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Bill C-76: Speech at Second Reading

Honourable Senators, I rise today to speak on Bill C-76 which, as you know, seeks to modify the Canada Elections Act. Before I get into the details of the bill itself, please allow me to make a few general remarks on the process set out by the Trudeau government to change the rules that govern our democratic process.

After the 2015 election, a large number of formal complaints were received by the Commissioner of Canada Elections, drawing attention to serious flaws and weaknesses in our electoral regime, specifically around the use of foreign funding of election activities and overspending by third parties.

While the commissioner did not act on any of these complaints, I do note that we heard from the commissioner yesterday in the Committee of the Whole, where he acknowledged that there were “some shortcomings surrounding the regulation of third parties, some of which had been particularly active during the last general election.” 

These shortcomings were already much publicized when the Trudeau government assumed office in November 2015.

In November 2016, they tabled Bill C-33 , a bill that contains many of the changes included in Bill C-76 to bring changes to our Elections Act. That bill languished on the Order Paper of the House of Commons for two years and sits there still.

On April 30, 2018, Bill C-76 was introduced. Rather than consulting the other political parties and seeking consensus, the Liberal government used time allocation to pass their last-minute election bill through the house.

Last week, in November 2018, Bill C-76 arrived in the Senate. It is currently in second reading here, and this is only the third speech in this chamber debating this bill. Yesterday we heard from the Chief Electoral Officer that in order for the bill to be implemented in time for Election 2019, we must dispatch this bill with haste.

Colleagues, that is where we are now. An atmosphere of urgency and speed has been created on a bill regarding a fundamental pillar of our democracy, the integrity of our election process, and we are being asked to push through Bill C-76 ASAP.

I should not need to say that this is not the appropriate atmosphere to study a bill of profound significance to our parliamentary democracy. Why the rush? The Liberals have been in power for over three years now. They have a majority government. But they demand that we study a complex, 150-page election bill in only three committee meetings. Is this mismanagement? Is it incompetence? Or is there something else at play? Was there deliberate intent to force the hand of the opposition parties on Bill C-76 or to force the hand of the Senate? Were changes to the rules brought in so late in the game to ensure that foreign funds could still flow until the very last minute?

I will not speculate on the answers, but the questions do present themselves.

That being said, Bill C-76 does contain changes to the Elections Act that are desirable. Changes in technology, in the ways that Canadians communicate with one another, plus lessons learned in each electoral cycle makes it necessary to update the Elections Act every four years or so. Protecting and preserving the integrity of our elections is crucial to the functioning of our democracy.

Bill C-76 does improve our electoral system in some aspects. I do not deny that. However, there are also some provisions of this bill that are very worrisome. Let me review the most important of those.

The first, voter identification. I fully subscribe to the principle that all Canadian citizens who have the right to vote should be able to vote. Voter suppression is an attack on democracy and should not be tolerated. However, usurping the identity of someone else or voting more than once are also damaging to the democratic process. If one pillar of our democracy is a fact that every voter duly qualified may vote, the integrity of the results is another pillar. The Elections Act must seek to strike a balance between these two principles.

I am not confident that changes introduced by Bill C-76 actually strike that balance. After yesterday’s testimony by the CEO and Commissioner of Elections Canada, I still have doubts about the precision of the information that is the voter identification card and whether they should be such legal sources of ID, given that they’re often sent to the wrong address.

As we know from Election 2011, there were one million cards issued with the wrong information, yet we are returning to a system that allows voter identity cards to be used as ID. I am not suggesting that the use of voter ID cards could lead to massive fraud across the country, but it could open the door to abuses here and there. Is it enough to tip the results in any given riding? Well, we all know that elections in some ridings are decided by only a handful of votes, so potentially the answer is yes.

We need to be reassured that the 10 per cent error rate on voter ID cards in the past is not considered an acceptable standard for the future. I believe the Legal Committee should take a hard look at how these cards are produced and handled.

Next, electors resident outside of Canada. Bill C-76 will change the criteria used to determine if a Canadian citizen living outside the country will have the right to vote. Under the current act, only citizens non-resident in Canada for five years or less and who are willing to attest to their intention to return to Canada may vote in a federal election. There are some exceptions for federal employees, but the principle is that to enjoy the right to vote, you must have a connection with Canada and to the riding in which you are voting.

With Bill C-76, the only requirement for a non-resident citizen to be able to vote is simple: You must have resided in Canada before. The act is silent on how long you must have stayed in Canada. There is no limit on how long ago you have left, and you don’t even have to attest that you have somewhere in your heart even the faintest intention of ever returning to Canada. Colleagues, these changes merit more attention.

As you heard at the Committee of the Whole yesterday, we don’t know how many Canadian citizens will be eligible to exercise this new right to vote. The number of 2 million people has been suggested by Mr. Perrault. To put this in perspective, in the last election, 1.3 million people voted in the four Atlantic provinces. It was surprising to hear Mr. Perrault yesterday try to explain that while there will be millions of potential new voters, his guess as to the number who will actually exercise that right is between 14,000 and 30,000.

The message seems to be that Canadians living in Canada should not fear that their voices will be diluted because these non-resident folks will not be exercising their new-found franchise.

I don’t know how many taxpaying Canadians will be comforted by the assurance that not very many of their non-taxpaying, non-attached, non-resident fellow citizens will be bothered to register themselves to vote in the next election.

Let me ask you, how does the government defend its position that someone who resided in Canada 30 or more years ago and who has no intention of ever returning here should be eligible to vote, but the child of an expatriate, who may never have resided here but who does plan to come to Canada to study or make Canada home, should not have a right to vote? How can it be said that one has a vested interest in the future of the country but the other does not?

The Supreme Court is currently deliberating on these very questions. But the government decided it would not wait for that decision but rather set its own arbitrary rules. I find it surprising from a Liberal government which so often prides itself on following to the letter the provisions of the Charter. Why not wait for the decision of the Supreme Court? The current system regarding non-resident voters has been in place since 1993. Liberal governments and Conservative governments were elected under this system. What is the urgency to change the system before the Supreme Court has ruled?

All of this is being done quietly, presented as technical changes, with very little scrutiny by Parliament or the media. Let me repeat: We are potentially increasing the number of voters in the next Canadian election by more than the number of votes cast in the four Atlantic provinces in 2015.

The government has offered us a half-baked solution. It will not allow all citizens to vote. It will not adopt the solutions of countries like France and Italy where citizens living abroad have their own representatives in Parliament. It does not care whether or not the eligible voter has a connection to Canada. It has not set a limit for the time spent away by the eligible voter, unlike most other democratic countries.

Beyond the legal principles, I have serious reservations about the ability of Elections Canada to properly monitor the registration of these new electors. The answers we received yesterday from Mr. Perrault  and Mr. Côté  were clear. There will not be any proactive investigation about self-declared former places of residence, given that proving the surrounding facts about a citizen’s previous residence in Canada, at the very least, is extremely difficult to investigate.

In the very short time we have, the Legal Committee will definitely need to inquire whether the registration system of non-resident Canadians should be improved. Bill C-76 claims to make elections more secure. We have a duty to ensure it actually does.

Next, third parties. It is true that Bill C-76 contains some distinct improvements on how the actions of third parties can be limited and monitored, but I still see large loopholes.

The ability of third parties to influence results in an election remains a concern. After Election 2015, we saw how some deep-pocketed groups bragged about how they had influenced the final election result. The Supreme Court ruling in the Harper  case stated there should be a level playing field between political parties and third parties, but it’s hard to argue that’s what we had in 2015 or will ever have again without changes to our electoral laws that are not contemplated by Bill C-76.

Political parties have strict rules to follow regarding their fundraising and they have caps for electoral expenses. Third parties only have caps for their expenses. Corporations and unions are barred from financing political parties, but they are given the ability to influence elections through third parties. Is that really what Canadians want? Aren’t we falling into the trap that our American friends are in, where money flows so freely into election super PACs that the political discourse is hijacked by special interests?

Between 2011 and 2015, the number of third parties that participated in the election went from 55 to 115, and their expenses rose from $1.2 million to $6 million.

We can expect even more money to flow in the 2019 election. Even with the new caps on spending allowed for third parties that are contained in Bill C-76, we should expect to see tens of millions of dollars being spent lawfully by third parties to influence the next election. I deeply regret the government will not allow the Senate more time to reflect on what this means for our democracy and to consult with Canadians on their thoughts about the influence of special interest groups and lobbies in our elections.

I wish our committee would have more time to think about this issue and to learn what is done elsewhere, but with the time frame given to us by the government, it is an impossible task.

Furthermore, it is one thing to set rules; it is another thing to have them enforced. Mr. Côté repeated several times yesterday that his is a complaint-based organization and that he has limited resources. This does not bode well for his ability to monitor third parties, investigate and act in real time to stop illegal actions that make sure the cheaters get caught and prosecuted. The Legal Committee will want to make recommendations on how the act can be used more effectively.

Finally, influence by foreigners. Canadians are wary about possible outside meddling in our elections. What happened in 2016 in the U.S, during the Brexit campaign and in several elections in western democracies should worry us all. While it improves our system, Bill C-76 will, sadly, not prevent the influence of foreigners in the next election, in my opinion. There are two possible sources of foreign influence: Special interest groups and foreign governments or their surrogates. After Bill C-76, money from foundations and other foreign third parties will still easily flow into Canada to be used to influence the election. In fact, Bill C-76 just codifies how and when foreign money can be transferred to Canada and how and when it can be used to influence the election.

It is now clear which third-party activities can be financed by foreign money and when that money can flow. While I respect Mr. Perrault and Mr. Côté’s trust in the new anti-circumvention clause of section 349.3, I have doubts about their ability to react in real time during the actual campaign and not months afterwards. I also have doubts about their ability to catch culprits from abroad violating our undue foreign influence laws.

To quote the Commissioner of Canada Elections, Mr. Côté, in his testimony yesterday: “To the extent that the individual was outside the country, it might be difficult to force that individual to face Canadian justice. So practical enforcement would become a real difficulty. ”

Beyond financing, there are other ways for foreigners to influence the election. Senator Woo mentioned yesterday the challenge regarding foreign-owned media, how they could become a megaphone for the position of special interests from abroad or even a foreign government.

Speaking of foreign governments, one thing is clear: Bill C-76 will not prevent foreign powers from trying to influence the results of our election or use the electoral period to sow discord in Canada. In fact, surprisingly, Bill C-76 even clarifies what foreign governments can lawfully do to try to influence the election. The topic of foreign influence will certainly have warranted a thorough study, including how other countries are facing up to the challenge. Unfortunately, the timeline we have with Bill C-76 will not allow for that.

While reading Bill C-76, I thought about the old saying that generals always plan to fight the last war. Clearly, some of the new provisions contained in Bill C-76 will be helpful in combating the abuses we saw in 2015 by groups like Leadnow . Most of what they did back then would now be explicitly illegal under Bill C-76, but colleagues, it is one thing to correct the past or try to, it is another thing to plan for the future. If Canadians think for one second that the election of 2019 will not be influenced by lobbies, special interest groups and billionaires from the U.S. or China, or by foreign governments, they are wrong. Bill C-76 is, I believe, only a timid answer to what is rapidly becoming a vast problem for Canada and its allies.

I modestly tried to initiate a debate on this issue two years ago with Bill S-239. I would have liked Canadians to reflect on how money, especially foreign money, can corrupt democracy. Sadly, this debate did not go forward. Now, five minutes before midnight, we are invited to put in place stop gaps, cross our fingers, hope for the best and see what happens in 2019 to figure out how we can do better for the election after that.

Colleagues, Bill C-76 and the issues I just outlined deserve a thorough study by the Legal Committee. That will not happen. But I am sure that all of my colleagues on the committee will work hard to see that Bill C-76 can be improved. Thank you.

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