Study of Bill C-30 - May 12, 2021

Opening remarks

President of the Queen’s Privy Council for Canada and Minister of Intergovernmental Affairs

Appearance on Part 4, Division 37 of Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures

Standing Senate Committee on Legal and Constitutional Affairs

May 12, 2021

Check against delivery

Thank you, Madame Chair.

Honourable Senators, I am pleased to appear before this Committee to discuss Part 4, Division 37 of Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures.

I am joined today by officials from the Privy Council Office; Allen Sutherland, Assistant Secretary to the Cabinet, Machinery of Government and Democratic Institutions, and; Manon Paquet, Director, Special Projects in the Democratic Institutions Secretariat.

This particular portion of Bill C-30 proposes amendments to the Canada Elections Act (CEA) to clarify that the provision that prohibits false statements about certain political actors requires knowledge that the statement is false.

This provision prohibits making or publishing false statements about certain political actors to affect the results of elections. This includes, among others, claims that such actors have committed a crime, or claims about their citizenship, place of birth or education.

As many of you know, on February 19, 2021, the Ontario Superior Court of Justice ruled that this section of the CEA is unconstitutional and of no effect in Ontario. The Court determined that while the provision does require proof of an intention to affect election results, it does not clearly require knowledge that the statement itself is false.

Our Government did not appeal the Court decision because we believe a targeted amendment that directly responds to the Court’s concerns is necessary.

The proposed amendment would address the Court decision by explicitly requiring that an individual or entity making or publishing the false statement knows it to be false.

It would do so by adding the word “knowingly” to the two offence provisions associated with section 91.

It is important to note that, in its decision, the Court recognized the importance of addressing the growing threat of disinformation. 

Federal elections are an important opportunity for all Canadians to be heard, and to express their opinions by casting a ballot. At the same time, the participation of electors and others—including registered third parties, for example—comes with clear rules and responsibilities.

These include spending limits and prohibitions on the use of foreign funds by third parties. 

With this amendment, these rules extend to protecting against deliberately false information intended to affect election results, which can have a devastating impact on trust in our democratic institutions.

In particular, it would guard against those individuals and entities that spread blatant falsehoods about political actors to affect election results, which often have a disproportionately negative impact on women, racialized individuals, Indigenous Peoples, among other traditionally underrepresented groups.

Moreover, the Commissioner of Canada Elections, the independent officer responsible for compliance and enforcement of the CEA, revealed in his 2018-19 Annual Report that a number of complaints received during the 43rd general election were related to the false statement provision.

This demonstrates that Canadian electors and candidates, among others, are deeply concerned about this issue.

Colleagues, this amendment is also important because of the role this provision plays in guarding against blatant falsehoods, and in our broader efforts to address disinformation.

As such, I will conclude my remarks by highlighting some of the other important work the Government of Canada is conducting to address the growing and evolving threat of disinformation.

The Department of Canadian Heritage’s investments in the Digital Citizen Initiative aim to strengthen citizen resilience in recognition that Canadians are the best line of defence in our collective efforts to fight disinformation.

Additionally, we recently published Multi-Stakeholder Insights: A Compendium on Countering Election Interference, which represents the culmination of the Government of Canada’s co-leadership—alongside Microsoft and the Alliance for Securing Democracy—in Principle 3 of the Paris Call for Trust and Security in Cyberspace.

The Compendium was developed following a series of six workshops that were delivered in collaboration with international partners and experts from government, industry and civil society, and which aimed to share key observations and further global understanding of ways to counter cyber-based election interference.

These partnerships and initiatives, taken together with the proposed amendments to the CEA and the CEA writ large, help Canada stay at the forefront of new developments in understanding and responding to an evolving threat environment.

Once again, thank you for the opportunity to appear today and I look forward to answering any questions.

Thank you, Madame Chair.

Part 4, Division 37 of Bill C-30, an Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures

Court decision summary

Key messages

Questions and answers

1. Why is this legislative amendment being proposed?

It is being proposed in response to a February 2021 decision of the Ontario Superior Court of Justice (the Court), which ruled subsection 91(1) of the Canada Elections Act (CEA) unconstitutional and of no effect in Ontario. The Court ruled that the provision, which prohibited false statements about political actors to affect election results, did not require that the individual or entity know that the statement in question was false.

There is an urgent need to reestablish this provision, and align it with the Court’s concerns, to ensure it can be in place in the event of a general or by-election. Since the Court’s decision applies exclusively to Ontario, there is now an apparent gap in how this provision would apply in other parts of the country.

The proposed amendment would guard against those that seek to spread deliberately false statements about certain political actors to affect the results of elections.

2. Doesn’t the proposed change represent a return to the provision that existed prior to Bill C-76?

The proposed amendment would signal a return to the explicit knowledge requirement that existed prior to the passage of Bill C-76, the Elections Modernization Act. When the provision was amended through Bill C-76, the word “knowledge” was removed on the basis that the knowledge requirement was implicit in the offence provision. Since the Court disagreed with that interpretation, we are therefore proposing this amendment to clarify that an individual or entity making or publishing the false statement must know it to be false.

3. When would this amendment come into effect?

If passed, the proposed legislative amendment would come into effect upon Royal Assent. This would ensure that this CEA provision, which explicitly seeks to address online disinformation, is in place in the event of a general or by-election.

4. Would this change ensure that the provision is constitutional?

The proposed legislative amendment would address the Court’s concerns by explicitly requiring that an individual or entity making or publishing the false statement knows it to be false. Specifically, it would do so by adding the word “knowingly” to each of the offence provisions associated with subsection 91(1).

It should be noted that, while the Court determined that this provision was unconstitutional, it also acknowledged the importance of addressing disinformation. 

5. Why is this measure included in the Budget?

This measure is being included in the Budget because there is an urgent need to ensure that this provision is in effect, should a general or by-election be called.

As with all of the legislation that is tabled, we are being transparent to all parliamentarians, and we welcome and encourage a rigorous debate on this, among other, important measures included in the Budget.

6. Why did the Government not include this amendment in Bill C-19?

The Government did not include this amendment in Bill C-19, An Act to amend the Canada Elections Act (COVID-19 response), because unlike Bill C-19, it is not specific to the COVID-19 pandemic, nor would it be temporary. 

If adopted, the proposed amendment in Bill C-30 would come into effect immediately following Royal Assent, and would apply to any subsequent general or by-election. 

On the other hand, Bill C-19 proposes temporary legislative measures to ensure that an election during the pandemic, if required, is safe, accessible and secure for electors and election workers. These temporary measures would cease to be in effect six (6) months—if not earlier—after the Chief Electoral Officer publishes a notice in the Canada Gazette stating they are no longer needed in the context of the COVID-19 pandemic.

7. What are some other measures that the Government is pursuing related to disinformation?

The proposed amendment is not the only way that the Government is combatting disinformation. For example, in support of increased transparency in online advertising, the CEA requires that digital platforms maintain a registry of partisan and election advertising published on their platforms during the pre-election and election periods.

In addition, the Government has undertaken a variety of efforts to address actors that manipulate opinion and undermine trust in our institutions, including the Digital Citizen Initiative and our co-leadership in the Paris Call for Trust and Security in Cyberspace. 

Taken together, these initiatives and partnerships help Canada stay at the forefront of new developments in understanding, and effectively responding to, the evolving threat environment.

8. What kinds of projects have been funded through the Digital Citizen Initiative?

The Digital Citizen Initiative (DCI) is a multi-component strategy that aims to support democracy and social cohesion in Canada by building citizen resilience against online disinformation and building partnerships to support a healthy information ecosystem. The DCI supports citizen-focused activities, including digital, news and civic literacy programming and tools. The activities engage a broad range of Canadian audiences on a national and local scale, including youth and adults, minority communities, and Indigenous communities.

In advance of the 2019 election, the DCI contributed $7 million to more than 20 projects delivered by Canadian civil society stakeholders that encouraged critical thinking about online disinformation and involvement in the democratic process. These projects reached more than 12 million Canadians.

Through Budget 2019, an additional $19.4 million in funding was provided to the DCI to continue its activities through a dedicated contribution program. Further, this fiscal year, $4.3 million was dedicated specifically to counter COVID-19 disinformation, misleading information, and associated racism and stigmatization.

Clause-by-clause analysis

Clause 362 (1) – Canada Elections Act, amendments to the Act

Proposed

362 (1) Paragraph 486(3)(c) of the Canada Elections Act is replaced by the following:

Comments

Paragraph 486(3)(c) is the associated offence provision of subsection 91(1) for a person making or publishing a false statement to affect the election results. Clause 362 (1) adds the word “knowingly” to paragraph 486(3)(c) of the Act to clarify that a person making or publishing the statement must know that the statement in question is false.

Clause 362 (2)

Proposed

(2) Paragraph 486(4)(a) of the Act is replaced by the following:

Comments

Paragraph 486(4)(a) is the associated offence provision of subsection 91(1) for an entity making or publishing a false statement to affect the election results. Clause 362 (2) adds the word “knowingly” to paragraph 486(3)(c) of the Act to clarify that an entity making or publishing the statement must know that the statement in question is false.

Clause 363 – application of amendments

Proposed

Election within six months

363 Despite subsection 554(1) of the Canada Elections Act, the amendments to that Act made by section 362 apply in an election for which the writ is issued within six months after the day on which this Act receives royal assent.

Comments

Subsection 554(1) of the Canada Elections Act reads as follows:

Clause 363 prevents subsection 554(1) from having effect with respect to the amendments made to the Canada Elections Act by clause 362.

If a general election or by-election is called on a date included in the period starting the day of Royal Assent and ending six months after that date, the amendments—which will be in force on that date—made to the Canada Elections Act by clause 362 will apply to that election, without the need for the Chief Elections Officer to publish in the Canada Gazette the notice referred to in subsection 554(1) of the Canada Elections Act.

Committee membership

Chair: Senator Mobina S.B. Jaffer

Headshot of Senator Mobina S.B. Jaffer
 
  • Province: British Columbia (British Columbia)
  • Affiliation: Independent Senators Group
  • Biography

Deputy Chair: Senator Denise Batters

Headshot of  Senator Denise Batters
 
  • Province: Saskatchewan (Saskatchewan)
  • Affiliation: Conservative Party of Canada
  • Biography
  • [ * ]
  • [ * ]

Deputy Chair: Senator Larry W. Campbell

Headshot of  Senator Larry W. Campbell
 
  • Province: British Columbia (British Columbia)
  • Affiliation: Canadian Senators Group
  • Biography

Senator Pierre-Hugues Boisvenu

Headshot of Senator Pierre-Hughes Boisvenu
 
  • Province: Quebec (La Salle)
  • Affiliation: Conservative Party of Canada
  • Biography
  • [ * ]
  • [ * ]

Senator Gwen Boniface

Headshot of Senator Gwen Boniface
 
  • Province: Ontario (Ontario)
  • Affiliation: Independent Senators Group
  • Biography

Senator Yvonne Boyer

Headshot of Senator Yvonne Boyer
 
  • Province: Ontario (Ontario)
  • Affiliation: Independent Senators Group
  • Biography

Senator Claude Carignan, P.C.

Headshot of Senator Claude Carignan
 
  • Province: Quebec (Mille Isles)
  • Affiliation: Conservative Party of Canada
  • Biography
  • [ * ]
  • [ * ]

Senator Brent Cotter

Headshot of Senator Brent Cotter
 
  • Province: Saskatchewan (Saskatchewan)
  • Affiliation: Independent Senators Group
  • Biography

Senator Pierre J. Dalphond

Headshot of Senator Pierre J. Dalphond
 
  • Province: Quebec (De Lorimier)
  • Affiliation: Progressive Senate Group
  • Biography

Senator Renée Dupuis

Headshot of Senator Renée Dupuis
 
  • Province: Quebec (The Laurentides)
  • Affiliation: Independent Senators Group
  • Biography
  • [ * ]

Senator Judith Keating

Headshot of Senator Judith Keating
 
  • Province: New Brunswick (New Brunswick)
  • Affiliation: Independent Senators Group
  • Biography

Senator Scott Tannas

Headshot of Senator Scott Tannas
 
  • Province: Alberta (Alberta)
  • Affiliation: Canadian Senators Group
  • Biography

Background information: Bill C-19, an Act to amend the Canada Elections Act (Covid-19 response)

Context

On October 5, the Chief Electoral Officer (CEO) submitted a special report to Parliament on the administration of a federal election during the COVID-19 pandemic. In this report, the CEO recommended the study and adoption of a new statute that would temporarily modify certain provisions in the Canada Elections Act (the CEA).

Pursuant to its mandate, the Standing Committee on Procedure and House Affairs (PROC) began a study on the challenges posed to the normal conduct of elections by the pandemic to identify measures to adapt the conduct of general elections to ensure the safety of voters and election workers. This work resulted in an interim report released on December 11, 2020, and a final report released on February 26, 2021, both of which presented recommendations for the government to consider.

Bill C-19 builds on both the CEO’s report and PROC’s study, and proposes measures to provide more flexibility to Elections Canada for the safe administration of an election during the pandemic. Temporary changes to the CEA are proposed to ensure the safety of electors and election workers, maximize opportunities for electors to exercise their franchise, and maintain the overall integrity of the electoral process. The proposed amendments follow.

Three-day polling period

A three-day polling period would facilitate physical distancing at polling locations. Voting hours would consist of eight hours on Saturday, eight hours on Sunday, and the traditional 12 hours on Monday. Advance polling would be moved to the Thursday through Sunday (with 12 voting hours maintained on each day) inclusively, to allow for a similar amount of time between advance polls and the proposed polling period.

A safe vote in long-term care facilities

Residents in long-term care facilities have been negatively impacted by the ongoing pandemic. As such, Bill C-19 proposes, among other things, a 13-day period before the start of the proposed polling period to allow Elections Canada to work with long-term care facilities to support a safe vote for electors and election workers.

Increased flexibility for Chief Electoral Officer

Flexibility to adapt the Act is required to respond to the ongoing uncertainty surrounding the pandemic. Accordingly, the bill seeks to increase powers for the CEO to adapt the CEA for the purposes of ensuring the health and safety of electors and election workers.

Mail-in ballots

Elections Canada is expecting a significant increase in mail-in-ballots, as an estimated 5 million electors are expected to vote by mail during the 44th general election, compared to 50,000 in 2019. To facilitate access to mail-in voting, the bill proposes the following:

Timing considerations

If adopted, the long-term care facilities measures and the adaptation power authorities would come into force on Royal Assent. The other measures, such as the three-day polling period, would come into force 90 days after Royal Assent, or earlier, should the CEO indicate that all the preparations have been made.

These legislative measures would cease to be in effect six (6) months—or at an earlier date determined by the Chief Electoral Officer (CEO)—after a notice by the CEO is published in the Canada Gazette that indicates the measures are no longer necessary in the context of the COVID-19 pandemic. This notice would only be issued following consultation with the Chief Public Health Officer.

Bill C-19 questions and answers

General

Q1. Why now? Does it mean that the Government intends on calling a general election soon?

The timing of the next general election remains unknown. We are proposing these temporary legislative measures now to ensure that, should a general election be required during the pandemic, it will be as safe, secure and as accessible as possible.

Q2. Why were two federal by-elections held without legislative changes?

Elections Canada successfully conducted the October 26 by-elections in challenging conditions. That said, there is a significant difference between delivering two by-elections versus 338 simultaneously. For instance, during a given by-election, Elections Canada Headquarters could offer increased support and the returning officer could draw on resources from neighbouring electoral districts in a way that is not necessarily possible during a general election.

The measures being proposed in Bill C-19 are necessary to support a safe vote for electors by, among other things, maximizing opportunities to vote.

Q3. Are these permanent legislative changes?

No. If passed, these legislative measures would only be temporary. These special legislative measures would cease to be in effect six (6) months—or at an earlier date determined by the Chief Electoral Officer (CEO)—after a notice by the CEO is published in the Canada Gazette that indicates the measures are no longer necessary in the context of the COVID-19 pandemic. This notice would only be issued following consultation with the Chief Public Health Officer.

Q4. Why doesn’t Bill C-19 simply implement changes exactly as recommended by the CEO?

In putting forward Bill C-19, the Government closely considered both the report of the CEO, alongside this Committee’s ongoing and timely study. If passed, Bill C-19 would build off both of these important contributions, including by providing unprecedented opportunities to vote, and by shoring up a mail-in vote system that is expected to see a surge in use within the context of a pandemic election.

Q5. How will the measures reflect public health advice – especially if health care is under PT jurisdiction?

As Elections Canada did during the October 2020 by-elections, we expect that it will engage closely with PT and local health officials should it be required to administer an election during the pandemic. The bill only requires the CEO to consult with the Chief Public Health Officer but does not limit his ability to consult with others.

At the same time, I should stress that, in the context of a general election, there is a need for Elections Canada to be able to apply consistent rules and guidelines across all 13 provinces and territories in Canada. In the event there is a need to adapt to particular circumstances in one local geographic area, we are confident in the CEO’s ability to use existing legislative authorities—together with the new ones being proposed here—to react in support of safe election for all.

Q6. How much would implementing Bill C-19 cost?

As indicated in Budget 2021, it is estimated that these measures would cost $110 million. This estimate was developed by extrapolating from available information, including the costs of past general elections. At the same time, the CEO may be in a better position to give more precise details on the overall cost of Bill C-19’s measures during a general election.

A three-day polling period

Q7. Why does Bill C-19 propose a three-day polling period?

Bill C-19 would temporarily add two more polling days, with eight voting hours on both the Saturday and Sunday, and 12 voting hours on the Monday. This period would maximize opportunities for Canadians to exercise their democratic right in person, and spread those electors out.

Maintaining the Monday polling day as the last day of the three-day period also recognizes that some electors and candidates—including those that may be religiously observant—may not be able to vote, or encourage others to do so, over a weekend.

Q8. Can Elections Canada administer a three-day polling period?

A three-day polling period will increase the organizational complexity of an administering an election, particularly in terms of recruiting a sufficient number of poll workers and identifying polling places. At the same time, the CEO has legislative flexibilities that can help mitigate these risks, including the ability to merge polling divisions or to limit the number of election workers at polling tables to one person.

Voting in long-term care facilities

Q9. How will Bill C-19 support electors residing in LTC facilities?

Bill C-19 proposes providing Elections Canada, the Chief Electoral Officer, and election workers, with the flexibility they need to safely deliver the vote to electors residing in long-term care facilities.

Specifically, it will provide for a 13-day period during which election workers can safely deliver the vote to residents of these facilities. This will provide election staff with enough time to engage with facilities to determine specific dates during which the vote can be safely delivered, and to deliver the vote.

This does not mean residents will vote for 13 straight days, only that this will be the period during which it could be offered. The maximum number of voting hours would be capped at 28 – the same number offered during the proposed three-day polling period.

Bill C-19 will also allow election workers to create polling stations on specific floors or areas of a facility, in recognition of “hot-spot” or quarantined areas that have been established across many of these facilities.

Increased adaptation powers for the CEO

Q10. Why are you seeking increased adaptation powers for the CEO?

While the CEO has the legislative authority to adapt the Canada Elections Act, he can presently only do so to enable electors to vote, or to enable the counting of votes. Bill C-19 explicitly lays out pandemic-specific purposes that may be invoked in adapting legislation, including in support of the health and safety of electors, and election workers.

Q11. Can you provide examples of circumstances that would require the CEO to use these new authorities?

It is somewhat difficult to predict which specific event or circumstances could trigger the need for the CEO to adapt legislation during the pandemic. However, it is reasonable to assume these could relate to facilitating public health measures or responding to an expected increase in mail-in voting.

Mail-in vote measures

Q12. Why does Bill C-19 include new mail-in vote measures?

These new mail-in vote measures are designed to strengthen a mail-in vote system that is expected to see a significant surge in electors opting to vote in this manner. The overall goal is to facilitate the use of this voting method for Canadians.

Q13. Can you describe these legislative measures?

If passed, Bill C-19 will:

Q14. Will the expected increase in mail-in ballots lead to a delay in election results?

Elections Canada estimates that up to five million electors may choose to vote by mail during the pandemic, a significant increase from an estimated 50,000 electors residing in Canada and abroad that did so in 2019.

The Canada Elections Act allows for the counting of mail-in ballots received at Elections Canada’s headquarters to begin five days before polling day, or at any other time determined by the CEO. During the 2019 general election, this count began two weeks ahead of polling day. As for ballots received at the offices of Returning Officers, the verification of outer envelopes can begin before polling day at any time set by the CEO.

As the CEO stated when he first appeared here to discuss his recommendations, it is unlikely that the counting of votes will exceed one or two days.

Q15. Does the use of ID numbers mean that electors voting by mail would face fewer identification requirements than those who voting in person?

The measure aims to make it simpler for electors—particularly those that are most at risk of contracting the virus and unlikely to vote in person—to register to vote by mail. It will remain a secure way of voting since the information provided will need to match the information held by Elections Canada.

Only those electors already on the list of electors and for whom Elections Canada hold relevant data (e.g., driver’s license number) will be able to register this way.

Q16. If electors can vote in person even after registering to vote by mail, is there a risk that electors could vote twice?

There are consequences for trying to vote twice. In addition, electors will have to either surrender their special ballot voting kit in person, or attest in writing that they have not previously voted. This serves as a sufficient deterrent to maintain the integrity of the vote.

Furthermore, these measures will allow for a paper trail to be created for monitoring and auditing purposes.

Q17. Do any of these proposed measures—in particular, mail-in voting measures—increase the risk of fraud?

Canada’s federal voting system is strong and includes measures designed to safeguard its integrity. Elections Canada has significant experience administering its vote by mail system, and it already includes strong integrity measures and safeguards. Elections Canada has been administering the vote by mail system for many years and there is no evidence to suggest that it was used for widespread voter fraud.

Q18. Where will special ballots (mail-in) that are cast in local electoral districts be counted under Bill C-19?

All mail-in ballots cast in local electoral districts will continue to be counted in local returning officers. We regret a drafting error in Bill C-19 made the meaning of this particular provision unclear to parliamentarians and Canadians. We will therefore seek to address this when it comes time to bring forward amendments to the bill.

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