Making Life More Affordable for Canadians Bill

Honourable senators, I rise to speak to Bill C-4, the making life more affordable for Canadians act. Once again, I’ll be focusing on the changes to the Canada Elections Act that have been attached to the end of this bill in Part 4. The contents of Parts 1 to 3 are not contentious and reflect election promises.

Colleagues, like you, I passionately believe in the role of the unelected Senate and, like the majority of you, the role of a politically independent Senate. When I received the call from former Prime Minister Trudeau, he specifically requested that I “challenge the government.” Many of you received a similar request. I have taken those three words very seriously and work to fulfill that request constructively and collegially.

I want to start by recognizing the efforts of Senator Moreau and the Government Representative’s Office in ensuring that we were provided with an opportunity to fulfill our constitutional responsibility as it relates to Part 4. This demonstrated, Senator Moreau, the important role of the Senate within Parliament.

Additionally, I want to thank our Legal and Constitutional Affairs Committee for their exceptional work under very challenging conditions. Having only six hours in one day to hear witness testimony around the implications of Part 4 and then draft and submit substantive observations to the National Finance Committee was an incredibly challenging undertaking. The Legal and Constitutional Affairs Committee assembled and heard from a strong and diverse group of exceptional expert witnesses, along with those charged with defending the narrow focus of this bill.

Having listened to that testimony, I’m of the view that the Legal and Constitutional Affairs Committee report on Part 4 accurately reflected what they heard. It was clear that numerous shortfalls were identified in the legislation, as written. The committee did its best under the circumstances to reflect the range of concerns identified and to recommend three options. In short, it recommended that either Part 4 be removed, the bill be split and that Part 4 be studied separately or to include a sunset clause.

It is important to note that doing nothing and simply waving the bill through, as has been suggested, was not one of those observations. That option was defeated in a vote by members of the committee. So, this afternoon, I will, first, reflect on the legislative history that brought us to this point, notably an earlier amendment to the Canada Elections Act tabled three years ago relating to the same series of legal decisions in British Columbia. Second, I will highlight the testimony — and I might shorten that — of Elizabeth Denham because she has been well quoted in this chamber, and for good reason. She testified at the Legal and Constitutional Affairs Committee. She is a former information commissioner for the U.K. and a former B.C. information and privacy commissioner. Third, I will give my views on the three options forwarded in the Legal Committee report. Again, I will shorten that based on earlier speeches. Fourth, I will speak to the Senate’s ongoing challenge with omnibus legislation. Fifth, I will review the Pratte Doctrine before summing up where I believe we stand.

So what does Part 4 of Bill C-4 have to do with the Budget Implementation Act, 2023? I’m raising the issue of Bill C-47, the Budget Implementation Act, 2023, because a third of our colleagues in this chamber were appointed after that debate back in June 2023.

Division 39 of Part 4 of Bill C-47 seemed innocuous enough. I like to examine the non-budgetary items, but this one on the last page of a 400-page budget implementation act really stood out. The reason is that I had been asked to sponsor the last two privacy bills introduced in the House in the previous Parliaments, but neither had reached the Senate. I was momentarily quite excited to see privacy legislation finally getting to the Senate.

On first reading, it seemed to introduce a reasonable amendment to the Canada Elections Act, the stated purpose being:

. . . to provide for a national, uniform, exclusive and complete regime applicable to registered parties and eligible parties respecting their collection, use, disclosure, retention and disposal of personal information.

All of that sounds very familiar, I expect.

However, after further review, a few thoughts came to mind. First, using a budget bill to change the Canada Elections Act challenged a long-standing practice of openly debating changes in Parliament, and it arguably set a troubling precedent. Second, given that there was actually no national, uniform and complete privacy regime governing how federal political parties currently collect, use, disclose, retain and dispose of personal information, what on earth was going on with Division 39 of that bill?

It turned out to be the same reason that we are faced with today: In the absence of a federal privacy regime, the political parties found that the B.C. Privacy Commissioner was going to apply provincial rules to protect the privacy of B.C. citizens. The three main federal parties then challenged this decision in court in order to protect federal jurisdiction.

Instead of actually introducing a federal privacy regime for federal political parties, the three main parties — the Conservatives, the Liberals and the NDP — continue to pursue a legislative solution to their litigation problem but not a legislative solution to their privacy problem.

At second reading of Bill C-47, I highlighted the concern that Canada did not yet have a national, uniform, exclusive and complete privacy regime for federal political parties, but I proposed no solutions because I didn’t have any.

At third reading of the same bill, Senator Tannas proposed an amendment that is very similar to the third option included in today’s report from the Committee on Legal and Constitutional Affairs, which is to give the federal political parties what they wanted but with a sunset clause. A three-hour debate ensued, and after a standing vote, Senator Tannas’ amendment was defeated, with 23 votes in favour of the amendment, 50 against and 6 abstentions.

I will say more about this debate a little later, but I think it is important for the 32 senators who were not yet appointed in June 2023 to know why some of us are experiencing déjà vu.

In 2024, the B.C. Supreme Court upheld the decision that the Canada Elections Act provisions did not comply with the standards of B.C.’s privacy law. As a result, the three political parties are now seeking to re-amend the Canada Elections Act to provide full clarity that federal jurisdiction supersedes B.C. law. To assist in this effort, they are effectively asking for the previously approved amendment to be applied retroactively to May 31, 2000 — more than 25 years ago.

Colleagues, the three political parties have chosen to litigate rather than legislate. Instead of prioritizing the implementation of a legislative regime that meets international and domestic standards, they continue to ask us to amend legislation to meet their litigation needs.

Now, back to the hearings of the Committee on Legal and Constitutional Affairs. I want to speak to the testimony provided by Elizabeth Denham. Her insights were especially important in the context of the December 2018 report from the House Ethics Committee. This is a committee of MPs that issued a report called Democracy Under Threat: Risks and Solutions Under an Era of Disinformation and Data Monopoly. Their first recommendation related to having political parties fall under the Personal Information Protection and Electronic Documents Act, or PIPEDA. These were MPs, not the political parties.

The connection is that the House report was triggered by the global outrage over the Facebook/Cambridge Analytica scandal, and Ms. Denham was the person who oversaw the repercussions related to that scandal while serving as the U.K. Information Commissioner.

I read to you earlier about how the government of the day responded to that report. They said that it was very valuable and would be a good contribution to their ongoing modernization efforts. It hasn’t yet been included. We have yet to see any results from that.

I wanted to add a number of comments made by Ms. Denham. I’m going to cut to the last one, where she speaks about the invisible processing of sensitive information, such as the political opinions, wealth, age, connections, purchases, income and networks of the citizens of the U.K. She said:

This was a timely investigation because, almost 10 years ago now, in 2017, analytics and microtargeting techniques were evolving. We knew that taking action then to enforce the law was vitally important because more advanced tools, such as AI-generated deepfakes and precision cyberattacks, would only increase the risks to citizens’ trust and confidence in future elections.

The point I want to focus on from her testimony is that they saw where the world was going, took that opportunity and moved forward. Canada chose not to, despite the support of the Ethics Committee in the House and all those MPs — not the political parties, but the MPs from all political parties.

Ms. Denham’s experience and testimony were beyond compelling. As she answered questions to senators, she spoke about the democratic risks associated with data misuse, emphasizing increased threats to electoral integrity due to advanced data-mining techniques. She saw Canada as being an outlier, lacking comprehensive privacy oversight for federal political parties, leaving voters without basic rights amid a period of rising geopolitical cyber risks. She found Part 4’s measures overly broad and urged a much more surgical approach that aligned with the guardrails available in other countries.

She saw a need for fairness and accountability across the entire data ecosystem — from data brokers to social media platforms to the parties themselves — to prevent well-funded political parties from gaining a disproportionate advantage through intrusive data practices. You know how important competition and a fair, level playing field are to me. There is no question about that.

I remember a session with colleagues in 2021, when Bill C-11 was being considered as a new data privacy act for Canada. I invited the competition commissioner to be our first speaker online. The reason was because I wanted our colleagues to understand how anti-competitive the world could become when those who assemble much larger databases can use them to disrupt marketplaces. That’s what Ms. Denham was very much worried about here in our political system.

The last thing she spoke about at length was technology-neutral laws and clear codes of practice for addressing emerging threats, like deepfakes, as well as other threats we don’t yet see or know about.

In my mind, her testimony, along with that of other witnesses, demonstrates that we need to do something. The question is: what?

Now, I want to discuss the three options in terms of the bill itself. The bill asks for a national, uniform, exclusive and complete privacy regime, but it was very clear from testimony that it can only deliver a national and exclusive regime. In its current form, what we have right now is not uniform or complete. It’s different among the different political parties, and they have been constantly changing according to many.

The committee members agreed that the various regimes fall short of minimum standards and the Commissioner of Elections pointed out that the language is very vague and that the privacy regimes change from time to time. They are not consistent across parties.

The witnesses all pointed to the fact that there’s no meaningful, independent oversight or enforcement of the political parties’ self-imposed policies.

The thing I found most amazing that I hadn’t yet realized was that the administrative monetary penalties max out at hundreds of dollars in a world where one of our federal parties raised $28 million in just three months. We’re out of whack in terms of enforcement.

The committee observed a very important point, which is something we should consider. It was in the frustrating position of attempting to conduct a thorough review of Part 4, but without the time necessary to properly consider substantive amendments.

We’re all proud of the work they did, but they didn’t feel there was time to fix this. They just knew it was a problem. That’s another one of the complicated issues that we’re facing: we don’t necessarily know how to fix it. We just know that it needs to be fixed.

Colleagues, the other thing I want to mention is that our National Finance Committee was authorized a year ago in October to study and report on the practice of including non-financial matters in bills implementing provisions of budgets and economic statements. Their final report is due March 31. We’re going to be making this decision before we hear how the National Finance Committee is recommending we start to deal with this long-standing problem of omnibus bills, and this is a mini-omnibus bill. It’s like that old Sesame Street song, “One of these things is not like the other.” Three of these things are kind of the same, but that one is not.

I also want to go back quickly to Bill C-47 and speak about Senator Tannas’s amendment at the time. I completed my comments at the time in favour of Senator Tannas’s amendment, and I was followed by the late Senator Ian Shugart. We heard our wonderful colleague Senator Harder speak and remind us about Ian Shugart. For those who did not know Ian, he was a deeply respected colleague and is sorely missed. He was both a former deputy minister and a former Clerk of the Privy Council, extremely experienced in the public service.

He stood up after my speech and began his extemporaneous speech by wholeheartedly agreeing with Senator Tannas’ points about challenges associated with omnibus legislation. He also agreed with Senator Tannas’ assessment on that day that he felt it was unlikely that his amendment to the bill would pass, and it did not.

In terms of my comments about the importance of privacy regimes in general, including political party privacy regimes, he agreed with most of my points. I was comforted when he said that he didn’t feel sufficiently familiar with the topic to say anything more.

Senator Shugart believed that we would ultimately have to deal with the issue of privacy and the regimes under which political parties are governed. He saw this as an issue that was not going to go away, and that’s important for us today. He then focused his remarks firmly on the problem of omnibus legislation, and this is where I’d like to quote directly from the late Senator Shugart:

I would argue this is not just poor governance, restricting, as it does, the ability of parliamentarians to be proper legislators; it verges on being a question of privilege. It’s on that basis that I think we have a right and a responsibility to pick this issue up and carry it forward. I would venture to guess that it is a question of privilege for our colleagues in the other place as well.

I’m going to suggest that we take up this issue. I don’t know exactly by what means. I think some statistical work about what has happened in the recent past would be useful. I think we should have conversations with our colleagues in the other place. I think we should give due warning to the government that we are taking this issue very seriously and this is not just an annual cri de cœur of anxiety about bad practice, but that we want to address it and we want to change it permanently. I think we should do that sooner rather than later. . . .

I understand that Senator Shugart had further discussion on the omnibus bill problem with Senator Tannas during the summer months before he passed away that autumn. Senator Tannas subsequently tabled a motion to have our National Finance Committee study the bill, and that’s the report we’re expecting to receive by the end of the month.

Colleagues, Bill C-4 is an omnibus bill, and the inclusion of changes to the Canada Elections Act in the so-called affordability bill is arguably a misuse of a practice that our late colleague recommended that we should work to change permanently.

But I see green shoots of hope, in my opinion, signs that the government intends to do better. This belief is manifested in Bill C-15, the current budget implementation act, where, in relative terms, the number of non-budgetary, non-economic items was limited compared to the past. I think it’s important to acknowledge that there is this progress.

Colleagues, the reality is that any amendments we might make to this bill will need to be accepted by the House. The Senate generally defers, as it should, to the elected body. This is especially true in money bills. That’s why I want to discuss the “Pratte doctrine,” which provides me with some guidance as to when the Senate might consider standing its ground.

Colleagues, we have all experienced the overwhelming awe of sitting in this chamber the first few days and months following our appointment. As has been said to most of us, those first few weeks have us overwhelmed with questions of doubt and wonder. How did we ever deserve the honour and responsibility of being in this chamber? I won’t repeat what some wonder after those first six months, but I still stand in awe of my colleagues in this chamber.

One of those first moments of total awe happened to me on my second day while listening to former senator André Pratte. He was a lifelong journalist who was deeply respected and somewhat feared because of his outsized capabilities. He came to the Senate as a former editor-in-chief of La Presse and was one of a first wave of independent senators appointed in March 2016. Those of us who got to know and listen to André continue to mourn his early departure.

With that background, I want to reference what some of us have come to know as the Pratte doctrine, and it comes from a speech he gave on June 19, 2018, and I have never forgotten it. As we consider our next steps, I believe André’s words remain completely relevant almost eight years on. He said insisting on the House adoption of Senate amendments:

 . . . should be reserved for relatively rare cases where the issue is of special importance related to our constitutional role, where we are prepared to lead a serious fight and see its completion, when a significant part of public opinion is or could be on our side, although there could be exceptions, and where there are realistic prospects of convincing or forcing the government to change its mind.

What we do know for sure is that the vast majority — a supermajority — of Canadians are concerned that there be proper privacy protections as it relates to political party data, over 70%.

I mention the Pratte doctrine in case those in the chamber choose to amend Bill C-4. This is not a decision we should consider lightly, but it is one where I think we live up to the list that he thoughtfully prepared and proposed.

So let’s add all this up. There has been a history of promised reforms to how federal political parties will be responsible for the personal information that they collect, use, disclose, retain and protect. These promised reforms began in 2018 and have failed to emerge. As discussed in my second reading speech, I blame the senior operatives in the three main federal parties for singularly focusing on litigating the issue of federal jurisdiction rather than legislating and actually fulfilling their responsibility to Canadian voters whose data they use. Not only does this decision put the personal information of identifiable Canadian voters at risk, according to the testimony of witnesses at the Legal Committee, but I’m willing to bet this legal battle has cost millions of taxpayer-supported political donations to the Conservatives, Liberals and NDP.

It also risks exposing a complete disregard for the countless organizations across Canada, including small businesses, that must comply with PIPEDA by law or face serious penalties. As a former entrepreneur, I have been told by former colleagues who are entrepreneurs that it smacks of “All animals are equal, but some animals are more equal than others.”

There are risks, contrary to the testimony of one of the political party lawyers who referred to:

The bogeyman of things you heard this morning or earlier this afternoon, I don’t know where that finds its base in reality.

A complete disregard for the testimony of our expert witnesses at the Legal Committee.

Colleagues, I would offer that the utter lack of transparency and persistent efforts to prevent us from fulfilling our constitutionally required scrutiny are probably the greatest cause for concern. If there is a bogeyman, that might be it.

From my standpoint, the other thing that is really important is Elizabeth Denham pointing out that in the U.K. there were over 30 different political third-party organizations in the ecosystem that operated in that country during her time in that role. That isn’t that long ago. It was seven years ago. The effects, in terms of the profound effect on voting, saw themselves turn out in the Brexit campaign, and with results that I don’t think the Brits are very keen on at this point in time.

Canada could face several highly consequential referendums and elections in the coming years. I am troubled by the fact that we do not yet have the transparency requirements and government restrictions in place to ensure that voters’ personal information, including knowledge of their fears and desires, might not be used in ways to influence their intentions.

This is where I’m at. The federal political parties already got the legislative changes they needed for the jurisdictional problem in Bill C-47. They passed, but in the end, they didn’t end up solving their litigation needs. Might that happen again this time?

Since 2018, the federal political parties have failed to prioritize their legislative responsibility and actually create a uniform and complete privacy regime. They’ve had to come back to us for another legislative emergency caused by their litigation problem. It seems that our approval of retroactivity is essential at this point in order to maintain jurisdictional integrity.

However, the Legal Committee’s study has elucidated countless reasons why we can’t simply defeat Part 4. We need to find a path forward that will earn the support of the House and implement the protections that Canadians and our democracy deserve.

If the chamber decides to amend this bill — and I certainly sense it will — I’ve landed on option 3 as my preferred option, and here’s why. First, it puts the federal political parties on the clock, and the onus is on the government and the three political parties to come up with a meaningful privacy regime for federal political parties within a fixed time frame. This is essential in my opinion.

Second, it provides immediate clarity that federal rules supersede provincial privacy regimes by providing a legal backstop and preventing headaches which would likely be unacceptable to the political parties. Hence, it would be unacceptable to the House of Commons.

Third, it allows the tax measures promised to Canadians by the government in the last election to finally proceed after a long delay in the House.

Fourth, it will ultimately provide Canadians with protective measures as it relates to the information that the federal political parties gather, retain, share and use — something that is still not assured today.

Fifth, if they so choose — and I hope they will — it provides the Standing Senate Committee on Legal and Constitutional Affairs or another special committee of the Senate with the time needed to study the issue of political party privacy measures, including where surgical differences might be required, well in advance of any future bill.

Sixth, it provides a quiet way out of this very challenging situation, reducing the risk of further exposing the unfortunate choices, in my mind, of the federal political parties.

Seventh, it helps to lay down a marker as it relates to the Senate’s long-standing omnibus problem, which is the insertion of entirely unrelated matters into bills intended to implement budgetary and economic legislation. It gives us a chance to finally say this is not the way we should be doing our jobs.

As a very last point, if the government rejects the idea of a sunset clause, it will be very clear — and we will know immediately — what their intention is regarding actually modernizing the privacy rules for political parties after this piece of legislation is passed. They’re not serious about it. This would be very clear. If they choose to reject a sunset clause, we would then know they have no intention.

Colleagues, I sincerely hope my comments are seen as constructive and helpful. I thank you for your attention.