Bill C-23 (Historical)

Fair Elections Act

An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts

This enactment amends the Canada Elections Act (“the Act”) to require the Chief Electoral Officer to issue interpretation notes and guidelines on the application of that Act to registered parties, registered associations, nomination contestants, candidates and leadership contestants. It also requires the Chief Electoral Officer, on request, to issue a written opinion on the application of provisions of the Act to an activity or practice that a registered party, registered association, nomination contestant, candidate or leadership contestant proposes to engage in.
The enactment also modifies the Chief Electoral Officer’s power under section 17 of the Act so that the power may only be exercised to allow electors to exercise their right to vote or to allow votes to be counted. It also limits the Chief Electoral Officer’s power to transmit advertising messages to electors and requires the Chief Electoral Officer to ensure that any information so transmitted is accessible to electors with disabilities.
The enactment further amends the Act to permit the Chief Electoral Officer to seek approval from parliamentary committees to test an alternative voting process (but where such a pilot project is to test a form of electronic voting, the Chief Electoral Officer must first obtain the approval of the Senate and House of Commons). The enactment also eliminates the mandatory retirement of the Chief Electoral Officer at age 65 and replaces it with a 10-year non-renewable term. It provides for the establishment of an Advisory Committee of Political Parties to provide advice to the Chief Electoral Officer on matters relating to elections and political financing. The enactment also amends the Act to provide for the appointment of field liaison officers, based on merit, to provide support to returning officers and provide a link between returning officers and the Office of the Chief Electoral Officer. It also enables the Chief Electoral Officer to temporarily suspend a returning officer during an election period and provides for the appointment of additional election officers at polling stations. Finally, it empowers registered parties and registered associations, in addition to candidates, to provide names of individuals for election officer positions and changes the deadline for providing those names from the 17th day before polling day to the 24th day before polling day.
The enactment also adds to the Act Part 16.1, which deals with voter contact calling services. Among other things, that Part requires that calling service providers and other interested parties file registration notices with the Canadian Radio-television and Telecommunications Commission, provide identifying information to the Commission and keep copies of scripts and recordings used to make calls. That Part also requires that the Canadian Radio-television and Telecommunications Commission establish and maintain a registry, to be known as the Voter Contact Registry, in which the documents it receives in relation to voter contact calling services are to be kept.
The enactment also replaces Part 18 of the Act with a new, comprehensive set of rules on political financing that corrects a number of deficiencies in the Act. Notably, the enactment
(a) increases the annual contribution limits for contributions to registered parties, registered associations, candidates and nomination and leadership contestants to $1,500 per year and by $25 per year after the first year;
(b) increases the amount that candidates and leadership contestants may contribute to their own campaigns to $5,000 and $25,000, respectively;
(c) permits registered parties and registered associations to make transfers to candidates before their nomination is confirmed by the returning officer;
(d) requires a registered party’s auditor to complete a compliance audit in relation to its election expenses return indicating that the party has complied with the political financing rules;
(e) requires registered parties, registered associations and candidates to disclose details of expenses for voter contact calling services in their returns;
(f) reforms the rules governing unpaid claims, making it an offence for claims to remain unpaid after three years and strengthening the reporting of unpaid claims;
(g) reforms the reporting requirements of leadership contestants;
(h) permits higher spending limits for registered parties and candidates if an election period is longer than the 37-day minimum;
(i) includes new rules on political loans; and
(j) defines “capital asset” for the purposes of reporting the distribution cost of advertising or promotional material transmitted to the public using a capital asset, so that the expense is reported as the corresponding rental value for the period in which it was used, and for the purpose of the disposal of the campaign surplus.
With respect to voter identification, the enactment amends the Act to require the same voter identification for voting at the office of the returning officer in an elector’s own riding as it requires for voting at ordinary polls. It also prohibits the use of the voter information card as proof of identity, eliminates the ability of an elector to prove their identity through vouching, allows an elector to swear a written oath of their residence provided that their residence is attested to on oath by another elector, and requires an elector whose name was crossed off the electors’ list in error to take a written oath before receiving a ballot.
The enactment also amends the Act to provide an extra day of advance polling on the eighth day before polling day, creating a block of four consecutive advance polling days between the tenth and seventh days before polling day. It requires a separate ballot box for each day of advance polling and details procedures for the opening and closing of ballot boxes during an advance poll. Finally, it gives returning officers the authority to recover ballot boxes on the Chief Electoral Officer’s direction if the integrity of the vote is at risk.
The enactment also amends the Act to, among other things, establish a process to communicate polling station locations to electors, candidates and political parties, to provide that only an elector’s year of birth is to be displayed on the lists of electors used at the polls, instead of the full date of birth, to permit candidates’ representatives to move to any polling station in the electoral district after being sworn in at any polling station in the district and to establish a procedure for judicial recounts.
The enactment further amends the Act to change how the Commissioner of Canada Elections is appointed. It establishes that the Commissioner is to be appointed by the Director of Public Prosecutions for a seven-year term, subject to removal for cause, that the Commissioner is to be housed within the Director’s office but is to conduct investigations independently from the Director, and that the Commissioner is to be a deputy head for the purposes of hiring staff for his or her office and for managing human resources.
The enactment also amends the Act to add the offence of impersonating or causing another person to impersonate a candidate, a candidate’s representative, a representative of a registered party or registered association, the Chief Electoral Officer, a member of the Chief Electoral Officer’s staff, an election officer or a person authorized to act on the Chief Electoral Officer’s or an election officer’s behalf. It also adds the offences of providing false information in the course of an investigation and obstructing a person conducting an investigation. In addition, it creates offences in relation to registration on the lists of electors, registration on polling day, registration at an advance polling station and obligations to keep scripts and recordings used in the provision of voter contact calling services.
The enactment further amends the Act to provide for increases in the amount of penalties. For the more serious offences, it raises the maximum fine from $2,000 to $20,000 on summary conviction and from $5,000 to $50,000 on conviction on indictment. For most strict liability offences, it raises the maximum fine from $1,000 to $2,000. For registered parties, it raises the maximum fine from $25,000 to $50,000 on summary conviction for strict liability political financing offences and from $25,000 to $100,000 on summary conviction for political financing offences that are committed intentionally. For third parties that are groups or corporations that fail to register as third parties, it raises the maximum fine to $50,000 for strict liability offences and to $100,000 for offences that are committed intentionally and for offences applying primarily to broadcasters, it raises the maximum fine from $25,000 to $50,000.
The enactment amends the Electoral Boundaries Readjustment Act to authorize the Chief Electoral Officer to provide administrative support to electoral boundary commissions. It amends the Telecommunications Act to create new offences relating to voter contact calling services and to allow the Canadian Radio-television and Telecommunications Commission to use the inspection and investigation regime in that Act to administer and enforce part of the voter contact calling services regime in the Canada Elections Act. It amends the Conflict of Interest Act to have that Act apply to the Chief Electoral Officer. It also amends the Director of Public Prosecutions Act to provide that the Director of Public Prosecutions reports on the activities of the Commissioner of Canada Elections.
Finally, the enactment includes transitional provisions that, among other things, provide for the transfer of staff and appropriations from the Office of the Chief Electoral Officer to the Office of the Director of Public Prosecutions to support the Commissioner of Canada Elections.

Business of the House

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, it is fair to say that it has been a tough week for the government.

Ms. Sheila Fraser, who is a personal hero to many Canadians for standing up and speaking the truth, has condemned the unfair elections act as an attack on democracy. Her voice is joined with those of current and former chief electoral officers, current and former elections commissioners, many witnesses, and Canadians who are speaking internationally as well. These individuals are all speaking out against this attack on democracy, Bill C-23.

The government's reaction is to try to impose the bill on the House. They have done this about 60 times. It is a sad track record, if not the worst track record in the entire history of all the governments in the country.

Unfortunately, as members know, the government's legislative agenda has been unravelling in the last two weeks. Two bills have been rejected by the Supreme Court of Canada because they simply were not drafted correctly.

In light of the government's unravelling legislative agenda, on behalf of the NDP official opposition caucus I would like to ask the government House leader what he will put forward next week to start to restore the confidence that Canadians have lost in the Conservative government.

Democratic Reform

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, yesterday, the so-called minister of so-called democratic reform claimed that the experts who are against his electoral reform are so-called experts.

The only problem is that the current and former Chief Electoral Officers, the current and former Commissioners of Canada Elections, and provincial elections officials are against this reform. Today, it was Sheila Fraser who talked about Bill C-23 as an attack on our democracy.

Is Sheila Fraser going to be treated like all the other officers of Parliament and experts who have criticized this reform?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, Sheila Fraser, Canada's former auditor general, who exposed the Liberals' schemes in the sponsorship scandal, says that Bill C-23 is an attack on Canada's democracy.

Ms. Fraser, who currently co-chairs an advisory board on the electoral system, laments the fact that Bill C-23 would disenfranchise thousands of voters, undercut the independence of the Commissioner of Canada Elections, and impede investigations into wrongdoing.

Will the government listen to Sheila Fraser, withdraw its bill and go back to the drawing board?

41st General Election

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I rise today to present two petitions.

The first has to do with electoral fraud during the last election, specifically regarding robocalls. The petitioners are calling on the government to launch a serious investigation into this crime.

If Bill C-23 goes ahead as unamended, we will have the investigation into the robocall fraud of the last election dropped and not completed. These petitioners want a full inquiry.

Instruction to the Standing Committee on Procedure and House Affairs Regarding Bill C-23

[Craig Scott, NDP, Toronto—Danforth, ON]

moved:

That it be an instruction to the Standing Committee on Procedure and House Affairs that, during its consideration of Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to other Acts, the Committee be granted the power to expand the scope of the Bill in order to strengthen the role of the Commissioner of Canada Elections by allowing the Commissioner to seek relief through the courts to compel testimony.

Mr. Speaker, I would like to begin by mentioning that I will be splitting my time with the hon. member for Louis-Saint-Laurent, who seconded the motion.

The reason for the motion today, just to give some background, is that our attempt to have Bill C-23—the so-called fair elections act, but what New Democrats are calling the unfair elections act—channelled to the committee after first reading, at which time the bill could be more open to amendment, failed. Our attempt in the House did not receive unanimous consent.

There is concern that some areas of the bill that should be subject to amendment may not be because the admissibility rules in the House with respect to committee amendments are a little arcane, to put it mildly. They are complex. The clerks do their best to enforce the rules, but I am not completely certain I am going to get a ruling on admissibility on this point, that the Commissioner of Canada Elections be able to go to court to seek relief to compel testimony of witnesses. Therefore, out of some kind of excess of caution, we are seeking a motion of instruction from the House to permit such an amendment.

All this motion would do is permit the amendment. It does not say the amendment would occur. It would simply allow the committee to consider this kind of matter, and in committee, if the majority declines to adopt the amendment, that will determine it. However, what we do not want to have happen, after all the witnesses who appeared suggesting that the power to compel testimony through a judicial order be included in the bill, is for that to be ruled out of court from the beginning as beyond the scope of the bill. That is the reason I am standing in my place at the moment.

I also want to provide a bit of context.

Last night one of several witnesses, the current Commissioner of Canada Elections, Mr. Côté, appeared, and in no uncertain terms gave support to the Chief Electoral Officer, Mr. Mayrand, and other witnesses, who have said it is absolutely, as he put it last night, “essential to give the Commissioner the ability to seek a court order to compel testimony”. This is something that was in both the commissioner's 2012-13 report and the report entitled “Preventing Deceptive Communications with Electors” by the Chief Electoral Officer, and it comes from painful experience.

The commissioner and the Chief Electoral Officer are all too aware of how difficult it has been to have witnesses, who are themselves not suspect but are members of a political party, actually talk to investigators. The context of the Commissioner of Canada Elections' report is at page 13. Although he is talking in general terms, nobody in the House is under any illusion that he is talking about anything but the investigation into the fraudulent calls that occurred in 2011. He stated:

When investigating matters where the stakes are perceived as significant...investigators often face reluctant witnesses. Frequently, key individuals will simply refuse to be interviewed or they will initially accept, only to later decline. In some cases, they will participate in interviews but will provide only partial information and incomplete answers, often citing a faulty recollection of events or the inability to retrieve key documents. In other cases, a potential witness will profess a complete willingness to cooperate, but the process will take time – resulting in information being provided slowly and in an incomplete fashion.

He goes on to explain why the model in the Competition Act, which is a model very similar to over half of the provincial elections acts, should be adopted by the Canada Elections Act. Basically, it allows for the chief investigative officer within the Canada Elections Act system, the commissioner, to go to court to show that there is a need for witnesses to be forthcoming and to receive a judicial order for witnesses to indeed testify to investigators, with important safeguards.

Three of them were listed in the testimony last night by Mr. Côté, as follows: one, a prior judicial authorization, based on affidavit evidence showing that the person likely has information relevant to an investigation of an offence under the Canada Elections Act; two, the right to be assisted by counsel and to have counsel present at the interview; and three, the right not to have the evidence used against the person—this is obviously very important—who is required to testify. These are basically safeguards taken from the Competition Act.

The commissioner said, “These safeguards would present, in my view, a balanced approach to ensuring more effective enforcement.”

Here is probably the most important and most forceful statement by the Commissioner of Canada Elections last night about the need. He said, “I want to be absolutely clear: if this amendment is not made, investigations will continue to take time, and in some cases a lot of time. And, importantly, some will simply abort due to our inability to get at the facts.”

I grant to the minister that the new voter registry that would be overseen by the CRTC would be beneficial and get us somewhere within the legitimate telecom system, but what has become very clear is that however much that is true, there are all kinds of reasons to know that those who are technologically sophisticated know how to get around the system, effectively setting up proxy servers in their basements or in other countries and not ever having to use the legitimate system.

If that is the case, it is all the more necessary that the investigative powers of the Commissioner of Canada Elections be bolstered in exactly the way that he and the Chief Electoral Officer have requested for the last two or three years in light of their experience of all the recalcitrance and all the resistance they have received investigating the fraudulent calling scheme that undermined the 2011 election.

We only discovered with clarity yesterday, when we were asking questions of witnesses from the CRTC in committee, how important this could be in terms of the internal limits of the voter contact registry. It turns out that although calls are defined as including live voice calls, there is an exclusion for live voice calls from any group or person as long as that group or person is using internal services.

Let us forget about the minister's image of the grandmother at the local level calling with regard to lawn signs. The concern is the national party with its capacity to have internal services for live voice calls. What are live voice calls normally used for? They are usually used for not just getting out the vote and that kind of stuff. They have to be used for fundraising.

There is another exception in the bill. This one would allow for fundraising calls to anybody who has given $20 or more in the last five years to be exempted from the expense ceiling, which basically means that a whole operation has to be set up at the national level to make those phone calls. We have been concerned from the beginning that those calls could be a cloak for all other kinds of pitches to be made under the guise of fundraising requests. What we have found is that such live calls at the national level, using a national phone bank that is part of the internal services of a party, are not part of the CRTC's regime. The CRTC testified that this is an exclusion. Live voice calls coming from external telecom providers would be, but not those from the national party.

We have no problem with making sure there is no red tape for grandmothers helping out at the local level by calling for lawn signs. Our concern is at the national level, with the phone bank problem of live calls using that exemption for fundraising as a Trojan Horse that will be completely unmonitorable because it is not part of the CRTC regime and because the Chief Electoral Officer has already testified that he cannot monitor it.

One of the reasons it is so important to have the power to compel testimony through a judicial order is that the voter contact registry is only going to go so far. It is only going to provide prevention and detection for a certain kind of person who unwittingly uses the system, not the sophisticated rogue who now knows that legitimate telecom operators cannot be used to call perhaps hundreds of thousands of numbers and who would use available technology to skirt that system. The system is not useless, but it would do almost nothing for the knowledgeable, technologically sophisticated rogue, especially using offshore resources, to call into elections.

Therefore the back-end investigation is all the more important, and therefore the power to compel testimony of witnesses through a judicial order is an absolute must as an amendment to Bill C-23. Out of an excess of caution, I am asking the House through this motion for instruction to allow PROC to amend the bill in this respect to give us that authority if the committee agrees in its discussions that it is a valid amendment.

Democratic Reform

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, perhaps the minister should tell that to the experts in the United States and throughout the world who are opposed to his reform.

Another American elections expert, Élisabeth Vallet, says that the Conservative movement likes to focus on cases of fraud and is feeding conspiracy theories in order to disenfranchise society's most vulnerable people and thereby serve its own partisan interests. Bill C-23 follows squarely in the Conservative's pattern of prejudice and partisan interests.

Will the minister withdraw his bill and agree to reopen discussions and start over?

[Pierre Poilievre, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, the member is indeed wrong, and very wrong again.

There are three types of calls. There are automated calls, which must be registered under the fair elections act.

There are telemarketing calls, which are probably the largest number, and they involve hiring professional firms that make tens of thousands, in fact, hundreds of thousands of calls. Those calls must be registered, and the scripts must be retained.

Then, there are calls that are done by parties themselves, almost exclusively by volunteers. They do include the volunteer calls, the types of which I just described, and no, we are not going to bury these people in red tape.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, on another unfair elections act front, today in committee my questioning of CRTC lawyers confirmed my suspicions of a huge loophole in Bill C-23's voter contact registry scheme, which was supposed to prevent fraudulent calling to voters. Live calls by a party's internal services are not covered, so Conservative Party phone banks can live-call Canadians during elections with no oversight.

My question is to the minister. Is this massive omission deliberate?

[Pierre Poilievre, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, the Fair Elections Act is very reasonable. It creates a new registry to oversee the robocalls and telemarketing calls that many Canadians receive, as well as to protect the legitimacy of those calls. The bill creates new penalties to punish those who mislead voters with fraudulent calls. It also guarantees that the legislation limiting donations will be obeyed. Yes, the Fair Elections Act will require people to present a piece of ID when they vote.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, I do not know which world the Minister of State for Democratic Reform is living in, but it is clearly not the same one as most Canadians.

Yesterday, I had the opportunity to hear professor Paul Thomas express his views on Bill C-23. He emphasized the fact that other countries that conduct free elections recognize that election laws must not be changed unilaterally, without consultation. As well as being dangerous for our democracy, the Conservatives' electoral deform bill will undermine the legitimacy of the electoral process. It will not help the Conservative government earn the trust of voters.

Will the minister listen to the experts at last?

Opposition Motion—Government Aircraft

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I rise to speak in support of today's opposition motion by the member for Timmins—James Bay, because it identifies an abuse of the public trust, which, unfortunately, is part of a much larger pattern by the Conservative government. In this case, we are talking about the use of government planes to transport Conservative Party fundraisers around the country.

Let me be clear. I am not disputing the use of government jets to transport the Prime Minister, his family, his security detail, or even public servants assisting the Prime Minister with government business. To me, the line is crossed when party fundraisers are flying on government jets. As we have now learned, that was a regular practice for the Conservatives. In particular, the flight logs reveal that Mark Kihn, who lists his job as a fundraising projects manager for the Conservative Party, has been a regular passenger, travelling with the Prime Minister on government jets every year from 2007 to 2012.

While this may seem to some a narrow issue for an opposition day motion, it tries to shine a light on a failure by the Conservatives to recognize the importance of respecting the line between the public interest and party interest. On those grounds, it is clearly wrong to use government jets to transport Conservative Party fundraisers.

As I said at the beginning of my remarks, this example illustrates a larger pattern by the Conservatives, which is to seek every partisan advantage for themselves, whether by using their majority to change the rules or by running as close to the line as possible when it comes to the existing rules. We have certainly seen this in Bill C-23, where the Conservatives have included a provision exempting fundraising expenses from election spending limits. Spending limits, as many will know, were introduced in Canada in the 1974 Election Expenses Act in an attempt to level the playing field for elections, so that those with the most resources would not automatically win elections.

Public support for spending limits as an essential part of electoral fairness has always been and still remains very high. The comprehensive Canadian election study conducted in 2000 specifically asked about this and found that 93% of Canadians supported spending limits for candidates and political parties, but what this motion points to is an attempt to get around those kinds of spending limits by using government resources for partisan purposes. Both the transport of Conservative Party fundraisers on government jets and the attempt to undermine spending limits in Bill C-23 violate the fundamental sense of electoral fairness that is an essential part of our Canadian democracy.

These attempts to skirt the rules on election spending limits are not new for the Conservatives. In fact, they began with the first omnibus budget bill. In that bill, the Conservatives used their majority to eliminate public funding for political parties. Normally, in seeking to change fundamental rules in our democracy, we would expect the governing party to consult widely and seek the broadest support for changes to the rules. We would expect this in Bill C-23, and we have not seen it. We would certainly expect them to hold those kinds of consultation and not to sneak in changes through what should have been a technical budget bill.

As in the case of Bill C-23—

Democratic Reform

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, the Conservative Bill C-23, the unfair elections act, says that the party who wins one election will get to choose the central poll supervisor for the next election.

Do Canadians want more partisans running elections? Before the Conservatives unfair elections act came along, the central poll supervisor was non-partisan, appointed by Elections Canada.

Why do honest, hard-working Canadians trying to take care of their families need one more thing stacked against them by the Conservative government?

[Pierre Poilievre, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, the fair elections act would keep everyday Canadians in charge of democracy by pushing special interest groups to the sidelines and rule breakers out of business. It would close loopholes to big money. It would protect against the risks of fraudulent voting. It would crack down on rogue callers who impersonate either parties or Elections Canada. It would give the commissioner, the law enforcement watchdog, sharper teeth, a longer reach, and a freer hand.

It is a good bill.

Government Policies

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, I would like to talk about what I have been hearing from the people of Jeanne-Le Ber.

People talk to me about how they are struggling to make ends meet and about the need to make life more affordable. They have pointed out the importance of social housing, and I received several hundred responses about maintaining door-to-door mail delivery.

The government talks about its mandate and having consulted with Canadians, but who are the Canadians that the government is consulting with? Is it Canadians who were asked to consult on bill C-23? I think not. Maybe it is the Canadians who demand rail safety, or maybe it is Canadians who will no longer be receiving home delivery. No, I think not.

From train derailments to the insipid attacks on the Canadian elections process, the citizens of Jeanne-Le Ber know that their representative and the NDP are there to listen and to hold the government to account when they cannot—until 2015.

Democratic Reform

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, once again, between Harry Neufeld's credibility and that of the Minister of State for Democratic Reform, there is no comparison whatsoever.

Harry Neufeld said that Bill C-23 will compromise voter turnout for the sake of the minister's obsession with a problem that exists primarily in his overactive imagination. Mr. Neufeld said repeatedly that there is no link between the vouching system and voter fraud. To quote Mr. Neufeld, “...voters were not the problem”.

Many experts oppose the minister's bill. When will he listen to them?