Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 53 - Evidence - November 22, 2018
OTTAWA, Thursday, November 22, 2018
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 10:32 a.m., to consider the subject matter of those elements contained in Division 20 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, and to continue its consideration of Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I am pleased to welcome you this morning to the first part of this meeting, at which we will study and discuss the subject matter of those elements contained in Division 20 of Part 4 of Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures.
In the notice of this meeting, senators will have received information on the witnesses we will be hearing from this morning.
[English]
Mr. Scrivens, good morning and welcome. I understand, Mr. Richstone, that you will be available to answer questions from honourable senators once Mr. Scrivens has made his presentation. You are welcome, Mr. Scrivens. It’s a pleasure to have you with us this morning.
Mark Scrivens, Senior Counsel, Policy Sector, Policy Implementation Directorate, Department of Justice Canada: Thank you, chair and senators. My name is Mark Scrivens, Senior Counsel, Policy Sector, Department of Justice Canada. I’m here to speak about Division 20 of BIA No. 2.
Division 20 of BIA No. 2 deals with the amendments to the remediation agreement in the Criminal Code. As this committee knows, a remediation agreement is a voluntary agreement between an organization accused of committing a listed offence and a prosecutor to stay the proceedings related to that offence if the organization complies with the terms of the agreement.
On application by the prosecutor, the court may, by order, approve, modify, terminate or declare that the agreement has been successfully completed. If the court orders that the agreement be terminated, the prosecution could be recommenced against the organization for the charges laid against it.
If the court declares that the agreement has been successfully completed, the charges related to the criminal proceeding are stayed.
The regime was introduced in BIA No. 1 and came into force on September 19 of this year.
Currently the regime is designed so that publication of a remediation agreement and any related order, including a variation order, for example, is done as soon as practicable, unless a judge issues a non-publication order.
A non-publication order can only be issued where non-publication is necessary for the proper administration of justice. The regime gives a judge broad discretion to set out any conditions or limits for the review of a decision not to publish a remediation agreement or related order.
However, during its pre-study of these provisions on BIA No. 1, this committee observed that non-publication may result in victims and other parties never being informed of the outcomes and recommended that remediation agreements and related orders be published at the earliest opportunity.
As a result, BIA No. 2 contains amendments to address this observation. These amendments would, first, make it clear that a non-publication order relating to a remediation agreement or related order could be subject to a time limit. This would help ensure that remediation agreements are published once the interests of justice no longer require that they remain confidential.
Second, the amendments would allow anyone, including victims, to bring an application to ask a court to reconsider a non-publication decision.
Third, the amendments would make it clear that a decision not to publish a remediation agreement must itself be published, even where the underlying agreement is confidential. In other words, a decision to issue a non-publication order must always be published.
I am happy to address any questions.
The Chair: Thank you very much, Mr. Scrivens. Mr. Richstone is from the Public Prosecution Service of Canada. He will be available to answer any questions, but you have no statement to make this morning.
Jeff Richstone, Senior General Counsel and Director General, Regulatory and Economic Prosecutions, Public Prosecution Service of Canada: No, I don’t.
[Translation]
The Chair: Thank you, Mr. Richstone.
Senator Boisvenu: Welcome to our guests. I have two questions. The first is about the consideration of Bill C-74 that took place last February. I had asked whether victims or groups of victims had been consulted and I was answered in the affirmative. We were sent information about it, but the information made almost no sense.
I would like to sound the charge again in order to find out whether victims’ groups were consulted for this bill. This bill calls some parts of the Canadian Victims Bill of Rights into question again, such as the right to information. The entire bill of rights is being called into question again.
So I turn to the Department of Justice once more. Did you consult victims’ groups? Can we have information about who was consulted?
[English]
Mr. Scrivens: Thank you, senator. Unfortunately, I did not participate in the provision of information to this committee that you have referred to in the question, so I’m at a disadvantage with respect to those incomprehensible submissions that were made and I apologize for that. The best I can do is to review what has been provided to the committee and see if it can be improved upon.
With respect to the consultations for this particular remediation agreement, I can say that generally there were public consultations and public online calls for submissions nation-wide. The Department of Justice and PPSC received submissions from various groups across the country, including NGOs who are interested in the area of corruption and anti-bribery by large corporations. Those NGOs, I’m aware, also within their mandate, are concerned about the impact of these crimes on victims. Whether or not they can be described as a victim’s group or not is perhaps not for me to say.
We are dealing here with a unique set of types of offences, corruption offences and anti-bribery offences that can implicate —
[Translation]
Senator Boisvenu: Let me say this as politely as I can, Mr. Scrivens. What I received from the Department of Justice is very similar to what you are telling me. Let me repeat my question; it was very clear. Could I have a list of victims’ groups in Canada who were consulted on this bill, which is a fundamental attack on the right to information?
That is all I want to know. I understand that there was a public consultation. What I want to know is whether the Department of Justice can provide us with the list of victims’ groups who were consulted.
Across Canada, there are about 30 victims’ groups. It would be very easy to tell us which groups were consulted. I want a list. I do not want a speech on the way in which the consultation was done. According to the information I have to date, those groups were not consulted. This is very regrettable when legislation attacks a fundamental principle like the right to information, which this bill calls into question.
Can I ask you to present that request to the minister once more?
My other question is about SNC-Lavalin, which wants to use remediation agreements to solve the problems that it is currently going through. Did SNC-Lavalin approach the Department of Justice in order to provide its opinion on the bill or did the Department of Justice consult SNC-Lavalin about it?
[English]
Mr. Richstone: The question was directed at the Department of Justice, not the PPSC. For obvious reasons, since there is a judicial proceeding launched against the decision of the DPP, this is a matter before the courts, so I don’t want to comment on that aspect. But I understand the question was more directed at the Department of Justice.
The Chair: But you are directly concerned, that’s why. Not you personally, of course, but your service was directly concerned, that’s why I asked you to comment on that question. It’s fair comment, but I thought that it was appropriate for you to be on the record in relation to that. That’s why I directed the question first to you.
Mr. Richstone: Thank you very much.
The Chair: Mr. Scrivens is invited to comment on that as well.
Mr. Scrivens: With the committee’s blessing, I would undertake to investigate a response to that answer. I’m not aware of any specific lobbying, but that doesn’t mean it did or didn’t occur.
[Translation]
Senator Dupuis: Good morning to you both. Thank you for coming.
Mr. Scrivens, am I to understand that you are going do some checking about Senator Boisvenu’s question and perhaps provide us with a reply?
[English]
Mr. Scrivens: Yes, that is correct.
[Translation]
Senator Dupuis: I want to make sure that I have fully understood the new system for these agreements, which came into effect last September. Have any agreements been put in place between September and today that would not fall under Bill C-86, if it is passed?
Mr. Richstone: No, there have been no agreements on the part of the Public Prosecution Service of Canada. As I am sure you know, senator, the program has just gone into effect and it contains a number of stages that take time. According to the experience of our colleagues in other jurisdictions in the United States and the United Kingdom, it takes time to launch investigations, to conclude that a remediation agreement is appropriate, and to begin discussions that would lead to an agreement.
So, for the moment, the answer is no.
Senator Dupuis: I just wanted to make sure that there is no backlog of agreements of this kind behind some door, with no hurry to get them signed quickly, so that they do not have to be published eventually.
Mr. Richstone: There is no danger of that.
[English]
Senator McIntyre: If I understand, Mr. Scrivens, the DPA regime came into force a few months ago, and no agreements have been negotiated since?
Mr. Richstone: As I said, senator, that is the case. The regime just came into force. We are looking into engaging a group of specialized counsel to handle the new tasks, and we are undertaking to publish some clarification in our desk book, for counsel and for outside parties, how we intend to implement the regime. This is really at the very first stages.
Senator McIntyre: Can you provide a concrete example of when an agreement should not be published?
Mr. Richstone: Well, that is a good question. The example was stated in the other place by my colleague, and it would only be where there was prejudice to an ongoing investigation. That is the one example we offered in the other place, honourable senator, but, again, the test is very stringent. The courts interpret a non-publication ban very stringently, indeed. It is not simply that there is an ongoing investigation. We would have to prove to the court that the effect of publishing would be deeply prejudicial to the ongoing investigation and it would only be temporary. This is according to the case law laid down by the Supreme Court and other appellant courts.
Senator McIntyre: A final question, in your opinion will deferred prosecution agreements encourage voluntary disclosure of wrongdoing?
Mr. Richstone: I could say this is more of a policy question, but this is one of the principles of the regime, to encourage detection of offences that may not be investigated or may not come to light by law enforcement. This regime has been in place in other jurisdictions precisely for the kind of reason you offered.
Mr. Scrivens: Senator, I have spoken to colleagues in other jurisdictions, in the United Kingdom for example, and that has been their experience after DPA regimes have been introduced there.
Senator Lankin: Good morning. Thank you for being here. I want to ask specifically about the amendment on conditions, including time limits on non-publication and on the application. Thank you for the responsiveness to the committee’s recommendation. I would like to understand how you think this will be operationalized.
I understand the court, if it chooses to invoke non-publication and can put a time limit on it, it would be automatic then, and presumably notice to parties and all of that, that it has been released? Okay, so that’s that.
Then, on application, other than a third-party victim or a third party applying, is there a possibility that with changing circumstances that the court may decide to at a later date release, even if it didn’t put that kind of a limit on the non-publication order in the beginning? If so, how will it be brought to review? How might that be instigated?
Mr. Scrivens: Senator, I appreciate the question. It’s an interesting one.
We’re talking here of superior courts, which control their own processes and have a great deal of inherent jurisdiction to control their processes. I see no bar within this legislation that would prevent a judge from doing such a thing.
Keep in mind that since the early 2000s, we have had something in the neighbourhood of five corporate corruption prosecutions that would qualify for this type of regime. These tend to be quite notorious and well-publicized events.
Within that context, I think that it would be possible for a judge to review a non-publication order if circumstances changed. The publication or the issuance of any order would be very well known to one and all.
Senator Lankin: I have a quick followup on this. It might be answerable by either of you. If the main circumstance in which you see this happening would be that there is an ongoing investigation, if that investigation came to an end — from a policy directive or whatever — would it be incumbent upon the entity investigating to report back to the court so that publication ban could be lifted?
Mr. Scrivens: There is nothing in the legislation that obligates any affected parties to make such a report, but that’s not uncommon within the realm of Criminal Code-related orders or orders of the Superior Court for circumstances to change. Responsible counsel will generally make known significant changes.
Again, notwithstanding what is in the code, Superior Court judges are quite experienced, control their own processes and can fashion the order in any way they see as being appropriate in terms of anticipating changes in circumstances or facts.
Senator Lankin: Thank you.
Mr. Richstone: I would like to put this in some context. Most cases, if you have an application to have a non-publication order that would be coming from the Crown or from the investigative agency, there is great interest on the side of the company or organization that successfully negotiated the remediation agreement to make it public, at least to tell its shareholders, to tell its employees and the market. There is a greater constellation of parties outside that group of people who negotiate the agreement and get a court order who want to make that public.
It isn’t as if everyone goes along with the non-publication order. Practically speaking, there is a lot of pressure on the Crown or on law enforcement to lift that non-publication order, so it isn’t as if this kind of thing can go on infinitely. As my colleague said, the court controls its own process.
In cases that I know of where there is a sealing order, the court is very much insistent about when it can be lifted. They are very careful about that, precisely because the open court principle, which we discussed in the other place, is a very strong principle in Canadian constitutional law. The Supreme Court has been very clear about the test being stringent to get one in the first place and stringent in the sense that it should be lifted as soon as possible.
Senator Lankin: Thank you very much.
The Chair: I’ll come back on that point after Senator Gold.
Senator Gold: I want to follow up on this point. I take your point about the inherent jurisdiction of the courts, but as the son of a Superior Court judge, I know how burdened the courts can be.
I am a little concerned about the language of the amendment that requires an application of any person. I suppose that person can be someone within the department or the court order or, of course, the interested company. There is the mandatory language, which I would approve of — that the court must lift it on the application.
However, perhaps there is a public interest in the disclosure of these kinds of agreements. They are, after all, an exception to the normal criminal processes. Non-publication, therefore, is an exception, as you correctly pointed out.
I am encouraged by your answer, Mr. Richstone, that there is pressure on the companies, although that is a bit counterintuitive in some cases. Can you perhaps explain or share what the experience has been in the U.S. and the U.K. around this specific issue? How does our regime compares to theirs in terms of limiting the non-publication order and what experience, if any, have they had with court-initiated publication of these after a certain period?
Mr. Scrivens: I won’t purport to be an expert in the regimes that exist in other countries, but I can tell you that in the United States they have taken a completely different approach. Their deferred prosecution agreements are agreed to between the prosecutor and the corporation, with no involvement of the courts whatsoever. I am told that, from time to time, there have been confidential agreements that have been reached. That’s about all we know about those, because there is not the same sort of structure that we now have here within our regime and not the same ability for the courts to supervise the application of the deferred prosecution agreement.
The British, on the other hand, do have a system that, like ours, requires the courts to approve the regime. I am personally not aware of a confidentiality order having been issued and what limits might have been placed on the orders in the British experience. Even in those regimes where DPAs are well established, they are still fairly rare.
Senator Gold: I take it from this, though, that you’re not concerned that something might fall through the cracks? In other words, for legitimate reasons, it’s not made public — whether it’s because an investigation or some other of the criteria are satisfied — those conditions fall away, but the company or the interested party has no particular interest in revisiting its bad behaviour in the past. It’s moved on, it’s in the capital markets, and it’s trying to sell its product of services. It has no incentive. The court is overburdened, so therefore the actual agreement might remain private long after the conditions justifying its non-publication have passed. Do you think the court is actually going to take the initiative?
Mr. Scrivens: This concern and any limits a court places upon such an order have to be read in the context of the obligation here to ensure that these orders are made only where it is necessary for the administration of justice.
It seems to me that any judge who was to order, hypothetically, an extremely long, say a 10-year, publication ban would not meet that criteria. It would be difficult for me to imagine a context wherein that necessity threshold could be met in such an instance.
I would also add that when we say “everyone” that includes members of the media, for example, who may bring an application to revisit a non-publication order.
Mr. Richstone: I wouldn’t detract from one word my colleague said. It is exactly the case; I agree completely.
In the real world there is very much pressure both on the Crown, the law enforcement agency, to move quickly. As you said, senator, this is an exception, so they look at that exception in very serious terms, to move the investigation, or whatever is holding back the publication, along very quickly.
There is all kinds of pressure, as my colleague said, on the Crown and the investigative agency. There is the media who have a great deal of interest in the matter and the court itself is making an order on duration, so they would revisit that order very often. Duration is usually very limited in time.
Senator Gold: Thank you very much.
Senator Pratte: I want to ask you with whether “any person” included the media, so obviously it does. I was wondering whether it is not exactly the purpose of this amendment to require that a decision not to publish is made public, right? The existence of that non-publication order is made public.
Mr. Scrivens: That’s absolutely correct, senator.
Senator Pratte: Which would then allow the media or any other interested party to know this exists and to eventually apply so that the order is lifted.
Mr. Scrivens: That’s correct.
The Chair: I would like to come back to the points that were raised in our report, especially the observations that we appended to the report that we made to the chamber on May 30, 2018.
I think Mr. Scrivens has well explained that the proposal that we have under consideration today stems from observation 3 of our report and I cannot but commend the department to have given effect to that recommendation.
I will add a commercial on behalf of the committee: It proves that observations are important, sometimes as important as the bill we are invited to consider.
However, there were other observations in the report and I want to link that to the question asked by Senator Boisvenu, especially observation 4, which deals with the Canadian Victims Bill of Rights. When I consider section 715.37(6) of the Criminal Code, the one that we adopted last spring, it states quite clearly:
The court must, by order, approve the agreement if it is satisfied that.
(a) the organization is charged with an offence to which the agreement applies;
(b) the agreement is in the public interest; and
(c) the terms of the agreement are fair, reasonable and proportionate to the gravity of the offence.
Nowhere is the court invited to consider the victims of the fraud and it seems to me that in subsection (b), the agreement is in the public interest. There should have been an addition to mention the special attention given to the victims.
When the court has to consider giving special treatment to a company, to a corporation that would incur that kind of criminal responsibility, it seems to me that the court, before granting that special treatment to maintain some benefits for the corporation, it could be in the context of also taking into consideration those that might be the victims of that fraud.
Public interest is very general, but the victims are much more specific. I think that the recommendations that this committee added, observation 4, are an important element that should be taken into consideration. As pleased as I am as chair of this committee that the department has given consideration to observation 3, I think that observation 4 was very much important because it attached to the status of those who are affected by the criminality that is the object of the special regime.
Why did the department not give effect to that observation 4?
Mr. Scrivens: Thank you, chair. It’s the position of the department that the entire provision is to be construed within, as is the entire Criminal Code, the context of Canadian Victims Bill of Rights and we very much had the considerations of victims and the Canadian Victims Bill of Rights in mind in the design of the regime.
You will find in subsection 715.36 that there is a duty to inform victims by requiring that the prosecutor take reasonable steps to inform any victim, or third party acting on the victim’s behalf, of the intention to negotiate a remediation agreement, and that this duty is to be interpreted in a manner that is reasonable in the circumstances and not likely to interfere with the proper administration of justice.
It’s the position of the Department of Justice Canada that this qualification acknowledges the need to have flexibility as to when, how and to whom notice is given and contemplates the possibility that in some cases it may not be appropriate or possible to notify all victims. For example, in international corporate corruption cases, the victims may be in another country, may be extremely disparate and may constitute millions of people. It may not always be possible to contact them individually, but it may be possible to contact with others acting on a victim’s behalf, for example.
So the regime does very much contemplate a duty to notify victims to the extent possible in the given context. It is the view of the Department of Justice that this answers the pressing need to ensure that victims play a part in this process.
The Chair: I understand that the bill mentions it, but the section I read and what the court has to consider. In my opinion, the court will make an honest effort to contact the victims, and if they can’t contact them so be it, but at least they have to obligation to consider the victims who have been bearing the consequences of the criminal activities that are the object of the remediation agreement. It seems to me that there is an important element that is more at the preparation of the trial or the court hearing, than the court itself being bound to having a responsibility to pay attention to it.
There is a nuance between the two, in my opinion, that is worth considering.
Mr. Scrivens: Senator, I agree. There are other provisions that, to be clear, contemplate a consideration by the court of the impact on victims. In paragraph 715.37(3), there are several provisions that require the court to consider any reparation or other measures relating to victims. It corresponds to subparagraph 715.34(1)(g), so you have to read that as well.
Any statement by the prosecutor under subparagraph 717.36(3), a victim-related provision, any victim or community impact statement presented to the court and any victim surcharge referred to in subparagraph 715.34(1)(b).
[Translation]
Senator Boisvenu: Thank you for making that link to victims rights. Mr. Scrivens, my apologies for jumping in with both feet a little earlier about consulting victims.
In 2018, we recognize the balance between the public interest, the interest of the accused, and the interest of the victim. Putting “make reasonable efforts to inform victims” into the bill is too vague. The bill should say “must inform the victims.” That right is recognized in the bill of rights. Making reasonable efforts to inform victims is too vague. That is where the text does not reflect the spirit of the bill of rights at all, despite the fact that the bill contains all kinds of legal gymnastics that may allow a judge or a prosecutor to make attempts at remediation.
Do you not think that this bill addresses victims of fraud, who are often forgotten by the legal system? Think of the victims of Vincent Lacroix, for example. Those were vulnerable people who were victims of fraud and who did not have the means to have their rights recognized, whereas the alleged criminal, a company, had all kinds of means to do so. Language that waters down the rights of victims has just been inserted into the legislation. Do you not think that the bill should be firmer in recognizing victims’ rights, just as we are firm on the presumption of innocence? The victims have the burden of having their rights recognized, whereas the state has the burden of establishing the guilt of the accused. They are constantly in a reverse onus situation in providing evidence. Do you believe that this bill has clear weaknesses in terms of victims’ rights?
[English]
Mr. Scrivens: Senator, I would note that there are provisions, as we have in more traditional prosecutions, for the victims to provide a victim impact statement and a requirement for the court to take that into consideration.
I have already made mention of the obligation of the prosecutor to make those efforts to advise victims of the prospect that a remediation agreement will be entered into. There are other provisions — I won’t list them all off — that deal with the obligation to consider such things as any efforts to provide remediation to victims and whether it’s implied that those are satisfactory to the court or not. So there are several provisions that address victims’ considerations.
I might leave the committee with one thing to consider, which is that the context here is somewhat unique in that this is an agreement that is to be entered into through negotiations by a prosecutor and a corporation, often in a context which could be sensitive for that corporation to so engage in those conversations.
One of the goals of the regime is to encourage corporations to enter into these agreements, to enter into these negotiations with the prosecutors, so we wanted to ensure that there was some flexibility on the part of the prosecution and the authorities to consult victims in a way that left them the discretion to determine how and when it would be appropriate, given the sometimes sensitive negotiations that would be ongoing in entering into a remediation agreement.
It was an effort to strike a balance in a new type of regime, which is different than the normal investigative prosecution mechanism that we see more often in the criminal context.
In that milieu, in that context, where there is a negotiation between prosecutors and a corporation, the involvement of victims is sometimes something that has to be managed carefully so as not to disrupt the negotiations or to unnecessarily prevent the best possible outcome for all parties from taking place.
The Chair: I could provide qualification to your explanation, but I would prefer at this stage to leave it.
[Translation]
Senator Dupuis: I would like to carry on from the explanations that you provided. The Department of Justice Canada has made sure that victims’ rights are included in the bill in various clauses, such as clause 715. Should this duty to inform victims be one of the factors that the court should consider when it says, for example, in paragraph 715.42(2): “The court may decide not to publish . . . if it is satisfied that the non-publication is necessary for the proper administration of justice”?
In other words, there is no requirement to specify it, including in terms of victims’ rights, because that becomes a factor that the courts must consider when it assesses whether publication is necessary for the proper administration of justice. For example, if there is reason to believe that attempts have been made to contact the victims, without success, must the court consider that factor in its decision to publish or not to publish if it is deemed necessary for the proper administration of justice?
I have a related question about the public interest. In the bill, there are enough guarantees to ensure respect for victims’ rights and to ensure that this is an integral part of the bill, if the court has to consider either the proper administration of justice or the public interest. So, does the court have to consider that?
[English]
Mr. Scrivens: Thank you, senator. I would answer in this way: First of all, the victims charter applies in all respects and to all provisions of the Criminal Code at all times, so that’s important context.
Specifically, where the court must turn its mind to the public interest, that always will in criminal matters involve a consideration of victims in every case. It has been my experience, in dealing with the courts as a former prosecutor, that even where the public interest is not explicitly expressed within a provision or statute, it’s always top of mind, of course, within our courts and for our judges.
In respect of the specific provision, of course, it would become unwieldy for us to insert specific considerations at every stage of every bill.
However, I think you’re asking whether, in considering whether to apply the non-publication order provisions with respect to a remediation agreement, a court would take into consideration the impact on victims. I can say without a doubt that they would, but it’s very contextually driven as to whether or not it would very directly impact upon this consideration of whether it’s necessary for the administration of justice to issue a non-publication order.
I want to repeat what my friend has said. Courts are very biased toward the open-court principle. The default position in these cases will be to publish remediation agreements for the benefit of the public and victims — for everyone’s benefit.
Senator Pratte: I want to better understand the interaction between paragraph 715.37(3), which you already mentioned, which indicates that the court hearing an application to approve an agreement will have to consider, for instance, victim or community impact statements and so on. These things have to be considered by the court. That’s what this paragraph says.
Then, later, when the court must decide, then public interest is mentioned, whether the offence is part of the ones covered by this part of the Criminal Code, but victims are not mentioned.
I’m trying to understand the requirement for the court that indicates in the first paragraph that victims’ impact statements and so on must be considered, but then when it decides, victims are not mentioned.
Should we put the two together and conclude that victims’ rights, needs and so on are required to be taken into account?
The Chair: Mr. Scrivens, it’s exactly the same question I asked you, phrased in a different context. It’s important that we understand very well your reasoning in relation to that, because that’s part of the observation that we added when we considered Bill C-74 last spring.
Mr. Scrivens: To get very technical, my reading of the provisions with respect to victims is that they require that the court must consider those aspects that are listed — and I won’t go through them all. You’ve identified the appropriate sections, which include the submissions or information available for victims’ statements, community impact statements and so on that relate to victims and their remediation. There is a requirement in the provision that the courts consider those. That’s what the provision says.
There is a requirement in terms of the approval that the court be satisfied that those elements you have referred to be in place.
That is the nuance. There is a requirement to consider the impact on victims, and there is a requirement that the court be satisfied, among other things, that it’s in the public interest, generally, to approve the remediation agreement.
My opinion is that public interest, taken in the Criminal Code context, always takes into consideration the impact upon victims.
Senator Pratte: I’m sorry if I’m ignorant of this, but I’m sure there is jurisprudence that establishes clearly that public interest includes the interests of the victims.
Mr. Scrivens: Senator, I’m sorry, but I can’t think of a particular case. Given the number of criminal cases that deal with these issues, I would be surprised if there wasn’t, but I cannot say for sure.
The Chair: There is jurisprudence in relation to that. There is no doubt about it. I can understand that you don’t have it at hand, but there is no doubt that there is jurisprudence about public interest. I remember reading decisions whereby the judge would make comments in relation to how they measure impact of the decision on public interest and the proper administration of justice, which are complementary.
Senator Dalphond: The question is about the victims —
The Chair: Absolutely. That’s the same —
Senator Dalphond: That’s a very interesting twist, but I don’t think there are cases on that.
The Chair: Not on the two, but on the definition —
Senator Dalphond: Of public interest, yes.
Mr. Richstone: To add something to what my colleague said, if you look at paragraph 715.37(3), when you say “consideration of victims,” you get all those paragraphs, honourable senator — all the various factors where victims’ issues get discussed and considered. Notice the wording of the section. In English it’s “must consider” and in French it’s “est tenu de prendre en considération.”
[Translation]
It’s not something that we can forget or cast into outer darkness, it is a requirement. If there is a victim statement, it must all be considered. If there is not, it is because the prosecutor has gone before the court and explained the reasons in subsection 3 of the previous section. So the court must consider both. Finally, when the court makes an order, it is after having considered and weighed the factors mentioned in subsection 3. The two subsections of this section must be read together.
[English]
Senator Pratte: If you find jurisprudence that indicates clearly that the expression “public interest” includes or was considered by tribunals to include the interests of the victim, that could be useful. Please provide it to our clerk. Thank you.
Senator Gold: A thought came to mind in reading the existing act. We’ve been talking about the criteria for the approval of an agreement and whether the administration of justice includes reference to victims, but it’s worthy of note, I think — and I would appreciate your comments as to whether this helps our analysis — that in deciding whether to issue a non-publication order — and I’m referring to paragraph (3) — the court is required to consider society’s interest in encouraging reporting of offences and the participation of victims. It seems to complete the circle — I’m searching for the metaphor — that victims do appear at various stages in this process, including the reference to non-publication.
It’s hard to escape the conclusion that they are part and parcel of the DNA of this regime. Would you agree?
Mr. Scrivens: I would agree, and I would thank the senator for pointing out that aspect of the provision.
Certainly, the bill was designed with victims very much in mind. One of the purposes in the purpose clause discusses the need to encourage the remediation of victims of these types of offences. From the very origins of the bill, there was a view to make it work for victims.
Senator McIntyre: I have a short question. Bill C-86 deals with Budget Implementation Act, 2018, No. 2, covering the DPA regime. Does the DPA regime apply to offences committed before the coming into force of the Budget Implementation Act No. 1, such as a case of bribing foreign officials from 2001 to 2014?
Mr. Scrivens: Yes, it does.
Senator McIntyre: Thank you.
The Chair: May I ask you, Mr. Scrivens, why the department didn’t give consideration to observation 2 of our report of last May? You might have it at hand, I’m sure.
I will remind the honourable senators that the committee considered that the proposed subsections 715.33 and 715.34 were “. . . not sufficiently clear to ensure that relevant information contained in such agreements, or arising as a result of them, can be admitted as evidence where appropriate in civil, criminal, administrative, or other legal proceedings.”
Why didn’t the department give consideration to the observation at the same time that you did on observation 3?
Mr. Scrivens: Thank you, Chair. The department carefully reviewed all of the observations of this committee and, after that review and consideration, the department took the view that subsection 715.33 and subsection 715.34 are clear as to what may be admitted in evidence in a related civil or criminal proceeding.
As a result respectively of the negotiation and/or the agreement, an admission, a confession or statement accepting responsibility for a given act or omission made by an organization in the course of negotiating a remediation agreement, or as a result of a remediation agreement, is not admissible in evidence against the organization or related civil or criminal proceeding except where the admission, confession or statement accepting responsibility is contained within the statement of facts or admission of responsibility that forms part of the remediation agreement and provided that the remediation agreement was approved by the court.
In other words, unless the corporation and the prosecutor agree that something is admissible, it’s not admissible in the case of a remediation agreement that has been approved by the court.
The proposed regime recognizes the importance of allowing frank disclosures as part of the negotiation process and protection from self-incrimination. At the same time, it also recognizes the importance of an agreed statement of facts and admission of responsibility to be included in the remediation agreement. For example, the prosecutor and organization may enter into negotiations for a remediation agreement, but a remediation agreement may not ultimately be agreed to and entered into force.
It should be noted that there is nothing in the proposed regime that would prevent a victim from resorting to civil proceedings, if that is what they chose to do, though a court considering a civil settlement might take into account any reparations that have been received by the victim under the remediation agreement.
The Chair: Thank you for putting that on the record. It is important. As you know, it is an evolving new regime, and the department and, certainly, the prosecution service of the department will be able to monitor how that is being interpreted by the various courts that could be involved in a remediation agreement and the impact of that remediation agreement for the civil proceeding. I think it is an important element that should be kept in consideration. Thank you for that answer.
Honourable senators, I see that the time has lapsed. I think it has given all of us an opportunity to question the witnesses. Thank you so much.
You, of course, are aware that we don’t have to vote per se on those sections because we have been asked to consider them and report our consideration to the chamber. That’s what I would suggest that I be authorized to do, with a motion on the floor that would mandate the chair to report that we have considered Division 20, Part 4 of Bill C-86.
I would suggest, however, honourable senators, that we add as an observation the observation 4 that we appended to the report that we made in May. I will read it again for your consideration.
The committee is mindful that the Canadian Victims Bill of Rights guarantees the rights of victims, including to information about investigations and proceedings, and expresses its concern . . .
According to the testimony of the commissioner for Federal Judicial Affairs Canada.
. . . that proposed section 715.36 of the Criminal Code should be interpreted in a manner that respects these rights.
That doesn’t contradict what you stated, the interpretation of the various sections as a whole, but I think to express our concern that it be done that way is a fair expression of concern around the table.
That’s the suggestion that I made. We’re not proposing a change, but we’re expressing a concern that the interpretation of the various sections of the act reflects the rights of the victim to be informed and to be part of the proceedings. I think it’s a fair recognition of the concern that has been expressed around the table.
If honourable senators agree with that —
[Translation]
Senator Dupuis: I agree that we should keep the content of the May 4 observation and the discussions we have had today, and maintain our concern with the fact that the general interpretation of the sections should consider —
The Chair: Thank you for putting it more simply than I could have.
[English]
Are honourable senators in agreement with that proposal?
Hon. Senators: Agreed.
The Chair: Thank you. As usual, I will circulate the text of the report at steering with the two vice-chairs to be sure that everybody agrees on the wording, but it will certainly be reflective of our agreement this morning.
Thank you so much, Mr. Scrivens and Mr. Richstone. We might see you sometime down the road of life once that regime will have been tested in court. It will be tested, as the question has been raised this morning, and that is a very important element of pre-occupation of all the senators around this table. Thank you so much.
[Translation]
It is our pleasure to welcome this morning, from the Privy Council Office, Jean-François Morin, Senior Policy Advisor in the Democratic Institutions Secretariat, and Manon Paquet, Senior Policy Advisor in the Democratic Institutions Secretariat. They were here yesterday with Minister Gould.
So we are continuing our study this morning, with participation from these two experts on the elections act.
Mr. Morin, Ms. Paquet, do you have an opening statement?
[English]
It’s my pleasure to recognize Senator Frum in opening the questions with our witnesses this morning.
Senator Frum: Thank you both for being here. To begin, on the bill itself, can you tell us who the department consulted when writing the bill? Did you consult with the other political parties?
Jean-François Morin, Senior Policy Advisor, Democratic Institutions Secretariat, Privy Council Office: Consultations were conducted by the minister’s office and by the minister herself.
Senator Frum: Can you confirm that she consulted with the other political parties as to the contents of the bill?
Mr. Morin: I cannot speak on behalf of the minister in terms of what happened in her office.
Senator Frum: So you can’t tell us if the Chief Electoral Officer was consulted?
Mr. Morin: Of course, as you know, Senator Frum, a large portion of this bill is based on recommendations by the Chief Electoral Officer, and by the Commissioner of Canada Elections as well. As you should know as well, the House of Commons Standing Committee on Procedure and House Affairs studied the recommendation reports for almost a year and produced three interim reports on those. To a large extent, the Chief Electoral Officer’s views have been considered through the study of this bill.
Also, as Mr. Perrault himself has testified in the other place, we have consulted with Elections Canada on technical aspects of the bill to make sure they could be implemented, but, of course, we have not consulted them on policy issues. For that reason, both the Chief Electoral Officer and the Commissioner of Canada Elections have come up with supplementary recommendations when they testified in the other place and when they testified in the Committee of the Whole of the Senate as well.
Senator Frum: It sounds like there was not broad consultation on the policy side.
When the minister made the decision to change the rules around voting for expatriate Canadians who have been away from the country for more than five years, did you do an analysis, first, of how many people that would affect? Do you know how many expatriate Canadians will now be entitled to vote?
Mr. Morin: As you know, in the backgrounders that accompanied the bill when it was introduced, the government estimated that these provisions would allow approximately up to one million Canadians to vote under Division 3 of Part 11 of the Canada Elections Act.
On the other hand, Statistics Canada produced a study a few years ago regarding Canadians living abroad generally. Sorry; I only have the French version of this study before me. Basically, Statistics Canada said that it was very difficult to assess the number of Canadians residing abroad because Canada, unlike other countries, does not have registries of people leaving the country. As well, other countries might have statistics on foreign nationals coming into their country but with various methodologies. At that time, Statistics Canada estimated that up to 2.7 million Canadians could be living abroad, but, of course, that doesn’t account for those who have resided in Canada in the past.
Senator Frum: Did your department do any analysis on which ridings potentially would be most affected by these changes in the law?
Mr. Morin: I don’t have this information available.
Senator Frum: Did you do any analysis on the potential impact on election results?
Mr. Morin: I don’t have this information.
Senator Frum: Okay.
Mr. Morin: Sorry, Mr. Chair, I just want to explain again to all senators that we are ready to answer all questions relating to technical aspects of the bill and how the bill would be operationalized, but with regard to policy decisions that support the decisions of the government, these questions are better addressed to the minister.
Senator Frum: On a technical question, can you tell us how it will be verified that an ex-patriot actually did live in Canada in the past?
Mr. Morin: Again, as the Chief Electoral Officer has clearly expressed before the Committee of the Whole, it is a declaration. Once a Canadian living abroad wants to register on the International Register of Electors, that person has to send a request for registration to Elections Canada with sufficient proof of identity. The Chief Electoral Officer has mentioned that he in fact requests proof of citizenship in all cases, either by passport or by certificates of birth showing birth in Canada.
As for the address, the Canada Elections Act, and especially Bill C-76 in the amendment — I’m on page 7 of the bill, at approximately line 8 — which says that:
The place of ordinary residence of a person who resides outside Canada is their last place of residence in Canada.
Once a person registers on the International Register of Electors, they have to indicate that last place of residence in Canada, and once they are registered, they cannot change that address anymore except if they resume residency in Canada, and then leave Canada again. So it is a declaration.
Senator Frum: In other words, no proof is required of the last place of residence. They have to prove their citizenship, I understand that. But in terms of declaring where they formerly lived in Canada, that is a voluntary declaration on the part of the voter and that is accepted at face value?
Mr. Morin: Absolutely. That being said, there are, of course, cross-references so the National Register of Electors is the register from which the list of electors is created. That National Register of Electors receives information from a variety of federal and provincial databases with which the Chief Electoral Officer has information-sharing agreements. Of course, if the person was already registered in the National Register of Electors and provides a different address, it would certainly raise alarm bells.
The new part 11.1 of the act that is being enacted by Bill C-76 provides several prohibitions, for example, for registering in an electoral district that is not the one where the person was last residing or is ordinarily residing.
Senator Frum: You’re prohibited from making a false declaration, but how will Elections Canada know when that has occurred?
Mr. Morin: As I said, there could be red flags that will be raised.
Senator Frum: If you try to change it, but if you’re one of the new people who are freshly qualified to vote — we’re talking about millions of people who will now be qualified to vote who weren’t qualified the last election — and they voluntarily declare where they used to live in Canada, and that’s it, right? I mean, effectively that’s it.
Mr. Morin: Absolutely. We’re not hiding this. The Chief Electoral Officer and the Commissioner of Canada Elections have said exactly that before the Committee of the Whole in the Senate.
Yes, we trust that Canadians will comply with the act and with the prohibitions in the act and be truthful in their declarations. If the commissioner receives a complaint and investigates a matter, and someone has made a false declaration, yes, they can institute prosecutions.
Senator Frum: Last question. What are the rules regarding the canvassing of voters who reside outside of Canada by third parties?
Mr. Morin: What do you mean exactly?
Senator Frum: Well, third parties are limited on what they spend when canvassing Canadians. But when a third party is canvassing ex-patriot Canadians, what are the rules around that?
Mr. Morin: Well, that would need to be a Canadian third party. For example, two provisions of the bill prohibit foreign third parties from making any sort of expenses during the pre-election and the election period, so the third party in question would need to not be considered a foreign third party and then they would have to declare their expenses and their partisan activities for doing some outreach to these Canadians, for example.
Senator Frum: Right, but one of the ways they measure their expenses is how much they have spent per riding. There is a cap how much they can spend per riding.
Mr. Morin: Yes, but there is also a cap on how much they can spend as a whole.
Senator Frum: Right, so when they are canvassing two million people outside of the country, which cap does that fall within?
Mr. Morin: We would need to see a very specific example to give you a proper answer. It really depends on the facts of the case. But that being said, if the canvassing is of a general nature and does not target a specific electoral district, then it would most likely fall under the national cap.
Senator Frum: What if it was targeting a specific electoral district, but targeting people living offshore?
Mr. Morin: It would most likely fall under the cap for that specific electoral district.
Senator Frum: When the commissioner comes I can ask him how they are going to measure that. I would imagine there is great difficulty for Elections Canada, for the commissioner, to monitor those funds.
Mr. Morin: It is your opinion, and I strongly recommend that you ask the commissioner.
Senator Frum: Okay.
[Translation]
Senator Dupuis: I would like to make sure that I fully understand clause 222 of the bill, which, among other terms, defines election advertising, partisan activity, an election survey, and third parties.
Clause 222 proposes amending section 349 of the act to include the definition of partisan activity, such as canvassing door-to-door, making telephone calls, and so on.
A little later on, I read this:
It does not include election advertising, partisan advertising or a fundraising activity
Then it defines partisan activity expenses.
Does the definition of partisan activity include every kind of activity, except advertising and surveys?
Mr. Morin: Thank you, Senator Dupuis.
If I may, I would like to give you a little broader explanation of the various kinds of regulated activities during the pre-election and election periods, because there is a deeper logic behind it all.
Senator Dupuis: Okay.
Mr. Morin: For example, if you go to page 3 of the bill, at line 24, you will find a definition of election advertising. On page 4, at line 24, you will find a definition of partisan advertising. The reason why those definitions appear in clause 2 is that they apply not only to third parties during the two regulated periods, but also to the political parties, for certain kinds of their advertising. This specifically includes the definition of partisan advertising that applies to political parties through the pre-election period. Let us keep in mind that these two definitions apply to the act in its entirety.
When you get to page 117 of the bill, at line 3, it defines a partisan activity and. on the previous page, it defines an election survey. These two definitions apply only in the context of third parties. This is because, in terms of the political parties and the candidates, the activities included in those two definitions for third parties would, in any event, be included in the definition of election expenses that applies to candidates and political parties.
So, to return to your question specifically, I go back to the definition. This really includes all activities, and I quote:
. . . that is carried out by a third party. . . and that promotes or opposes a registered party or eligible party or the election of a potential candidate. . . otherwise than by taking a position on an issue with which any such party or person is associated.
So this definition casts a very wide net, but actually, the concepts of partisan advertising and election advertising are defined elsewhere in the act.
Does that answer your question satisfactorily?
Senator Dupuis: So much so that I would like to ask you a related question.
We trust you, but can you explain how you will really be able to identify a partisan activity that promotes or opposes a party in its position on an issue with which the party or person is associated?
Mr. Morin: Right.
The words “otherwise than by taking a position on an issue with which any such party or person is associated” appear twice in the act, in the definitions of partisan advertising and election advertising.
The phrase refers to advertising on issues of a public nature, to what is known as issue advertising. During the pre-election period, from June 30 to when the writ is issued for the general election, when advertising or activities do not name a party or a candidate, or do not display the logo of the party or the candidate, those activities remain unregulated. Only partisan activities and advertising that refer specifically to a party or a candidate, or are specifically intended to oppose a party or a candidate, become regulated during the pre-election period.
Right from the start of the election period itself, we instead use the definition of election advertising that includes issue advertising, when the issues actually are associated with a party or a candidate.
Senator Dupuis: Would the environment and the Green Party of Canada be an example?
Mr. Morin: All topics of national interest on which the parties take a position would be examples, and would come under the definition of election advertising during the election period itself.
The Chair: But not during the pre-election period?
Mr. Morin: No, not during the pre-election period, as long as no party or candidate were named. There is a clarification on the matter on page 6 of the bill, at line 14. It says, and I quote,
(7) For the purposes of the definitions election advertising and partisan advertising,
(a) promoting or opposing includes:
Senator Dupuis: Thank you. I will wait for the next round.
Senator Boisvenu: Mr. Morin, Mr. Paquet, welcome. I have three quick questions. The first goes to Mr. Morin. You were yesterday when I discussed the Frank & Duong case with the minister. Have you read the brief that the government submitted to the Supreme Court in that case?
Mr. Morin: Not recently. I was in my current position when that case started in 2012, but I was in the Canadian Armed Forces when the case was argued before the Supreme Court. So I have no recent knowledge of the brief.
Senator Boisvenu: What if I told you that the brief submitted by the federal government was opposed to the idea of allowing Canadian to vote if they have been out of the country for five years?
Mr. Morin: Yes. It is really important to —
Senator Boisvenu: Here is my question: How can the government be opposed to a principle at the Supreme Court when the principle is included in the bill it is introducing today?
Mr. Morin: I quite understand that it seems to be a contradiction, but I assure you that it is not.
Senator Boisvenu: I understand that a lawyer will find an argument to support a contrary position.
Mr. Morin: First, the Attorney General of Canada has the constitutional responsibility to uphold the constitutionality of the laws of Canada. In the brief and in the arguments before the Supreme Court and the lower courts in the Frank & Duong case, the Attorney General of Canada is seeking to obtain from the court a statement on reasonable limits on voting imposed on Canadians living abroad in the context of the current act.
This is a very interesting legal issue. Clearly, I am not going to comment on the case itself; I will just comment generally on the legal issue. It is an interesting legal issue that may eventually help this government, or future governments, that may wish to amend the criteria for electors living overseas. It should give the government guidelines on whether the limits imposed on Canadians’ right to vote when they live abroad are justified under section 1 are justifiable in a free and democratic society.
Second, let me go back to the second part of your question. You ask why, in its bill, the government is advocating for greater openness for Canadians living abroad. As I was explaining yesterday when you asked your question, the government is clearly free to provide Canadians with rules on the right to vote that are less restrictive than those presently in the Canada Elections Act.
The matter before the Supreme Court of Canada is whether or not current rules are reasonable, and the government’s position in its bill is to say that it believes that they are.
Senator Boisvenu: The Supreme Court is supposed to render its decision in a number of months, but if, for example, the bill were passed this week and made it legal, how would the Attorney General of Canada be able to maintain a position against it if an act that implies support has been passed?
Mr. Morin: There are two different things. First, there is an actual validation of the reasonableness of the current rules. That is the job of the Attorney General of Canada. Then, there is the government’s position on public policy, in which it believes that —
Senator Boisvenu: But since justice must be seen to be done, this seems like a contradiction.
Mr. Morin: I don’t think so.
Senator Boisvenu: Would it be possible to have the federal government’s brief in that case?
Mr. Morin: We can send the document to you. It is available on the Supreme Court of Canada’s website.
Senator Boisvenu: I will move along quickly so that my colleagues can ask other questions. Once this bill is passed, it will have an impact on Quebec. Will Quebec have to recognize the same rights?
Mr. Morin: Not necessarily. The Supreme Court will determine whether the limits currently established by the Canada Elections Act are reasonable or not.
Senator Boisvenu: Let us start from the assumption that the bill is passed and the Supreme Court recognizes that right. The Supreme Court will not subsequently be able to announce that it is against the principle because the bill has been passed. The political question would become much easier.
What I mean is that, once the bill has been passed, the Supreme Court should say yes. It will have an impact on provincial elections because the right should extend to the provinces, correct?
Mr. Morin: Not necessarily. Provincial legislatures are free to pass legislation in their own areas of jurisdiction.
Senator Boisvenu: So could there be challenges from the provinces for the right to be extended to the provinces?
Mr. Morin: Not necessarily. I do not want to venture into…
Senator Boisvenu: You are a lawyer. How can we, at federal level, recognize a principle whereby expatriates have a right to vote federally, while we do not recognize their right to vote in a provincial election? Explain that logic to me.
Mr. Morin: Let me give you a specific example. First of all, the Canada Elections Act sets only two criteria for being an elector: You have to be a Canadian citizen and you have to be 18. However, for voting abroad, the criteria are stricter. Most provincial legislatures have adopted election legislation saying that, to qualify as an elector, you have to spend a certain minimal amount of time as a resident of the province. For most provinces, that minimum residence is three or six months, I believe. The time is longer in some of the territories in order to protect the priority given to First Nations. I just want to show you that being an elector does not necessarily have equal standing provincially and federally.
Senator Boisvenu: This legislation complies with the Canadian Charter of Rights and Freedoms, does it not?
Mr. Morin: Certainly.
Senator Boisvenu: And it applies to Quebecers and Ontarians equally?
Mr. Morin: Yes.
Senator Boisvenu: So the principle of recognition could be used by Quebecers in order to have the same right?
Mr. Morin: It could, but, as I was telling you —
Senator Boisvenu: So, given that principle, have you consulted Quebec to have this discussion and to mention that it could have an impact on their legal process?
Mr. Morin: Senator Boisvenu, I think we have to give the provinces the freedom to take the actions they consider necessary in the areas under their jurisdiction.
Senator Boisvenu: Last question. Will the bill will allow ministers to participate in partisan activities with expatriates when they travel abroad?
Mr. Morin: There are no specific provisions on that in this bill, but I would refer you to Bill C-50, which was passed last June 21 and which will come into force on December 20.
Senator Boisvenu: So will that allow participation in partisan activities with expatriates?
Mr. Morin: No. I am just telling you that Bill C-50 —
Senator Boisvenu: You have no information about it?
Mr. Morin: No, but Bill C-50, as you will remember, sets out strict rules for ministers participation in fundraising activities in general, which can include fundraising activities abroad.
Senator Boisvenu: Does that include or exclude partisan activities with expatriate?
Mr. Morin: I am sorry, I do not have Bill C-50 with me, but I can get back to you on it.
Senator Gold: Thank you for being here.
[English]
One of the important takeaways from this bill is its emphasis on the accessibility and broadening the ability of Canadians both here and abroad, as has been discussed, to exercise their right to vote.
A number of the provisions have been mentioned, whether it’s vouching in some cases or the use of voter ID cards as a supplement to ID. However, this has given rise to a number of questions that we heard in the Committee of the Whole and around this table.
Could you give us your opinion as to what degree voter fraud is a real problem in Canada? Is that a question that is properly directed to you? In the experience or data you have, how big, or small, or in-between a problem is this?
That’s my first question. If time permits, I have a second question on accessibility. This seems to be the elephant in the room, if I could use that expression, and I wanted to know your views on how big a problem this is or might be in Canada.
Mr. Morin: Thank you very much for your question, Senator Gold.
First, I would encourage any listener to these discussions or any Canadian who has evidence of voter fraud to refer these cases to the Commissioner of Elections Canada for investigation. The commissioner is the officer responsible under the Canada Elections Act to ensure that the act is complied with and enforced.
To answer your question more specifically, I am not aware of any case of widespread voter fraud in Canada — quite the opposite, actually. The commissioner, as can be seen from his website, has a list of all charges that have been laid for all offences under the Canada Elections Act. I did a survey of his website recently and could find only seldom cases of voter fraud or double voting attempts.
The commissioner also has on his website a list of all — I think they are called compliance agreements and transactions — similar matters. Again, the numbers that could be associated with voter fraud was extremely low.
You can also address this same question to the commissioner who will be testifying right after us.
[Translation]
Senator Gold: It is important to recognize the impressive efforts made to get people from Indigenous communities to exercise their right to vote.
In another context, here in the Senate, with our study on Bill C-71, one of our colleagues discussed the regulations on firearms that help and support Indigenous communities in their languages in order for them to better understand the rules of the game.
Does the government intend to mobilize members of Indigenous communities who speak languages such as Inuktitut in the north and who could work as election officials to give a hand to people who may have problems understanding the process of exercising their right to vote? Can you comment on that?
Mr. Morin: Of course. Let me refer you to section 18 of the act, on page 9, at line 24, about the information and public education program.
The bill once more gives the Chief Electoral Officer greater authority over information and public education programs.
The Chief Electoral Officer appeared at the Committee of the Whole in the Senate and stated that, during the election period, the first responsibility of Elections Canada was not to urge people to go and vote, as that is rather a matter for the political parties and about the nature of the issues raised during the election period. Instead, Elections Canada must make sure that people know where to go to vote, how to become a candidate, and so on. This overall authority could be applied outside election periods to increase awareness among Canada’s Indigenous peoples.
Elections Canada already makes documentation available in various Indigenous languages to explain to people how to be fully informed in the election process. That is therefore something that will be continued and that could expand under this new mandate. Is that a satisfactory answer to your question?
Senator Gold: Yes, but on election day itself, will there be people in the appropriate places who speak Indigenous languages in order to help electors?
Mr. Morin: That question should go to the Chief Electoral Officer. But other amendments in the bill allow the Chief Electoral Officer to better manage staff in voting stations by better delegating tasks. In some specific communities, election officials could potentially be assigned to the task of helping electors. There are also provisions in the bill, provisions that already exist in the Canada Elections Act, that allow interpreters to be sworn in at voting stations.
So, in fact, someone having difficulty communicating in English or French could have an interpreter at a voting station to make communication easier and to explain the process.
Senator Gold: Thank you.
[English]
Senator Batters: Mr. Morin, you attended with the Democratic Institutions minister at this committee yesterday and I was questioning the minister, in part, about Bill C-76’s lack of independence as between the Chief Electoral Officer and the Commissioner of Canada Elections. At one point, you referred to a brief section of Bill C-76 which says that the commissioner is independent. As such, Mr. Morin, I have some other sections of Bill C-76 in that same area that I want to bring to the attention of this committee and to Canadians watching this today.
First, to compare the current Elections Act, under subsection 509(1), it says:
The Commissioner of Canada Elections shall be appointed by the Director of Public Prosecutions to hold office during good behaviour for a term of seven years and may be removed by the Director of Public Prosecutions for cause.
Subsection 509(2) says:
The Director of Public Prosecutions shall not consult the Chief Electoral Officer with respect to the appointment of the Commissioner.
(3) A person is not eligible to be appointed as Commissioner if the person is or has been ...
And, among other things in there, it says:
(d) the Chief Electoral Officer, a member of his or her staff or a person whose services have been engaged under subsection 20(1).
That is what the act says right now with the Fair Elections Act changes included.
Bill C-76, subclause 351(1) provides for a new subsection 509(1) that says:
509(1) The Commissioner of Canada Elections shall be appointed by the Chief Electoral Officer, after consultation with the Director of Public Prosecutions, to hold office during good behaviour for a non-renewable term of 10 years and may be removed by the Chief Electoral Officer for cause.
(2) The Commissioner shall be paid the remuneration that is fixed by the Chief Electoral Officer, after consultation with the Director of Public Prosecutions.
Paragraph 509.1(1) in the new act provides:
The position of Commissioner of Canada Elections is within the Office of the Chief Electoral Officer.
(2) For the purposes of sections 11 to 13 of the Financial Administration Act, the Commissioner is the deputy head in relation to the portions of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 occupy their positions.
(3) For the purposes of the Public Service Employment Act, the Commissioner is the deputy head in relation to the portions of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 occupy their positions.
Going down to the part you were quoting from yesterday, “Independence” under Bill C-76, new paragraph 509.21(1) says:
All decisions made and actions taken by the Commissioner under any provision of Part 19 are to be made or taken independently of the Chief Electoral Officer.
But then there is a clarification in subsection 2, which was:
Nothing in subsection (1) precludes the Commissioner from consulting with the Chief Electoral Officer in respect of any matter if the Commissioner considers it appropriate to do so.
As well, new subsection 509.5 says:
The Commissioner may authorize a person employed in the Office of the Chief Electoral Officer to assist the Commissioner in the exercise or performance of any of his or her powers, duties and functions arising from subsections —
I think those are important to note today. Frankly, Mr. Morin, I am wondering how you respond to all of this. You can’t simply say in one small part of the act that the commissioner is independent from the Chief Electoral Officer, and then on hiring the commissioner, on determining the commissioner’s “good behaviour,” on firing the commissioner and on determining remuneration of the commissioner, on location of the commissioner’s office, every single one of those key elements is determined by the Chief Electoral Officer. Frankly, I was stunned to read all this, this morning. Frankly, I think this government needs a definition of independence that bears some resemblance to the actual definition of independence.
Mr. Morin: Thank you for these comments, Senator Batters.
First, the commissioner will be appearing right after us, and I think it would be a good idea to ask him about how he feels about the degree of independence that Bill C-76 would allow him.
Senator Batters: I will do that, but I want your impression, because you gave me this “independence” definition yesterday.
Mr. Morin: Absolutely. I think this definition of independence for all decisions and actions taken by the commissioner under Part 19 of the act is key in terms of independence in decision-making with regard to enforcement and prosecution matters under the Canada Elections Act.
Furthermore, I would say, with regard to the other provisions that you mentioned, that they talk about the financial administration and human resources of the Office of the Commissioner of Canada Elections, which is not a department under Schedule 1.1 of the Financial Administration Act. The Office of the Commissioner of Canada Elections needed to be positioned under a department under that schedule for financial and human resources matters. I think this is the intent of the government, that the commissioner report to an officer of Parliament, rather than to an officer who reports to the executive.
Furthermore, you asked yesterday about whether the commissioner could be investigating an officer or an employee of the Chief Electoral Officer. Absolutely so.
I would also like to point out section 509.4 of the Canada Elections Act, which is not being amended by Bill C-76, provides that:
The Commissioner may engage on a temporary basis investigators or persons having technical or specialized knowledge to advise and assist him or her in the exercise or performance of his or her powers, duties and functions under this Act.
In closing, I would like to mention that, yes, Bill C-76 allows a commissioner to lay charges directly without the prior approval of the Director of Public Prosecutions. That being said, the commissioner is not the one leading the prosecution. That responsibility still rests with the Director of Public Prosecutions who will lead these charges in court. In the end, any offence related to the Canada Elections Act will be determined by the courts themselves. It’s not an administrative matter; it’s a criminal matter.
Senator Batters: Mr. Morin, you have taken all the questions today.
Ms. Paquet, I see that you’re both listed as senior policy advisers within the Democratic Institutions Secretariat of the Privy Council Office. Are you responsible for different portions of the act?
Manon Paquet, Senior Policy Advisor, Democratic Institutions Secretariat, Privy Council Office: Thank you for that question. We work together on this file. Jean-François is better placed to take most questions that a committee asks, and I am also working on the development of the bill and supporting the minister in the process.
[Translation]
Senator Carignan: I have some questions about the definition of “group,” because the term “third party” is defined as a “person or group.” I am trying to understand the word “group”.
I say this because of the expense ceiling of $350,000. The Canada Elections Act says, and I quote:
group means a registered party, registered association, unincorporated trade union, trade association or other group of persons acting together by mutual consent for a common purpose
That seems to me to be easily got around if different movements, organizations or unions decide to use each of their units to spend $350,000 or $3,000.
The idea of “group” actually needs some degree of structure, according to the definition, and so it is not very broad.
Have you looked at the possibility that a collection of individuals or groups might establish a strategy designed specifically for a person, a candidate, a constituency or a party, thereby allowing them to pool their money, their expense limits, by coming together?
Mr. Morin: Yes, thank you very much for your question, Senator Carignan. First, the notion of “person” or “group” is not an addition to the Canada Elections Act as a result of Bill C-76. These concepts already exist in part 17 of the Canada Elections Act, which deals with third parties. The idea really is to identify, first of all, persons — physical people or companies with legal personality — and second, associations of persons, meaning two or more persons who form themselves into a group that does not have a legal personality.
These are not new concepts. They have existed since the third-party idea was introduced into the Canada Elections Act.
Second, as for attempts at collusion to which you refer, there are indeed provisions elsewhere in the act that apply to both the pre-election and election period, that prevent two or more third parties from associating with the intent to exceed their allowable expense ceiling. These provisions apply to both the pre-election and election period. They are also found in new section 0.1 of part 17 that deals with the use of foreign funds. There are provisions in section 349.03 that prevent third parties from trying to get around the provisions of the act in order to use foreign funds.
Senator Carignan: Section 349?
Mr. Morin: My example was section 349.2. I can find the other provisions I was referring to for you.
If you go to page 120 of the act, at line 14, section 349.2 reads as follows:
A third party shall not circumvent, or attempt to circumvent, a maximum amount set out in section 349.1 in any manner, including by splitting itself into two or more third parties for the purpose of circumventing the maximum amount or acting in collusion with another third party so that their combined partisan activity expenses, partisan advertising expenses and election survey expenses exceed the maximum amount.
Senator Carignan: How are you going to go about prosecuting in situations with various unions? Unions often come together in federations and confederations. Sometimes, in a particular year, the president gives the order to support the NDP, and the NDP has to be elected or the Conservatives have to be beaten, and members have to vote for the one with the greatest chance. That is the battle cry we sometimes hear in speeches by union presidents. How are you going to show that there is a violation, if all the various unions decide to put their $350,000 towards that?
That’s not necessarily collusion or a violation, it’s an organization formed to pool the amounts.
Mr. Morin: I have two or three comments about that. First, it is very important to understand that the objective of the Canada Elections Act has never been to limit freedom of expression in its purest sense.
Let me invite you to consult the definition of election advertising on page 3 of the bill at lines 30 and 38. You will find the same idea in the definition of “partisan advertising” on the next page.
Those two definitions read as follows:
. . . it does not include:
(c) the transmission of a document directly by a person or a group to their members, employees or shareholders;
This exception has been in the elections act for many years.
Senator Carignan: So that reinforces my point that, by using that right, it is difficult to say that they are colluding in order to get around the limit.
Mr. Morin: However, as I was saying, the objective is not to limit freedom of expression in cases where people are addressing their members.
When the advertising goes more directly to Canadians, not just the members of the union, at that point, it would fall under all the definitions of election advertising and partisan advertising we have talked about.
Once again, I should remind you that this system has existed since the year 2000 at least. Elections Canada receives financial reports from the third parties, and, on a number of occasions, refers cases to the Office of the Commissioner of Canada Elections for investigation when there is an appearance of collusion in order to exceed the expense ceiling.
Even during the election period, if the commissioner receives a complaint, or is of the opinion that collusion is occurring, clearly, he can intervene with the third parties in question.
The two offices charged with administering the Canada Elections Act really have a whole range of tools available. The Office of the Chief Electoral Officer and the Commissioner of Canada Elections are able to react to that kind of situation, and they have done so in the past.
Senator Carignan: So, am I to understand that, if 10 or 20 local unions are members of a federation, those 10 or 20 local unions could technically spend $350,000 each?
Mr. Morin: It really depends on how the expenses are incurred and on the medium for the advertisements. I would rather not comment on a specific case.
Senator Carignan: No, I’m not talking about a specific case; it’s hypothetical.
Mr. Morin: Precisely, it is extremely difficult for us to answer questions about a hypothetical case without any specific facts. However, I am sure the commissioner can give you examples of cases where charges have been laid in the past.
Senator Carignan: Is it possible to change the definition of “group” so that, as soon as, for example, a bargaining unit or that sort of entity is affiliated with a federation or confederation and becomes a member of the “confederation” or “federation” group, the federation has the $350,000 limit for all its members, instead of each of its members individually?
Mr. Morin: As I said at the beginning of our presentation today, political questions should be directed to the minister. Clearly, as you can see, this —
Senator Carignan: It’s not a political issue, it’s a legal issue, like trying to avoid it in order to apply it. An official drafted the section on the offence —
Mr. Morin: Senator Carignan, what I’m saying is that all questions about the direction we are going in are matters for cabinet.
We are not authorized to give you that type of information. I can confirm that, at the present time, that sort of clarification does not appear verbatim in the legislation.
The Chair: Mr. Morin, Ms. Paquet, before I thank you, I would like to ask you a question. On page 7, clause 5 defines the status of a person who resides outside Canada. Earlier, Senator Frum asked that question indirectly.
[English]
If I may come back to the definition of persons residing outside Canada: “The place of ordinary residence of a person who resides outside Canada is their last place of ordinary residence in Canada.”
[Translation]
The case I have in mind really exists; I didn’t make it up. A person is born abroad to Canadian parents, is registered at the Canadian consulate, holds a Canadian passport and is 18 years old. So they are of voting age. Can they vote in a Canadian election, even if, in practice, they have never resided in Canada?
Mr. Morin: No. The Chief Electoral Officer was asked that question in Committee of the Whole in the Senate. Our electoral system is based on residence in Canada. One of the sine qua non conditions for voting, under Division 3 of Part 11, is that you must have resided in Canada at some point to have an address in Canada.
I would like to make one more clarification about the clause you mentioned, clause 5 of the bill, which amends section 8 of the act. Right now, under two divisions of Part 11, the Canadian Forces electors division and the electors resident outside Canada division, when those individuals register to vote, they have an exception that allows them, to a certain extent, to choose their place of residence in Canada. For example, they could provide the address of the person with whom they would reside if they lived in Canada. Bill C-76 limits this opportunity and harmonizes the provisions for determining the deemed place of ordinary residence, by providing that the only place of ordinary residence of persons residing outside Canada is their last place of ordinary residence in Canada. The provision seeks to eliminate the sort of riding shopping that is possible right now.
The Chair: For the person I am referring to, coming to visit relatives in Canada for a week, two weeks or a month is not enough to qualify as a resident?
Mr. Morin: No, absolutely not. In part, this has led to the whole public debate in Canada about electors residing outside Canada. Until the 2006 general election, the Chief Electoral Officer of Canada considered, with respect to the five-year rule, that a visit to Canada would reset the counter to zero. For example, people who had resided outside Canada for a very long time could come to Canada for a week, as you just described, and re-register in the International Register of Electors. The information I am giving you is public. It can be found in the Chief Electoral Officer’s report following the 2011 elections. It explains that Elections Canada has revised its interpretation of the legislation and has started interpreting the provisions more consistently with the spirit of the law. It is very important that the person establish an ordinary residence in Canada, as described in subsection 8(1) of the act, which is not amended by the bill, but which describes the ordinary residence as the place where the person lives and to which the person intends to return when away from it.
The purpose of this long answer is to confirm that a person who returns to Canada only for a visit, without intending to settle in Canada to reside here, will not be able to vote under the provisions of the legislation if she or he has never resided in Canada in the past.
The Chair: Being born in Canada per se does not qualify a person as an elector if the person has not actually resided in Canada.
Mr. Morin: The example you gave was that of a person born outside Canada.
The Chair: That’s another scenario. Let’s talk about individuals born in Canada. Because they were born in Canada, they are Canadian citizens. However, they are in Canada until they are able to leave the hospital and go abroad.
Mr. Morin: That is a question of fact and it will have to be assessed. The person must have resided in Canada.
Senator Carignan: I asked the same question. People must remember their address or the address of their parents when they were born, otherwise they will not be able to be included on the list. That was the answer I got.
Mr. Morin: Yes, exactly.
The Chair: I see that time is passing. We will certainly have other questions. We will stay in touch with you, Mr. Morin and Ms. Paquet, to keep the honourable senators informed.
I would now like to quickly invite the Commissioner of Canada Elections, Yves Côté, to come to the table so that we can continue our study of Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments. Mr. Côté is accompanied by Marc Chénier, General Counsel and Senior Director of Legal Services in the Office of the Commissioner of Canada Elections.
Welcome.
Mr. Côté, you are well aware of the procedure. Do you have any opening remarks that you would like to share with the members of the legal affairs committee to open our discussion this afternoon?
Yves Côté, Q.C., Commissioner of Canada Elections, Office of the Commissioner of Canada Elections: I have a few short remarks to share with you and the honourable members of this committee.
We are pleased to appear before you today on the subject of Bill C-76. As you mentioned, the person sitting to my left is Marc Chénier, General Counsel and Senior Director, Legal Services.
As a number of you know, about two weeks ago, I was honoured to appear before the Committee of the Whole to discuss the subject matter of Bill C-76. At that time, I outlined our perspective on a number of the various new elements contained in the proposed legislation. Knowing that the honourable senators who are present here today are well-versed in those issues, I do not intend to revisit those comments now.
[English]
There are, however, two things that I would like to underscore with respect to Bill C-76.
The first is that it contains a number of measures that, if adopted, will significantly transform — and in a very positive way — the entire enforcement regime of the Canada Elections Act.
These changes, which stem from long-standing recommendations we have made over the years, are, from our perspective, extremely important. They would allow us to be more efficient and would better position our office to deal with some of the new threats that lie ahead. So we are extremely happy to see that they are part of the bill that is in front of you today.
[Translation]
The second point is one that both the Chief Electoral Officer and I have stressed. Implementing the changes contained in Bill C-76 — which includes, among other things, the transfer of our office to that of the Chief Electoral Officer, and the creation of a new division to manage the new administrative monetary penalties regime — is no small task.
[English]
That the implementation of these changes will be taking place at the same time as we enter a critical phase in the preparation for the next general election creates added complexity and pressure for our organization. For this reason, it is important that Bill C-76 should come into force as soon as possible so that we can, at the first opportunity, integrate these changes into our preparations.
[Translation]
Honourable senators, thank you for your attention. We will be happy to do our best to answer any questions you may have.
[English]
Senator Frum: Hello, Mr. Côté and Mr. Chénier. It’s good to see you again.
Mr. Côté: I will say that the sound today is much better than it was on November 6. It will be easier to communicate.
Senator Frum: Perfect.
I’m looking at a document provided to us by the government — some government briefing notes. They say here that, with Bill C-76, they are making it so foreign third parties cannot spend any money to influence Canadian federal elections. As you know, this is a topic of great interest to me and to you.
Do you agree that Bill C-76 makes it so that foreign third parties cannot spend any money to influence Canadian elections? Is that a true statement?
Mr. Côté: The provisions contained in the bill certainly say that for the pre-electoral period and electoral period, foreign third parties are essentially prevented from playing a role of incurring expenses of the three types that are described in the bill: partisan activities, election advertising and the making of surveys for electoral purposes. That is quite contained and restrictive.
Senator Frum: But it’s not — I notice you didn’t say that foreign funding has been prevented. You didn’t say that. You said in those specific areas, it has been curtailed, but it is not necessarily the case that foreign third parties cannot spend money to influence Canadian elections via third parties. In other words, they can make donations toward the administration or the salaries of registered third parties.
Mr. Côté: You and I, senator, if I may say, had our discussions about the role of third parties in the past. Before this committee a number of months ago, I deplored the fact that the previous or the current regime was extremely lax in terms of regulating third parties. The only thing currently regulated is essentially electoral advertising during the campaign; the rest is open season for our purposes.
I think this bill goes a long way toward addressing many of the problems that have been encountered before and which were the basis of the complaints we received.
Something that is extremely important to note now is that, under this bill, is a provision that says that a third party may not use money from a foreign entity for any of their activities. That, in and of itself, is —
Senator Frum: But as you just said, it’s for three prescribed activities, not for any activity. They can use foreign funding for certain activities.
Mr. Côté: That’s right — where they are regulated, which are the three areas that I —
Senator Frum: But only for those three areas. There is still an opportunity for them to use it elsewhere.
To make that clear, it’s not a blanket prohibition on foreign funding; it’s just in three specific areas, which I agree with you is good. However, it is false to say that foreign funding has been completely closed off to third parties. That’s not a true statement.
Let me ask you, so I understand, what it means to be a Canadian third party. Must a Canadian third party be registered? Must it be located in Canada?
Mr. Côté: No, I don’t think so.
Senator Frum: To be a Canadian registered third party, must you be located in Canada?
Mr. Côté: What you have to look at is who is in charge of the third party. To the extent that you have a Canadian citizen who may, for example, happen to live in the State of New York, as you raised the other day, he or she would be a Canadian citizen. She or he could lead a third party.
Senator Frum: So a third party could be located in Moscow, Beijing or Tehran, correct? It’s still a Canadian third party if a Canadian is involved with it.
Mr. Côté: If a Canadian is involved within it, it is not a foreign third party.
Senator Frum: So it can be located anywhere in the world.
Let’s say the membership, or the people working at this Canadian third party located in Beijing, if there is a Canadian there, that makes it a Canadian third party. However, there might be five other people working there who aren’t Canadian. Does it still qualify as a Canadian third party?
Mr. Côté: If the head of the third party was a Canadian citizen, I think that would be enough to meet the test and the definition in the bill.
Senator Frum: Let’s say this Canadian third party is registered and its activities fall under Bill C-76, but we have just acknowledged it might be located in Moscow or Beijing. What powers does your office have to monitor and control that Canadian third party?
Mr. Côté: First, you would expect the Canadian third party, located wherever it is that you have described, to comply with the legislation, to file their reports and do anything they have to do. If an issue of enforcement were to come up, we, the commissioner’s office, would face essentially the same challenges that any other police force or any other organization responsible for law enforcement in Canada faces when they try to apply Canadian legislation to acts and people who are outside Canada. If they happen to be in a country like the two countries you used — Russia and China — as you very well know, there would be difficulties, presumably, in getting cooperation from those countries with an investigation being launched.
That said, the Canadian in charge of that third party, presumably, could come into Canada at some point in time, and we could have notices given to CBSA, if the evidence warranted, to do what they have to do.
Senator Frum: So you could sanction somebody years later if they violated the Elections Act if they chose to come back to Canada. If they were residing in China and never left China, and they were violating the Elections Act, there is nothing you can do about it?
Mr. Côté: If they never come here, and if they are in a country with which we have no cooperation agreement, I think the statement you made is essentially a fair one.
Senator Frum: I have a last question on this area. What happens if a third party, whether it’s located in Canada or Moscow or Beijing, doesn’t bother to register? What do you do about that?
Mr. Côté: Assuming they have met the threshold —
Senator Frum: Spent more than $500.
Mr. Côté: — by which they would have to register, we could certainly try to notify them that they would have to register. Beyond that, if they refuse to play by the book, so to speak, we go back to the issue we just discussed in trying to enforce.
Senator Frum: So not much can be done.
When you were at the Committee of the Whole, you made the point a few times that you are a complaint-driven organization. In other words, you are not monitoring the activities of third parties yourselves. You are waiting for other people to complain about potential violations before you investigate anything. Is that correct?
Mr. Côté: Yes, but I wouldn’t like to give the idea that we sit back and wait for complaints. We have understandings and discussions with security organizations, law enforcement organizations and obviously with Elections Canada. Just like anyone else, we read papers and we get information. When things come to our knowledge that would suggest that perhaps there is something amiss going on somewhere, we could take steps.
Marc is pointing out to me a valid point. As I mentioned in my opening remarks, this bill would create a system of administrative monetary penalties. These can be imposed by the commissioner in things such as those that you discussed where third parties would perhaps violate —
Senator Frum: And I appreciate there are penalties, but before you get to that, you have to have an investigation. You have to have a finding of wrongdoing. I’m just wondering, first, in the cases of the third parties that are offshore, you don’t have the jurisdiction to go after them.
Mr. Côté: No more than the RCMP.
Senator Frum: So you can’t act in real time or do anything about it.
Second, you’re waiting for a complaint to happen to investigate. You’re saying if a third party doesn’t bother to register, unless somebody complains about that, you may not take action, or you will take action yourselves if you’re monitoring it, but this will be many months or years after the election has happened. Those are all the cases, right?
Mr. Côté: You are absolutely right. It is part of living in the world of many countries with sovereignties all around the globe.
The other point that I would make —
Senator Frum: The idea that we have solved our foreign influence problem just isn’t correct. This bill does not solve our foreign influence problem, based on what you have just said.
Mr. Côté: I am not here to defend the policy of the bill, but as the chief enforcer of the legislation, if this bill is passed, I will repeat what I said a moment ago: This will be tremendous progress compared to where we are now with the regime applicable to third parties.
[Translation]
Senator Dupuis: Welcome to our committee. I would like to draw your attention to page 21 of the bill, in particular to the definition of “foreign third party” in clause 223 of the bill, which is intended to amend clause 349. I understand that this applies to the pre-election period, in division 1.
Mr. Côté: Are you talking about the provision on page 121 of the bill?
Senator Dupuis: Yes. In the English version, in the left-hand column, with respect to the definition of foreign third party, paragraph (b) states:
if the third party is a corporation or entity, (i) it does not carry on business in Canada, or its only activity carried on in Canada during a preelection period consists of doing anything to influence electors. . . and (ii) it was incorporated, formed or otherwise organized outside Canada. . .
I’m trying to understand and I’m sure you can help me.
Now, in another section, for the definition of “foreign third party” in paragraph (b), the following is indicated:
(b) if the third party is a corporation or entity, (i) it does not carry on business in Canada, or its primary purpose in Canada during an election period is to influence electors. . . and (ii) it was incorporated, formed or otherwise organized outside Canada. . .
It’s different. Could you help me understand the distinction between the two?
Mr. Côté: I think you noted the distinction yourself in that one test is narrower or broader than the other. In my opinion, it is an anomaly in the drafting of the bill. We would have expected the definition to be the same in the pre-election and election context. I don’t know why there are two different definitions or descriptions. My colleague can probably give you a better explanation than me.
Marc Chénier, General Counsel and Senior Director, Legal Services, Office of the Commissioner of Canada Elections: The House of Commons committee amended the bill and, unfortunately, they did not include the same changes everywhere. They did not apply the changes to all the places where the expression appeared.
Senator Dupuis: Thank you. That was my sub-question. So the basic version was, if I understand it correctly, the one on page 121, where it states: “. . . its only activity. . . consists of doing anything to influence.”
Mr. Chénier: That’s right.
Senator Dupuis: We are therefore talking about an entity that is not legally organized in Canada. Its only activity during the pre-election period is to exert influence. In your opinion, is the concept broader when you say that its primary purpose is to exert influence, compared to the first version which was the basic version?
Mr. Côté: The first version, the one referring to exclusivity, becomes more difficult to apply, because it would mean that all it would take for a foreign company to exclude itself from the definition, if you will, is to conduct another activity, even if it is a minor one.
Senator Dupuis: I want to make sure I fully understand this. We are saying all kinds of things and we want the bill to say all kinds of things, so I will try to work with you to better understand what you understand, since you will have to apply it.
The first part, on page 121, states that it does not carry on business in Canada “or its only activity carried on in Canada . . . consists of doing anything to influence.” Is that broader than saying that its primary purpose is to exert influence?
Mr. Côté: It depends on what you mean by “broader.” I don’t want to play with words.
Senator Dupuis: Let me rephrase my question. Is it more likely to allow people to interfere during the election period than during the pre-election period? Because there is an objective element in activities. Are you or are you not conducting activities? There is an objective aspect to it, whereas, in terms of your primary purpose, the concept is broader, less defined.
Mr. Côté: If an ill-intentioned third party wanted to abuse the system, I think they would prefer to be on page 121, because at that point, their only activity would be to do what the act prohibits. All they would have to do is make sure that those are not their only activities. All they have to do is something else, and as soon as they do something else, they could say that those are not their only activities. While the other test is broader in a sense, because it says that, if the primary purpose is to do things like that —
Senator Dupuis: That answers my question.
Mr. Côté: I think this is really an anomaly, and the same thing should be in both provisions, both for the pre-election period and the election period.
Senator Dupuis: In any case, from an enforcement perspective, it will be more complex for an organization like yours, as I understand it.
I would like to continue with you the discussion we started when you appeared before the Committee of the Whole. Earlier, you referred to the two aspects that seem important to you in this bill, including the one that gives you more power to counter cyber threats.
You said the other day that you already have contacts, especially with some platforms. If I understand correctly, measures are already in place between you and some of these platforms. So we are not starting from scratch in developing those relationships. Can you tell us more about that?
Mr. Côté: Let me tell you, Madam Senator. . . Do we say Madam Senator or senator?
Senator Dupuis: I would suggest that you answer the question directly, because, given the committee we are sitting on today, I think it can take some time. We have schedules to keep.
Mr. Côté: Okay. For the 2015 election, we have already started —
Senator Dupuis: May I interrupt you? You can call me madam senator. That’s fine by me. Thank you.
Mr. Côté: I will try to remember that. Thank you. By the 2015 general election, when we were preparing for that election, we had established communications and ties with Facebook in particular, but also with other social media platforms. These ties served us very well during the 2015 campaign. At one point, we saw comments that had been posted on some Facebook sites. We intervened and, very quickly, they removed these things that we found problematic.
In preparing for the election that will take place in Canada in 11 months, we contacted Facebook in particular, but also Twitter. Tomorrow, our director of investigations will sit down with Google. We have also had discussions with Microsoft. Through these contacts, we will be able to ensure that, should problems arise, we can communicate quickly with the appropriate people and ask them to take action.
In addition, we have conversations, interviews, forums with different entities. For example, we sit down with people from CSIS, with the body responsible for protecting government telecommunications, with the RCMP, with the Department of Public Safety. This is done at a very high level and also at the level of our investigators and the director of investigations. We have established these links, and very useful information is being provided to us.
Again, all this is done to prepare us to be as effective as possible in countering the threat when it occurs. Of course, we are aware that we won’t be able to control or prevent everything, but at least we will be well positioned with respect to these issues.
Senator Dupuis: You are already part of a network and you have links with key players, both from a security perspective and from the perspective of those who spread the messages, to reassure the Canadian public that you won’t discover cyber threats tomorrow morning for the 2019 election.
Mr. Côté: We have extensive relations with Elections Canada, which has a role to play in maintaining the democratic health of the country. It is another player with whom we are engaged in extremely positive and successful talks.
Senator Dupuis: Thank you.
Senator Boisvenu: Thank you, gentlemen. Again, welcome to the committee. I asked a few questions this morning to which the representative, Mr. Morin, had no answer.
First, does the Canada Elections Act authorize a minister, when travelling on business abroad, to organize political activities with Canadians residing outside the country?
Mr. Côté: I don’t believe there is a ban either in the current act or in the bill. Unless Mr. Chénier has a comment to add about this? No.
Senator Boisvenu: Do you have any experts in your office, forensic accountants, who are responsible for foreign financing?
Mr. Côté: Our office does not have this competence at this level. However, the commissioner has the authority to commit public funds to retain all the expertise necessary for any type of investigation. If an expert is required in a particular case, the commissioner would retain the services of that expert or experts and assign them a mandate X or Y, as the case may be. This is a decision that is made by the commissioner through the commissioner’s access to the consolidated revenue fund, the federal treasury, and there is no limit, which is extremely important and useful.
Senator Boisvenu: I would like to come back to Canadian voters abroad, since their right to vote will be recognized for a period of more than five years. Will there be a registry where Canadian voters will have to register, as is currently the case in France? Voters must register by December 31 each year to exercise their right to vote.
Mr. Côté: I don’t know if the obligation is renewed every year in Canada, but there is a registry for Canadian voters living abroad. I think that every five years —
Mr. Chénier: Perhaps the question should be put to the Chief Electoral Officer, who will appear soon. He will be prepared to answer you.
Senator Boisvenu: Okay. Does the act require these voters to remove their names from the registry if they return to Canada?
Mr. Côté: I don’t know.
Senator Boisvenu: So, we should ask the Chief Electoral Officer. Thank you very much.
Senator Gold: Again, welcome and good morning.
[English]
I noted in your opening remarks that you considered this bill a major step forward in terms of giving you certain tools. What are you most worried about? What keeps you up at night? What are the major problems you think we will face in the upcoming election, and how will this bill address those?
In the context of that answer, if you don’t mind answering a question that I asked the previous panel, what is your sense of how big or small the problem of electoral fraud is in Canada? What are the things that you worry about? Is it foreign interference, fraud or the like?
[Translation]
Mr. Côté: May I answer in French?
Senator Gold: I asked the question in English to make sure there’s a balance.
The Chair: It’s the official language of his province.
Senator Carignan: He has some flexibility.
Senator Gold: There is linguistic diversity.
Mr. Côté: I’ll try to be brief. You’re asking what keeps me up at night as a result of my work. I think it’s the same thing that worries you, around the table, just like many Canadians who are interested in elections and the evolution of democracy.
There is concern about the influence that may be exerted by players abroad who are ill-intentioned, whether they are self-employed or a foreign power that wants to create problems in Canada. Senator Frum has raised issues with respect to the application of our law. She was referring to Canadian citizens in China or Russia. There could be people who are really not Canadian citizens and who decide to create problems. Last weekend, the Minister of National Defence said that the threat was there. The NATO Assistant Secretary made similar comments. It is something that worries us a lot. In my opinion, this is really a concern. If such a situation occurs, what kind of measures will be taken to contain it?
The bill contains one provision in particular that interests me: The provision that will allow us to ask a judge to issue an order forcing someone to answer my questions under oath. This would apply particularly in the context of collusion between a foreign agent and persons here in Canada. If we had a sufficiently detailed file, we could ask for an order to force this person to talk to us. Beyond that, enforcing our legislation against foreign countries, such as North Korea, Iran, and so on, is very limited.
Second, I’d like to come back to the issue of electoral fraud. I have been in office for almost seven years. I have had the opportunity to see a general election, and I am preparing for another one. We had by-elections. From what I have seen and heard, and from what our investigators have found, yes, there is electoral fraud. People are going to vote when they are not allowed to. Technically and legally, they are in violation of the law.
That said, there is another thing that concerns me just as much, if not more, and that is when measures are taken, such as in Guelph in 2011, to prevent people from voting by informing them at the last minute that their polling station is closed or has moved. Many people have lost their right to vote. In my opinion, this is also an extremely serious situation.
So, yes, this is happening, but I would like to address two or three points that I think are extremely important. We have never seen — certainly not during my mandate or, to my knowledge, before I came to the position — any circumstances where there was a conspiracy to promote illegal voting. What I have seen are individuals who have sometimes done things like that, but I have never seen or heard of a conspiracy, as we sometimes hear about it in some places. In a way, it makes me feel a little more comfortable.
In cases of illegal voting — meaning, non-citizens, citizens under 18 years of age, people who don’t vote in the correct constituency — we have never seen an election where we could say that the election result was affected. The numbers are really not very large. This does not mean that the action is justified, far from it. However, in terms of final results, there is no problem.
What we often see, Senator Gold, is confusion. For example, in some provinces such as Ontario, for municipal purposes, you can vote in two places if you have two units in two municipalities. For example, people can have a cottage in Kingston and live in Toronto. They think it’s the same in federal elections; They vote and, when we meet them, they tell us, “Oh! I didn’t know that.” We also have a fairly large number of students who arrive at university and think they have the right to vote at university and at home. Some even believe that they went to vote at the university, in good faith, even if it was not a valid vote. So we see such situations where students think they have taken part in a civic education exercise. That said, over the course of the —
Senator Gold: Undergrad students, I assume?
Mr. Côté: Yes.
Senator Dawson: Not in law!
The Chair: Could you summarize, Mr. Côté? The bell is against us this afternoon.
Mr. Côté: Yes, I will add that we currently have before the courts four people who have been accused of voting illegally. There is a trial next week in Toronto for two of these people, and the other two will go to court in British Columbia. These are relatively young people. We will see what emerges from that.
The Chair: Thank you.
Senator Gold: Thank you, that answers my question.
[English]
The Chair: Very quick supplementary on this, senator, because I have to adjourn soon.
Senator Frum: I understand. I just want to correct the record because you said you’ve never seen a case where an election result was challenged because of voter fraud, but I want to bring your attention to the case in 2012 when the election result in Etobicoke Centre was overturned. There was a challenge by Borys Wrzesnewskyj. You know that he was able to challenge that result in the election with Ted Opitz. There was a 26-vote differential and there was a recount.
Mr. Côté: Technically, Senator Frum, that was not illegal voting as such. For me, illegal voting is what I described when I answered Senator Gold. It was irregularities in the manner in which election officials performed their duties, kept records or had signatures or didn’t have signatures. To my recollection — I’m well aware of that case — I don’t think illegal voting in the way I described it is what was at play in that situation.
Senator Frum: It had to do with a lot of vouching. It was a case of vouchers, and they could not prove the identity of the vouchers, correct?
Mr. Côté: That may be correct.
Mr. Chénier: The court concluded at the end of it that there was no evidence of any illegal voting. There were irregularities in the way the processes were handled.
[Translation]
Senator McIntyre: Thank you, Mr. Côté, for your presentation. Bill C-76 imposes spending limits for third parties and political parties during the proposed pre-election period. However, the bill does not limit government advertising during this same period. Should there be a limit on government advertising in the pre-election period?
Mr. Côté: Marc gave me a note. I know that the communications policy of the Government of Canada, which is a formal document that governs all federal departments and bureaucracy, has recently been amended to provide that — ?
Mr. Chénier: To limit the advertising that federal departments can do during the pre-election period.
Mr. Côté: A government policy that is not found in the Canada Elections Act provides that, during the pre-election period, federal departments and agencies must not — and there are exceptions in the event of public health or other problems, but —
Senator McIntyre: Second, it is often said that it is essential that Elections Canada conduct random audits of third parties’ election advertising expenses and contributions that they may have used during an election period. Have you ever done such audits before? Do you intend to do so?
Mr. Côté: It is not technically our role to do these audits. There is a group at Elections Canada, the Political Financing Directorate, that is responsible for conducting the audits. With the additional obligations that are now imposed on third parties under this bill regarding the type of report they will have to provide a few times, Elections Canada’s auditors will look at this, and when they find things they believe are problematic or questionable, they will send us the files so that we can decide whether or not to investigate, depending on the circumstances.
The Chair: Quickly, Senator Carignan.
Senator Carignan: I’ve been waiting for an hour.
The Chair: I know, but it’s the Senate bell.
Senator Carignan: I understand.
The Chair: I don’t want us to be in violation of the Rules of the Senate, which prohibits committee meetings while the Senate is sitting.
Senator Carignan: A political party in Quebec — Québec solidaire, not to mention any names — encouraged students to register in their university town in order to concentrate the student vote and influence the results. The strategy seems to have worked in some ridings where Québec solidaire was elected. These victories have been attributed directly to the strategy of enrolling students in university, in order to have some bearing on the result.
Would organizing an activity inviting students to register in one riding rather than another be advertising or a partisan activity?
Mr. Côté: Perhaps Mr. Chénier could clarify the rules for students.
Mr. Chénier: Basically, a voter’s place of residence is a choice. It is the place that the voter considers to be his or her residence. In many cases, voters have two residences, but this is the place that the voter considers the principal residence. As for a group that would encourage students to register in a particular place in order to sway the vote, I think that, yes, it would be a partisan activity. That would be capping, under the act.
Senator Carignan: You said that you are in discussions with Facebook and Microsoft. They seem to comply with your instructions voluntarily. Have you discussed the possibility of a duty of cooperation under the legislation, so that you have the power to subject them to penalties if they do not comply with your requests? At present, their cooperation is voluntary. If they decide to tell you to take a hike, they can.
Mr. Côté: Technically, they can but, if we keep in mind the controversy surrounding the role of social media in the United States, I think they are aware of the role they play and that, if they refuse to cooperate, it would be problematic if we criticized them publicly. As commissioner, I don’t have the power to issue a collaboration directive to Microsoft or any other platform.
However, as I told Senator Gold, in special circumstances, if Bill C-76 is passed in its current form, I could ask a judge to issue an order that would force a Facebook or Microsoft representative to sit down with us and answer our questions under oath.
Beyond that, the collaborations we have created with these people and platforms are very positive and were useful to us in 2015. I have every reason to believe that, in 2019, it will also be useful to us, but we do not have the power to compel them to collaborate with us.
The Chair: We will have witnesses from Google next week.
[English]
Senator Batters: In your opening statement you talked about how there would be “much complexity” to implement the move of the Commissioner of Elections to the Chief Electoral Officer’s office. You said Bill C-76 needs to be passed and come into force as soon as possible. The Senate only received Bill C-76 a few weeks ago.
How much time or how many months will you need to implement your move into the office of the Chief Electoral Officer? Could that complex process be complete by an election that was called this spring? Or would your move only be able to occur if Prime Minister Trudeau called the election in the fall of 2019?
Mr. Côté: Certainly if the election is on the date that it is scheduled to be right now, in October of next year, I think the reintegration of the office of the Chief Electoral Officer could be done. You said if there were an election in the spring, it all depends on what the date would be.
Senator Batters: How many months will it take you?
Mr. Côté: For us it is not so much the transfer back into the office of the CEO. Rather, it is the setting up of the group that will be responsible for managing the amps.
Senator Batters: How many months? Will it happen in the spring, or does it need to wait until the fall?
Mr. Côté: We have started the work and we are diligent.
Senator Batters: You are planning to be ready for the spring potentially?
Mr. Côté: We are planning to be ready as soon as possible.
[Translation]
The Chair: Thank you, Mr. Chénier and Mr. Côté, for making yourself available. The one take-away I have from your answers to Senator Gold’s questions is that it is very limited in the case of interventions from foreign powers. Your powers are very limited. That’s what you have told us.
We will certainly want to take a closer look at what capabilities should be yours and those of the Chief Electoral Officer, so we can ensure that elections are conducted without foreign interference. Thank you for making yourself available. We will keep you informed of our proceedings, Mr. Côté.
(The committee adjourned.)