PROC Committee Report

SUPPLEMENTARY OPINIONS OF THE OFFICIAL OPPOSITION

The Official Opposition would like to thank all witnesses who appeared before the committee and those who submitted briefs as part of the study on the Report of the Chief Electoral Officer of Canada entitled “An Electoral Framework for the 21st Century – Recommendation from the Chief Electoral Officer of Canada Following the 42nd General Election.

While we endorse most of the contents of the Committee’s third interim report, the following sets out the supplemental and dissenting conclusions of the Official Opposition.

Recommendation A22. Polling day

Provisions in the CEA: 56.1, 57(3), 57(4) and 128

It is the opinion of the Official Opposition that the CEO’s recommendation for Parliament to consider moving election day from being held on a Monday, to instead a Saturday or Sunday, be rejected.

The Committee did note in the report that “in many ridings, especially in rural areas, places of worship or halls attached to places of worship frequently are used by Elections Canada as polling places. As such, moving election day to a day on the weekend could interrupt the religious practices of a certain number of Canadians, and potentially create an undue imposition on their religious beliefs.” However, the Official Opposition also wishes to note its opposition, as it feels that this recommendation does not fully take into account the significant impact it would have on cultural and religious practices of Canadians.

As well, the current voting arrangement under the Canada Elections Act (CEA) strikes a balance between weekday and weekend voting opportunities for electors. Under the CEA, election day takes place on a Monday, and advance polls take place on the 10th, 9th, 8th and 7th days before election day (a Friday, Saturday, Sunday, and Monday). This gives electors the opportunity to vote on election day either before or after work or during their lunch hour, as by law, electors must have three consecutive hours off of work to cast their vote on election day. Additionally, electors have the opportunity to cast their ballots on four advance polling dates, two of which take place on weekends.

Changing this voting arrangement to have election day on a Saturday or Sunday may lead to decreased voter turnout, as many Canadians have weekend activities or cultural or religious commitments that take place on the weekend. As such, the Official Opposition is opposed to this recommendation.

Recommendation A33. Power of Commissioner to compel testimony

Provisions in the CEA: 510

Through amendments to the Canada Elections Act proposed by and adopted under the previous government (section 482.1), it is now an offence to knowingly provide false or misleading information to an investigator or to obstruct an investigation being conducted by the Commissioner.

Both the Commissioner of Canada Elections and the police currently have similar powers in their investigative capacity, including but not limited to the ability to seek from the Court a search warrant, a production order, and other orders relating to potential evidence.

Only courts have the power to subpoena witnesses and to compel testimony, once charges have been laid, as part of a trial. While the Canada Elections Act is regulatory in nature, at present, all offences under the Act are treated as criminal offences under the law. In a criminal investigation, police do not have the power to compel testimony. The only exception is that testimony can be compelled by police, by way of a court order, in the course of anti-terrorism investigations. Clearly, anti-terrorism investigations cannot be reasonably equated with investigations pertaining to election law.

Furthermore, the Official Opposition has concerns that the processes requested by the Chief Electoral Officer and the Commissioner of Canada Elections would, despite their assurances, run afoul of protections under sections 11(c) and 13 of the Canadian Charter of Rights and Freedoms, which protect against self-incrimination and against the use of testimony given in the course of one proceeding to initiate the prosecution of the person who is being compelled to testify. Given Elections Canada’s established ability and willingness to spend millions of dollars on litigation, it could prove financially impossible for individuals to fight for their constitutional rights in a proceeding initiated by the Commissioner of Canada Elections.

The Official Opposition believes the law, as presently written, strikes an appropriate balance between the rights of those involved in electoral law investigations, and the powers of officials conducting those investigations.

Recommendation A34. Authority of Commissioner to lay charges

Provision in the CEA: 511 and 512(1)

The Official Opposition took note that the Chief Electoral Officer, in his report, indicated that “for the vast majority of federal offences, the investigator is the one to lay the charge and the DPP is the one to prosecute.” He added in his Appendix that “normally, charges are laid in advance of the Crown review and are later stayed if the Crown concludes that it is not in the public interest to proceed with a prosecution or that there is no reasonable prospect of conviction.”

The Canada Elections Act is administered in an environment characterized by significant and publicly-scrutinized partisan competition amongst the actors that the Act seeks to regulate. In this context, it is essential that the political actors have full confidence in the impartiality and fairness of the administration and enforcement of the Act. A decision to lay charges against a political actor is one that carries a high likelihood of inflicting significant and irreparable political and personal damage on that actor, and on that actor’s partisan associates.

Laying a charge on a political actor can furthermore have a significant impact on public opinion, especially when done during, or in close proximity to, an election period. A subsequent decision, after an indeterminate period of time, to stay charges, for whatever reason, is likely to have little countervailing impact on the damage the initial charge has had on the political actor in the public’s eye; the most severe damage in the public’s eye—indeed, damage tantamount to a conviction--is done to a political actor upon the laying of the charge, and is unlikely to be undone by a stay of those charges.

In light of the impact that laying charges has on political actors, the Official Opposition believes it is important, for electoral fairness and integrity, that the decision to lay charges under the Act be taken with caution, and with an awareness of the electoral stakes of such a decision. The Official Opposition believes that those tasked with laying charges under the Act therefore should have an independent view of an investigation after it has been completed. Maintaining this independence between investigators and prosecutors is the long-standing practice under the current provisions of the Act, as was indicated to this Committee on April 1, 2014 by former Commissioner of Canada Elections William Corbett. Mr. Corbett offered his opinion, informed by his experience, that

“the less [prosecutors] have to do with the investigators beforehand, the better. If they have been involved with the investigators because they had to make a court application, someone else in the office will make that decision to prosecute.”

The Official Opposition therefore believes it is appropriate that the Act continue to require an independent officer, the Director of Public Prosecutions, to make an independent review of the evidence presented and to be responsible for the determination whether to lay charges under the Act against a political actor.

Recommendation B12. Publishing false statements to affect election results

Provisions in the CEA: 91

The Committee was presented with two divergent recommendations respecting section 91 of the  Canada Elections Act: first, from the Chief Electoral Officer, that section 91 ought to be repealed, and second, from the Commissioner of Canada Elections, that section 91 ought to be either clarified or repealed.

The Official Opposition strenuously disagrees with the suggested amendments to section 91 offered, in response to the request of the Committee, by the Office of the Commissioner of Canada Elections. As the Chief Electoral Officer noted in his report, “serious cases of defamation or libel can be dealt with through alternative civil or criminal legal mechanisms”, and we note that section 92 of the Act continues to prohibit any person from “knowingly publish[ing] a false statement of the withdrawal of a candidate”. The Official Opposition supports the retention of section 92 as it presently stands.

The Official Opposition does not support any expansion of the power to police political speech during an election period, or retrospectively, and especially does not support this power being wielded outside of a court of law. The Official Opposition does not believe it is the place of government or executive branch agents to stand in judgement over the veracity of political speech outside or during an election period, nor for those agents to have the power to lay charges against or punish political speech, apart from speech that is already unlawful under other sections of the Act or under other Canadian statutes.

The Official Opposition agrees with the recommendation of the Chief Electoral Officer that section 91 of the Act should be repealed in its entirety. Furthermore, the Official Opposition would strongly object to section 91 being replaced by any provisions that aim to police political speech that is not already unlawful under other sections of the Act or under other Canadian statutes.

Related to legal proceedings arising from the Act, the Official Opposition believes it is profoundly unjust, and possibly unconstitutional that, under the current provisions of the Act, political entities must fund legal expenses from controlled contributions, whereas the Crown has a practically unlimited ability to fund legal proceedings against political entities. Presently, as the Chief Electoral Officer noted in his report, “legal fees that are incurred as a result of a dispute or a judicial application under the Act... constitute electoral campaign expenses”, and must be paid out of campaign funds using regulated and limited contributions. He continued on to say that this “interaction with contribution limits creates problematic results”, and that this restraint on their ability to “access their right to legal counsel to protect their rights under the Act… in some cases... may not be appropriate”. The Acting Chief Electoral Officer, in his appearance before the Committee on May 16, 2017, confirmed this state of affairs with respect to funding legal fees of political parties.

The Chief Electoral Officer’s report, under recommendation “A37---Greater flexibility for certain categories of candidate expenses”, recommends a change with respect to litigation expenses for candidates that would provide for legal fees that are incurred as a result of a dispute or a judicial application under the Act to “be specifically exempted from the mandatory application of the electoral campaign expenses regime” and that “[c]andidates and contestants should be free to incur legal fees subject to the regulatory regime, or outside of it”.

This Committee, in its twenty-third report, that being its first interim report in response to the Chief Electoral Officer’s recommendations, unanimously agreed with recommendation A37 with respect to litigation expenses for candidates. The Official Opposition believes that a similar provision should be considered for litigation expenses incurred by parties.

Recommendation B15. Oath of assistance

Provisions in the CEA: 155(3)

The Official Opposition opposes the idea of repealing the requirement for a family member or friend to take an oath of assistance while assisting an elector with a disability.

The oath sets out the following: that the assistor will mark the ballot paper as directed by the elector; will keep the elector’s choice of candidate secret; will not try to influence the elector in making that choice; and, if assisting as a friend, has not so assisted another person in the current election.

The Official Opposition feels that this oath is of utmost importance to uphold the integrity of the Canadian voting system, and as such, should be kept in place.

The Official Opposition agrees with the concerns raised by the Committee regarding this recommendation and further believes that the sanctity of every elector’s vote, including those of disabled Canadians who require assistance to cast their ballot, must be paramount. As such, there must be every possible safeguard in place, including this oath, to ensure this sanctity is upheld.

Recommendation B18. Counting of votes from advance polls

Provisions in the CEA: 172(a)(iv) and 289(1)

The CEO recommended that “the Canada Elections Act be amended to specify that ballots cast at advance polls may be counted on election day before the polls close, if Returning Officers obtain the CEO’s prior approval.”

The Committee built on this recommendation by adding stipulations that “ballot counting of advance polls be permitted prior to the close of polls, provided it does not begin earlier than two hours before the polls close and any person present during the counting of ballots be sequestered until the polls close. Further, it was also recommended that election officials who divulge results of advance polls be subject to a penalty equivalent to a contravention of a similar nature.”

The Official Opposition agrees with the Committee’s recommendation, however, also believes that a further stipulation, which was discussed in Committee, should be added. The Official Opposition further recommends that the Returning Officer seek the unanimous consent of all candidates prior to allowing ballot counting of advance polls prior to the close of polls.

Recommendation B27. Foreigners inducing electors to vote or refrain from voting

Provisions in the CEA: 331

In response to a request of the Committee, both the Office of the Chief Electoral Officer and the Office of the Commissioner of Canada Elections provided suggested amendments to section 331 of the Canada Elections Act. The Official Opposition will comment on these submissions separately.

In the suggested amendments to Section 331 of the Act, the Office of the Commissioner of Canada Elections proposed a new subsection 331(2)(b). The Official Opposition sees this particular suggested subsection as of a similar kind to the suggested amendments to section 91 provided by the Office of the Commissioner of Canada Elections under recommendation B12. Therefore the Official Opposition strongly opposes the inclusion of the suggested amendment in the Act.

Respecting the remainder of the suggested amendments to Section 331 of the Act provided by the Office of the Commissioner of Canada Elections, the Official Opposition observes that the suggested provisions would increase transparency with respect to the spending of third parties on election activities, and would reduce the ability of foreign money to play a role in Canadian elections, thereby increasing public trust in our election laws and enforcement abilities. The Official Opposition is supportive of these outcomes.

The Official Opposition welcomes the recommendations of the Chief Electoral Officer, entitled Revamping the Rules governing Third Parties to better address Foreign Influence, that the use of a third party's general revenues for regulated activities be restricted. It further welcomes the support of the Chief Electoral Officer for the recommendations of the June 8, 2017 report, entitled Controlling Foreign Influence in Canadian Elections, from the Senate Standing Committee on Legal and Constitutional Affairs that recommend that “the scope of regulated activities of third parties should be expanded beyond "election advertising" to cover a broader range of promotional activities such as direct voter contact and polling research in support of campaign activities”.

The Official Opposition observes that, on its face, the present circumstance under which “election advertising” is the only category of third party election activity that is regulated is problematic and out of step with the rest of the political activity regulatory regime. The Official Opposition would welcome further study of these recommendations to ensure fair, effective, and transparent regulation and enforcement of third party electoral activities and finances.

Conclusion

We strongly encourage the Government to take into account the thoughts, concerns, and recommendations expressed by the Official Opposition herein.​

Respectfully submitted.