Canada Elections Act

Bill to Amend—Second Reading—Debate Continued

December 8, 2017

The Honourable Senator Yuen Pau Woo :

Honourable colleagues, elections are at the core of our democracy, but as we in the upper chamber are acutely aware of, they are not the entirety of our democratic system. The legitimacy of our colleagues in the other place, however, rests on an electoral process that is seen to be free and fair, and one that is for Canadians and Canadians alone to participate in. For this reason, I want to commend Senator Frum on her bill, Bill S-239, An Act to amend the Canada Elections Act (eliminating foreign funding).

First, let’s be honest and recognize that our version of democracy is imperfect — as are all versions of democracy — and that although we must try to improve how we give a voice to Canadians by developing the laws that affect them, there is no magic solution that addresses the many deficits of our electoral system.

These deficits include issues of inequitable representation among regions and populations; the undue influence of big money in elections; fairness in nomination and leadership campaigns; the double-sided risk of, on the one hand, “winner take all” in our current system and, on the other hand, giving voice to extremist views through proportional representation.

There are also shortcomings in our electoral system related to Canadians who do not have the franchise because they have lived overseas for more than five years, and Canadians who should have the right to vote but face barriers in doing so because of onerous registration requirements. Perhaps most importantly, we have the long-standing challenge of increasing the participation rate of eligible voters in elections at all levels of government, especially the votes of younger people.

In the context of the multiple deficits in our democracy, the problem of foreign funding in Canadian elections is, in my view, a lesser problem. Now, it is the kind of problem that inflames Canadians because we hate the thought that foreigners might be influencing our elections. I think we should be much more outraged by the fact that about 30 per cent of eligible voters don’t or can’t exercise their franchise and that some votes, in effect, count for less than others because of where the voter happens to live.

When it comes to issues that involve “us,” Canadians, and “them,” foreigners, there’s a tendency to create simple dualities of right and wrong, when in fact there should be much more shading in our understanding of such issues. In thinking about foreign influence on one’s political views, where do you draw the line? Do you read the Wall Street Journal, Nikkei Keizei Shimbun, The Guardian, or Le Figaro? What subversive foreign ideas have you picked up from these publications, which are widely available in our country?

Nothing in what I have said should leave you with the impression that I support foreign funding in our elections. I am, of course, alive to the issue, especially so in the context of what we have seen about the repugnant Russian influence in the recent U.S. presidential election. But even there, the $100,000 that Russian operatives paid to place so-called “fake news” in Facebook pales in comparison with the over $1 billion that political action committees spent —legally — on the campaign.

Colleagues, are mistruths by a country’s nationals less harmful than mistruths by foreign nationals? Can you imagine a situation where foreign nationals may be conveying truthful information to counter untruths propagated by sources within the country? In our zeal to defend the right to make decisions ourselves, let’s not go down the road of parochialism that privileges nationality or place of residence over reason.

I applaud Senator Frum’s effort to fix the loophole — or, as she calls it, the “canyon-sized loophole” — in section 358 of the Canada Elections Act. To refresh your memory, that loophole has to do with a very permissive definition of election advertising, which allows third parties in an election campaign to, in effect, use foreign funds for election-related purposes. It also has to do with the difficulty in separating foreign funds from the general budget of an organization that received those funds before the six-month period ahead of an election.

Putting myself in Senator Frum’s shoes, I can imagine that she had three options to close the loophole. The first is to expand the definition of third parties and the application period for foreign funding rules, in other words, weaving a larger net to catch potential offenders and deploying it over a longer period of time.

Second, she could have expanded the definition of the prohibited uses of funds provided to third parties. That is, to have a less permissive definition of “election advertising.” Finally, she could have taken the approach of prohibiting all foreign funding to third parties and expanding the definition of what foreign funding means.

She chose the third option, which was to, in effect, turn off the tap entirely. In her words:

My bill... will amend section 331 of the Canada Elections Act to provide clarity that foreigners may not contribute to election-related activities at any time.

There’s a comforting finality in that statement, which I must say resonated with me when it was first uttered in this chamber some weeks ago. But herein lies the danger: It is when we reduce complex problems to simple solutions that we are lulled into complacency and the danger of unintended consequences. It is akin to fixing the leak in our kitchen faucet by turning off the water mains to the house. What about the need to take a shower or to flush the toilet? And besides, have you noticed that there is water dripping from the ceiling every time it rains?

The complacency I am referring to is, of course, the idea that foreign influence in our elections will cease with this bill, or even that the most insidious type of foreign influence has been stemmed. Senator Omidvar has already pointed out that foreign entities can legally donate to third parties during election campaigns under Bill S-239 as long as they incorporate in Canada.

Indeed, foreign interests have already made significant investments in some of our major newspapers and are probably among the most influential opinion-makers in an election. Bill S-239 does not change anything in that regard. Moreover, we have not talked at all about social media yet, a huge, noisy, unregulated and largely anonymous world that spreads information that can be designed, or not, to influence the outcome of Canadian elections.

Depending on your point of view, these examples are the equivalent of water dripping into the house from the ceiling — that is to say, negative foreign influences are still entering our country — or not being able to flush your toilet because the water mains have been blocked, in other words, positive foreign influences having been stopped.

The unintended consequences of Bill S-239, on the other hand, have to do with potentially hundreds of public policy advocacy organizations and charities that could be seen to be in violation of the act because they accepted donations from foreign sources at any time, let alone in the six-month period before an election.

Ironically, this loophole — in fact, it is a bear pit — creates the potential for politically motivated mischief on the part of partisans who seek to stymie legitimate public policy advocacy on the false grounds of foreign influence. I leave your imagination to come up with the myriad scenarios under which these unintended and undesired consequences could realistically come about.

It is not just that this bill inconveniences some organizations whose work touches on public policy. It is also that the bill may be in violation of your rights. When prohibitions and free speech are overly broad, such restrictions on speech that may be aligned with a political platform during an election campaign and for which foreign funding may have played a role, fundamental rights are trampled on.

This issue has already played out at the provincial level. In Ontario, the Canadian Taxpayers Federation came under review in 2016 by Elections Ontario because their website included topics such as electricity costs which, surprise, surprise, was a hot election topic.

In my home province of British Columbia, government efforts to impose restrictions on political expressions during a 60-day pre-campaign period ended up in the B.C. Supreme Court. Prompted by a complaint by the BC Teachers’ Federation, the court deemed the restriction a violation of Charter-protected freedom of expression. When another B.C. government attempted to revisit the implementation of a restriction period in 2012, this time with a shorter pre-campaign period of 40 days, the court again deemed it a violation.

As Justice Lowry stated:

The... amendments... fail to meet the requisite criteria to be constitutionally sound in the main for the same reason the 2008 amendments were held to be constitutionally flawed. It captures virtually all political expression regardless of whether such is intended to influence the election, and, as explained, all individuals and organizations are affected even if their election advertising is voluntary. Further, there is no clear and compelling reason to conclude the limitations on election advertising, and hence the freedom of political expression, in the campaign period are equally necessary in the pre-campaign period to preserve election fairness.

Colleagues, there is another unintended consequence that is very close to my interests. I am an unabashed supporter of deeper integration of the Canadian economy with fast-growing regions of the world, and of the need to internationalize the Canadian workforce. This means encouraging our youth to consider spending time abroad as part of their education so that they can broaden their horizons and potentially bring back the international savvy that is needed for Canadian industry to be competitive in world markets. Some of them may end up living abroad for extended periods of time, but they remain Canadians and we should look at this population of overseas citizens as part of the country’s international assets. In fact, according to the Asia Pacific Foundation of Canada there are some 2.8 million Canadians living abroad — which is more than the population of a number of provinces and territories. As I pointed out earlier, many of these fellow citizens are prohibited from voting simply because they have lived outside of Canada for more than five years. That is a disincentive to stay attached to Canada and to stay in touch with the civic affairs of this country.

I worry that Bill S-239 would further discourage Canadians abroad from taking an interest in the civic life of Canada, including elections. Senator Omidvar has already given a hypothetical example of Canadians abroad donating to a third party in an election campaign by way of a funds transfer that is marked as coming from a foreign country. Will this donation be allowed? If we take the example of a group of Canadian patriots living in Silicon Valley who form a California-based organization to advocate for improved pre-clearance facilities to allow for easier travel between Canada and the U.S., will their donation to a Canadian organization, whether or not it is registered as a third party, be tripped up by Bill S-239?

There may well be answers to these ambiguous situations, but the point is that there are many such ambiguities, and the ambiguities are layered on top of unintended consequences that are troubling, which are, in turn, sitting on a foundation that is much less secure than it would appear. This bill is, well, wobbly. And with most creations that end up wobbly — think about baking a cake or building a house — it is probably best to start from scratch. The same must be said of legislation, however well-intentioned.

Colleagues, Bill S-239 is not the way forward. Senator Frum, however, deserves credit for focusing our attention on what is a real problem in our election process. I am personally grateful to her for giving me the opportunity to think more deeply about this issue. I hope she will persist in suggesting ways to correct the flaws in our electoral system, including but not limited to foreign funding of election campaigns.