outside of my area of expertise in terms of the enforcement of this type of activity. I would probably leave it to my colleague.
[Translation]
Senator Boisvenu: With respect to cyberactivity, someone may want to influence the conduct of an election without necessarily affecting its results. However, the act is soft on this point. From the moment someone attempts to influence the conduct of an election, shouldn’t we provide for a minimum number of prohibitions?
[English]
Mr. Jones: I think we would be looking to provide information, if we ever saw that type of activity, to Elections Canada or the commissioner to enforce, but I think it’s best left to the commissioner or Elections Canada itself to talk about how their enforcement powers could be leveraged. I’m not an expert in that area; I’m sorry.
[Translation]
Senator Boisvenu: Mr. Lee, you don’t seem to be in favour of requiring a minimum level of ID for voting purposes. At least that’s what I infer from your brief. What surprises me is that there wouldn’t be any obligation for a voter to present a piece of photo ID to confirm that the name that appears on the document is indeed that of the person in question. Doesn’t this aspect risk removing a degree of credibility from the election process? Without minimum ID, some might feel this is a gateway to election fraud.
[English]
Mr. Lee: I should have made that clearer in my opening comments. Yes, I do agree. Again, I look at other areas. All of us have experiences in other parts of society. We board planes. You have to have photo ID to get on a plane. I know you cannot board a plane in Canada, the United States or Europe without photo ID.
We require, and have forever in the universities, for the proctoring of exams, as we call it, photo ID. We don’t just say it has to be a student card. It can be an OHIP card, a provincial health care card or a driver’s licence — anything with the name and photo — and, of course, a passport. We are not as concerned about the address; we’re concerned about whether the person writing the exam is who they claim to be.
So many institutions use photo ID, and it is not an invasion of privacy. It’s not suppression. We expect it in a large, complex modern society. We are not living in a village any more. I grew up in a small town, on a farm. I knew everybody in our neighbourhood because the neighbours were only one mile apart, but there was nobody in between. Now I don’t even know the people who are literally 50 metres down the road from where I live. We can’t expect to know everyone, so we need photo ID.
Yes, I think it’s ideal that we should be asking. By the way, there is a whole list of photo ID that could be put into the Elections Act that we carry collectively. To go back to the Bank Act for a moment, I’m sure everyone here knows it, but in case you aren’t aware of that section, the FCAC lists recommended ID. It’s a long list, and most of it is photo ID. It’s not something that is insurmountable, over the top or excessive. In all other walks of life in Canadian society, we provide photo ID.
[Translation]
Senator Boisvenu: Do you think the absence of this type of clear identification is conducive to cheating and abusing the right to vote?
[English]
Mr. Lee: No, I don’t. I may seem like I’m giving you a very paradoxical argument. I’m saying I don’t believe there’s any risk of fraud. I’ve read the European report on this as well, and I just don’t think there is a risk because there are so many people voting.
My problem isn’t with fraud; it’s with the confidence of large numbers of Canadians in the system. We talk about confidence all the time. Do we have confidence in Elections Canada? Do we have confidence in the integrity of whatever system we are talking about? It’s the confidence we are building. I know that all the people I fly with are not terrorists and will not blow up my Air Canada plane, but I feel a lot better that they are asking for ID, three times, to get on the plane. It just makes me feel really good. It inspires confidence in the integrity of air travel in Canada and the United States. I have no fear travelling on planes. I have great fear in some other parts of the world where I travel. I don’t have confidence in the integrity of their system because I think their security and identification is sloppy.
Senator Gold: Welcome. I agree with my colleague Senator Dupuis; we hope to see you back here again.
You’ve well described the current assistance you are providing under your current mandate to Elections Canada to advise and offer them opinions, to analyze the nature of the threat and, of course, most important, to defend against threats that you have identified.
May I give you a hypothetical scenario? There is a question buried in this that will follow it. Imagine there is a website or network somewhere abroad. It could be China, Iran or anywhere abroad, outside of Canada. It’s feeding a number of things into Canadians homes or phones: false news about a candidate, with the intention of influencing the election — this person is a criminal — which is an offence, or false information targeted, because we can do that, about voting times or voting places, or shifting or things like that, or just fake news to create social discord and divide Canadians against each other and what have you.
I’m going to make an assumption, because you have an international reputation for talent within your organization, that you actually have the technical capacity but not the mandate necessary to go out and do things to these foreign entities. You could knock out one of these bots, you could put a flashing banner saying this is fake or what have you, but you can’t do that currently.
To what extent would having broader cyber-powers such as are contemplated by a prospective law that has not yet passed but is before the Senate — to what extent would that improve your ability to assist Elections Canada in protecting the integrity of our electoral system?
Mr. Jones: In that example, certainly with Bill C-59, which is currently being considered by the Senate, there are powers for CSE that would be included in what I think would be the most applicable in this case, which would be defensive cyber-operations. That is the ability to reach out when there is no other option to be able to stop activity that’s directed at Canada. That’s one of those areas that’s with the approval of the Minister of Defence but also with the consultation of Foreign Affairs. That would probably be the most applicable.
Right now, if we saw that type of activity, we would have to ask the originating country to stop. There is very little else that could be done. You could try to block, but the Canadian Internet is open. We don’t have a great firewall of Canada that we could block content. We are a free and open society. Right now, our only option would probably be to ask the country to take it down. We might be able to do some other things, but that’s probably the best option. In Bill C-59, there is the defensive cyber-operations side, if that passes, but that is something that we would have to consider what our effect would be there.
Senator Gold: In your consultations with Elections Canada — and we’ll stay with the topic of this committee, of course — and the relationship you and other government entities are having with them, to what degree are they requesting that you play a more robust role in protecting them? Can you comment on their openness to you providing that kind of assistance?
Mr. Jones: Absolutely. The relationship with Elections Canada is robust and frank, but they are also frank about their role as an independent arbiter. As a government entity, we respect the fact that they are independent. They have a role to maintain the independence of this from the government executive side of things. That’s a quality of the relationship where they will say that’s something they are not considering.
We discuss openly the threats we are facing, the technology being used, the architecture and what they’re trying to achieve in the future. That’s why it’s a long-standing relationship. Unfortunately, cybersecurity takes years to build in. However, it’s a frank exchange. When we do things like contracting, we work with them on how to apply proper security clauses. The private sector is an important partner in cybersecurity. That’s part of everything we do. It’s a comprehensive relationship and one where we always look to make sure we look at what is next and what we should be working on. There are some interesting aspects as we look to the future, but the key thing is it’s robust and critical. I think it’s critical as part of our mandate not only to help Elections Canada but also to respect the fact that they are independent and give them some of the tools they can use to protect elections on their own.
The Chair: Thank you. We may have additional questions on that.
[Translation]
Senator Carignan: My impression is that we’re at the mercy of the good will of digital platforms, the Facebooks, Googles and Twitters of this world. Facebook said that the ranks of its members included some 200 million fake profiles and that 7,500 individuals, moderators, were trying to identify all those problematic accounts.
We heard the minister say that discussions were under way and that we were cooperating with the giants of the digital world. Despite that fact, I don’t feel we’re controlling the situation at all. You have your own algorithms or software for identifying fake accounts, or have we become completely dependent on the internal verification systems of Facebook and the other digital platforms of this world?
[English]
Mr. Jones: That’s a difficult question because there are so many users from around the world, and that includes Canadians. The information that would be necessary is in the hands of the social media companies. We really have to rely on them to moderate the platform they have created and built and allowed to operate in this way.
One of key things for us is, can we start to see the foreign links? We concentrate very much on foreign efforts and foreign organizations that might try to target Canada, and we try to get ahead of the threat that way. That’s where it’s critical that our foreign intelligence mandate and our cybersecurity mandate come together.
At the end of the day, the social media companies own their platforms. It’s their customers’ data, and we rely on them to take action against these false accounts, fake accounts and fake information. The dilemma we have in the social media space right now is who is responsible for this platform when it’s an international, worldwide common that people can post whatever they feel to.
[Translation]
Senator Carignan: Should we introduce amendments that could serve as levers? Since we don’t have the cooperation of those platforms, that would enable us, on the one hand, to act on our own by suing them and, on the other hand, to work with the information to develop and use our own algorithms.
I imagine that, with all these people working in your offices, you have your own algorithms and keyword recognition and threat identification software. With all your tools, you’re probably better equipped than the Facebook people, but you can’t use them.
[English]
Mr. Jones: Right now, we concentrate on trying to work with any of these private sector companies or working through some of the partnerships we have in other departments to increase their knowledge of what we see. We don’t look at the content of Twitter in terms of real-time content. We have to rely on social media companies to do that. Coping with the volume of social media companies is something where we need them to look at their platforms and how they can deal with this type of activity and the tools that are necessary to do that. I think that’s probably best left in your hands. I’m not sure my agency is best positioned to be able to protect that.
[Translation]
Patrick Clow, Director, Incident Management and Operational Coordination, Communications Security Establishment: Our approach also includes an awareness campaign designed to educate Canadians on the kinds of measures they can take to understand the problem and possibly identify information that isn’t necessarily well controlled or submitted to certain platforms that you mentioned.
Last October, we had an awareness campaign on our website called “Think cybersecurity,” with articles discussing that kind of activity.
As Mr. Jones said, this is a complex situation. The companies control the platforms, and, yes, it’s important to work with them on this problem. We’re trying to offer several information packages that can help address the problem more effectively.
Senator Carignan: I understand the merits of your awareness campaign. However, when we do that, people may doubt whether the information they receive is legitimate. In that case, it’s terrible because people no longer know whom to trust.
Mr. Clow: When we develop material for our awareness campaigns, we provide general information containing steps to follow that will help, first, to identify the source of the information and to verify another source to confirm and see whether the same information is being distributed on other sites offering that kind of information.
Senator Carignan: One of the answers given earlier was that, if the information comes from a foreign country, contact the country and ask that the account be shut down. Do we have any reciprocal agreements with countries under which we have the power to do that and they have an obligation to shut down the account, as is done in extradition cases, for example?
[English]
Mr. Jones: As part of our role as the country’s national computer emergency response team, we have a number of international agreements, but every nation takes action. We would also look to work with our partners in the RCMP in terms of using the legal process as well. You bring all the tools to bear at this time, including our partners at the Canadian Security Intelligence Service as well, because we want to try to leverage all the tools. There is nothing that would compel. But in a lot of cases, certainly with allied nations, we all take action in cyberspace. If we feel there is something originating from our country, we will work to try to take action.
[Translation]
Senator Carignan: We don’t have agreements with Russia or China.
[English]
Mr. Jones: Not that I’m aware.
Senator Batters: Thank you to all of you for being here today.
Professor Lee, when this committee dealt with the Fair Elections Act back in 2014, you appeared here and provided helpful information about identification. You alluded to it briefly today, but I wanted to give you more of an opportunity to talk about it because that’s one the reasons that the current government is saying we need to use these voter information cards, which are filled with errors, as identification for the purposes of address. What you testified about in 2014, to my recollection, was how people who are poor and the most vulnerable in our society actually many times have more identification than other Canadians. You made brief mention of that today, but I wanted to give you an opportunity to talk a little more about that, because that’s something that is a real myth about this area. Could you tell us more about that?
Mr. Lee: Thank you for the question. It is a myth, and it is a deeply held myth by many Canadians that because you are marginal, you are marginal in every possible dimension, including not having ID.
I didn’t tell you the full story. I worked for four years in a finance company that dealt with a lot of low-income people before I was recruited by the Bank of Montreal. They were somewhat the predecessor of payday loan companies back in the 1970s, and that’s where I first developed my experiences with ID. In a financial institution, it’s really critical.
As I said, I followed it up with research, and what I discovered was that when you are applying for a benefit, there may be some people who think it’s easy to get money from government, but, generally speaking, our public servants are diligent, so you can’t just walk into an institution and ask for your old age pension cheque without any ID. It doesn’t work that way. If you go in for social assistance or government help, whatever words you want to use, in Ontario, it is spelled out. It is really hard to get welfare. There are some people who say it’s easy; it is not. It was amazing when I went through the list. You have to produce bank accounts, your lease, your cancelled cheques and tax returns. I have never had to produce that to anybody. I haven’t been on government assistance of any kind. And that list is in addition to the standard driver’s licence, if they have one, and so forth. It really is quite remarkable that they are being challenged and have to come up with this identification to establish who they are and, I guess, also establish some kind of financial need.
Another trigger for me was when I often debate the Canadian Federation of Students, who make remarkable statements from time to time, and one they made four years ago was that students lack ID. That’s simply not true. I’ve been in the university for 30 years, which is a third of a century. I have proctored every exam for a third of a century. I tell them I’ll take anything that is photo ID. I’m easy-going: bring in your passport, student identification card or driver’s licence. I don’t care as long as it’s government-issued and photo ID. They bring in all imaginable forms of identification. The idea that students lack ID is an urban legend.
When I spent the six weeks, I knew there was a lot of identification, a lot more than when I was growing up in the 1970s. There was far less ID. Today, there is just a plethora of identification, partly because governments have become larger and more complex and more sophisticated, and they are doing better due diligence, which is good.
There is a lot more due diligence today to get a passport than 30 or 40 years ago, or even to get a student card. The identification they have to show to us before we register them is far more demanding than it was 30 years ago. This idea that we have less ID, or very little, somehow, is simply contrary to the evolution of sophisticated economies in the last 40 to 50 years. We are far more complex and sophisticated and we have far more identification out there, everything from passports to social insurance numbers to provincial health cards, driver’s licences and so forth. That trend is expanding, not contracting.
I think every Canadian knows how much ID they have in their wallet or purse or wherever they store it. I have so much ID I don’t carry it all with me because my wallet is not big enough to hold it, or it is so big it would push out my pant pocket and rip out the seat of the pants. I strip out ID and just carry the five or six or seven essential ones, and those are the ones I carry because I have so much. Again, I’m not unusual. I think there are many Canadians that experience that reality.
Senator Batters: They made a “Seinfeld” episode about that type of wallet.
Senator Dalphond: My question is for the security people. If you identify a foreign source trying to interfere in Canada, having trolls or other means to communicate messages, but you have a clear indication it’s coming from outside Canada and may be linked to a foreign country, do you have the ability to neutralize it and make sure it doesn’t reach Canadians any more?
Mr. Jones: Currently, CSE is limited in our authorities. We would be able to report on this. We pass the information on to other agencies who might be able to do something internationally if you look at the criminal side of things and looked at the RCMP partners, or maybe foreign security services. We would have to ask for the foreign nation to take action, but right now we have no authority to do anything in foreign space to deal with the threat.
Senator Dalphond: This bill will not change the situation.
Mr. Jones: Bill C-76 does not change any authorities for the Communications Security Establishment.
Senator Dalphond: We’ve seen in the U.S. where some groups were organizing and there were gatherings of opposing groups on the other side of the same street and you could have a fight at the end. That could be organized here and you could not prevent or stop it?
Mr. Jones: If it was from the foreign side of things, we could not prevent it with anything under Bill C-76. Authorities proposed in Bill C-59 would change CSE’s overall authority mix, but that’s separate from Bill C-76.
Senator Dalphond: If Bill C-59 was in force, you could prevent those types of things from occurring?
Mr. Jones: It would give CSE the authority, with Minister of Defence approval and in consultation with the Minister of Foreign Affairs, for defensive cyber-operations, if that was the measure necessary to take the action to achieve the outcome we would look for, for the defensive activity.
Senator Dalphond: I have maybe a quick question for Professor Lee. I often board the train and need only one form of ID. Why is one ID not enough for you to vote?
Mr. Lee: If it was a government-issued photo ID, it would be more than enough. A driver’s licence or passport, I think, is the photo ID. I’m not as concerned about address. Ideally, you want address and photo, and provincial drivers’ licences have that. But you are quite right. We don’t have to load up with four or five or six.
Senator Dalphond: Canadians need two forms of ID to vote.
Mr. Lee: We need only one.
Senator Dalphond: And a card received from Elections Canada that shows your address and two picture IDs with your name and identify you would be enough.
Mr. Lee: Now you are asking for two by sliding in the voter ID card.
Senator Dalphond: The law provides for two.
Mr. Lee: My problem with the voter ID card is it is not identification. There is no due diligence on that card. Anyone can put down their name. They can put down “Santa Claus” and no one will say, “Wait a minute. You’re not Santa Claus.” There is no due diligence challenge.
Senator Dalphond: You have the card with the pictures but the address is not there, and then you have the voting card, and you have enough.
Mr. Lee: But that is a Rube Goldberg invention, when you can just cut to the quick and say you want a single photo ID that is government-issued and that will address those problems.
Senator Dalphond: With the address?
Mr. Lee: Let me throw some stats out. I did look this up. The driver’s licences far exceed the number of registered voters. Transport Canada broke it down, and I can provide this data to the committee after, but even after you strip out the 16- to 18-year-olds who are not eligible to vote, there are still far more drivers’ licences in Canada over 18 than there are people eligible to vote. I can’t prove that there is a perfect match of one for one that every voter has a driver’s licence, but it’s awfully close.
Senator Dalphond: Are you aware that in the last election, 49,000 people claiming to be Canadian were denied the right to vote because they only had one piece of identification?
Mr. Lee: No, I was not.
The Chair: Mr. Jones, I would like to come back to the scope of your mandate so it is well understood by senators and Canadians watching us. In your presentation on page 2, you claim that CSE, which is your agency, had productive meetings with electoral officials to discuss the findings of the cyber-threat assessment, first, and to offer cybersecurity advice and guidance. Therefore, you are a watchdog of what’s going on in the cyber-world in relation to the electoral process and, at the same time, you are the advisor to the Chief Electoral Officer on the threat that is pending over the system, and you offer the Chief Electoral Officer guidance on what to do to stop that or prevent that. Is that a fair description of your role in the overall protection of the integrity of the system?
Mr. Jones: Absolutely. What we concentrate on is helping to make sure that they are informed of the threats, that we help them in terms of making cybersecurity decisions and, when those decisions are taken, how to implement them the best way. It’s about how we support their ability to build the system they need to support the election.
The Chair: We are less than a year from the next federal election, which is supposed to take place on October 21, so I bet that you see them quite often to report on what’s going on in the cyber-world in relation to the election.
Mr. Jones: We have been working with Elections Canada and talking about election 2019 since prior to election 2015.
The Chair: But you would certainly heighten your surveillance because, based on what we have learned from the Russian intervention that created 50,000 accounts in the year before the election in the United States — we know the date, as we know the date now in Canada — there is a call to be in a position to be able to monitor what’s going on 24 hours a day, seven days a week.
Mr. Jones: We are always looking to see what activities could be targeting Canada, according to the priorities of the government, but we are also looking at where the threat is evolving. It’s also through awareness of where technology is moving and how people are starting to change and manipulate.
I remember when social media was just coming on the stage. I don’t think any of us would have thought the day we signed up for our very first Facebook account or Twitter account that it was going to be a tool of manipulation in the democratic process. I just thought it was an annoying way of people telling you what they ate for dinner. And then we shared family photos. That’s what we used Facebook for when I first signed up for my account. We never would have seen this. As a computer scientist and engineer, I never would have predicted that this is where these platforms would go. I think that’s what we’re struggling with.
It is always looking to where the threat is evolving and where it is going, and that’s one of the things where the technology space is evolving so quickly. We always have to stay on top. We always have to be looking at what the new vectors will be and trying to think like an adversary does about how to manipulate an open society like ours through the technology and the online environment.
The Chair: Do you have an interface with the platforms, as Senator Carignan mentioned, Google, Facebook and Twitter? They have a shared interest, if they are of good faith, to prevent that from happening. Is there a meeting point between your agency and the platforms so that, when you realize there is a risk, you alert them and they are responsive to that?
Mr. Jones: We have relationships with a large number of companies, social media companies included in that. I think the key thing for us is they are experts in their platform, and we are experts in the threats, so it’s how we can share that information.
We also work with our allies around the world. We are all facing the same types of threats, so how do we all work together collectively as part of our getting ready for all of the democratic processes that we expect to see in all of our nations, because it’s going to take all of us working together. That’s where we are leveraging the international partnerships, primarily amongst our core partners in the U.S., the U.K., New Zealand and Australia. It’s how we can all work together on these types of things.
We do talk to the platforms. We are trying to say how we leverage all of things that are going on to try to increase the security of Canada and Canadians. The fact is, though, that part of this is going to be on all of us as consumers of information to turn a critical eye. As Pat was saying, it’s critical for us also to be cautious consumers of information as well. That’s really difficult, and we admit it. That’s why we are trying to give some tools, techniques and general awareness.
The Chair: What’s the size of your operation? How many people work with you?
Mr. Jones: The Cyber Centre itself is around 700 people, but that is including all the cryptographic products that the government uses all the way up to if the phone rings with somebody with a cyber-incident, that’s the person who answers the phone and provides services, so it’s everything in between and all the technology experts as well.
The Chair: How many are devoted to the election?
Mr. Jones: It’s hard for me to break it down that way because we have people who do advice and guidance on building things. The election system is not dissimilar from systems used in other places, so it is how we apply general knowledge in specific cases. It will go up and down, depending on what we’re working on at that time.
As we shift towards general election 2019, the systems are in place, so it’s not about advice, guidance and preparing for the future. Now it turns into a cyber-defence mission: How do we protect the systems? How do we protect the integrity? How do we work with the commercial service providers? Suddenly it goes from architects to defenders and partnership folks who are working with the private sector companies, the communications companies, to secure the whole environment. It shifts over time.
[Translation]
Senator Dupuis: I have a sub-question further to the one you just asked, Mr. Chair.
You just spoke about training that you offer to parliamentarians. I’d like to know more about that. It seems to me, if I understand the nature of your mandate, that you have to support the Chief Electoral Officer and the Commissioner of Elections in their respective authorities and that it’s up to them to intervene and exercise their power to the full based on the support you provide them. Do you have a broader responsibility to cover cyber-threats in general, not only those directed at the election process in its narrowest sense?
You told us you’re interested in parliamentarians, Mr. Clow, but you also discussed an awareness campaign for Canadians. Do you include senators among those Canadians? In fact, you say that cybersecurity is a team sport. Is it hockey or synchronized swimming? I believe senators are part of the team that should be interested in cyber-threats and cybersecurity. The proof is that some senators are victims of interference on their websites. Do you have that kind of mandate with senators? Are you prepared to consider it as part of your present mandate?
[English]
Mr. Jones: Absolutely. For me, our mandate includes broad outreach to all Canadians, but then you get into more tailored activities.
One of the things we are looking at is how to support any candidate for political office in terms of giving concrete tips they can apply to make themselves more cyber-secure. The same includes parliamentarians, who face a unique threat as representatives of all of us. We work in a few different ways. We would always be pleased to talk about cybersecurity and how people can take action to protect themselves online. That can be in a closed session. I’m happy to do that and answer questions.
Second, we publish a lot of material on our website that is just simple tips we can all apply. We try to make them so they are usable by real people. That wasn’t always our forte. We tended to write things in a very nerdy technical way, so we have tried to make it practical for people.
The third is customized briefings. One of the things we did when we released the Cyber Threats to Canada’s Democratic Process was to come and brief it, walk through what we were thinking and what it meant. We tried to do that in detail. We would be happy to do that.
The fourth is we work with the parliamentary precinct in terms of providing whatever materials we have. I know they have a very robust security program, so we try to provide support to them in terms of what we produce.
The Chair: Before I have the pleasure of thanking you, Mr. Jones, in your presentation you mentioned that you released in June 2017 an unclassified assessment of cyber-threats to Canada’s democratic process. You mentioned, if I understood correctly, that you were bringing it up to date. Would you care to share with the honourable senators that up-to-date report of the assessment, what you can release, of course, for our own information and satisfaction of what’s going on?
Mr. Jones: On the report itself right now, our assessors are just going through the material. We have the report that was issued in 2017, last summer. We are now going through all the research to bring it up to date, so there isn’t a report to release right now. The assessors are at this moment going through all the data we have, what we’ve seen, the change in the threat environment. We’ll begin drafting that report. Our goal is to get it completed and as up-to-date as close to the election as possible, but prior to the start of the true electoral activities, just to bring it up to speed for where the threat environment is as close to the election as possible, so the first quarter of 2019.
The Chair: By April, we should have it available?
Mr. Jones: That is the goal.
The Chair: Maybe we could invite you to present it to us at that time.
Mr. Jones: I would be very pleased to.
The Chair: So you have a second invitation.
Thank you very much, Mr. Jones, Mr. Clow and Professor Lee. As you see, there is very keen interest on all these issues that pertain to protection of the integrity of the democratic process in Canada.
Thank you very much.
(The committee adjourned.)