Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 54 - Evidence - December 5, 2018
OTTAWA, Wednesday, December 5, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments, met this day at 4:24 p.m. to give clause-by-clause consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Welcome to our session this afternoon in consideration of Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments. Before we proceed with the clause-by-clause consideration, I have information that I would like to share with you.
Honourable senators might have received in their office this morning a letter from the Chief Electoral Officer addressed to me and the Clerk of the Senate. It is in both English and French with some additional information appended to it. I have made sure that, of course, both deputy chairs, Senator Dupuis and Senator Boisvenu, received a copy. We have additional copies if you didn’t have time to go through it in your office. The content of the letter addresses a request that was put to the Chief Electoral Officer by Senator Batters and also information requested by Senators Batters and Dalphond in relation to the number of Canadian citizens abroad who were registered to vote and voted in the last general election.
Moreover, the first part of the letter addresses the possibility for a foreign country to publish advertising in newspapers. It was a question raised by Senator Batters. I think it would be proper to have the position of the Chief Electoral Officer made available for anyone to read.
With your concurrence, I seek your approval to have that appended to the minutes of today’s meeting. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Thank you.
Last week, we agreed to instruct our contributors from the Library of Parliament to prepare draft observations. You might have received them also. Of course, we have copies for you to look into. Once we have concluded our clause-by-clause consideration, we will have an opportunity to consider that part of our work.
[Translation]
Mr. Morin of the Privy Council is with us. He is joined by Ms. Manon Paquet, who attended our hearings last week and on previous days. These officials are at our disposal. As you saw, an amendment is being proposed by the sponsor of the bill, Senator Dawson, to clause 223, on page 119.
[English]
Honourable senators will have a copy, in both English and French, of the proposed amendment. It might be proper for Mr. Morin or Ms. Paquet to come to the table to answer questions on the technical amendment once it is introduced by Senator Dawson.
Unless honourable senators have other housekeeping matters, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Honourable senators, I will propose to move by groups of 20 clauses and I will stop at points where I have a special request to proceed with specific articles or sections of the bill.
Shall clauses 2 to 20 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 21 to 40 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 41 to 60 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 61 to 80 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 81 to 100 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 101 to 120 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 120 to 140 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 141 to 150 carry?
Some Hon. Senators: On division.
The Chair: I have been informed that senators want to call separate votes for clauses 151, 152, 153 and 154.
Shall clause 151 carry?
Some Hon. Senators: No.
The Chair: Do you request a vote?
[Translation]
Senator Dupuis: What is clause 151 of the bill about? I don’t understand what you are saying.
The Chair: It’s clause 151, on page 80 of the bill.
Senator Dupuis: If I understand correctly, in clause 150, which precedes clause 151, it says:
The heading of Division 3 of Part 11 of the Act is replaced by the following:
Electors Resident Outside Canada
And this is part of what we have just adopted, 141 to 150 inclusive, correct? It was carried on division.
[English]
The Chair: Shall clause 151 carry? I have a request for a vote.
[Translation]
Keli Hogan, Clerk of the Committee: Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: No.
Ms. Hogan: Honourable Senator Boisvenu?
Senator Boisvenu: No.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Hogan: Honourable Senator Dawson?
Senator Dawson: Yes.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: Honourable Senator Frum?
Senator Frum: No.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Ms. Hogan: Honourable Senator Pate?
Senator Pate: Yes.
Ms. Hogan: Yeas: 8; nays: 3; abstentions: 0.
The Chair: I declare the clause carried.
We will now consider clause 152.
[English]
There has been a request for a vote, so everybody understands. I ask for your patience. I have been requested to call votes for 152, 153 and 154.
All those in favour of clause 152 of the bill? Please call the vote.
[Translation]
Ms. Hogan: Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: No.
Ms. Hogan: Honourable Senator Boisvenu?
Senator Boisvenu: No.
Ms. Hogan: Honourable Senator Carignan?
Senator Carignan: No.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Hogan: Honourable Senator Dawson?
Senator Dawson: Yes.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: Honourable Senator Frum?
Senator Frum: No.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Ms. Hogan: Honourable Senator Pate?
Senator Pate: Yes.
Ms. Hogan: Yeas: 8; nays: 4; abstentions: 0.
[English]
The Chair: Clause 152 is carried.
Shall clause 153 carry?
[Translation]
Ms. Hogan: Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: No.
Ms. Hogan: Honourable Senator Boisvenu?
Senator Boisvenu: No.
Ms. Hogan: Honourable Senator Carignan, P.C.?
Senator Carignan: No.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Hogan: Honourable Senator Dawson?
Senator Dawson: Yes.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: Honourable Senator Frum?
Senator Frum: No.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Ms. Hogan: Honourable Senator Pate?
Senator Pate: Yes.
Ms. Hogan: Yeas: 8; nays: 4; abstentions: 0.
[English]
The Chair: Clause 153 is carried.
Shall clause 154 carry? Please call the vote.
[Translation]
Ms. Hogan: Honourable Senator Joyal?
Senator Joyal: Yes.
Ms. Hogan: Honourable Senator Batters?
Senator Batters: No.
Ms. Hogan: Honourable Senator Boisvenu?
Senator Boisvenu: No.
Ms. Hogan: Honourable Senator Carignan, P.C.?
Senator Carignan: No.
Ms. Hogan: Honourable Senator Dalphond?
Senator Dalphond: Yes.
Ms. Hogan: Honourable Senator Dasko?
Senator Dasko: Yes.
Ms. Hogan: Honourable Senator Dawson?
Senator Dawson: Yes.
Ms. Hogan: Honourable Senator Dupuis?
Senator Dupuis: Yes.
Ms. Hogan: Honourable Senator Frum?
Senator Frum: No.
Ms. Hogan: Honourable Senator Gold?
Senator Gold: Yes.
Ms. Hogan: Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Ms. Hogan: Honourable Senator Pate?
Senator Pate: Yes.
Ms. Hogan: Yeas: 8; nays: 4; abstentions: 0.
[English]
The Chair: Clause 154 is carried. We will revert to our procedure for the other clauses.
Shall clauses 155 to 160 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 161 to 180 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 181 to 200 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 201 to 220 carry?
Some Hon. Senators: On division.
The Chair: Shall clause 221 carry?
Some Hon. Senators: On division.
The Chair: Shall clause 222 at page 115 carry?
Some Hon. Senators: On division.
The Chair: I call clause 223 at page 117. We have an amendment proposed by the sponsor of the bill.
Senator Dawson: A error occurred in the drafting of Bill C-76 that was subsequently passed in amendment in the House of Commons. The very good questioning by the members of the committee raised an issue on this clause and pointed it out to the people from the department.
They had not noticed that there were two definitions of advertising. In some clauses they used the word “advertising,” and in some clauses they used the words “political advertising.” One is more inclusive than the other, and as silly as it sounds, political advertising is more inclusive.
This amendment proposed is more of a correction. It’s a government amendment, so it will not delay the bill if it’s sent back to the house by the Senate. It will be adopted and will not have to come back to the Senate, even though it’s an amendment.
If you have technical questions, the more qualified lawyers behind me are better qualified to answer.
I propose the amendment.
The Chair: It’s proposed by Honourable Senator Dawson, and I will read the amendment into the minutes of the committee:
That Bill C-76, in clause 223, be amended by replacing line 9, on page 119, with the following:
tivity, for advertising, for election advertising or for an election survey if the.
[Translation]
And, in French:
Que le projet de loi C-76, à l’article 223, soit modifié par substitution, à la ligne 14, page 119, de ce qui suit :
de publicité, de publicité électorale ou de sondage électoral.
[English]
Are honourable senators requesting an additional explanation from the representative of the Privy Council?
[Translation]
Senator Dalphond: Just for clarification, on page 119 of the bill — I don’t know if I have the same page 119 as everyone else — I don’t see line 9 —
The Chair: It’s above 10, and the line begins with: “tivity, for advertising or for an election survey if the.” The proposal in fact is to add, after “tivity,for advertising,” the new words, which are: “for election advertising.”
Are you following, Senator Dalphond? Do you have it? It’s at line 9.
Senator Dupuis: Under the title “Prohibition — use of foreign funds,” second line.
Senator Gold: There are different versions with lines that are a bit different.
Senator Dalphond: That’s my problem, because in my version, it’s line 15 instead. We have to be sure we are voting on the same amendment.
Senator Gold: Look, Pierre, I think it’s here.
Senator Dalphond: It’s at line 15, not line 10.
Senator Gold: I know, it’s not the same version, but the proposal is to add “for election advertising,” or the French equivalent.
The Chair: Are you with us, Senator Dalphond?
[English]
Senator Dalphond: Yes, I checked on Senator Dasko’s version and it is line 10, but in mine it is line 15. But it’s okay. I see where it goes.
The Chair: Because you are a special senator, you have a special edition of the proposed bill.
Senator Dalphond: He has the same edition as me, the first and the second edition.
Senator Gold: I am very special.
The Chair: I want to be very clear, honourable senators, because we are adopting legislation. The copy I have of the bill and the amendments I have received from Senator Dawson are very clear, and I have called the amendment accordingly.
Are you satisfied?
Senator Dalphond: Yes. I am. It’s 349, the second line.
The Chair: I will call the vote.
Is the amendment carried?
Hon. Senators: Agreed.
The Chair: Is section 223, as amended, carried?
Some Hon. Senators: On division.
The Chair: On division.
[Translation]
Thank you, honourable senators. We will continue with clauses 224 to 240.
[English]
Shall clauses 224 to 240 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 241 to 260 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 261 to 280 carry?
Some Hon. Senators: On division.
Shall clauses 281 to 300 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 301 to 320 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 321 to 340 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 341 to 360 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 361 to 380 carry?
Some Hon. Senators: On division.
The Chair: Shall clauses 380 to 401 carry?
Some Hon. Senators: On division.
The Chair: Shall Schedule 1 carry?
Some Hon. Senators: On division.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the bill, as amended, carry?
Some Hon. Senators: On division.
The Chair: Then, of course, I put the usual question: Does the committee wish to consider appending observations to the report?
Hon. Senators: Yes.
The Chair: Thank you.
Honourable senators, I need your instructions for the next step.
Should we move in camera for the discussion of the draft observations that you have received?
Senator Batters: I do think there is any need to go in camera, given that we had the entire conversation last time, as the report that’s being proposed as a draft is the result of those discussions.
I think it would make sense to carry on in public.
The Chair: Are we agreed, honourable senators, that we remain in public for the discussions of the draft observations?
Hon. Senators: Agreed.
[Translation]
Senator Dupuis: I have a question: What is the committee’s usual practice when analyzing the report?
The Chair: Normally, the practice is to debate comments in camera. This is in rule 12.16.
Senator Carignan: We’re trying to modernize the Senate —
Senator Dupuis: That answers my question. Thank you.
The Chair: Honourable Senators, I understand that we will continue to sit in public to study the draft comments you have already received.
[English]
Senator Batters: Before we get into the observations in this report, I want to make a comment.
It’s not surprising to me that today we have a situation where the Independent Senators Group has not brought any amendments forward to this highly flawed bill, Bill C-76. And in that respect, I want to address something to Senator Gold, a member of this committee and the Independent Senators Group whip or liaison, I think you call it. It is a matter that’s highly pertinent to our discussion on this bill.
Senator Gold, we sit in the committee room here with a lot of microphones and people who speak French and English. And on Thursday, November 22, in this room, during the short break to change witness panels at this committee that morning, Senator Gold had a conversation with the Senate sponsor of Bill C-76, and in that conversation, which was all in French, you told the sponsoring senator that Independent Senators Group senators had some fairly big concerns with this bill and they wanted to make some amendments or observations to address those concerns.
One of those areas of concern you mentioned was that of foreign influence. You said that you were coming to him as the sponsor to find out about the government’s willingness to accept those types of amendments from the independent senators. Senator Gold, at the end of your query, the Senate sponsor told you, “I know you guys are looking for a way to show your independence, but this is not the place to do it.” That was the end of that.
Senator Gold, how do you claim to be independent and not carry out the duties of a whip and not to be tied to the Trudeau government yet this is how you handle matters at this committee?
Senator Gold: I will answer you in English.
I think you’re misrepresenting my conversation, with all respect, Senator Batters. As a senator, I am interested in the opinions of the sponsor of the bill, as I am in all of my colleagues. I did not, to the best of my recollection, have a discussion of that nature at all.
Indeed, I think it’s fair to say that all of us recognize that the bill could be improved in some respects, I think, speaking for myself, it is a matter of importance that the positive aspects of the bill be brought forward and that we look forward to further improvements in the course of the next phase of the government’s treatment of it.
In that regard, I think the observations we’re about to discuss highlight those areas of concern we all share and around which we heard testimony.
With the greatest of respect, I think you perhaps misunderstood and are certainly mischaracterizing the conversation I had with the sponsor of the bill.
Senator Batters: I don’t think so.
Senator Dawson: I have made it quite clear from the beginning that I felt that amendments had the strong effect of possibly killing this bill and it not being adopted before Christmas, which would mean, obviously, that it would not be implemented for the next election because it would take too much time. I’ve made that quite clear. I’ve always said that amendments, if they are presented, might have the effect of delaying the adoption of the bill.
My recollection of many conversations that I have had with many independents and Conservative senators, in the case of Senator Gold, is that he always prefaces his remarks by saying that his job is to coordinate. As you know, I’m not a normal whip. I don’t know what a normal whip is. I’m a member of an independent Liberal caucus that meets in an elevator because we’re not that many and we don’t really need a whip. I’m not trying to dominate anybody.
That is my recollection of that part of the conversation.
There was danger that if you brought amendments — you want to prove your independence, I understand that — but it would jeopardize the bill. That is quite clear. I said that publicly and in my speech in support of the bill. The commissioners, election officers, ministers, everybody has said that time was of the essence. I’ve said that publicly as well as privately when I have met with individual senators.
The Chair: Thank you.
Senator Dawson: I’ll be careful. Next time I’ll speak louder so it can be taped and then we can have a comparison.
The Chair: Thank you, honourable senators, for your points. I think it’s on the record now for everybody to read. I would say everybody should listen because, of course, we are sitting in public.
[Translation]
Senator Dalphond: That point does not concern me directly, but rather the Independent Senators Group.
For those who are listening today, you will remember that at the last meeting of the committee, I indicated, as did Senator Dasko and several members of this group, who made comments, that the bill is incomplete, notably as concerns protecting private information, since what is suggested is only an optional framework, and we would like to see a tighter framework that would be imposed on political parties.
We highlighted the bill’s silence with regard to promoting gender parity in the House of Commons, and the absence of measures that would encourage political parties, including the Conservative Party, to field more women candidates in the next election. We also deplored, with regard to third party intervention, that although there is the beginning of a guideline, it is not necessarily complete. As we said at the last meeting, we would like our report to mention those matters, and we hope that in the near future we will be able to work on these issues again, and go further.
That said, we understood the testimony of the Chief Electoral Officer, and that of the electronic platform representatives who were before us last week, when they said that time is precious. If we make amendments now, we’ll kill off the product that is before us, which is nevertheless an improvement to the current act. Sometimes, as we say in French, you can lose something good by trying to make it better. So, we’ve chosen to go with the good, while hoping that we can improve it the next time — in total independence from one another.
Senator Boisvenu: With all due respect to Senator Dalphond’s comment, I think he could have abstained from mentioning any specific political party, since he has no statistics on either the Bloc Québécois, the Green Party, or the NDP. It wasn’t necessary to refer to a specific party in your comment, senator.
Senator Dalphond: The political parties are represented in the House of Commons, but not here. If political parties want to promote more candidates, it’s up to them to make that decision, and not up to us in the Senate. However, it’s an issue we are going to study seriously.
The Chair: A large number of the concerns I have just heard are expressed in the draft comments we will now be studying, with your permission, to advance our work this afternoon.
Senator Dupuis: I agree with you entirely, Mr. Chair. Everyone is ready to proceed with the task that has brought us here today. Since we have finished our clause-by-clause study, we can now proceed to the study of our draft report. I was going to suggest that we move to that step.
[English]
The Chair: I will follow the usual procedure, which is to call page by page. If for any page or at any line honourable senators have a comment or an adjustment, a suggestion, a deletion or an addition to the elements that are contained in the draft, of course you are invited to make them.
All of you have received the draft in both English and French. I am on page 1. Are there comments or any additional elements that senators want to add to page 1?
I don’t want to summarize it for you, but in a brief note, it provides an explanation as to the way the bill evolved from the House of Commons to the Senate, and the comments that were made around the table are reflected in the draft. Are there any suggestions?
[Translation]
Senator Dupuis: Line 19 of the French version is on page 1?
The Chair: Yes, exactly.
[English]
We are on page 1.
[Translation]
Senator Dupuis: In line 19, replace the period with a comma. In the French version, line 19.
The Chair: Perfect, yes.
Senator Dupuis: After “Yves Côté (CCE),” replace the period with a comma and add the words —
You already received my comments?
The Chair: Of course, but I would like everyone to have the benefit of your contribution, senator.
Senator Dupuis: — “and Scott Jones, Head, Canadian Centre for Cyber Security at the Communications Security Establishment.” We heard from a certain number of those responsible for the election, from major stakeholders. The motion is to add the name of Scott Jones and his title, because he is the head of the Canadian Centre for Cyber Security at the Communications Security Establishment.
[English]
The Chair: I will read it in English. I will take this initiative so everybody has the same text.
The proposal is to add, at line 19, in the middle of the line, there is a dot after CEF. There would be a comma, and we would add the following words, and I will read slowly:
. . . and Scott Jones, Head of the Canadian Centre for Cyber Security at Communications Security Establishment (CSE).
[Translation]
Has everyone understood the meaning of the addition moved by Senator Dupuis?
[English]
Senator Dupuis: In the English version, it comes at line 18.
The Chair: Line 18 in the English version.
[Translation]
Senator Dupuis: It’s at line 19 in the French version.
The Chair: Yes.
Senator Boisvenu: We are adding a witness, are we not? This corresponds to the list?
Senator Dupuis: Yes, that’s it.
The Chair: Yes, quite so. Exactly. I agree with this motion, if I may insist. In fact, these are government witnesses. In this regard, this witness has a lot of credibility, because in a certain way he engages the government.
Senator Dupuis: That is why I proposed his name.
The Chair: Very well.
Senator Dupuis: I have another one. A little further down, still on page 1, at line 32, at the paragraph that begins with “Pour ces raisons, le comité fait rapport au Sénat de son étude du projet de loi” [Line 29: “The committee is therefore reporting its study of the bill to the Senate”], the motion is to remove the words “réalisée dans des délais serrés” [“within a short time frame”] and to end the sentence after “fait rapport au Sénat de son étude,” “is therefore reporting its study of the bill to the committee.”
At the following line, we would keep the next sentence: “certains des membres du comité estiment qu’il n’y avait pas suffisamment de temps pour permettre une étude exhaustive,” “some members of the committee did not find this to be sufficient time for a full study.”
Senator Boisvenu: In the comments, did we used the words “serrés” or “trop serrés”? Can we obtain that information from the clerks?
The Chair: I’d have to look at the notes I took.
Senator Boisvenu: It seems to me we had a comment to that effect.
The Chair: I remember that we said “dans des délais serrés,” “within a short time frame.”
Senator Dawson: I remember the word “serré.”
Senator Boisvenu: We need to use the same terms, If we used the word “trop,” it has to be “trop.” Otherwise, we don’t mention it.
Senator Dawson: We have to be consistent with what we really said.
Senator Boisvenu: Yes.
The Chair: I will consult my notes and let you know. If I remember correctly, I believe we had said “dans des délais serrés.” In any case, the figures in previous lines speak for themselves, since the bill was presented to the Senate on November 30, and was referred to our committee on the 7. We held three series of meetings.
I will check my notes, but I believe we talked about “des délais serrés.”
Senator Boisvenu: I propose that we simply refer to the text.
Senator Dupuis: Yes, indeed.
Senator Boisvenu: If the research tells us that the words were “serré” or “trop serré” we will use “serré” or “trop.”
The Chair: I am looking at my notes. We said “dans des délais serrés.”
Senator Boisvenu: Perfect.
[English]
The Chair: That’s what I have here in my notes on what you said, because when you speak, I also write.
[Translation]
Senator Dupuis, may I ask you to repeat what you wanted to suggest?
Senator Dupuis: During our last discussions, just as it has happened that the committee had little time to study a bill, we had decided to express it in the following way: three meetings, four briefs and 14 witnesses. That speaks for itself.
However, the impression this creates is that everyone was convinced that the time frame was short, far too short, whereas in fact that was not the general climate of the study we did. I would like that to be mentioned in our report; I would like us to say that certain members felt they did not have enough time to consider the bill. I have no problem with that.
However, I would not like us to prepare a report that does not reflect what the most of the members expressed when the bill was studied.
[English]
Senator Frum: A few moments ago we heard from Senator Dalphond that the reason the ISG is not moving forward with any suggestions or amendments to the bill is the limited time frame that we are facing. We just heard that minutes ago.
[Translation]
Senator Dupuis: We can ask Senator Dalphond to repeat what he said, because it’s not what you just said: it is something else. The elections officials said that there was a time frame issue.
We are studying our report: We are not saying what the other said last week. I would simply like our report to take into account what was said around the table and not just a part of that. We did a certain quantity of work. In any case, the Senate referred the bill to the committee, and we are obliged to work in the time we are given. And that is what we did.
However, if we want to mention that some members felt that the time frame was too short, we will do so. There is no at all problem with saying that.
[English]
Senator Frum: So you’re saying it was a short time frame, but you don’t have a difficulty with it being a short time frame and therefore you don’t want to refer to a short time frame. But you are acknowledging it was a short time frame but it wasn’t difficult for you.
Senator Gold: If I understand the intervention, it’s simply to reflect that, and properly so, some members felt that it may have been too short a time frame but not everyone did. I think Canadians should be reassured that we did a proper study and that we heard the witnesses that we need to hear and we thought about it. To the extent that some may disagree around this table, the report should reflect that but some of us believed that we did have, short though it was, an adequate time to understand this bill and to move forward with it.
The Chair: I think we agree. Some members of the committee are of the opinion that there was insufficient time for a more complete study. I would not ask for a vote, but I also have an opinion.
I think that fact is fair to mention. Certainly it reflects the position of Senator Batters. We should have asked you first because you were the one to raise it when we were discussing the observation.
Senator Batters: The comment as written in the draft report that we received is:
The committee is therefore reporting its study of the bill to the Senate within a short time frame, and some members of the committee did not find this to be sufficient time for a full study.
It has both those components in it.
I would say, objectively, that no doubt this was a short time frame, to have three meetings of the Legal Committee for a bill that has almost 400 clauses. We had the Fair Elections Act, the only other elections act I have been a part of since I have been in the Senate for more than five years. We got that bill in 2014. This committee had a week-long pre-study at and that actually resulted in the Senate making considerable amendments that improved the bill — nine amendments — and then we got the bill itself after the House of Commons dealt with it.
We had many more meetings than three on that particular one, just for the pre-study. I think that the comment already pretty objectively reflects the situation. I don’t think there can be any denying that three meetings for this committee is a short time frame for a large, complex bill that has an effect on so many Canadians. It says some members of the committee did not find this sufficient time for this study. It doesn’t say “all”; it says “some.”
[Translation]
Senator Boisvenu: Could we agree that the amount of time spent studying the bill was insufficient, considering the number of clauses to be considered? As Senator Joyal said, there was no balance between the two that would have allowed for an exhaustive study of the bill.
I think we can come to that conclusion, unless I was not at the same hearings as you.
[English]
The Chair: Maybe there is a way to address that.
[Translation]
We could say this: “For these reasons, the committee worked diligently to complete its study in the time frame it was given.”
Senator Dupuis: Exactly.
[English]
The Chair: As the chair, I asked the two deputy chairs to concur with the idea that we sit longer hours to complete our study. There was real goodwill around the table. I’m the chair and I thought there was a cooperative spirit around the table during the study of the bill. I would not want to create the impression in reading the report that the committee had not done its utmost, willingly, to study the bill in the time that we had available and even extended the hours. As I say, I was very appreciative of the cooperation on all sides.
I would not want the report to not reflect that. I want to speak at this point for me, and I heard around the table that some senators thought it was not enough time to really do an exhaustive study for a bill that contains 255 pages. We have, within the time frame at our disposal, done our utmost to bring a product. The fact that we have long observations is in itself a testimony to our concerns.
[Translation]
Senator Boisvenu: I would add, in the same vein, that the committee would have liked more time to do a more in-depth study.
The Chair: Yes. I am always open to your comments.
Senator Dupuis: I move that we use the text you just read:
Therefore, the committee worked diligently to complete its study in the time frame it was given — which some members felt was insufficient.
[English]
The Chair: I think it would solve the concerns by expressing the fact that some members think we should have had more time to do a more exhaustive study of the bill. That would be fair, if I can propose that, as something that would meet with both sides, so we can move to the next page.
Senator Frum: Are we editing in that case?
[Translation]
The Chair: The text would read as follows:
Therefore, the committee worked diligently to complete its study in the time frame it was given — which some members felt was insufficient.
[English]
Is it not enough?
Senator Frum: No. Why are we congratulating ourselves for doing the job that we are here to do? I find that strange language, that we are diligent. Of course we’re diligent. We always are. It implies that we are not otherwise.
The Chair: No, it means that we were working within a time constraint and to do diligence means we did everything. As I stated, we sat longer hours. That’s what it means; maybe in English it’s not exactly the translation that should be there.
Senator Frum: The way it is written right now, as Senator Batters said already, acknowledges these two ideas, that there was a short time frame and only some people felt it was inadequate.
The Chair: So you are satisfied with the second part, which is “some members of the committee did not find this to be sufficient time for the study.”
Senator Frum: The way it’s written there is nothing wrong with it.
The Chair: Just a second, senator. If I could ask a question, so we can progress, do you agree that the words “some members of the committee did not find this to be sufficient time for a full study” to be fair representation of your position?
Senator Frum: Yes.
The Chair: We have to return to the first part of the sentence, “The committee is therefore reporting its study of the bill to the Senate within a short time frame.”
Those are the words, “within a short time frame,” where Senator Dupuis has some concern. Could we find a suggestion, either to delete or to add some words?
Senator Dasko: It seems to me that maybe one word could change. For example, “The committee is therefore reporting its study of the bill to the Senate within a short time frame, although some members . . . .” or “however, some members of the committee did not see that it had enough time.”
Is that the problem? Could we change the wording to make sure that it reflects the concerns of these committee members.
[Translation]
Senator Dupuis: I think the wording proposed by the chair in French captures the idea we want to express to replace “within a short time frame”: “the committee worked diligently to complete the work within the time frame it was given,” followed by a period or a dash, and we keep the rest of the sentence. This reflects the fact that the committee did everything in its power to study Bill C-76 within its time frame and report on it. That is what that means.
[English]
The Chair: Do you have other suggestions, Senator Frum?
Senator Frum: I think the difficulty is that either it was or was not a short time frame, and that’s why there is no agreement. As you said chair, it’s an objective fact that three meetings for such a large bill is not a long time frame. If we want to rewrite history and suggest this was a diligent and adequate amount of time, that would be false. I don’t have any wording for a false statement like that.
[Translation]
Senator Dalphond: Personally, I acknowledge that the time frame was somewhat short, but I could accept the proposed wording. I would simply add that as opposed to other bills we have studied, in this case we had the benefit of a committee of the whole, which was a bit different from other bills. We also were able to benefit from several technical discussions with experts.
That said, I recognize that the time frame was short, and personally I worked weekends to update myself on the file. Let’s just say we had to run rather than walk.
Senator Dupuis: It is a fact that there was a Committee of the Whole of several hours in the Senate. Is that written anywhere?
The Chair: It’s in line 19 in English and line 20 in French.
Senator Dupuis: Could you call the vote on the motion I made?
The Chair: Could you repeat it, please, so that we all understand it well?
Senator Dupuis: I’ll repeat the motion you made. At line 32, in the French version, we would say:
Pour ces raisons, le comité a fait diligence pour compléter son étude dans les délais.
Then we keep the dash and the rest of the sentence.
Senator Boisvenu: And what is the rest of the sentence?
Senator Dupuis: What we agreed on. We just said we agreed to say: “trop serrés, de l’avis de certains membres, pour permettre une étude exhaustive.”
Senator Boisvenu: And we add the rest.
The Chair: Yes, and we add the rest. Starting with the dash at line 32 in the French, toward the end of the line.
Senator Carignan: I’ve been listening to you for several minutes. In my opinion, this proposal won’t change the course of electoral law in Canada in the coming years. We’re meeting in public right now, and I’m quite sure the people who are listening to us agree with me. It doesn’t matter which version we choose. Personally, I find that the versions are consistent with each other and I’m quite comfortable with both of them.
I suggest that we move on to the next page.
[English]
The Chair: Is it agreed, honourable senators, the proposal of Senator Carignan to accept the last proposal of Senator Dupuis and we move on, keeping, of course, the second part, which states: “and some members of the committee did not find this to be sufficient time for a full study”?
Agreed?
Hon. Senators: Agreed.
The Chair: Are there any suggestions proposals in relation to page 2 of the proposed draft? Seeing none, is page 2 agreed?
Hon. Senators: Agreed.
The Chair: Are there any questions or comments on page 3, honourable senators?
Senator Batters?
Senator Batters: I’m looking at the English version, line 5, and I’m taking into consideration the Chief Electoral Officer’s letter that we received today to address the question I raised to him, when he was here testifying about the new section 282.4(3)(c).
I don’t think many words need to be changed in the main part but I would suggest a little change to how his remarks are dealt with. In line 5, I suggest we replace the word “exceptions” with the word “measures” and then replacing the word “to” two words after that with “in.” So that line would say, “the committee is concerned about the measures included in the prohibitions against foreign entities.” Then, in line 6, replacing the word “exceptions” with the word “measures.” I think the rest of that paragraph could stay the same. In line 10, whereas previously it said that the CEO would provide his response, we can reflect that he has now done so.
The sentence that starts out with “the CEO has,” could stay and we could delete the remainder. I note there is a footnote, No. 11, and instead of that, a possible wording could be: “The CEO has recently provided his response to the committee. He is of the opinion that this section further delineates the foreign interference offence, yet he agrees that it is up to Parliament to draw the appropriate line in this area (given freedom of expression considerations).”
I think that indicates the committee’s concern. Frankly, I certainly was not placated by the response given by the CEO. He basically said he didn’t think it was an exception, he thought it was a delineation. I still have concerns about a foreign government potentially being able to take out a full-page ad or television commercial in Canada endorsing a particular party or candidate, but I think what I have indicated there fairly reflects what he said in his letter.
The Chair: Have honourable senators had time to write when Senator Batters was giving us her comments?
Senator Batters: Would you like me to repeat that new part?
The Chair: Would you like to do that like a professor?
Senator Batters: “The CEO has recently provided his response to the committee. He is of the opinion that this section further delineates” — his wording — “the foreign interference offence, yet he agrees that it is up to Parliament to draw the appropriate line in this area (given freedom of expression considerations).”
The Chair: Could you reread another time to be sure —
Senator Batters: In line 5, “exceptions” would be replaced with “measures,” “to” would be replaced with “in.” In line 6 “exceptions” would be replaced with “measures.” In line 10, “the CEO has,” delete the rest of that sentence and instead insert “recently provided his response to” —
The Chair: May I stop you? The word “response” would not be appropriate there because we don’t know that he has been asked to provide answers to additional questions. He has provided his comments, I think would be probably be more appropriate.
Senator Batters: “Recently provided his comments to the committee. He is of the opinion that this section further delineates the foreign interference offence, yet he agrees that it is up to Parliament to draw the appropriate line in this area (given freedom of expression considerations).”
[Translation]
Senator Dupuis: May I ask the committee members to look at the letter again? I had a question for Senator Batters.
[English]
The Chair: Do all senators have a copy of the letter in both English and French? Yes.
[Translation]
Senator Dupuis: One sentence is missing between the two sentences that you used. In other words, in your line 10, you take part of his response, which addresses the need to clarify the scope of regulation. However, there’s one part left:
[English]
“However, it is up to Parliament to draw the appropriate line in this area.”
[Translation]
This follows the previous sentence, where he explains that, according to him:
Presumably, these provisions reflect a considered balance between the constitutional guarantee of freedom of expression, including freedom of the press, and the objectives of restricting foreign interference and unregulated advertising. However, it is up to Parliament to draw the appropriate line in this area.
It would be better to quote his response. Otherwise, we’re shortening his response by removing the main sentence that comes before his reason for stating as follows:
[English]
“However, it is up to Parliament to draw the appropriate line in this area.”
Senator Batters: I was attempting to summarize his explanation and, in my summary, I tried my best to capture his reasoning for it. I didn’t think it was necessary to have the entire paragraph of explanation because I thought what I had summarized provided a fair explanation about why he thinks that particular section isn’t problematic from his brief reading of it, but also that it is ultimately up to Parliament. He also notes that he’s presuming why those particular offences are in there. He doesn’t know. He says “presumably” these provisions reflect this. I’ve included that in the response, too. I didn’t think that it was necessary, in a relatively short report of four or five pages, that the entire paragraph he has, which, in part, is based on his suppositions, is necessary to quote. A summary is sufficient. We’re appending the letter to the minutes of the meeting.
The Chair: Not of the committee report.
May I submit an opinion? Personally, I would be tempted to include the gist of his interpretation. If we ever had a situation where — as you stated and it’s agreed, great elements are puzzling to me — a foreign country intervened directly in an election by buying a page in the media or through another intervention, I would certainly want our report to reflect the interpretation of the law as stated by the Chief Electoral Officer. That is, to me and you and the others around the table, a major preoccupation. I think it would be proper for the committee to identify or point out in our report the interpretation by the Chief Electoral Officer of the section in question, that is, section 282.4(3)(c).
I don’t think it would load the report too much by including his comments as written, the balance between freedom of expression and the objectives to prevent foreign interference or unregulated advertising.
It doesn’t change your proposal at all. Essentially, it just adds three more lines to the report.
Senator Batters: I guess it’s no big deal. I personally didn’t find his explanation to be at all convincing. I wouldn’t want to —
The Chair: I have my doubts also. I think you understand my point. It’s to give me an opportunity to come back at it.
Senator Batters: Sure.
The Chair: That’s essentially what I’m trying to explain to you.
Senator Batters: I would welcome that.
The Chair: I think it’s for the credibility of the committee.
[Translation]
Senator Dupuis: I asked why we’re not quoting him.
The Chair: Exactly.
[English]
That’s what I was stating.
Senator Batters: I wanted to be succinct.
The Chair: I know that and I appreciate that, believe me.
I think we would have a fallback position as having identified this issue, through you, and putting it in the report.
So we will do as suggested. We are keeping the other suggestion of Senator Batters’, the exception for measures and so forth. And I have all my notes.
Are there any other comments on that page, honourable senators? We are on page 3.
Senator Batters: Are you proposing that his entire paragraph on that be —
The Chair: No, these provisions reflect a considered balance. We will take, essentially, the last four lines of the third paragraph of his letter.
Senator Batters: Yes. That’s good.
The Chair: That’s essentially what you had in mind, I know.
[Translation]
Senator Dalphond: On page 3.
[English]
I’ll continue in English. In the middle, at line 20, the next topics are introduced by the title “Other Pending Issues.”
I would remove that title and replace line 20 by “gender parity” and add, after line 27, “privacy,” to introduce line 28 and following. I do not think that these are other pending issues like accessory issues. They are important issues and should have a title. The rest of the report has titles, so why is that in a “miscellaneous basket?”
The Chair: I, too, was left wanting when I read that title. I don’t want to criticize our analyst.
Senator Dalphond: It’s a good draft.
The Chair: Because they have done a very good job.
Our adviser suggests that lines 34 to 35 be pushed up after line 27.
[Translation]
Senator Dupuis: In other words, we could include lines 34 and 35 in the English version. We could leave it here at lines 34 and 35, then repeat it after 27. Here as well.
The Chair: Exactly.
[English]
Agreed, Senator Batters?
Senator Batters: Yes.
The Chair: Are honourable senators agreed with the suggestion by Senator Dalphond that we take lines 34 and 35 and repeat them more or less after line 27 or included with line 27? Agreed?
Hon. Senators: Agreed.
Senator Gold: To be clear, that we have a separate section on gender issues and a title for privacy.
The Chair: I think we are agreed that we have to identify the two because they are important. Both are important, and both deserve additional reflection, study and whatnot. So I totally agree, with syncing those two.
Is there anything else on page 3?
Senator Batters: Just a small change. It’s just to correct a bit of poor grammar on line 16. Instead of “during the elections,” I think it should just say “during elections.” Take out “the.”
The Chair: Yes, of course.
Senator Batters: Also line on line 26, under the gender parity section, it says:
. . . administer a regime containing incentives for women to participate . . . .
I don’t know about the word “incentives.” To me it gives the connotation of monetary incentives. I’m not sure if there’s a better word to use there.
The Chair: The first thing we think of when we mention incentive, is money but it could be various incentives.
Senator Batters: I know. Perhaps there’s a better word.
The Chair: Because there are many possible references beyond giving money.
[Translation]
Senator Dupuis: Could we repeat what he said? Because we’re referring to his testimony before the Committee of the Whole. Could we take his words and put them in quotation marks?
[English]
The Chair: I will read Mr. Perrault, if you want, to make sure we understand. I quote: “If Parliament wished to expand on incentives for women to participate as candidates . . . .” He has himself used the word.
Senator Dasko: I remember I asked him this question at Committee of the Whole in the context of penalties or incentives as examples of provisions that could be in the bill. In response, he said that if such measures were in the bill he would administer them.
I think the context of his answer then was that it could be penalties or incentives or any one of those kinds of measures.
The Chair: We could put the word “incentives” in quotation marks.
Senator Batters: Indicating that he said it. Okay.
The Chair: If you agree with that approach.
Senator Batters: Sure, because he said that.
Senator Gold: Just a question. Can you tell whether he answered in English or in French?
The Chair: He was answering Senator Dasko. I bet it was in English.
Senator Gold: Probably in English.
The Chair: In the transcript here it’s Senator Dasko. I will read it if you want.
Senator Gold: I wanted to know if it was a translation.
Senator Dasko: As long as it’s what I just said here.
The Chair: Don’t worry. I will not embarrass you. Senator Dasko speaking: “Mr. Perrault, I see nothing in this bill that promotes the candidacy of women in politics. I’m not a lawyer but when I look at this bill” — and so forth. And Mr. Perrault answered: “That’s a policy decision for Parliament to make.” And later on: “If Parliament wishes to expand on incentives . . . .” It’s essentially in that conversation. I repeat my suggestion to put that in quotes.
Are there any other comments, honourable senators, on page 3?
[Translation]
Senator Dupuis: A reference to Scott Jones’ explanation should then be added at line 19 in English and line 21 in French.
[English]
Scott Jones explained to the committee the ways in which CSE is working with Elections Canada, including by providing general advice on cybersecurity, intelligence regarding cyber-threats and systems support.
[Translation]
In other words, we provide the content of Scott Jones’ testimony, which is what we heard from him at the committee.
[English]
The Chair: So we would have that at line 19.
[Translation]
Senator Dupuis: It’s 17 in English and 21 in French, at line 17 in English before the following:
[English]
“This being said, the committee emphasizes that . . . .” Here, we could insert the following: “Scott Jones explained to the committee. . .”
The Chair: “. . . the ways in which CSE is working with Elections Canada, including by providing general advice on cybersecurity, intelligence regarding cyber-threats and systems support.”
Are there any comments on that?
Some Hon. Senators: No.
The Chair: So it’s agreed that we will include that.
Senator Frum: That addition does address one specific area of foreign intervention, but there are many. Any suggestion that it’s only to do with cyberattacks is very limiting.
That narrows the scope of the concerns.
Senator Dupuis: How is it narrow? I just want to understand. I’m not sure I get your point.
Senator Frum: You are quoting the cyber expert, and my point is that foreign interference and foreign intervention are very broad areas that yes, have to do with cyberattacks, but not only.
To quote the cyber expert in this sentence, it says that more can be done to deter foreign entities from interfering, and it implies that the foreign interference is strictly in the cyber area, which is not the case.
[Translation]
Senator Dupuis: No, that’s not what we as a committee are saying in the next sentence. This was his explanation of what he’s doing. However, in the next sentence, we’re emphasizing that more can and must be done to deter the entities, and so on. In other words, it’s a factual element. He told us a number of things, including what he’s doing with Elections Canada and the Commissioner of Elections. However, the committee’s sentence remains as follows: “This being said . . .” so we’re emphasizing that more can and must be done.
[English]
Senator Frum: Then I misunderstood. Can you please repeat what you are proposing?
The Chair: After line 12.
Senator Dupuis: After line 12, we would add a sentence as follows: “Scott Jones explains to the committee the ways in which CSE is working with Elections Canada, including by providing general advice on cybersecurity, intelligence regarding cyber-threats, and systems support.”
The Chair: All this being said the committee is of the opinion that more can be done.
Senator Dupuis: Yes, emphasizes that more can and must be done.
Senator Frum: What does that sentence add?
[Translation]
On page 1, we heard the opinion of the officials responsible for various aspects of elections. We added the name Scott Jones. We want to clarify what Scott Jones explained to us about his responsibilities as head of the Canadian Centre for Cyber Security with regard to elections. After hearing all this, we’re emphasizing the fact that it’s not enough and that more must be done.
[English]
The Chair: In other words, the paragraph at line 12 states that we had looked into this issue of foreign interference and we have made some suggestions. Some of them are in Bill C-76 but not all of them.
The minister has mentioned that the Elections Act is just one tool to address this issue of foreign intelligence.
We have also heard, of course, Mr. Jones, who has explained to us what he does to prevent or to detect foreign interference. We have heard that but that’s not enough to reassure us that enough is done to prevent foreign interference. That’s essentially what the paragraph says.
Senator Batters: Senator Dupuis, you were saying that “including cybersecurity” makes it sound like he deals with all kinds of areas of foreign interference and those are just some of the areas that we’ve delineated here. Instead, just replace the word “including” with “in the areas of cybersecurity” and follow on from there. Then it makes it very clear in that very section that those are the areas that he is working with Elections Canada on, rather than making it sound like he is working with Elections Canada on all areas of foreign interference. Does that sound okay?
Senator Dupuis: Would you please repeat?
Senator Batters: Instead of using the word “including”, say “in the areas of cybersecurity” and whatever else you said there.
Senator Dupuis: Yes, very good: regarding cyber-threats and system support.
The Chair: That is factual and is what we have heard and that serves the purpose for explaining why we conclude that that is not enough and we must do more.
Senator Gold: Chair, thank you for that. I think that clears it up. I’m glad it’s in there because I think Canadians need to know that we have a really superb group of people working on cybersecurity. It’s only one part of the problem, to be sure, but it’s a big part of the problem. They have skills, anyway, if not always all the tools and mandates to do it. It was reassuring, to me, to hear that testimony.
The Chair: If I may add to your comments, if we would have had the opportunity to hear DND and the RCMP and all the other agencies that Mr. Jones mentioned — no, I think it was Mr. Stéphane Perrault who mentioned it. Remember, I think it was me who asked the question: How do you manage with the other agencies to try to coordinate all the sources of intervention on government authorities to prevent foreign interference? If we would have had another session, I would have suggested to the two vice chairs that we hear from these other bodies, because it is important that Canadians know how the system is protected from foreign intervention.
I think that to add CSE is an important element in that context. Therefore, I consider that we have consensus for that one.
Are there any other suggestions in relation to page 3? No? Then we will move to page 4.
Senator Frum: I draw attention to lines 13 and 14, the end of line 13.
The form should also ensure that it allows electors to clearly select the riding for which they are entitled to vote.
That is wrong.
The Chair: You don’t select your riding. The riding is where you live.
Senator Frum: You could delete the whole sentence. I think we’re talking about what the CEO —
The Chair: Significant penalties.
Senator Frum: Yes. That’s a technical matter that I don’t think adds anything.
The Chair: No. You propose to delete it.
The suggestion by Senator Batters, originally, was to clearly warn the person that this is a serious issue and one can incur penalties.
What the rest of the form contains is —
Senator Batters: I didn’t say anything about that.
The Chair: Are there any other — Senator Batters, on another issue? So line 14 is deleted.
Senator Batters: Yes. Then on the sentence right before that, the sentence starting at line 12 would better reflect if we replace the word “the” near the end of that line with “that” and in line 13 under the CEA, cross out “that .” I think it’s better wording to say. It would read:
“This information should clearly set out that significant penalties under the CEA could be applicable in the event of a false declaration.”
The Chair: That’s it. Thank you.
Are there any other comments on page 4, honourable senators?
[Translation]
Senator Dupuis: If you go up a little further, under “Electors Resident Outside Canada,” it’s at the end of line 9 in French, and at the end of line 5 in English. The proposal is as follows:
[English]
“One witness expressed his concerns before the committee.”
Senator Batters: On this point, I think if we’re going to get into counting up witnesses over the course of three meetings, we could say “one witness said” for almost every single thing we have in here. That, to me, diminishes what was said, I think unfairly so.
Like I say, if we had more than three meetings on this particular issue, we could have had a lot more people raising that very serious concern because that’s something that we continually hear about. So I think to make it sound like only one person said that, when frankly, we didn’t have very many witnesses. We only had 14 altogether, or something like that. That’s almost 10 per cent of the witnesses.
[Translation]
Senator Dupuis: Nonetheless, we’ve had more than one witness speak about Bill C-76. We’ve met with all the election officials. They gave us some information regarding the current situation and our potential concerns.
However, with regard to this specific testimony, I would like to point out that there’s a footnote —
The Chair: Seventeen.
Senator Dupuis: — referring to a witness. I don’t mind the reference to this witness. It should be said, quite simply. If it’s a fact, it should be said. A witness appeared before us and told us that there were issues.
[English]
Senator Batters: Frankly, the fact that we had officers appearing in front of us and not raising that concern concerns me greatly, given that we’ve had so much media for, what, the last two or three years about foreign interference in elections around the world. We have had officers that appeared from Elections Canada and the Commissioner of Elections not really raising those same concerns that have consistently been on everyone’s mind regarding the United States, and when we’ve had similar situations in Canada.
[Translation]
Senator Dupuis: My concern, if we want to report what we’ve heard — I’m not saying that the election officials didn’t talk about this. I don’t want to make them look incompetent. They talked about certain realities, certain facts, which are known, moreover, since countries have attempted to interfere in elections abroad. It’s not a matter of rewording so that, if we add a footnote to indicate that we received information, we add who gave the information, when they provided it and how.
[English]
Senator Batters: The footnote says “David Frum.” It indicates it was one witness who said that this committee that had limited witnesses.
[Translation]
Senator Dupuis: That’s why I don’t see any issue with this. If a witness brought the matter up, I don’t see any issue with saying so.
Senator Boisvenu: I’m also a little uncomfortable with the idea of quantifying the number of witnesses who may have said something. If it’s just one witness, then the issue is trivialized. Instead, I would say that “concerns were raised before the committee that a government. . .” That way, the emphasis is more on the concern than on the quantity. If it says that a single witnesses raised this concern, as a reader, I would think that the concern isn’t important, since no one else talked about the concern.
Senator Gold: Mr. Chair, I have a suggestion.
[English]
I’ll say it in English. Instead of saying “concerns were raised,” might we not say “a concern was raised before the committee”? It doesn’t minimize the concern, but it splits the difference between singling out. Would that be an acceptable compromise? Instead of saying “concerns were raised” and then the footnote refers to only one witness, why don’t we say, “A concern was raised before the committee”?
Senator Batters: My understanding is that Mr. Jacob, who appeared with Mr. Frum that day, also expressed the same concerns, so it wasn’t just one witness.
Senator Frum: How about your friend Scott James? Did he not raise it?
[Translation]
Senator Dupuis: That’s why I’m saying that the other possibility is to state it in a way that reflects what we’ve heard. Either we had one witness who said it, or we had a number of witnesses who mentioned this possibility. Whether it’s the CSE, Scott Jones or Jacob, simply put, the information isn’t linked. Do you see line 17 at the bottom of the page as I do? Do you have any objection to adding the name of the person who expressed these concerns?
Senator Boisvenu: It’s already at the bottom of the page.
[English]
Senator Frum: Or delete the footnote. To your point, you’ve just now mentioned three or four people. Frankly, we’d have to review all the testimony because the Twitter people mentioned it and the Google people mentioned it. Actually, I think many witnesses mentioned it. It’s a huge problem that we’re all very aware of.
You’re right to say that only David Frum mentioned it is incorrect and does not actually reflect our testimony. So if you want to fix this, let’s delete the footnote.
The Chair: Are there any other comments, honourable senators, on this?
Senator Dalphond: I also understand that some members of the committee have expressed concerns, so there’s more than one concern. There were many concerns expressed. So maybe we could have “concerns were raised” and delete “before the committee.” Concerns were raised that a foreign government might try, so then you don’t have to decide exactly who raised the concern, a witness or a member of the committee.
[Translation]
Senator Carignan: I agree, especially since the Minister of National Defence, at the NATO summit, raised some concerns regarding interference by foreign governments.
[English]
The Chair: So we have a proposal by Senator Dalphond to remove “before the committee” and we would keep the rest as is, “Concerns were raised that a foreign government might try to interfere with Canadian elections.”
In the English version, at the end of line 5, it would read, “Concerns were raised . . . .”
At line 6, we would delete “before the committee” because the concerns were expressed by witnesses and by some members of the committee.
Senator Gold: In line 8, to delete footnote 17.
Hon. Senators: Agreed.
[Translation]
Senator Dupuis: In French, it becomes: “des préoccupations ont été exprimées...”
The Chair: Yes, exactly, “des préoccupations ont été exprimées...” —
Senator Dupuis: — “selon lesquelles,” and it continues with “un gouvernement étranger.”
The Chair: Exactly. Good. Thank you, honourable senators. Are there any other comments on page 4? Any other pending issues?
Senator Dupuis: On page 4, online platforms, it’s at line 28 in English, then at the end of line 35 in French. I think that there’s one thing that isn’t clear in the information provided here. As you may recall, the representatives from Google and Twitter said that they had voluntarily developed a system in the United States. I think that we should say it here. Perhaps it could be at the end of line 27.
[English]
The Chair: Yes, line 27 is very different from what they are already doing in the United States.
[Translation]
Senator Dupuis: Yes, but they emphasized that they did it voluntarily in the United States because there’s no legislation in this regard. I just want us to add to line 28 that they’re doing it voluntarily, because they’re already providing it voluntarily in the United States.
[English]
The Chair: We are already doing it voluntarily in the United States.
[Translation]
Senator Carignan: I disagree. I think that the market forced them. I think that public pressure forced them. I’m far from certain that it’s voluntary. They were required to do it. I don’t think that they did it out of generosity.
The Chair: Not out of generosity or the goodness of their hearts.
Senator Carignan: I don’t think so.
Senator Dupuis: That’s exactly the point we want to make. We want to report what we heard. These people told us that it was voluntary. I propose that we look at their testimony where they said that they did it voluntarily, because in the United States — I asked the question about the fact that there were issues and they were forced to do it.
Senator Carignan: Forced.
Senator Dupuis: Forced to do it. They say that it’s voluntary because no legislation in the United States is forcing them to do it. Bill C-76 would force us to do things that are different from what’s done voluntarily in the United States. In their testimony, they spoke very clearly about this. We can choose the wording.
Senator Dalphond: I could make the suggestion.
[English]
Senator Frum: They were speaking about the lack of harmonization between what’s being proposed in Bill C-76 and what they do in the United States. They do have a voluntary regime, and the Federal Election Commission in the U.S. has a very strict regime and what’s being asked of them in Bill C-76 is not conforming to what they are doing in the United States and it’s less than what they are doing. So I think this is misleading the way it is written, and certainly any suggestion that the problem here is that somehow Bill C-76 is asking them to do more than what they are doing in the United States is not correct.
[Translation]
Senator Dupuis: That’s exactly what I mean when I say that they were doing something voluntarily. That’s what I want the report to reflect.
[English]
The Chair: I will read the testimony of Mr. Kee from Google:
Given the tremendous challenges these new provisions pose and that major online advertising platforms are already publishing similar registries voluntarily, we recommend cooperative approach whereby platforms coordinate on a registry rather than prescriptive obligations that will introduce unintended consequences, reduce flexibility to address political ads issues and potentially compromise the launch of planned registries.
He has used the word “voluntarily” three or four times in his testimony.
Senator Frum: It puts things in place, but it’s putting in place something that is less than their voluntary level. I asked this question: Are they going to have to lower their standards in order to meet the legislative requirement as opposed to what they are already doing voluntarily?
The Chair: We could find a way to reflect his statements as an extraction in brackets, so everyone knows.
On that, Senator Frum, you might remember that I made a comment to him, stating that we are in a different world now and we have to find a collaborative way to come to an agreement and have regulations, which is, in the case of the electoral act, some prescription. So there’s no doubt the approach that has been the traditional platform is to be self-regulated. Now, in relation to elections, we have adopted an approach whereby there are prescriptions in the electoral act, and there might be others later on, depending on the end result of this election.
So we will take an extract of the testimony of Mr. Kee that we heard and ensure there is a reference note to make sure people can go back to his testimony. Any other comments on page 4? Seeing none, I invite you to go to page 5.
Are there any comments on page 5?
[Translation]
Senator Dupuis: I would like us to mention that both Google and Twitter stated that they would comply with the requirements of Bill C-76 of it were to become law. That’s one thing. They also confirmed that they’ve been in contact with federal government officials regarding these issues since the 2015 election, and that they’re currently holding discussions with the department. The discussions are ongoing with the department regarding the next election in 2019. That’s what they told us.
[English]
The Chair: Is there a specific line you want to address?
[Translation]
Senator Dupuis: After “not be penalized.” It’s on page 5, at the end of line 4. In French, it’s before the paragraph on Facebook, so line 16, after the word “sanction.”
The Chair: What’s your suggestion?
Senator Dupuis: The representatives from Google and Twitter stated that they’ll comply with the requirements of Bill C-76 if the bill is passed. They also confirmed that they were in contact with the federal election officials before the forty-second general election in 2015, and that they’re continuing their discussions in anticipation of the next general election in 2019.
Senator Boisvenu: Is it in the records?
[English]
The Chair: We will give a reference to the testimony.
[Translation]
Senator Dupuis: Yes, we must give the reference to their testimony.
Senator Boisvenu: Have you found it?
[English]
The Chair: We’re checking, honourable senators. I’m sorry to keep you waiting. Senator Pratte’s question was very clear. Senator Pratte states quite clearly:
I understand that the digital advertising universe functions differently with programmatic advertising and so on, which is why I was surprised when we got the brief from Facebook, another digital company, and they briefly say that Facebook supports Bill C-76 and will comply with these requirements should the bill receive Royal Assent.
What is different in Facebook’s business model or technical systems that they don’t seem to have any problem with these proposed requirements, and for both of your companies it’s apparently extremely difficult to comply with these future requirements?
And Mr. Kee’s answer:
It’s difficult to speak to Facebook’s systems since we have an understanding of our systems versus theirs. It may come down to risk tolerances. I think we are more concerned about the potential risk around strict liability and the application of that than they might be in this particular instance. It is difficult for me to speak to why they would have a different attitude towards it.
And then Ms. Austin:
I’m not prepared to comment on Facebook’s approach. Health has been a key priority for our company. We realize we need to provide a better more trustworthy system of — ability to verify who you are speaking with on Twitter. This happens with regard to product changes . . . .
We’ll try to find —
[Translation]
Senator Dupuis: We need to find it in their testimonies.
[English]
The Chair: I will have to go through all of it.
Senator Batters: On this point, I’m not sure if we need this entire proposed addition. There is the fact that Twitter and Google have said they will comply with the law, and I should hope so. In fact, they actually came here and testified that for certain sections they might be subject to, they might have to go to jail if they don’t comply. So none of this really adds a lot to the conversation.
Also, this particular portion, the online platform part of our report, is one whole page already of a four-and-a-half-page report. And the fact that they’ve been cooperating since before the 2015 election, again, I should hope because that’s a significant part of their business.
So I don’t really see the reason for indicating that they’re going to cooperate. Of course. Good. That’s nice.
The Chair: What I have here is Ms. Austin from Twitter, if you will remember:
I would encourage you to consider the amendments that we’ve put forward, but absolutely we will abide by the law in Canada.
Senator Batters: I would hope so. I don’t think it adds anything to our report to say that Google and Twitter intend to comply with the law. I’m glad to hear that they will. I wouldn’t have expected anything different from a good corporate citizen.
[Translation]
Senator Dupuis: We shouldn’t have any issues with quoting it in the report, since it’s what they told us. In other words, in this part of the report, which states that they’re doing all this voluntarily in the United States, but that here it will be chaos, I don’t think that the tone is appropriate. They told us that it will complicate their lives, but that they’ve been working with the officials since 2015. We have to take their word for it, but they aren’t here to lie to us, and they’re currently continuing their discussions with the —
[English]
The Chair: What I would suggest is we have essentially what Ms. Austin said, “absolutely we will abide by the law in Canada.”
[Translation]
Senator Dupuis: Exactly, that’s all.
[English]
The Chair: That’s what Ms. Austin said. Of course I know that. I think that since they have a different system in the United States and now we are regulating our system, recognizing that they are —
Senator Frum: There is not a voluntary system. They have a voluntary disclosure act, and there is also federal election law to do with disclosures. So we’re mischaracterizing it when we suggest there are not disclosure laws in the United States. That’s wrong.
The Chair: I think the text, as it is written, at line 16 in French, but they will comply with the Canadian law.
Senator Frum: Chair, if you have every witness who gets asked about the law, are we going to put it into reports that they acknowledge they’ll follow the law? I don’t understand. And to single them out as saying they will follow the law actually implies that we think they won’t. It would be a disservice to do that because we are going to take it at face value that they are good corporate citizens.
The Chair: Any other comments in relation to that?
Senator Dalphond: I could live with the draft. I think that good corporate citizens always comply with the law. I could live with the way we’ve drafted it. Sometimes too much detail may be unnecessary here. I understand the purpose of the precision, but I’m not so sure it’s necessary.
[Translation]
Senator Dupuis: I have a proposal for line 28 in the French version, just before the conclusion.
The Chair: “Le gouvernement du Canada devrait par conséquent consulter...”
Senator Dupuis: I don’t think that “par conséquent consulter” is the appropriate wording. Instead, I would suggest “continuer à travailler en collaboration avec les plateformes,” since, if they’re already doing it.
[English]
Senator Batters: Which line?
[Translation]
Senator Dupuis: At line 28, in the French version.
The Chair: “De travailler avec les exploitants des plateformes en ligne”?
Senator Dupuis: “Devrait continuer à travailler en collaboration avec.”
The Chair: “Avec les exploitants des plateformes”?
Senator Dupuis: Yes, exactly.
[English]
The Chair: I don’t see any major problem with that. In English, it would be, “the Government of Canada should therefore continue to work in cooperation with online platforms.”
Senator Batters: The evidence was they proposed amendments quite some time ago, and those amendments continue to not be reflected in this bill.
The Chair: No doubt about that. As I say, we mention it at line 14 in French. In English, it should be — let me find it. It’s line 3 in the English version: “Twitter also asked that a provision be added so that online platforms can use information provided by . . . .” It’s already mentioned. They have requested it.
Senator Frum: But the “continue to consult” implies that this legislation was done in consultation with them, and we heard clearly that it was not.
[Translation]
Senator Dupuis: That’s not what we said. We said “continuer à travailler en collaboration avec.”
[English]
The Chair: To continue to work in cooperation, that’s what I’ve translated.
Senator Batters: Even more so it sounds like this bill was the product of collaboration.
The Chair: No, but it doesn’t mean they were consulted. The word “consulted” is not right. I agree. They met some officers of the department after to express their views. We heard that from Ms. Austin and Mr. Kee, but they were not successful. That’s quite clear. It’s on the record.
Senator Frum: I think we’re only disagreeing with the word “continue.” Whether it’s “collaborate” or “consult” is not the issue. It’s “continue to.” That implies past interest in what they had to say, which we heard wasn’t the case.
The Chair: We could say, “should therefore work.”
[Translation]
Senator Dupuis: No. We heard that the representatives of the platforms have been working with the election officials since before the 2015 election. So we’re saying that we don’t want the government to consult these people, we want the government to continue working with them. That’s what the representatives of the platforms told us. The government also said this, but it was confirmed by the representatives of the platforms.
[English]
Senator Dalphond: May I suggest a compromise? Should therefore consult and collaborate with online —
[Translation]
Senator Dupuis: No, because they’re already doing it.
[English]
Senator Gold: How about: “Government of Canada should continue to work with online platforms?” Just continue to work with them. They have been working since before the last election — that’s evidence that we had — and we want them to continue to work them.
It is both because online platforms have things to say about how the law could be improved and if we didn’t get it this time, the government may come back.
The Chair: And the sentence is clear about regulating because the key issue is between self-regulated and non-regulated, and it’s contained in line 15.
Are there any other comments on page 5?
[Translation]
Senator Dupuis: In the conclusion, at line 23 in English, “cybersecurities are not limited to elections,” or to Canada. Not only are they not limited to elections, but they’re not limited to Canada either. They aren’t limited to either elections or Canada. I think that we must include this, since we heard it said.
[English]
The Chair: Any other suggestions?
Senator Batters: Threats to Canadian cybersecurity are not limited to elections or to Canada?
Is that right?
[Translation]
Senator Dupuis: Choose the English version that you want; not to elections nor to Canada.
[English]
The Chair: It should be that “threats to cybersecurity are not limited to elections nor to Canada.”
Agreed? Any other comments?
[Translation]
Are there any other suggestions before I ask for the support of the honourable senators?
[English]
Shall the observations, as amended, carry?
Hon. Senators: Agreed.
The Chair: Does the committee agree that I report the bill, as amended and with the observations as agreed, to the Senate?
Some Hon. Senators: On division.
The Chair: On division. Agreed.
That completes our session this afternoon. I thank you for your cooperation and suggestions and cooperative mood to achieve those observations. I am personally very grateful to you because I think this is an issue that will be with us in the coming years.
Senator Gold: You’re making an observation.
The Chair: I’m making an observation on the overall observations. I think it’s important that we append those observations. I know it’s labour intensive, but on the whole I think it reflects our views in relation to the Canada Elections Act.
Senator Gold: I am sure I speak for all members of the committee and I want to express our gratitude to you, as chair, because this was not an easy task. We had a constrained period of time. There is no question about that. Thanks to you and to the members of the committee. In a very important, sometimes highly charged matter, I think we did the best job we could. We did a good job due in no small measure to your leadership and to the steering committee. So thank you very much.
The Chair: I would like to thank both deputy chairs, Senator Dupuis and Senator Boisvenu. We have been able to arrive at a report with very meaningful observations. I rely on you to continue to share that wisdom in your speeches at third reading.
(The committee adjourned.)