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Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments, with an amendment and observations)

Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments, with an amendment and observations)

Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments, with an amendment and observations)

Hon. Serge Joyal moved the adoption of the report.

He said: Honourable senators, my first words will be to thank wholeheartedly the two deputy chairs of the committee, Senator Dupuis and Senator Boisvenu.

Without the cooperation of the two deputy chairs of the committee, the Standing Senate Committee on Legal and Constitutional Affairs would not have been able to deal with this bill, to give it a deep study without the cooperation of all the senators around the table. I remain grateful to the two deputy chairs for their cooperation.

I remind you that the bill arrived in the Senate on October 31, it was referred to the committee on November 7 and I reported the bill yesterday. In that short period of time, we were able to hear from 14 witnesses, receive four briefs, hear from the Chief Electoral Officer, the commissioner to federal elections and Mr. Scott Jones, the principal director of the Canadian Centre for Cyber Security.

Honourable senators, we report the bill with one technical amendment. Senator Dawson, who is the sponsor of the bill might want to introduce it. It is a corresponding adjustment to an amendment that was previously made by the other place when they considered the bill. I draw your attention, honourable senators, to the observations that we have appended to the report. If you listened to or watched the news last night, you would have been struck by two stories, which, in my opinion, are very serious.

The first one is the situation in which Canada finds itself with the arrest of a higher officer of the Chinese company Huawei, and the possible consequences in terms of cybersecurity following that arrest. As you know, Bill C-76 contains a certain number of provisions to address foreign influence in the electoral process and that situation presently unfolding might have unintended consequences.

I have no privileged information to tell you anything more than what I have heard last night and what I have read in the paper this morning.

The other element, which is of tremendous importance, is the sitting of the British committee of the House of Commons that is looking into Facebook activities. It was revealed that Facebook traded the information that they have with customers and pick and choose. It means the information that is available to Facebook might find itself in the hands of institutions, bodies or countries whereby the electoral process could be challenged. I think it would be very naive on our part not to recognize that. As a matter of fact, the Legal and Constitutional Affairs Committee last year conducted a study and tabled a report. It was tabled in this chamber in June 2017. The report was entitled and I read and refer it to you, honourable senators, because I think it is a very contemporary subject. The report was entitled Controlling Foreign Influence in Canadian Elections.

Bill C-76 gives effect to some of the recommendations of that report of the Legal and Constitutional Affairs Committee but not all of them. Bill C-76 also recognized around 80 per cent of the recommendations brought forward by the Chief Electoral Officer.

Bill C-76 is an answer from the other place to some of these preoccupations that we outlined in our report of June 2017. It’s an ongoing subject. One of the recommendations of our report is to make sure that in the months ahead, and in the year ahead, the committee remains seized on this issue so we could report to the chamber of the initiatives that should be taken by the Senate and by the government to give effect to a better protection of the integrity of the electoral system.

Honourable senators, something which has always been in the back of my mind, since I sit in this chamber: There is always the perception in Canadian public opinion that, being not elected, senators should not bother with the electoral process and that they are disenfranchised to take part in a debate about the electoral process. I humbly defer from that opinion because the right to vote is a Charter right. It’s section 3 of the Charter, and that section has been interpreted by the highest court on very significant aspects of the exercise of rights.

For instance, the delineation of borders or limits of electoral districts have been the subject of a very important decision by the Supreme Court in relation to section 3 of the Charter. The Supreme Court has also interpreted the rights of third parties to be involved in the election. There is a famous case — I’m looking at my friend Senator Tkachuk — involving former Prime Minister Stephen Harper when he was a member of the National Citizens Coalition. It was a landmark decision in relation to the exercise of the right to vote. With this being a Charter right, we are absolutely founded to look into the electoral system and make sure the exercise of the right to vote is protected by the electoral system, by the electoral act and by all the other acts that have an impact on the integrity of the electoral system.

The committee is very concerned with that. I hope that in the months ahead, honourable senators, depending on what we hear on this unfolding issue, will we want to remain very committed to taking all the initiatives needed to maintain the integrity of the electoral system.

Bill C-76 proposes very welcome initiatives to try to tighten the system. However, there are aspects of it that I have mentioned in the previous weeks, and I want to read a quote on a subject that you might want to think about. It is a section of our observations, which is a totally satisfactory answer in our opinion. I will read it:

[d]espite the challenges in countering foreign interference, Canada’s electoral laws must include strong prohibitions and sufficient penal consequences to deter and denounce any violations. Amendments could be considered that would allow for the seizure and forfeiture of assets of foreign entities that attempt to interfere in our elections.

We heard from a witness who I’m proud to identify as David Frum. We heard how important it is for Canada to tighten its legislative arsenal to address foreign influence because our capacity, as diplomatic resources are involved, are limited; hence, the importance of strengthening our legislative arsenal. That is what this recommendation deals with and addresses. I wanted to share it with you, honourable senators, because depending on how the situation evolves, we might have to revisit this question.

I want to also mention other new elements in the bill, especially involving Internet platforms. We heard from Google and Twitter. Facebook didn’t want to appear. They sent a brief but declined the invitation to appear. I think the CEO of Facebook might have had a bad experience south of the border. He refused to appear in Britain at the House of Commons committee that is studying the activities of Facebook following the Cambridge Analytica situation. However, I think this bill offers approaches that would be essential to prevent the use of Facebook by buying advertisements during the election which would be contrary to the electoral law and, of course, the hacking of the electoral system that would remain one of the key preoccupations following the situation I described in my opening remarks.

In the report, there are also important recommendations for the committee to continue its study of gender parity in the electoral process. This issue was raised with the Chief Electoral Officer in Committee of the Whole. There is also the issue of the control of private information retained by political parties. The bill recognized that political parties should have a policy to govern their use of private data from Canadian voters, but the bill doesn’t go further than that. It’s merely a recognition that there should be policy, but there is no oversight of that policy proposed in the bill. As the Minister of Democratic Institutions has mentioned, there is an ongoing conversation on that issue, and I think we should be part of that conversation.

At the very moment we were studying Bill C-76, the Legal and Constitutional Affairs Committee was studying Bill C-58, the Access to Information Act, in terms of private information or private data retained by political parties and whether the act should be adapted to the context of today’s needs to have a much tighter system of oversight on how that data is used, with whom it is exchanged and how it could be manipulated during the election.

Honourable senators, those issues are very sensitive and this bill is a good step, but it’s not the last step. Some aspects of the bill — and I say this only for myself, as a senator — could go further. However, at this stage, it is what I think we could do to help, to protect the integrity of the system, to maintain the right to vote for Canadians and the trust they have in the electoral system.

There has also been an issue very dear to some senators, Senator Frum and Senator Batters, in particular. It is the issue of extending the right to vote for Canadians who live abroad. As you know, this issue is presently in front of the Supreme Court. The court has heard the parties. A decision might be expected some time down the road, in the forthcoming year. It might be before the election and may, in a way, confirm or change the provisions in the bill, but this issue remains pending. I’m sure that honourable senators will want to address that. We recognize that.

To conclude, as you will understand, we were given a short deadline. The committee sat extended hours with the cooperative will of all members. We would have liked to have more time to go through the issues I outlined. But on the whole, I invite honourable senators to support the report and the observations because I think it’s a step forward, but we need to remain very vigilant in relation to those issues.

I have raised it here in this chamber on some occasions, and I think this is the major challenge that the Canadian electoral system is facing, considering the international situation that is unfolding. We do our job if we remain alert on the initiatives we can take, on the Legal and Constitutional Affairs Committee, to review these issues. It is in that context I ask you to support the twenty-ninth report of the Standing Senate Committee on Legal and Constitutional Affairs.

Hon. Yuen Pau Woo: Senator Joyal, would you take a question?

Senator Joyal: With pleasure.

Senator Woo: I wonder if you might provide clarification to this chamber and Canadians who paid attention to your statement that the detention of Ms. Meng on December 1 has nothing to do with interference in electoral systems in Canada, and really has to do with a request on the part of the Americans concerning the alleged breaking of sanctions on Iran.

I ask for this clarification only because at a time of fraught diplomatic relations, I feel it’s important to be as clear as possible about the facts of the matter and not to inflame issues with information that may be inaccurate or to make suggestions that are unfounded.

Senator Joyal: Thank you, honourable senators, for giving me —

The Hon. the Speaker: Senator Joyal, I apologize, but your time has expired. Are you asking for five more minutes?

Senator Joyal: Yes, I am asking for five more minutes.

The Hon. the Speaker: Is leave granted?

Hon. Senators: Agreed.

Senator Joyal: Thank you for the question.

I want to be very clear: There is no allegation of any sort that the reason the high-ranking officer of Huawei has been detained on request of extradition is linked whatsoever, directly or indirectly, to the integrity of the electoral system.

However, when we heard from the principal director of the Canadian centre on security and intelligence, we were told that the two countries that have records in relation to foreign intervention are Russia and China. We can’t ignore what we heard at committee.

As I say, there are ongoing diplomatic discussions and negotiations, and we don’t know how this will resolve. I hope it will be resolved to the satisfaction of the three countries involved, and Canada is squeezed in the middle.

We have nothing directly against Huawei. In fact, Huawei is active in Canada. It has a partnership with L’École Polytechnique in Montreal and with other universities in Canada. So far, Huawei has been an honest corporate citizen vis-à-vis Canada. I want to be very clear on that.

On the other hand, we have to take into account the need to maintain a firewall around the electoral system in Canada. The integrity of the system is of paramount importance in maintaining democratic elections in Canada.

It is within this context of tension — due to another, totally unrelated, issue, I insist — that we see the situation evolving, and that is why we remain concerned.

We heard about elements from the past, namely, that Russia created 50,000 sites before the American election, and that there was foreign influence in the Brexit referendum. We heard that the next European election, which will take place next spring, is also the object of higher surveillance.

Honourable senators will understand that, as concerned Canadians, we must remain vigilant to ensure that our system remains as invulnerable as possible, even though we can never be assured 100 per cent that the system is fireproof.

We have been told that by the director for the Canadian Centre for CyberSecurity and by the Minister of Democratic Institutions, and we recognize that. Nevertheless, we have the responsibility to take every initiative possible. It has been suggested to us that we take a legislative initiative and that that is our best and most effective arsenal.

I am sharing this with honourable senators this morning, and I wish to be very clear. Thank you for giving me the opportunity to answer your question.