Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 27 - Evidence - April 13, 2017
OTTAWA, Thursday, April 13, 2017
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:33 a.m. to examine and report on the reports of the Chief Electoral Officer on the 42nd General Election of October 19, 2015 and associated matters dealing with Elections Canada's conduct of the election.
Senator Bob Runciman (Chair) in the chair.
The Chair: Good morning. Welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Members, last fall the Senate authorized the committee to study the reports of the Chief Electoral Officer on the forty-second general election of October 19, 2015.
This is our second meeting on the study. Today we have with us Yves Côté, Commissioner of Canada Elections; and joining him at the table from his office, Marc Chénier, General Counsel and Senior Director, Legal Services.
Gentlemen, thank you for being with us. We very much appreciate it. I'm assuming, Mr. Côté, you would like to make some opening comments.
[Translation]
Yves Côté, Commissioner of Canada Elections, Office of the Commissioner of Canada Elections: We are very pleased to be here today to assist you with your examination of the former Chief Electoral Officer's reports on the 2015 general election, including, of course, his report on recommendations for legislative changes. As you mentioned, Mr. Chair, I am joined by our general counsel, Marc Chénier.
It is important for me to mention that the Commissioner's mandate is written into the act and reads more or less as follows: the Commissioner's mandate is to ensure compliance with and enforcement of both the Canada Elections Act and the Referendum Act.
[English]
There are a number of items contained in the former CEO's Recommendations Report that pertain specifically to strengthening the compliance and enforcement regime set out in the Canada Elections Act. Understandably, they have a direct bearing on the mandate of my office.
I would like to highlight a few of them that I consider to be particularly significant. First, I wish to underscore the importance of granting a superior court the power in certain circumstances and under strict conditions to issue orders compelling witness testimony. The ability to compel individuals to provide information in relation to some of our investigations would ensure that serious instances of non-compliance are dealt with without undue delay.
It is important to point out that the power to compel testimony for election-related offences is not without precedent. It already exists in other Canadian jurisdictions, notably in the province of Quebec.
Furthermore, I expect that if Parliament decided to grant our office this power, it would include the important safeguards that I have referred to in previous reports, in particular, the right of individuals to be represented by counsel, the right not to incriminate themselves, and the full protection of their privacy rights.
[Translation]
It is important to emphasize that such orders would be issued by independent judges once they were satisfied that the legislated conditions for their issuance had been met. This tool, which would be used sparingly, would be essential, in particular if there should occur a major event affecting the credibility of the electoral system as a whole. In such cases, facts must be found quickly and perpetrators must be brought to justice quickly. Otherwise, there is a serious risk that Canadians will lose faith in their system, which clearly cannot be good for democracy.
Second, I fully endorse the CEO's recommendation that the act should include administrative money penalties (AMPs) to address regulatory offences. I have noted in the past that our current system, which relies heavily on criminal offences and sanctions, is ill-suited to effectively enforce many of the regulatory provisions contained in the act. Canadians rightfully expect that violations of our electoral law will be dealt with in a timely way. An AMPs regime would be extremely helpful in this regard.
[English]
Finally, I support the former CEO's recommendation that the scope of the terms and conditions that can be included in a compliance agreement be broadened.
In fact, if the ability to impose AMPs, that is Administrative Monetary Penalties, was given to my office, the amount of the AMP itself could be a negotiated term of compliance agreement. This is, by the way, what is provided in many federal regimes. The official responsible for compliance and enforcement is able to negotiate the amount of the AMP to be imposed as part of the negotiated compliance agreement that includes other terms and conditions to enhance future compliance.
The combination of these two compliance tools would ensure an effective resolution to instances of non-compliance with real — and I put the emphasis on "real'' — consequences.
I would like to say a few words on third parties.
[Translation]
During the former CEO's last appearance before this committee last November, some honourable senators expressed an interest in the issue of the regulation of third parties' activities during an election period. Currently, as is well known, the financing of third-party activities is regulated only to the extent that the financing is used to fund election advertising during an election period. This includes expenses incurred in the production and transmission of an advertising message. It does not include many other types of third-party expenses, such as those incurred for research and policy development, provided, of course, that they are independent expenditures not coordinated with a party or candidate.
[English]
This means, for example, that it is not illegal for a third party to use foreign contributions to fund activities that do not include the transmission of election advertising messages.
We have received a significant number of complaints about the involvement of third parties in connection with the 2015 general election. And I would add we received many more complaints than had been filed with respect to the previous election in 2011.
Common to many of these complaints was the perception that third parties, in some ridings, were so significantly involved in the electoral contest that this resulted in unfair electoral outcomes.
I would suggest that third-party engagement in Canada's electoral process will likely continue to grow. For that reason, it may be time for Parliament to re-examine the third-party regime that was put in place 17 years ago with a view to ensuring a level playing field is maintained for all participants.
[Translation]
In conclusion, I would draw your attention to section 510.1 of the act, recently adopted by Parliament. This provision requires us to keep confidential any information obtained in the course of an investigation. As a result, although we will endeavour to provide fulsome answers to the questions posed to us this morning, we will not be able to discuss the details of any particular matter that is, or may have been, the subject of a complaint to, or an investigation by, my office. I will be pleased to take your questions.
[English]
Senator Baker: Thank you for your presentation, witness, to our committee.
My main question relates to the statement that you've just given. You said: "For that reason, it may be time for Parliament to re-examine the third-party regime that was put in place 17 years ago with a view to ensuring a level playing is maintained for all participants.''
This was an issue raised by Senator Frum in a couple of our past meetings, and I imagine we will hear from her again on this issue in a few moments. And, perhaps, Mr. Chénier may wish to participate in the response to my question.
Are there restrictions or is there an impediment to Parliament doing what you are suggesting? Maybe there is something that should be done, that exists in case law, considering all previous case law, specifically by the Supreme Court, in cases like the previous Prime Minister versus Canada, which is concerned, exclusively, with this question.
Is there anything that you can see that would impede Parliament doing what I think Senator Frum is suggesting, and you are also suggesting in your presentation here today?
Mr. Côté: I will say a few words and if Mr. Chénier wants to add to it, I will invite him to do that.
As you mentioned, senator, the Harper case, going back to 2004, was a decision from the Supreme Court, which split six to three, as I recall, on the issue of the constitutionality of the regime as we have it now. The majority did, of course, uphold the regime, and among the things that come to mind, or that struck me, when I reread the decision was the significance and emphasis they put on ensuring that we maintain a level playing field. For them, that was a key matter.
Now, that doesn't mean that any and all things can be done with a view to ensuring that there is, in fact, a level playing field, and when I say that, I'm referring, of course, to the Charter of Rights and Freedoms which, at section 2(b), guarantees to all the freedom of expression. The Supreme Court has been clear that in the political domain, that is probably where the values underlying the freedom of expression are at the highest, and where the courts will be the most attentive in ensuring that, if Parliament intervenes, it does so in a way that respects fundamental values. That means that you go to section 1 of the Charter and you have to establish that the objective is an important objective and, second, that the means you have chosen to pursue your objectives are proportional, commensurate to the objective.
Senator Baker: That is, demonstrably justified in a free and democratic society.
Mr. Côté: You literally took the words out of my mouth.
Senator Baker: Yes, you have mentioned a level playing field. That was one of the major conclusions of the Supreme Court of Canada. But to the actual issue here today, and the suggested possible change, as General Counsel, Mr. Chénier, could you comment?
Mr. Chénier: In previous jurisprudence by the Supreme Court of Canada, including Libman in the 1990s, and Harper, more recently, in 2004, the Supreme Court endorsed principles that the Lortie Commission, the Royal Commission on Electoral Reform and Party Financing, had identified as enabling a level playing field in our electoral system.
One of the principles that the Lortie Commission identified was the need to apply spending limits to all possible election expenses, including those of independent individuals and groups. Up to this point, Parliament has only chosen to regulate the expenses of third parties that apply with respect to election advertising, but it is certainly consistent with the jurisprudence if Parliament to decide there was a need, at this point, to broaden that regulation to include other types of activities that could have an impact on the electoral debate and the electoral outcome.
Of course, it would have to be tailored in a way to allow for participation and respect the liberty of association and freedom of expression that is guaranteed by the Charter. But there can probably be a regime adopted that would respect those constitutional values.
Senator Baker: Thank you.
Senator Frum: Thank you, Mr. Côté, for being here.
I appreciate your comment that it is time to re-examine the third-party regime in our Elections Act, but my question is about the way that your office interprets the laws that we have in place already.
You stated here today — and you said this in your annual report, as well that: "A third party can use foreign contributions to fund activities that do not include the transmission of election advertising messages. This includes carrying out election surveys, setting up election-related websites and using calling to communicate with electors.''
But I would like to point out that section 331 of the Canada Elections Act states: "No person who does not reside in Canada shall, during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate unless the person is (a) a Canadian citizen; or (b) a permanent resident . . .''
With that section in mind, how is it that you are saying that it is legal for foreign entities to participate in election- related activities?
Mr. Côté: In order to be a third party that may play a role in the context of an electoral campaign, the third party has to have links with Canada. If you are dealing with a company, for example, it has to carry out business in Canada.
If you are dealing with an association or group of people, the person responsible for that group or association has to reside in Canada. That also applies to Canadian citizens, permanent residents and so on, so to the extent that we are dealing with third parties that have a place of business in Canada and that are Canadian, then the role that they play is a role that is, under the act as it currently reads, quite legitimate.
Senator Frum: I'm a registered third party — one Canadian — and from what I just heard you say, I could take a cheque of $10 million or any amount of money from Saudi Arabia, Iran, China or any foreign contributor, so long as I, a Canadian, am receiving it.
Mr. Côté: The legislation as it reads now looks within a period of six months before the drop of the writ to the end of the electoral campaign. That is the period during which contributions received by a third party will be regulated.
Senator Frum: But there is an obvious loophole there, namely, if I take the contributions six months plus a day and I save it until the writ is dropped, I'm now using unlimited foreign funds because there is no restriction on the amounts and I can use that for in my election activity.
Mr. Côté: If the money was received before the six months, it becomes mingled into the funds of the third party and the third party, under the regime that we have now, is free to use that money.
Senator Frum: Do you not think Canadians would be alarmed by what you just said, namely that, except for the technicalities, you have to take the money six months before the election? We have fixed election dates now, so that's not hard to figure out. As long as you receive that money six months plus a day before the election, you can receive unlimited amounts of foreign money from any source around the world to use in an election.
Mr. Côté: I'll go back to my opening remarks that "issues of significance have been raised.'' The one that you raise is one of those which, in my view, deserves Parliament taking the time to look at the situation and to try to understand what has happened and what is likely to happen and then taking measures, as we discussed with Senator Baker, that would ensure there is compliance with the Charter and other values. Then decide what to do, keeping in mind again that the Supreme Court of Canada said that the objective of maintaining a level playing field is a very important objective for them.
Senator Frum: I have a lot more questions but I will go on the second round.
[Translation]
Senator Boisvenu: I have a question about something that is bothering me a little. You tell us that you cannot provide us with information on matters that currently are, or may have been, under investigation. I feel that, if we really want to fulfill our roles as legislators and produce a report of substance. . . I understand that, in the case of a current investigation, you have to keep a measure of confidentiality, but I have difficulty understanding that, for an investigation that has been completed, we cannot have access to some level of information.
Mr. Côté: Let me draw two things to your attention. First, the provision I referred to in my remarks, section 510.1 in the act we have recently amended in order to include the provision, tells us quite clearly that we are obligated to keep confidential information that we obtain in the course of our investigations, and no distinction is made between investigations that are closed and those that are still ongoing. Second, protecting the privacy of the personal information of those involved and the investigative techniques that may have been used involves some important values. Generally speaking, with police forces — and there are people here with a lot of experience with police investigations — the need for investigating organizations to keep their data confidential is well recognized.
Senator Boisvenu: However, when we amend the Criminal Code in the case of criminal behaviour, we have police officers here who have conducted investigations and who provide us with the conclusions of those investigations. I understand that information on identity must be safeguarded, but how do you propose that we prepare a report of substance on the problems you are raising if the committee has no access to a minimum level of information on the types of complaints that have been made, on the investigative work that you have done, and on your conclusions that will allow the democratic process in Canada to be improved?
Mr. Côté: There already is information that we have made public, for example, about the investigations that have led us to lay charges. Those things are well known. In addition, we deal with 15 to 20 matters per year that can be consulted to see what kind of illegal or illegitimate behaviour they entailed. In our reports, we also provide a high level of information on the type of complaint that we receive, for what reason, and from whom. As for the information on third parties, I presented that in my annual report last year. So I feel that there is information that gives you a good idea of what we are doing, what concerns us, and what keeps us busy.
Senator Boisvenu: But it is partial information.
Mr. Côté: Perhaps you can call it partial, in a sense, but, in another sense, section 510.1 puts very clear limits on us.
[English]
Senator Batters: As Senator Baker made reference earlier, you said in your opening comment that "it may be time for Parliament to re-examine the third-party regime put into place 17 years ago.'' I don't believe the bill currently before the House of Commons, introduced by then Minister Monsef, dealing with issues they want to amend about the Elections Act following this most recent election, deals with this alarming situation around third party involvement in Canadian elections.
Did you advise the federal government to include provisions further regulating third party Canadian involvement in Canadian elections in their new bill? If so, why are they not in the new bill? If not, why didn't you provide that advice?
Mr. Côté: First, Bill C-33, as you fairly described it, does not address the issue.
On the other hand, I'd like to highlight the fact that, as far as we could see, the mandate letter that was given to the new Minister of Democratic Institutions has an element of it — Mr. Chénier is trying to find it now — that calls on her to review expenses that third parties make with a view to making sure we have something that is reasonable. When we have the actual wording of her mandate letter, I can read that back to you.
Senator Batters: A bill they took months to draft is before Parliament right now. If it is just within a mandate letter perhaps, who knows if legislation might result from that or not. If you can just answer my question, did you advise the federal government to further regulation provisions regarding third party regulation in Canadian elections?
Mr. Côté: I raised issues relating to third parties' involvement in the electoral contest in my last annual report. Of course, that is a public document. Apart from that the issue has not been raised.
Senator Batters: Is this something that you would have additional meetings with the minister to indicate what particular areas you think should be in a new bill?
Mr. Côté: This would certainly be a possibility.
Senator Batters: Did that happen or no?
Mr. Côté: Given what is happening today, in this place at this very moment, we could have further discussions.
Senator Batters: Right, but did you meet with the minister and indicate your advice about third-party involvement or did that only happen in the course of the report?
Mr. Côté: I did not meet with the minister to discuss this.
Senator Batters: Given that particular major, shocking loophole that we just heard about today, if it's outside that six-month window it's unlimited. It seems that a great amendment in that act would be to delete the portion dealing with the third-party, six-month window, in proposed section 359(4). Right now it says "the election advertising report shall include (a) the amount by class of contributor of contributions for election advertising purposes.'' I would submit that probably that particular paragraph should end there and simply delete the part that says "that were received in the period beginning six months before the issue of writ and ending on polling day.''
Is that the sort of thing that you agree would be a good amendment because it would help to at least make those donations more transparent?
Mr. Côté: If you look at the recommendations report tabled by Mr. Mayrand, I think that his recommendation numbered C-30 deals with that precisely. I think his recommendation was that Parliament should consider going back to take into account all contributions that have been received.
Senator Batters: Thank you.
Mr. Côté: Mr. Chair, I would like to read into the record that part of the mandate letter given to Minister Gold. It states:
Review the limits on the amounts political parties and third parties can spend during elections, and propose measures to ensure that spending between elections is subject to reasonable limits as well.
The Chair: Third parties are registered during an election period. Is there a time requirement on that? Is it simply if they register when the writ is dropped? How does that process work?
Mr. Chénier: Third parties are required to register immediately upon incurring $500 or more in election advertising expenses, but they can't register before the issue of the writs.
Once the election has started, they must register immediately upon having incurred $500 in election advertising expenses.
The Chair: So they are untrackable entities in the sense that would suggest that if foreign governments or individuals, corporations, funded these folks and then they get registered, there is no recognition of where those monies originated?
Mr. Chénier: Once the election is over, they have to report on their election advertising expenses as well as the contributions they use to finance those expenses.
As the commissioner mentioned earlier, it is the period during which the money they received are considered contributions under the act.
The Chair: That's from the drop of the writ, going forward?
Mr. Chénier: No, it's any contribution that's received for election advertising purposes that is received six months before the issue of the writs.
The Chair: For election advertising purposes.
Mr. Chénier: That's right.
The Chair: If you look at that section, you've given a lot of other opportunities there. For polling, for example, those issues that you view as not inducing electors to vote or refrain from voting.
Mr. Chénier: You are correct, Mr. Chair. Currently, the act only regulates election advertising expenses. It doesn't regulate other expenses. Third parties are not required to register if they incur other expenses, and they don't have to report on the contributions they use to finance those other activities.
The Chair: I'm trying to get this clear in my head. What you are talking about is in any way induced. This was raised by Senator Frum, I believe. It seems to me, as someone who was in elected office for many years, that what you're talking about with respect to these exempted activities, perhaps not directly but certainly indirectly, induce voting patterns.
I would come back to your interpretation. If there's a way of dealing with this funding issue, it seems to boil down currently to your interpretation of inducement and how these activities may or may not induce electors.
From my own experience of 29 years as an elected official, I would suggest that these activities do encourage voters to react in certain ways. I would question your interpretation.
Mr. Chénier: If I may, Mr. Chairman, this is a prohibition in the act and in the criminal law area — because this is enforced through the criminal courts — and you have to stay within what the provision says. That's the extent to which you can enforce it.
I think the word "induced'' is defined as actively trying to influence somebody to vote and obtaining that result. Giving money for someone to induce someone is not the same as inducing them yourself.
I would raise that caveat that we're enforcing the act as it is written presently, and providing contributions to a third party is not inducing somebody to vote or to refrain from voting for a particular candidate.
To support that position, I'll note that there are specific prohibitions in the third party regimes from a third party accepting foreign contributions.
If Parliament viewed the act of giving a contribution to a third party as inducement, then those provisions in the act wouldn't be necessary because they would already be captured by section 331.
Senator Omidvar: Thank you for being here, commissioner, and your colleague.
I want to ask a question about another clause in this bill which will see the relocation of your office to the Chief Electoral Officer's mandate. You'll be appointed by the Chief Electoral Officer for up to a non-renewable term of 10 years . Because this is your position, can you tell us what you think the intended and unintended consequences are?
Mr. Côte: You are talking about what is contained in Bill C-33, which would move us back from the DPP's office to Elections Canada?
Senator Omidvar: Yes.
Mr. Côte: First, I think many people — and I was one of them — commented at the time Bill C-23 went through that locating us with the Director of Public Prosecutions maybe was not the best fit. Because normally you don't have the chief prosecutor working in the same organization as the investigative or police forces.
Second, and more important, going back to Elections Canada would resolve a problem that has arisen since we moved away from them in how information can be shared and is shared between Elections Canada and us. Given that we are now two different government institutions, the Privacy Act regulates, in a very strict way, how information can flow from one organization to the other, which means, for example, now, since we've moved away from Elections Canada, we no longer have access to the databank that's called "List of Candidates.''
If we need information in the course of an election, where, for example, we would like to get in touch with the official agent of a candidate somewhere, we can't key in with our computers and get the information. We have to make a request and then it goes through the process, and then we get the information back.
That is one example where the flow of information is being impeded, if you will. I think Elections Canada and we have tried as much as possible to find workable solutions to that, but certainly going back to Elections Canada would resolve those issues.
The other thing that I perhaps could mention is that in Bill C-33, as was the case in Bill C-23, so the old and the new bill, there was a provision that is clearly stated that the commissioner, in the conduct of his — in my case — investigations is to act in a way that is totally independent from the DPP now or from the CEO, if Bill C-33 is passed as it currently reads.
Senator Omidvar: I take it from that that you like this change?
Mr. Côte: Certainly for us, if only in terms of resolving practical matters that have arisen, this is something that would be a positive development, yes.
[Translation]
Senator Dupuis: I would like to clarify my understanding, please. Thank you for coming to meet with us. When you say that it is not illegal for a third party to use foreign contributions to fund activities that do not include the transmission of election advertising messages, can you tell us which activities that idea includes, like election advertising messages?
Mr. Côté: That is an extremely interesting question. First, the provision referred to is section 319, which provides the descriptions, and section 349.
Essentially, Senator Dupuis, for third-party actions to be regulated, two elements are necessary. First, it has to be an advertising message. Second, the effect must be to promote, or oppose, any given candidate or party.
Election Canada's position was also confirmed in a formal document that was published last week where this matter was discussed. For an advertising message, you have to go back to dictionary definitions that say that the messages must resemble advertising. For example, conducting a survey to obtain information about voting intentions, and a third party making individual telephone calls in order to try to influence voters in a constituency, those do not constitute advertising. Advertising, in the normal sense of the word, is something that is not imposed on us, but that interrupts our activities. On television, it is a message in the middle of a program. In the newspaper, it is a message that is just there. It is not something we seek out; it is something that someone forces us to consider or to receive. That someone will generally have paid money, or bought the opportunity, to do the advertising.
So, those two elements are extremely important, Senator Dupuis: first, it must promote or do the opposite; second, it has to be an advertising message as per the accepted definition of what an advertising message is.
The last point I would like to make is the point that Marc mentioned just now. It is that, when we get into this area of the application of the act, we are dealing with criminal law. If we have to lay charges, we have to be sure, morally, that the conduct we want to bring to justice really does constitute a breach of the provisions of the act. From that perspective, we have to be absolutely sure of the conclusion that the activity under scrutiny really is an advertising message as generally understood.
Senator Dupuis: So that means that, in terms of the Elections Act, there have been no decisions in the case law that have allowed us to define what is known as "election advertising'', as is done, for example, with the consumer protections associated with advertising directed at children. If I understand correctly, no case law has delved a little more into defining the concept of an advertising message for the purposes of an election.
Mr. Côté: Not directly. Perhaps Marc would like to add something about this. But, Senator Dupuis, I would also just like to point out that not so long ago — I think it was last month — our Supreme Court ruled on a case from British Columbia that dealt with third-party advertising. But the matter under consideration dealt with the prohibited, regulated aspect of sponsor political advertising, as the British Columbia legislation terms it. The question was whether there was a sponsor in that case. The court was therefore not actually focusing on the meaning that the expression "political advertising'' must have. That is what I would offer you as a comment, Madam.
[English]
Senator Frum: I am having difficulty understanding your interpretation of election advertising. Again, I take Senator Dupuis' point that perhaps it could use legislation to make it more explicit than what it is. In the meantime, the law says "an advertising expense is an expense incurred in relation to the production of an election advertising message.''
Then I heard you further say that you consider advertising something that someone else forces you to take into consideration. If I receive a phone call that I didn't solicit — I pick up my phone — and they say, "Hey, we spent money on a poll in your riding, and here is who we think you should vote for to defeat the Harper Conservatives,'' that's not a message I sought out but it's information I received. How is that not advertising?
Mr. Côte: Because the position that has been taken is that one-on-one communication is not advertising in the normal sense of the word. If a store calls me up and says, "Would you like to buy our coat on sale?'' this would not be advertising. It would be promotional or all kinds of things, but it would not, in my view, fall within the definition of what advertising is.
Senator Frum: How about websites? We've now said that they had 1.15 million visitors to the Vote Together website, which was created specifically and solely for the purpose of promoting specific candidates; that they specifically said would be specific Conservative MPs. Is a website like that advertising — a website that brings in a million viewers?
Mr. Côte: If I take a step with my computer to go and visit a website or to read a newspaper, I don't think that I am involved in an advertising act. I, on my own, go out and seek information or confirmation of my views or whatever, but I did something with a view to reaching that site. In my view, advertising would be more the opposite; that is, the advertiser is pushing something to me.
Senator Frum: If you declare the Facebook ad or the Twitter ad that brings a reader or an individual to that website, it is only the cost of transmitting the person to the website — there's a transmission process, right? No one falls into a website; you're brought or directed there. But you think only the cost of directing them to the website is the cost of the ad?
Mr. Côte: What we are saying is the cost of the placement of the ad, on the Facebook page or whatever, that is advertising. But then the fact that I click on to that and go to somewhere else is not, in our view, advertising.
Senator Frum: That defies common sense understanding. You're directing somebody to a website that has an advertising message when you get there, and you're saying the only part of that that is an expense is the part that led the viewer to that ad, not the ad itself. The website is an ad. What we're quibbling about is how the individual got to see the ad.
Mr. Côte: You say the website is an ad, and I'm saying that I don't necessarily agree with you on that. The website exists and it's there. Nobody is pushing it to me on my computer, TV or whatever. I deliberately chose by clicking on the ad to go to that website. That's one thing.
The other thing is that Elections Canada has issued policy papers or guidelines on this. They deal specifically with how they regulate the Internet. I think the position that I'm expressing, and with which of course you do not agree, is what we've said. And we happen to agree with the position taken by Elections Canada on this point.
Marc is pointing out an important point: This guideline issued by Elections Canada was developed after full consultation with political parties. As far as we know, all political parties agreed with the position taken by Elections Canada on that.
I think that's another element that adds to the complexity of the issue.
Senator Frum: Let me ask you a slightly different question.
Leadnow produced polls. They put those polls on flyers. I know you don't think the cost of those polls was advertising, and you don't think the cost of the flyers — you think the printing cost was an ad, but other than that, the production of the content is not an advertising expense, as far as you are concerned, I know that.
In a case that happened many times, specifically in Etobicoke—Lakeshore, the Liberal candidate took the polling data created by Leadnow, and he used that in a flyer with his own imprimatur on it. Is that an election expense for that candidate?
Leadnow says that poll cost $2,200. The Liberal candidate uses that poll in his own flyer. Is that a gift — an illegal gift, because a corporation can't make a gift? But is that an election contribution?
Mr. Côte: I will make one point, and then I'll ask Marc to complete.
There are provisions in the act that address specifically the collusion between third parties and candidates on the one hand, and third parties and political parties on the other. These provisions have, as their objective, to prevent especially the party or the candidate from doing things that would allow them not to exceed their expense ceilings.
That's something that exists and, of course, we will enforce it if the right circumstances happen.
In terms of your specific question, maybe Marc could deal with it.
Mr. Chénier: Again, we're not here to speak about specific cases, so this is a hypothetical response and purely based on the law as it is right now.
As we mentioned, third parties are only regulated with respect to election advertising expenses. Them undertaking a poll normally would not be something that's regulated under the act presently.
That said, there are contribution rules under our act. So in some cases it's possible that there is coordination between the third party and the candidate or the political party that makes it so that there is a non-monetary contribution that's made.
Senator Frum: I'm sorry, but that's a —
The Chair: We'll put you on the next list.
Senator Pate: Thank you for attending.
I'm interested in your report around the issue of prisoners voting. I noted, with interest, that there is a fairly high voter turnout.
From my previous work, I know that the challenges of all prisoners getting access to the voting polls, particularly if they're in higher security or segregated conditions, is an issue.
I'm curious as to whether in fact the complaints about compliance and enforcement were raised at the same rate in non-prison locales as it has been in prison locales?
Mr. Côte: We have had very few complaints emanating from correctional institutions. I think we had three, and they were dealt with.
I find it difficult to answer your question in terms of whether this is proportional to what we get from outside. I'm not sure. I think the total was three. So that's what we have.
Senator Pate: Is there a mechanism to monitor that in light of the fact that there is a lot of evidence that wouldn't necessarily be known to you around the inability often of prisoners to get that information out of the prison? Are there ways that you could go in and monitor that or do spot checks or anything like that?
Mr. Côte: No.
Senator Batters: Going back briefly to Senator Frum's area of questioning and her last question.
So I have it correct, Mr. Chénier, the cost of the poll that Senator Frum referenced would be a non-monetary contribution to the candidate; is that correct?
Mr. Chénier: If there was coordination between a candidate and a third party, in other words, normally it would be an expense that the candidate would incur to get that information, but they arrange it so that a third party does it on their behalf, therefore avoiding having to incur that expense — in other words, for it to be a contribution, there has to be the offer and acceptance. The coordination would have to be such that there was the offer of monetary contributions and the acceptance by the campaign.
Senator Batters: Going back to first-year contract law.
If this happens, then it would need to be listed on the candidate's election return as such, as a non-monetary contribution?
Mr. Chénier: That's correct. The contribution, of course, would have to respect the contribution rules in terms of the sources of contributions and the limits on contributions.
Senator Batters: I understand your inability to answer questions about specifics of investigations that you're currently undertaking, but could you provide a bit of general information? Do you have any investigations under way regarding conduct of third parties in the forty-second general election? If so, how many?
Mr. Côte: We do not confirm or deny that we are investigating particular things.
Senator Batters: Even in a general sense?
Mr. Côte: What I can tell you, as I mentioned in my opening remarks, is that we received a number of complaints about the issue.
Senator Batters: Can you tell me if you have any investigations under way regarding the conduct of political parties colluding with third parties in the forty-second general election?
Mr. Côte: No.
Senator Batters: You can't tell me?
Mr. Côte: No.
Senator Baker: Let me get to the core of the questions being asked here. Are you happy with the standard in law that you have to commence an investigation, to seek the production of documents, to get a search warrant, to the right to laying charges? Under your act, your legislation, what are your standards of reasonable grounds that establish that, either as a suspicion or as a belief, and are you happy with that?
Mr. Côte: I think I'm happy with what we have now. When we get information that is credible that something untoward happens somewhere, we will —
Senator Baker: What exactly is the standard used to commence the investigation and then to seek the production of papers or documents or a search warrant or to lay charges?
Mr. Côte: This is similar to what you would find —
Senator Baker: Reasonable grounds to suspect?
Mr. Côte: In one case, and reasonable grounds to believe in some other cases. For the prosecution, it is a reasonable chance of conviction at the end of the day and meeting the public interest test.
Senator Baker: That's the public prosecutor test.
So it does state specifically reasonable grounds to suspect?
Mr. Côte: In the Criminal Code, for some purposes, information to obtain.
Mr. Chénier: I'm not sure which one you're asking about at this point.
Senator Baker: I'm asking you what your grounds are. How do you get a suspicion that something untoward has taken place in violation of the act?
In your act, I believe it states "reasonable grounds to suspect.'' That's what Mr. Côte said were the grounds required for seeking a warrant.
Mr. Chénier: It's not actually found in the act. Section 510 of the act says the commissioner may initiate an investigation on his own initiative as a result of a complaint. It doesn't mention a standard, but the standard that's applied is actually low. It's some reason to suspect.
Senator Baker: To seek documents, what is your standard?
Mr. Chénier: Reasonable grounds to believe. You have to convince a court that there are reasonable grounds.
Senator Baker: Reasonable grounds to believe, in order for you to commence an investigation by seeking a warrant?
Mr. Chénier: Yes.
Senator Baker: By seeking production of documents, you have to have reasonable grounds to believe?
Mr. Chénier: The investigation is started at a lower threshold. It's some reason to suspect that something may have happened that's not consistent with the act.
Senator Baker: Is it reasonable grounds to suspect to get a production order for documents, or is it reasonable grounds to believe?
Mr. Chénier: You start your investigation with some reason to suspect that there was something. Then you get some evidence to the point of having reasonable grounds to believe that an offence was committed in order to get a production order or a search warrant.
Senator Baker: So you have to have reasonable grounds to believe in order to get a search warrant?
Mr. Chénier: That's right.
Senator Baker: Or production of papers? We were dealing with several acts of Parliament prior to this one in which reasonable grounds to suspect was the standard used. The Customs Act, for example, and other acts.
Do you have any comment to make that perhaps reasonable grounds to suspect should be the standard you have to meet under the Elections Act in order to seek production of documents or to seek a search warrant either to verify the complaint or to do further investigation?
Mr. Côte: Senator, when you refer to getting an issuance of orders for production of documents or search warrants, you fall within the Criminal Code of Canada. It is the law that applies across the land.
Senator Baker: The reason I am asking is there are other acts of Parliament. We have the Customs Act, reasonable grounds to suspect. You can be searched; you can do whatever you want to do. There are certain acts of Parliament that do that.
Are you happy, under a section 487 or 492 warrant, that you will have reasonable grounds to believe?
Mr. Côte: What I would say is that this is not a big issue for us.
Senator Baker: That's what starts the investigation. That's what commences production of papers.
Mr. Côte: The big issue is different. If I may, it has to do with the lack of flexibility that we have in enforcing the legislation.
I alluded to this in my opening remarks. Right now — and it happens all the time — if an official agent fails to file their report at the end of the period, the only tool that we have to effect a real change on this is laying a charge.
I mentioned to the chair this morning that many others in this country are looking at the effect of the Jordan decision. If we mount a prosecution and we have to go to court to get somebody convicted because they fail to file a report or open a bank account or whatever, it costs us a lot of money. It creates a huge problem for the courts.
What we are saying is that we should have the tools that they have in Quebec and elsewhere of being able to impose an administrative monetary penalty.
So if you didn't file your report on time, I will impose a $250 fine. If you want to challenge that, you can take me to court. Otherwise you pay. Then we publish on our website the fact that official agent X has failed to file their report.
You will get an outcome that is fast, clear and transparent. To me, in terms of better enforcement of the Canada Elections Act, this would be a very important thing to consider.
Senator Omidvar: Sorry to move on from this line of questioning. I do think it's important.
I am referring to a clause in Bill C-33 that would enfranchise more than 2.3 million Canadians living overseas. That's bigger than some of our provinces.
Mr. Côte: Indeed.
Senator Omidvar: I wonder if you would comment on your capacity and your resources and the logistics to be able to manage this expansion of people who will vote?
Mr. Côté: Unfortunately, senator, this is not something that falls within our bailiwick. We are responsible for enforcing the legislation. The issues that you raise, if I understand them correctly, should be raised with Elections Canada and to see how they can cope with the additional work.
Senator Omidvar: I understand, but let's assume that with more people voting — let's imagine a significant percentage of 2.3 million people — that there may be a rise in complaints as well.
Mr. Côté: This is a possibility, for sure.
Senator Omidvar: You are able to handle this?
Mr. Côté: I don't foresee a major problem handling that at this point.
Senator Sinclair: Just engage in a little legislative history with me, if you don't mind.
In reading the Harper decision which you referred to, the 2004 decision of our Supreme Court, certain provisions including some of the provisions that are under discussion here today, were challenged by Stephen Harper as infringing his right to free expression. They were, among other things, limitations on election advertising by third parties or by foreign parties. He wanted those limitations to be ruled unconstitutional, and I gather from the Supreme Court decision ultimately lost that argument.
Since then, the laws were amended to say what the current provision now says, which appears to restrict advertising without limitation, without specifying certain limitations. The previous legislation had certain amounts that could only be spent.
Mr. Côté: They are still there, senator. What Mr. Harper was challenging was essentially the regime, as we have it now, except for one amendment that was effected through Bill C-23 in 2014, which was of limited effect, but the maximum amount that could be spent was part of what was at play in the Harper decision.
Senator Sinclair: While he was Prime Minister, he could have changed these laws but apparently chose not to, I gather. During the period of time following his election as Prime Minister, these laws were not changed; am I correct?
Mr. Côté: History speaks for itself.
Senator Sinclair: That would be appear to be the case.
Mr. Côté: Yes, that would appear to be the case.
Senator Sinclair: Any challenge to the existing law in terms of their unconstitutionality, I suppose, would end up being dealt in the same way by the Supreme Court.
Mr. Côté: You would expect that stare decisis would apply and the conclusion would be the same.
Senator Joyal: Thank you, Mr. Côté. I have a question that follows the question asked for by my colleague Senator Baker and your answer, and your suggestion that you should have the capacity of sanctioning what I call an administrative mishap, the example that you gave that someone does not file the proper report on time or omitted to have the document. There is no ill intention in that context. But if there is a fraudulent practice that you have noticed or you have a complaint that is a fraudulent practice, then, in my opinion, the legal approach has to be different. Would it not be advisable to distinguish between what should be deemed an administrative mishap, where there is no ill intent, then the process is almost automatic. It is like you left your car parked in a place where the parking meter lapses, there is no ill intent, and then it is merely an administrative sanction. In the case where someone tries to have a scheme to deceive the election, then we have a process that is much more stringent.
Would it not be a way to approach the situation to determine between the nature of the failure to observe the provisions of the act versus another failure, which is that one, of a different nature and of course different sanctions?
[Translation]
Mr. Côté: Certainly, senator. What has been proposed and considered is to prevent administrative penalties from becoming the only way to respond to illegal, unlawful acts. There's always a judgment call. As you mentioned, if there were massive fraud or an attempt to do something that flies in the face of the system itself, we would continue to have the power to go to court, to ensure that this takes place in the public arena and that the judge has the chance to rule on how the accused should be treated and sentenced if found guilty.
Senator Joyal: In your experience, isn't the number of "offences'' related to the Elections Act more administrative rather than fraudulent in nature?
Mr. Côté: Absolutely. Most offences are regulatory in nature, such as the failure to meet a deadline or to comply with what may seem to be a minor rule in some respects, but, in terms of the transparency of the process, is an important rule in informing the public, absolutely.
Senator Joyal: What we call vouching, meaning the respondent —
Mr. Côté: What we used to call vouching.
Senator Joyal: In your report, I see no specific recommendation on that issue. Are we to conclude that the system, as adjusted, is in line with the best practices? Is it satisfactory, in terms of the objective that of making voting easier?
Mr. Côté: Senator, what I would say is that my role is to ensure compliance with the legislation. From that point of view, the rules currently in place do not pose a major challenge. In terms of whether the system should be different from a public policy point of view, I don't think it's up to me to decide, given the nature of my role.
[English]
Senator Joyal: Voting with face covering. You have not concluded on any difficulty in relation to voting with face covering?
[Translation]
Mr. Côté: I think what we are saying in our report is that there have been a number of complaints — 36 or 38. We have reviewed many of them and, right now, following our investigations, there are no cases of double or illegal votes. That said, we still have a file under investigation.
[English]
The second thing I would mention on the face covering, and generally speaking on complaints we receive in terms of their numbers, with respect to one face covering case, 27 complaints were filed. When you look at the record or at the statistics that we produce, you see 27, but they all have to do with the same incident that happened in Quebec.
For us, the history in terms of enforcing the legislation, I cannot say that we've had a significant enforcement problem or illegal behaviour in that respect.
Senator Pate: I was interested, going back in terms of the Chief Electoral Officer report for the 2015 election, the number of rejected ballots from prisons, and I'm curious as to what the reasons were for those and how many were for identification or for indication of location, and some people may not have known which riding they were supposed to be voting in, and I'm just picking up on that.
Mr. Côté: Given my role, I will give you an answer that will probably be disappointing. This is not an enforcement issue brought to our attention in any way, so I do not have information about this. Again, that question should be put to Elections Canada because they administer the regime and they would be in a better place than we would be to give you that information.
Senator Pate: Thank you for that.
[Translation]
Senator Dupuis: Mr. Côté, I just wanted to make sure I understood Senator Baker's question correctly. Is your discretion to start an investigation limited by the fact that you have to first receive a complaint?
Mr. Côté: No. As Mr. Chénier mentioned, there is a provision in the legislation stating that the commissioner can launch an investigation independently, on his own initiative — which we do on occasion, by the way.
[English]
The Chair: We have time for a third round.
With respect to the concerns you expressed at the outset related to foreign funding, we are all aware of the apparent enthusiasm of the Russian government to intervene in a lot of elections in Western countries and suspicion that they may have played a role in the U.S. election. I'm wondering if you can help this committee, if we do a report as a result of our studies, and give us some specific wording. It seems to me there is a door there that's wide enough to drive a truck through with respect to, going forward, foreign funding influencing Canadian elections. Hopefully you will give thought to that and provide your best advice to the committee.
Senator Frum: I want to follow up on the last line of questioning and this idea of non-monetary contribution. Did I understand you correctly to say that if a third party spends money on a poll, donates that information to a candidate, and the candidate uses that information in a flyer, you're calling that a non-monetary contribution?
Mr. Chénier: It could be, depending on the facts, senator. Again, there has to be enough coordination between the third party and the candidate to support the position that a non-monetary contribution was made.
Senator Frum: I would like to question this concept of a non-monetary contribution. As I read the legislation, only single individuals can make contributions. There is a prohibition against anyone, other than a single individual, making a contribution, whether that be a business or any entity in law — a union, a third party, an entity in law. The only legal contributions that can be made are by single individuals, up to a limit of $1,500 in the last election. I don't even know what this category of contribution is that you're referring to, a non-monetary contribution.
Mr. Chénier: As I mentioned earlier, senator, there could be a non-monetary contribution made, and it would have to be consistent with the rules on contributions in our act. If it wasn't, then there would be —
Senator Frum: I just read the rules on contributions. It does not include non-monetary contributions from entities other than single individuals.
Mr. Chénier: That would be an enforcement issue at that point, yes. So we would have a contribution that's made by an ineligible contributor.
Senator Frum: Good, we're getting somewhere. So we are establishing that if a candidate uses information as provided to them by a third party, that the third party spent money on, has a cost of creation, and they give that information, which was done at a cost to the candidate, the candidate has received a contribution and it's an illegal contribution because it's coming not from a single individual but from a third-party entity?
Mr. Chénier: Depending on the facts, that could be the case. We would have to look at what happened.
Senator Frum: Have you received any complaints of that nature?
Mr. Chénier: We are not at liberty to confirm or deny any particular complaints.
Senator Batters: Could you tell us if any such non-monetary contributions were listed on candidates' elections returns in the forty-second general election? If you don't have that information offhand, could you please check into it and get back to our committee?
Mr. Chénier: Our office is not responsible for auditing returns.
Senator Batters: I know that.
Mr. Chénier: Again, I think that question would be better — in the course of the audit, as their returns are provided to them, if they identify cases, then they would most likely refer them to us, I would presume, based on their administrative procedures.
Senator Batters: These are publicly available records?
Mr. Chénier: Yes, you can find the returns on the website at Elections Canada.
Senator Batters: So you are not able to provide that particular information, but I guess we can look through thousands of candidates' returns to see if people listed those. Okay.
Maybe you can answer this question: Have any of your investigations that you have done resulting from the forty- second general election resulted in criminal charges being laid? Of course, once it's a criminal charge, that is public information.
Mr. Côté: Are you talking about the 2015 election?
Senator Batters: Yes.
Mr. Côté: I don't think so, yet. What we have is a case that was filed in Nova Scotia a couple of weeks ago, where there were multiple instances of overcontribution by one individual going back a long time, over a certain period of time. It may be that overcontributions were made with respect to the 2015 election.
That's the one case that is currently before the courts. There are others that may be coming down the way as we move forward.
Senator Batters: So you are not currently aware, but would you mind double-checking and letting our committee know?
Mr. Côté: I can tell you that there is one case now involving overcontributions. Marc is reminding me that we also have one case — I forgot about this one — in New Brunswick where somebody was charged before the court for having illegally destroyed a ballot.
Senator Batters: Those are the only two so far?
Mr. Côté: For the moment.
Senator Batters: Thank you.
Senator Joyal: I would like to come back to the question raised by the chair in relation to interventions of the nature that we have read and heard about in the media with regard to the general election of our neighbour.
Does the Elections Act, as it stands now, have sufficient provisions to allow you to intervene in such a situation? Or is it beyond your capacity, as the law stands, especially around section 331?
Mr. Côté: When you say "in such situations,'' what do you mean?
Senator Joyal: Well, it was alleged that the Russian government, in fact, was able to seize data from a computer related to one of the candidates in the general election and, with that information, spread comments in the media that triggered additional police investigation and research. Of course, that substantially disturbed the course of the election, while in fact that third party had no standing in the election, properly. It was, of course, a disruptive intervention that, in my opinion, should be sanctioned, or there should be a capacity from your office to intervene in such a case. Otherwise it means that the electoral process in Canada is susceptible to all kinds of foreign intervention that could be very damaging to the pursuit of democracy in Canada.
[Translation]
Mr. Côté: Senator, you referred to section 331 of the legislation, which states the following.
[English]
It is an offence for somebody who does not reside in Canada, who is not a citizen or is not a permanent resident, for them to induce electors to vote or refrain from voting, or vote or refrain from voting, for a particular candidate.
The CEO has recommended that this section be repealed. We are of the view that perhaps there should be interest in Parliament in terms of looking at that provision with a view to seeing if it can be modernized and clarified. As it stands now, it is very vague. Some people have thought, for example, that if you have somebody being interviewed on one of the late-night shows in the U.S. who makes comments about the Canadian election, that person is in breach of that provision, which perhaps should not be the case. From where I stand, I think section 331 should be carefully looked at with a view to determining whether it could be improved.
The second thing I would say is that if section 331 were to be modified or kept in its current form, then comes the issue of enforcement. If you have someone in a country in Africa or Asia getting involved in an election, illegally or contrary to our legislation, then conducting an investigation and bringing the people responsible for this before justice can pose very significant problems and in some cases perhaps insurmountable problems.
Senator Joyal: Are you telling us that our system is in fact vulnerable to any foreign interference without us having the capacity to fight back or to prevent that or to sanction it?
[Translation]
Mr. Côté: Senator Joyal, perhaps that's not quite it. First, we would have to further review the section to see if we can improve it. Then, in all cases where government police forces want to enforce the laws to those living outside the country, things always become very complicated, especially if we don't have cordial relations or extradition treaties with those countries. For instance, in the case of someone from Russia, I'm not sure how I, as commissioner, or the RCMP or any other entity able to conduct an investigation, could enforce and ensure compliance with our legislation, when the guilty person is out of the reach of our justice system. That's what I am saying, and I don't think it's something specific to electoral law. I think this applies in general, when we talk about enforcing criminal law or criminal sanctions.
[English]
Senator Sinclair: I'm curious about other interpretation issues in the legislation that go back historically. After the May 2011 election there was a complaint that was filed with Elections Canada concerning a Republican strategist who was working for Conservative MPs in Canada. His name was Matthew Parker and he had a company called Front Porch Strategies. There was a complaint filed that he was attempting to influence voters in Canada to vote for particular candidates and as a foreigner he was prevented from doing that.
I understand that the complaint was dismissed by Elections Canada on the basis that it had to be proven that a voter had in fact been influenced and had cast a ballot in a particular way because of that influence and that is an almost impossible standard.
Is that standard still being used to determine whether or not an offence has occurred?
Mr. Côté: What I would say on this, Senator Sinclair, is that among the recommendations that have been made by Elections Canada and us is — and that recommendation C49 is in the CEO's report — we say, and the CEO agrees with us, that the act as it currently reads would need be improved, if you will, because you have a discrepancy in language between the English and the French version and as a result of that one could really say that looking at the English version of the act, the Crown has to be able to prove that in fact the intervention in this case of a foreign person had a practical effect on the elector that they were in contact with.
We are suggesting this is a very hard test to meet and we are suggesting — and if you look at C49 you will see what kind of wording we are proposing — that the standard be lowered in an attempt to cause a voter to go one way or the other should be enough.
In short, the situation as we have it now is unclear. There are discrepancies between the two versions. And in any event there is a need to re-look at this with a view to clarifying the rules. And if the intent of Parliament is to ensure that foreigners do not play that kind of role, then the wording must address the situation clearly.
Senator Sinclair: For the time being then, until that recommendation is accepted and implemented, is that still the interpretation you're following?
Mr. Côté: It would be.
Senator Sinclair: Thank you.
Senator Frum: I want to ask you about the subject of what constitutes election advertising. If a third party were to host a large rally and advertises the rally and brings in musical acts that normally would cost hundreds of thousands of dollars to perform at the rally, and the purpose of the rally is to promote or denounce a specific candidate, is that advertising?
Mr. Côté: I would say not. And I would say not for the reasons that we have used before. I don't think that in the normal understanding that people have of the words "advertising message'' or in French message publicitaire you would say that a rally is a message publicitaire or an "advertising message.'' Of course it promotes something so you have two branches of the definition. You have to promote or oppose, but firstly it has to be an advertising message.
In my view, if you asked ordinary Canadians who attended such a rally, "Did you attend an advertising event last night?'' they would say, "No, I went to a rally because I thought that the cause was a good cause.'' So I think it points to the fact that the legislation may not address all the issues that should be addressed and it's a call for Parliament to perhaps try to fix that.
Senator Frum: Does that include even the promotional material to get the people to the rally? Is that not advertising also?
Mr. Côté: I would say so.
Senator Frum: Nothing? None of it? Even t-shirts that the organizers are wearing to promote a message, the t-shirts are not advertising?
Mr. Côté: T-shirts, depending on what they say, could be advertising, but the advertising would be for the fact of having them made, or whatever the word is in English, and then distributed.
Senator Frum: I don't understand. So the bouncer wearing the T-shirt saying "defeat so and so,'' he's advertising, but the lead singer on the stage with the microphone who is saying "defeat that same candidate'' is not advertising?
Mr. Côté: No, what I'm saying is the rally itself, and I believe you raised a question about the cost of the rally, if it's in the hundreds of thousands of dollars, which is quite realistic, that event or that thing in and of itself is not an advertising message. That's what I'm saying.
Yes, there are promotional activities, there would be speeches presumably or other things, so that would be promotional, but that would not be because if a rally takes place and I decide to attend — going back to what I said earlier about advertising — I take the step myself to be involved. It would be the same way if I go and visit the website of a third party I do take the step to go and take knowledge, if you will, of what's there.
That's the way we see it and I think this is amply supported by the legislation as we have it here.
Senator Frum: Again, I don't agree with your interpretation but what about the collusion between third parties? There was such a rally, there were numbers of rallies like that that cost that kind of money happening over the last election but they were funded by third parties splintering off and creating extra third parties together that they mutually funded. Is that not in contravention of the act?
Mr. Côté: There are two things that are in contravention of the act. One is the collusion or the very close cooperation between a candidate or a party and a third party where the candidate might say, "Well, if you would do that for me I would much appreciate it. I'm close to my ceiling and I can't afford to make —'' there would be an issue there and you discussed that with Marc earlier. That would certainly be an issue, and I just lost my other point.
Senator Frum: The third parties colluding with each other is also an issue.
Mr. Côté: Yes. And I have really lost my train of thought. There was another issue.
Mr. Chénier: The issue of third parties colluding is with respect to an attempt to ensure that together they spend more than what they would be allowed to spend as one third party. We would need proof that it was for that purpose. I looked recently and none of the third parties that registered at the last election with respect to election advertising were close to the spending limit.
Senator Frum: On that point, from a compliance point of view I've seen that, too. I've looked at their declarations. Yes, they are really low; they are astonishingly low. What do you do for compliance? What do you do in terms of regulating and checking that the reports you are getting are accurate and authentic?
Mr. Chénier: Again, we don't carry out the audit function. That role is played by Elections Canada in the context of their audits. If they identify issues of noncompliance then they would refer them to us.
Senator Frum: I remember asking the CEO about that and he said that he only does that if there is a complaint. Does that sound accurate?
Mr. Chénier: Actually, it does, because Elections Canada is not in the ridings and they wouldn't know what advertising was done.
Senator Frum: Who would know? How would an audit ever happen if someone has to complain about it but you guys don't do spontaneous audits. He only takes an interest if someone complains. But how can anyone complain? All they have is the declaration, which is always incredibly low.
Mr. Chénier: Most often, the way it will arise is that one of the candidates will be targeted by that advertising and will know exactly what advertising was done against him or her.
Senator Frum: That's never advertising, is it?
Mr. Chénier: Right now, it's not regulated, unfortunately, for that candidate.
Senator Frum: Thank you.
Senator Joyal: I want to come back to that issue of foreign countries involving themselves. In my opinion, there is a way, first, to confirm in the legislation that it is a crime for a foreign country to intervene in the electoral process.
When we were faced with compensating the victims of terrorism — and I'm looking at my colleagues around the table, because they will remember that when we adopted the legislation that was sponsored by Senator Tkachuk, we allowed that the Canadian assets of a foreign country supporting terrorism to be seized.
In other words, there is at least a signal in the legislation that it's not something you can do without retribution — no consequences.
It seems to me that this is a day and age where it is so easy to go to the Internet and whatnot to disturb the electoral process, and the act should be amended to recognize that. There should be sanctions so at least there is a disincentive to go at length and do whatever you want with the Canadian electoral system and disturb it the way you want without any real consequences.
There is a precedent that we have supported here around the table in relation to victims of terrorism that are sponsored by foreign countries. I think we should do that in our electoral system.
[Translation]
Mr. Côté: Senator, I cannot disagree with you. If Parliament were to adopt this approach and create this type of offence, I hope Parliament will, at the same time, provide us with the tools we need to ensure compliance.
I would like to mention one other thing.
[English]
I saw this morning in the papers that the foreign affairs ministers of the G7 who were meeting in Italy earlier this week issued a communiqué about cyber. They were saying that they were extremely concerned about exactly this — about countries intervening illegally into the electoral processes of other countries. Presumably, when the G7 leaders meet, there may be something else coming out of that discussion, which may result in Canada deciding to take action in some way.
The Chair: I would like to jump in here. You talk about intervening illegally. If you look at the conclusions you reached in your annual report about foreign involvement, you say that, "Providing advice to a registered party or possibly having an influence in how a registered party will carry out its own inducement activities is not cut by section 331.''
You also say that a third party can use foreign contributions to fund activities as long, as it's not election advertising.
You have a whole laundry list of activities that foreign funding can get involved with. That should be a significant concern to all Canadians.
Mr. Côte: I think that's a very fair comment, Mr. Chairman.
The Chair: Thank you very much, gentlemen. It's very helpful in our deliberations for this study.
Members, before we adjourn, I'm assuming we want to do a report on this study. I'd like to take a few minutes. We'll move in camera. Perhaps we can have a brief discussion and provide some advice to our analysts who can start some work on a draft report for the committee to bring back to us at some point in the not-too-distant future.
(The committee continued in camera.)