Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 54 - Evidence - November 29, 2018
OTTAWA, Thursday, November 29, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments, met this day at 10:37 a.m. to continue its study of the bill; and in camera, to consider draft reports.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Good morning, honourable senators. I want to welcome our distinguished guests this morning and members of the general public who are following the proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, which is continuing its study of Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments.
[English]
It is my real pleasure this morning to welcome Mr. David Frum. Mr. Frum doesn’t need a long introduction. I will not ask Senator Frum to introduce him.
Senator Frum: I could.
The Chair: We have the opportunity, of course, to benefit from the reflection of Mr. Frum in The Atlantic.
We want to assure you that your thinking and reflection are helpful to support public debate, not only in the United States, but, of course, in Canada also. Thank you for making yourself available this morning, Mr. Frum.
[Translation]
We’re also pleased to be joined by Rafael Jacob, Postdoctoral Researcher at the Raoul Dandurand Chair of Strategic and Diplomatic Studies. This chair is well known, since its members regularly participate in various public debates and share their opinions and research results. It’s a pleasure to welcome you, Mr. Jacob.
[English]
You know the procedure. I will invite you to make opening statements.
[Translation]
You will then, of course, have the opportunity to speak with the honourable senators.
[English]
David Frum, Staff Writer, The Atlantic, as an individual: Thank you, Mr. Chair, and thank you to all the senators. Thank you especially for agreeing to waive your anti-nepotism rules to allow me to participate today. It is much appreciated.
I have a very short opening statement, just a couple of pages, as a way to get the conversation going.
I speak today as a person who would apparently be enfranchised by the bill under consideration; a person born Canadian who has made his principal residence in the United States since 1996. But I also speak today as a journalist who has devoted much of my recent professional life to studying the threats to democratic citizens, including from hostile, foreign interventions.
In the first capacity, I should be very grateful for the enfranchisement offered by Bill C-76, but in the second, I must tell you that the proposal worries me. The proposal to enfranchise long-term expatriates from Canada arises, as you well know, from a lawsuit brought by some long-term Canadian residents of the United States who never naturalized in the United States, and who still feel closely, emotionally connected to Canada. Unsurprisingly, those who brought this lawsuit envision their fellow expatriates as all being very similar to themselves. That’s just the way our minds work.
But as you study this bill, I would invite you to consider some other realities. Suppose instead of the free and democratic United States an expatriate like me lived in another country. A country that was not a democracy and not free, that surveilled and policed every aspect of my behaviour according to a system of social credit, as it calls it. A country that noticed when I received a ballot to vote in an external country’s election and that possessed both the technology and the will to inspect how I cast that ballot. A country that did not believe in free elections or privacy rights. A country in which the state could and regularly did determine the success or failure of my business and professional life or my ability to borrow money, rent an apartment or even buy an airline ticket varied or could be denied altogether according to political reliability. A state that regarded anyone resident under its jurisdiction or born under its jurisdiction as forever and exclusively subjected to that state whatever other passport they might carry. A state with a strong national interest in shaping the politics and governance of other countries, Canada very much among them. A state with the military and economic power to ignore protests and remonstrances from the Government of Canada — indeed, to frighten the Government of Canada into considering very carefully whether it dared issue such protests and remonstrances.
Suppose I lived in that country? What would it mean to enfranchise me then? You might as well send the ballot direct to my home government and invite them to check the box for me.
I recognize that laws can be interpreted and modified by regulations, but I also know enough about politics to recognize that once you make voters of long-term expatriates, you will create tremendous disincentives to inquire overcarefully how this new right is used. That will be especially true if the inquiry could potentially offend a powerful foreign country with a strong grip on Canada’s economic and financial future.
So I beseech you: Consider carefully what you are doing here. Canadians live in a uniquely benign political and strategic environment, but the world of democracy is taking a darker turn. Realism about that world’s dangers is indispensable to protecting Canadian rights and freedoms including, above all, the right to vote in honest and unmanipulated elections to choose your own governments for yourselves.
The Chair: Thank you, Mr. Frum.
Mr. Jacob?
Rafael Jacob, Postdoctoral Researcher, Raoul Dandurand Chair of Strategic and Diplomatic Studies, as an individual: I wish to thank you for the invitation to appear before you. It’s an honour to appear alongside Mr. Frum. I also want to state my apologies for being a little late — I thought construction and parking were bad in Montreal.
On that note, I am not here as someone who will speak either in favour or in opposition to Bill C-76. Second, I am here first and foremost to give testimony in terms of the American experience. That’s my field of expertise. When it comes to electoral rules, reform and, in some cases, problems that have arisen, especially pertaining to influence from either third parties or foreign governments, from the U.S. experience and what can be learned in Canada from that experience, that’s the reason I’m here this morning.
The Chair: Mr. Jacob, do you want to elaborate for two more minutes on the subject you just raised? Honourable senators are very keen and interested about that. Canadians are very concerned about having a system that would remain honest and unmanipulated, to quote Mr. Frum.
Would you expand a little more on that issue of foreign intervention in the electoral process?
Mr. Jacob: If I’m going to expand on that, I will probably ask for two hours and not two minutes. It could be looked at from a plethora of different perspectives.
When we talk about the U.S. experience — and I think Russia is the word that’s on the tip of everyone’s tongue — it should be noted that the issue is not one limited to the 2016 presidential election. Obviously, much of the media conference on what happened in the U.S. pertains to what happened in 2016. The reality is that we saw repeated attempts to intervene in U.S. elections in 2018 as well. It should also be noted that while Russia is probably the main actor in that theatre, it is not the only one. Over the last few months, we’ve seen several calls in the U.S. Congress to investigate possible Chinese intervention or attempts at intervention in U.S. elections.
You used the term “manipulated.” When you talk about attempting to manipulate elections, there is more than one way. One way is to do what the Russians tried and apparently were largely successful in doing in 2016 in the United States, which was to have a presence on social media that looked like it was an American presence when in fact it wasn’t. That is one way of trying to manipulate the vote.
The other, which is much more straightforward and thankfully has not shown real signs of having been successful yet, is literally hacking voting systems. The threat as we understand it now is twofold mainly. Again, I think it would be naive to say it’s only Russia. It would be especially naive to think that Russia is only interested in intervening in the United States. As a matter of fact, it’s not a hypothesis but is pretty much a demonstrated fact by intelligence agencies around the world that Russia has tried to intervene in other elections, including referenda as well. I have in mind the Scottish referendum a few years ago on independence. All of that is to say that I think there is much to be learned.
You gave me two minutes. I might have gone a little over the limit, so my apologies.
The Chair: I now have the privilege to invite Senator Frum to ask the first question this morning. Of course, she takes over the role of Senator Boisvenu, the deputy chair of the committee, as critic of the bill.
Senator Frum: We are all delighted to see you here this morning. Welcome to you both.
Mr. Frum, you made reference to the Frank case in your testimony. The Frank case was the Charter challenge that questioned the current law restricting expatriate voting to those who have been abroad for five years or less and express an intent to return. The case was before the Supreme Court, but it was the Ontario Court of Appeal that, in a majority decision, found that Mr. Frank’s Charter challenge was unfounded. One of the reasons they cited was:
The limitation is rationally connected to the government’s pressing and substantial objective of preserving Canada’s “social contract” (whereby resident citizens submit to laws passed by elected representatives because they had a voice in making such laws) . . . .
Bill C-76 will upend that social contract. Can you expand on your thoughts on that?
Mr. Frum: Thank you, senator. Let me note a couple of things I see in the language of the bill. I don’t see any language in the bill that restricts these voting rights to Canadians who have omitted to naturalize in their new place of residence. I naturalized in the United States. Apparently, I would be eligible to vote in both countries.
I don’t know what happens with unfettered voting. I grew up in the province of Ontario and I wonder whether, as a naturalized U.S. citizen resident in the District of Columbia and paying taxes to the United States if I would also be able to vote in Ontario provincial elections. I suppose that I would.
I understand what the courts are grappling with. There is always in a clear, simple standard, like that of a five-year-old, an element of arbitrariness. What happens on that magic day? Five years minus a day yes; five years, no. I think many have struggled with that.
Let me suggest a way to think about it that I found helpful when thinking about these kinds of regulations. There are basically two ways to approach the need to put limits on anything, and there is always a need to put limits.
One is with a rule: five years; 100 kilometres an hour; at age 19 you can drink but at age 19 minus a day, you can’t. The problem with rules is that they are arbitrary. What happens on that one day?
The other way is standards, and that is much more amorphous: not 100 kilometres an hour, but drive carefully. It is not drink at age 19 but drink responsibly. It is not five years minus a day yes, five years, no, but clear and sufficient contacts.
One of the reasons rules are out of fashion is that they are arbitrary. But the thing to remember about them is that they are also liberty enhancing, because with the rule we know where exactly we stand. If it is really important to you to continue voting in Canada, at five years minus, then you come back and re-establish residency. You know.
And if you start moving into a world of clear and sufficient contacts, what about those who have been outside of Canada for less than five years but who do not maintain contacts? The standard can become unpredictable on the other end as well.
One the things I am startled about in the bill is that it doesn’t say anything about naturalization. There will be a group of people who will be able to vote in two countries, possibly three. I have friends who have entitlements to Canadian, U.S. and Irish passports. Will they be able to vote in three elections?
Senator Frum: I will pose my next question to both witnesses and invite both of you to respond.
One thing we have heard from these hearings is that there is no prohibition on registered Canadian third parties to be located in places other than Canada. You speak about the dangerous turn the world is taking. I’m wondering if this lack of a prohibition on groups that can organize for the purposes of affecting the Canadian election and be located offshore, does this strike you as it does me as dangerously naive?
Mr. Frum: Mr. Jacob referred to Russian involvement in the Scottish referendum. I think much more dramatic and ominous is what is emerging — and we can’t say this too categorically — but it is the massive Russian involvement in the Brexit referendum. The single largest source of funds for the pro-Brexit side came from a British businessman who two years before he made a massive £8-million donation could not have made an £80-pound donation to anybody. He got very rich very fast in ways that nobody understands. I don’t want to say categorically what we do not know as facts, but it certainly looks like somebody in Russia helped him to make a lot of money very fast. The question you asked is: Was a condition of that help that some portion of his new fortune be directed according to Russian foreign policy? Again, we do not assert, but we are troubled.
It’s difficult enough to regulate what is happening within your own jurisdiction in a world of increasingly dark money. You all saw the stories about the flow of dirty money through the Vancouver real estate market, which is thought to be $1 billion. If that is already opaque to you, now imagine how much more opaque it would be if that money is domiciled in Macao.
Mr. Jacob: I have very little to add in the context of me not taking a position on the bill. I would simply echo what Mr. Frum just said.
[Translation]
Senator Dupuis: Good morning, Mr. Frum and Mr. Jacob. Thank you for being here this morning.
Mr. Frum, I have a question for you. You started your presentation by referring to the fact that the Senate waived its anti-nepotism policy. Could you clarify this remark?
[English]
Mr. Frum: Because I have the great good fortune and pleasure to be the brother of Senator Linda Frum.
[Translation]
Senator Dupuis: Thank you.
In your presentation, you mentioned that a resident of a non-democratic country is in a more difficult and vulnerable situation.
Do you think that living in a democratic or non-democratic system is really the most relevant criterion? When we look at what happened in the United States in the 2016 and 2018 elections, the phenomenon is widespread and very common around the world. I would like you to explain how being a resident of a democratic country is a more decisive factor than being a resident of a non-democratic country.
[English]
Mr. Frum: I don’t mean to suggest that this is the only thing you should be considering. There are many factors to consider, but I have noted in the discussions I’ve seen in my limited view of this bill that this seemed to be a matter that was not being sufficiently weighted.
There are many defects in American democracy, and Mr. Jacob can tell you about them; I’ve written about them. I think we can acquit anyone in the United States of contemplating — much less actually doing — organizing a state-led effort to pressure people with a Canadian connection, resident in the United States, to cast a vote. And the United States has historically worked extremely well with Canadian governments of all political parties, and I think any imaginable Canadian political party — or at least more normal American governments than the one we happen to have at the moment.
I don’t think that would be the most troubling thing about extending the franchise to Canadians long-term resident in the United States, but there are hundreds of thousands of Canadians resident in other kinds of societies, societies that have shown themselves very interested in shaping their “abroad” and obtaining political outcomes congenial to their foreign policy through all kinds of methods that most Canadians would not consider legitimate.
Given the inevitable defects of ballot security outside of Canada, it is a problem whether people are short-term or long-term expatriates. With short terms, you are dealing with a relatively small number of ballots that are probably not outcome altering. But if you expand the population from the current few tens of thousands to hundreds of thousands or millions of ballots being cast outside of Canada, many being cast not in the United States or Britain but in other countries, you create an opportunity for governments that have very focused foreign policies interested in affecting other countries — Canada very much on that list — to use pressure on voters, maybe even fraud on the ballots. Your security measures will never keep pace with the interventions that foreign governments can imagine and can create. You will be creating opportunity for those governments to use Canadian elections to shape the Canadian governments they deal with.
[Translation]
Senator Dupuis: I have another question regarding the same issue. I completely understand your explanation of why people are more vulnerable if they live in non-democratic systems. Let’s assume that the expatriate issue is removed and voting is prohibited. Don’t democratic countries have a common interest in trying to see how they’ll manage to handle the hacking, fake sites and misleading information phenomena? The issue is no longer really the democratic or non-democratic nature of the state involved, since there’s a common cause among all the states.
[English]
Mr. Frum: You open a very interesting, exciting and promising line of work. It is maybe something that democratic governments and the Canadian government ought to be focusing on instead of this project, which is that there may well be a need for some kind of international covenant or agreement or enforcement.
As Mr. Jacob said, the Russians were caught attempting to hack American voting systems. As far as anybody knows, they were unsuccessful this time. But you still can’t be 100 per cent certain. There are a lot of things you can do in a hack where you don’t have to be successful in the conventional way to make an impact.
Suppose what the Russians were able to do was not influence the outcome of any vote or switch any ballots, but suppose they had been able to create enough disorder in voting registers, in the districts of the people they didn’t like, to create lineups. If you create a lineup of a couple of hours, people will go home. You could suppress the vote in the districts that were disfavoured by the Russian back end of it just by creating chaos. Even if you don’t change a single ballot, you could regard it as a success. This is a really important area that I think Canada and like-minded nations should be working on.
One of the features of 21st century politics as opposed to 20th century politics is that authoritarian governments are more careful about the use of violence than they used to be, but they have much greater powers of surveillance and interference than they have ever had before. A hostile foreign power is less likely to come at you with rockets and tanks, but more likely to come at you with these new means and try to shape your government. The point of war is to change the will of the antagonist opposite. What if you can change the will without the expense and risk of war by operating directly on the voting system of that country?
This is indeed a very significant challenge. I think you make a great point that international cooperation would be very useful. That kind of hardening of the integrity of the voting system would seem, to me, to be mission one for every democratic country.
[Translation]
Mr. Jacob: I want to add to what Mr. Frum just said. There’s sometimes a very fine line between successfully hacking and attempting to hack. It doesn’t take much to be able to succeed. Sometimes, all it takes is stupidity or human stupidity.
I’ll tell you what happened during the 2016 American election campaign in the Democratic National Committee, meaning the highest levels of the American Democratic Party. They received a phishing email. Ms. Clinton’s campaign manager sent the email to the Democratic campaign’s information technology staff. The employee who received the email mistakenly replied, “This is a legitimate email” when he actually meant to say, “This is an illegitimate email.”
Ms. Clinton’s campaign manager then replied to the email from Russia and provided his password. Then came the whole WikiLeaks situation and the tens of thousands of extremely embarrassing emails from the Democratic side that were released in the weeks leading up to the presidential election.
We’re literally talking about two letters that should have been added in an email, but that weren’t added and that potentially made a difference in the American election campaign. If you talk to Ms. Clinton’s side, you’ll be told that, to date, the Russian hacking and WikiLeaks may have had just as much — if not more — of an impact than the issue of Ms. Clinton’s emails. This matter significantly affected the election and politics at the end of the race. There’s a margin between trying and succeeding in hacking, and sometimes, the margin can be smaller than we think.
Senator Boisvenu: I want to welcome our guests. I’ll address what you just added. The bill will be somewhat tougher on the people who try to change the results of an election than on the people who try to influence the election. Is influencing an election just as serious as influencing an election and ultimately achieving a result?
Mr. Jacob: That question is almost impossible. In reality, the intention is basically the same. If the Democratic employee had done his job properly and answered the email correctly, no one would have heard about the hacking attempt, and certainly not the general public. Is it worse to succeed? On a concrete basis, in terms of results, it’s worse. However, the intention remains the same.
Senator Boisvenu: The bill makes a distinction. If the influence produces results, the offence will be punishable by either a summary conviction or criminal procedure. Should intention be taken into account in an electoral process, regardless of the result?
Mr. Jacob: Honestly, it’s your decision. I don’t mean to dodge the question. I don’t want to —
Senator Boisvenu: I’m asking for your opinion. That’s why you were invited.
Mr. Jacob: I accepted the invitation in response to a request for expert testimony, not for a position statement. With all due respect, Senator Boisvenu, I won’t take a position.
Senator Boisvenu: I’ll put the ball back in your court. How do the Americans handle this distinction?
Mr. Jacob: From a political standpoint, in this situation, a significant number of Americans — especially Democratic voters; there’s a split in the interpretation of the results — consider that the 2016 results aren’t legitimate. Even the defeated candidate, Ms. Clinton, has publicly questioned the legitimacy of the results.
Senator Boisvenu: Do Americans make a distinction between influencing an election and influencing an election with a result?
Mr. Jacob: The answer is obviously yes. If we look at the polls since the 2016 election, most American believe that the Russians tried to influence the 2016 vote.
Senator Boisvenu: Yes, but in terms of criminal law, are both offences treated equally severely? Is there a distinction?
Mr. Jacob: I can’t tell you. However, in terms of public perception, there’s a difference between the two offences. Most Americans believe that the Russians tried to influence the election, but a smaller number think that the Russians had an actual impact on the results.
Senator Boisvenu: Mr. Frum, are Canadians who have been expatriates for the past five years equally interested in the right to vote as Canadians who have been expatriates for the past 25 years? I gather that, for someone who leaves Canada for one, two or three years, the “emotional” connection to being a Canadian voter still exists. However, after 25 years, does that connection still exist?
[English]
Mr. Frum: It has to attenuate.
Let me refer to one of the things to keep in mind about this. If you are someone who has been out of Canada for 25 years, but you remain strongly committed to Canada, after 25 years — and this will not happen to any of the members of this committee — one begins to get a little older and one may even consider relocating. A person who went out of Canada for economic reasons, for example, at the age of 25 or 30, but who still felt strongly and never naturalized to another country, Canada does not remove that person’s right to return. They can return to Canada, re-establish residence, involve themselves in local activities and register to vote. That possibility of returning and re-engaging is always available. Canada would never remove someone’s citizenship merely for being an expatriate.
One of the ways you might think about this is not the loss of voting rights, but the suspension of voting rights pending that person’s return to Canada. For example, the late Peter Jennings — who is known to many of us — I think that was always his intention had he been spared to a longer life. He had a property, I believe, in the Gatineau, and I think it was his hope — because he never naturalized — that that would become his full-time, ultimate home, and then, I assume, he would have voted in Canadian elections.
[Translation]
Senator Boisvenu: Much has been said about Russian interference in the last American election. Canada and the United States are very close. They’re long-standing allies, two friendly countries, almost conjoined. Mr. Frum, do you know whether any far-right or far-left organizations have previously or recently tried to influence Canadian elections through social networks?
[English]
Mr. Frum: I want to first draw a distinction which to my mind is more important than that which you are drawing between influencing and shaping. That is the difference between clandestine and open intervention.
During the Brexit referendum, President Obama travelled to England, stood beside the Prime Minister of Great Britain and candidly declared that the United States would prefer to see Britain vote to remain in the European Union. Obviously he hoped to influence the outcome of that referendum, but he did so in a fully above-board way, using normal, friendly processes. That’s a normal part of political life. Your friends have opinions.
It was no secret in 2004, when I was involved in the George W. Bush campaign, that the governments of France and Germany would very much have preferred John Kerry. They would tell reporters about it. They had views. It was no secret that in 2012 the Government of Israel would have preferred to see Mitt Romney win the presidency rather than Barack Obama. The question is not preference or influence; it is clandestine influence. That is the thing you really have to worry about and that has become more and more possible in the Facebook era.
[Translation]
Senator Boisvenu: I understand that foreign influence isn’t specific to an election. It may also be related to very specific events, such as Brexit. It wasn’t necessarily related to an election. It was related to a choice by the British regarding whether to remain in the common market. Foreign influence isn’t strictly related to an electoral process as described in the legislation, but it can also be related to other events that may affect a country. Take the example of a Quebec referendum, or a referendum held across Canada. The influence would still be quite extensive.
[English]
Mr. Frum: We live in an interconnected world, and that’s basically a good thing. Every country has rules governing political communication of one kind or another so long as people comply with those rules, not just the written rules but with the spirit. We all understand that what President Obama did in the Brexit referendum was not only legitimate, that was useful information that British voters, I would assume, want to have.
It would have been a different matter had the United States government set up a clandestine operation inside the U.K. with false flags.
There was a story widely circulated on Facebook during the 2016 election that purported to look like a report from a local American TV news station — and local news is highly trusted in the United States — claiming that the Pope had endorsed Donald Trump. Obviously this was not true. No Pope has ever endorsed anybody in any American election ever. If you think about it, it’s impossible. But millions and millions of people saw the story, and you have to believe it had some influence on the margin. You can’t ever quantify how much.
I would invite you to think about legality and openness as the criteria here. Be mindful that governments that will do these things will not hesitate to look inside a ballot or try to bring influence to bear on people who seem vulnerable.
I guess the matter is know your planet and understand how much democracy itself has become a target of certain foreign governments in the modern age.
[Translation]
Mr. Jacob: I want to expand on the issue of attempts to interfere in periods that aren’t strictly related to an election or pre-election period. The 2016 example is very relevant to the United States. Much has been said about what happened before the vote, and much less has been said about what happed after the vote. In reality, in the weeks following Mr. Trump’s victory, we gather that Russian agents tried to create both pro-Trump and anti-Trump demonstrations across the United States. Did it work? Not entirely. Again, we were talking about the difference between attempts and successes. There was certainly an attempt to create division within the American electorate after the election. The next election was a long way off. An election had just been held.
To answer your question, interference attempts aren’t limited to the days and weeks leading up to a vote.
[English]
Senator Pate: Thank you to both of our witnesses for joining us. I’d like to continue on with what we have been discussing.
Mr. Frum, you have opined in several contexts about the fact that Russian interference in the 2016 American election, as well as the 2017 French election, the Brexit referendum in the U.K. and the Scottish referendum are pretty well established from your perspective.
We’re looking at Bill C-76. Do you see things that could be improved in the bill or ways we should be suggesting amendments that would guard against the interference you have discussed?
Mr. Frum: I would say, as I said in response to the last question, I think — not to tell you how to do it — that my priorities would be different from the priorities of the authors of this bill. My priorities would be about voting security, voting integrity.
In the Canadian context, this is especially urgent because the United States in 2016, in one way, got a little lucky in that the country — well, let’s not put it that way. Let’s just say that if this story comes out well, it may be the fact that the people who were caught doing this were the Russians, who were clumsy and ultimately much weaker than the United States, and it may lead to one kind of outcome.
In the Canadian context, dealing with a state that is more powerful than Russia, there may be things that happen that you don’t even know about but that for other strategic reasons you hesitate to do anything about.
There have been cases in other countries where strong states are caught doing things. For example, there have been reports in some democratic countries of Chinese nationalists being forced against their will to return to China to face various so-called judicial processes, an extra-territorial rendition, and the host country knows about it but decides it dare not do anything.
I would be mindful that the risk of interference here is with countries that are very powerful and that have much more focused and strategic motives than the Russians did in 2016. They were hoping to elect Donald Trump, but they were just as happy if they could create mayhem. But some of these state and non-state actors may have much more targeted, precise and harder-to-detect purposes. They may be less clumsy, less visible, leave fewer fingerprints behind.
My concern would be how to make your systems foolproof.
I will mention another country that saw a kind of Russian intervention, and that’s the Czech Republic. In their presidential election, one of the important supporters of the president was a businessman who did a lot of business in Russia and made a lot of money there, and made what were, in the Czech context, legal contributions from one Czech citizen to a Czech, but it looked like it was somebody else’s money. Again, you don’t want to throw the accusation out. But the process of political money laundering, these things are at the top of my list of worries for Canada or for anybody else.
Senator Pate: Are you suggesting something more preambulatory, something as part of the description of the bill?
Mr. Frum: I’m suggesting you might want to think about the whole world having had, over the past five years, a series of lessons about the permeability of democratic systems to clandestine, malicious actions by non-democratic powers.
What are the major risks and how do you mitigate the risks of hacking — and hacking, again, is just as interested in taking down voting stations as much as altering votes — and flows of money, political money laundering, and of maintaining the integrity of information systems? For many of these things, there are not easy or ready answers, but the fact that the answers aren’t easy or ready is all the more reason to begin thinking very hard about how you would approach these problems.
Senator Pate: So no particular amendments to this bill that you could propose at this time?
Mr. Frum: Senator, as a foreign national, I do not feel that is my place.
Senator Batters: Thank you both for being here.
Mr. Frum, you painted an alarming picture today where a foreign government with bad intentions, a government that monitors, as much as they want to, their citizens’ behaviour, could potentially have real impact in the next Canadian federal election.
I would add to that scenario that that particular foreign government could go on to organize a large number of non-resident Canadians who are now living in that non-democratic, totalitarian country. They could present a very organized effort to have a real impact in a relatively small country like Canada. In that case, you may as well give a whole stack of ballots to that totalitarian government.
I thought you had a very good quote when you said choose your own government for yourselves. That should be our purpose here in dealing with this bill and our democratic system.
You were also talking about how rules are liberty enhancing. I would add that rules can also be and should be integrity enhancing. I think that’s what we’re trying to do here.
With Bill C-76, it seems like the Canadian federal government has not completed mission one of hardening those most basic rules that we should be focusing on, but instead they’re blowing the door wide open on some of these areas.
Given the current global prevalence of cyber-hacking, does it alarm you even more when I tell you that we were advised yesterday by the Chief Electoral Officer yesterday that non-resident Canadians will be able to simply apply for a ballot in next year’s Canadian federal election through an extremely simple online process?
Mr. Frum: I must say that I don’t know if anyone here saw the Munk debate I participated in with Steve Bannon, but I came away from that experience with a new enthusiasm for paper ballots.
Senator Batters: I love the paper ballot myself. So this will still be a paper ballot, but there will be an online, simple process for a non-resident Canadian to request that ballot.
Mr. Frum: Maybe this is an unavoidable feature, but there is going to be an arms race between democratic societies and state and non-state anti-democratic actors who are in much more intimate contact with each other through cyber, and we have learned all of that. I don’t know that there is a way around it. You may have to think about levels of acceptable risk. But certainly if people are applying online, you want to have a real-world backup of some kind to know that the person who is online is a person, is the person they say they are, and is in a situation where they’re operating without duress.
Everything has been very futuristic, but the history of democratic voting systems has been a past where freeing people from duress was a real problem. Secret ballots are a comparatively new thing in the history of elections. I think they originated in Australia in about the 1870s, and they were very controversial for a long time, partly because there were people who wanted to put pressure to bear on people who were economically dependent on them. Being able to vote your own conscience, your own way, without duress, is a recent achievement and it continues to be under threat.
One of the things that is characteristic of the new authoritarian governments is they do not usually do away with all of the appearance of democracy. Whether it’s Russia, Turkey or Hungary, they have many of the aspects of democracy and they certainly retain elections. Protecting the integrity of elections, as Canadians understand elections, is a challenge, but it should also be a real source of pride and commitment.
Senator Batters: Absolutely.
The comparison with this particular aspect of this bill has often been that franchise is given to non-residents for France, Italy or the U.S., but do you think that’s a fair comparison? And if not, why not?
Mr. Frum: You mean mutually between EU countries?
Senator Batters: Perhaps that, but also for the U.S., people who are U.S. citizens but may be expats for a short time. Is that a fair comparison to Canada?
Mr. Frum: I was just reviewing this, and I think this is something Mr. Jacob will know more about than I. The United States imposes on its foreign expats a duty to register annually and remain in very close contact with the U.S. authorities. They have a system that is actually much more burdensome than anything that exists in Canada.
I’m not as familiar with EU systems, but expatriation within the bounds of the EU is a very different thing. Those countries have mutually agreed to have a new concept of voting rights for EU citizens. As I understand it, you can be a French citizen and live in Italy for a long time; and you can vote in various kinds of local elections as a French citizen because you belong to a common organization with common values and rules and certain kinds of common rights. Obviously, that does not describe the Canadian situation at all.
Senator Batters: In order to be able to vote, American citizens have to be paying their taxes to the United States as well, right?
Mr. Frum: This is maybe one of the deterrents to expatriation. One of the reasons people expatriate is to get out from under a democracy’s taxes, which are usually higher than a non-democracy’s taxes. From the United States’ point of view, that is not going to work; that is very difficult to do. So you have different kinds of expatriation from the United States.
[Translation]
Senator Carignan: My question is more about what the Americans are currently doing to try to prevent this situation. There has been foreign influence in elections for a long time, and different methods have been used. During the Cold War, the Americans contributed to this phenomenon, and in other elections held in different countries. Now, the techniques are different as a result of Facebook and digital platforms, for example. It has become more subtle. I read that there are currently about 200 million fake Facebook profiles.
This morning, someone took the identity of one of my Facebook friends in order to send me a message and offer me loans at attractive rates. I easily detected the hoax. I saw that it was fake. What methods are the Americans currently using to try to prevent this foreign influence? They have just held mid-term elections. Have they made legislative changes or planned measures to strengthen their system and prevent this type of situation? I think we’ve reached this point with regard to the tools.
Mr. Jacob: The answer to your question is twofold. The first aspect is legislative or regulatory, meaning the steps that the American government can take beforehand to protect itself. From what I’ve seen, from a legislative standpoint, the steps are quite limited. The intelligence services are really entrusted with everything related to the protection of American territory and American territorial integrity, including the electoral system. These issues are referred to qualified staff in the United States. It’s a bit like “doing criminology” and trying to understand what’s going on inside a very closed system. I’m not in a good position to say what the American intelligence services are doing behind closed doors to protect themselves, but considerable sums are being invested in prevention.
The other aspect is much more reactive and it concerns diplomacy. Since 2016, the United States has repeatedly imposed diplomatic sanctions on Russia. Much was said about the issue in the weeks following the 2016 election, when Mr. Obama was still president. Much less has been said about the fact that, even though Mr. Trump and Mr. Putin seem to have a particularly warm personal relationship, the Trump administration has still repeatedly imposed sanctions on Russian players in response to what happened in 2016.
These types of measures can also be taken. The United States is obviously taking these measures reactively, to send a message to not only Russia, but also to the other players in the international system that would like to try to interfere in the upcoming American elections. In the event of interference attempts, there will be diplomatic consequences, and in some cases, financial consequences.
[English]
Mr. Frum: I want to add something to that because I think this is relevant to the Canadian experience. It has been shocking how little action there has been in the United States to harden American voting systems. Here is what has happened, and this is pertinent because this is a method that will not be available to Canada. The United States has launched a series of criminal prosecutions against Russian persons, and the more normal actors in the American political system, people like Vice-President Pence, have issued warnings to the Russians that there will be severe consequences if they try this again. The Russians may or may not take this seriously.
All of this is premised, the actions that have been taken, on the asymmetry of power between the U.S. and Russia, with the asymmetry on the American side. Imagine what would happen if instead of the United States of American facing a country with two fifths of its population, a GDP about the size of Italy, and an untimately inferior military force. What if the country that had been the victim of the interference had been much weaker than the country that did the interference? The idea of sending a representative to that country to look them in the eye and say, “Don’t ever do that again or else,” is not a resource available to everybody. It’s available to the United States. They have done not enough. Imagine the kinds of things that can happen. When the Russians try to manipulate Estonia or Latvia, the Estonians or Latvians cannot send their vice-president to Russia to look them in the eye and say, “Don’t do that again.”
Canada is bigger than some countries but smaller than others, and the countries it’s smaller than may try to take action. Canadian citizens have been detained by the Government of Iran, which is a very third- and fourth-tier power, and yet how successful has Canada been in imposing its will on the Government of Iran? What if the Government of Iran began to try to manipulate a Canadian election?
[Translation]
Senator Carignan: Are efforts being made to ensure that digital platforms transfer more information to intelligence services? We’ve heard from our security staff, and the situation isn’t very reassuring. They have few or no tools and they’re at the mercy of what Facebook and the world’s leading electronic platforms will do with the data.
Mr. Jacob: A great deal of pressure has been placed on Facebook in particular. Of course, Facebook isn’t the only network of its kind. However, in some respects, it’s the most significant network. It’s certainly the network that has attracted the most attention in the United States. There has been political pressure, but this pressure has subsided. Given the current American legislative system, it’s very difficult to get legislation passed. Nothing major has been done since 2016.
[English]
Senator Dalphond: Welcome to our guests. My question is for Mr. Frum.
I used to live in England as a student and I could vote in the British elections, which I did because I was a common-law citizen, and I could still vote in federal Canadian elections, which I also did. It’s not abnormal to see people vote in two countries and have substantial interests in both countries. To me it is not so shocking.
Do you think it is a matter of context here? You say there is a fear that our elections will be taken over by foreign hostile governments — and I’m mindful of this — using a Canadian expat living abroad and being coerced to vote in a certain way. But don’t you think we should make a distinction? For example, all American citizens living abroad are entitled to vote in U.S. elections and can vote for the President of the United States. All Canadians living abroad can vote only to elect a local MP. Is there not a distinction to make there?
Mr. Frum: Let me answer both of those points.
As to the first point, the Commonwealth voting, I noted the contrast with the European Union, where the member states have certain reciprocal undertakings to one another. It took a long time for Canada and the United Kingdom to think of each other as fully independent, sovereign countries and, to some degree, even today; they share a head of state. As first a subject territory of the British Empire and then a fellow member of the British Commonwealth of Nations, Canada and Great Britain were in much more of an EU-like relationship with reciprocal obligations to each other and some sense of commonality in citizenship. That has been, more or less, left behind by history and those rules would not be in place today.
If NAFTA someday evolves into some kind of super-national entity, perhaps at that point there would be a reciprocal basis, but that is not being discussed here. There is no suggestion of reciprocation. I pointed out concerns particularly with nations that don’t even have elections, or meaningful ones at all, where reciprocation would be meaningless. That is something to be considered.
As to the comparison between a parliamentary and presidential system, in a way your danger is greater because American elections tend not to be very close. There is a difference of usually millions of votes between the winner and loser of an American presidential election.
Senator Dalphond: Not in Florida.
Mr. Frum: No, but in terms of total votes cast. It may be that recent events cause Americans to reconsider.
One the reasons American elections have historically been kind of sloppy in voting technologies is because they weren’t close. If they aren’t close, it doesn’t matter. That’s what we discovered in Florida in 2000. You could never really know because the measuring mechanism was not built to the degree of fineness to measure the result. It’s like a microscope that’s too crude.
But in Canadian elections, there are many elections where three or four seats are all that determines a majority or minority government. Supposing a malicious actor is trying to create a hung Parliament. You can imagine that relatively small degrees of pressure are needed to affect outcomes in a parliamentary system.
The Chair: I was thinking of a minority government in a situation like that, where instability of government exists in our system. That would invite foreign interventions to remain strongly involved after the election, because of the vulnerability of the stability factor, which, in my opinion, is an important element.
Senator Dalphond: American experience shows fewer than 10 per cent of American expats will vote in elections. When we talk about 3 million Canadians living abroad, we’re talking about maybe, at the maximum, 300,000 voting. Is that a sufficient risk over 300 ridings in Canada?
Mr. Frum: As we saw in 2016, and depending on what happens after the recent experience, it will be a bold actor who tries to intervene in a very conspicuous way in an American presidential election.
One of the themes I have tried to stress is to bear in mind the difference in the asymmetries of power. Hypothetically, suppose someone in a totalitarian state with a lot of Canadians decided, in a serious way, to put pressure on those people, economic or otherwise, and maybe organize some kind of entity or umbrella group within that country, what would you do about it?
Senator Dalphond: Canadians have to register to vote. Only a very limited number have voted. Of 14,000 registered, 11,000 voted.
Mr. Frum: Supposing somebody made a project of this and decided that as an instrument of state power they were going to take advantage of this element of Canadian law. Given the asymmetries of power in the world, what would you do?
Senator Dalphond: You think there is a sufficient number of Canadians living in one totalitarian country to make a difference in Canada? Canadians are spread around the world.
Mr. Frum: I believe there are 300,000 Canadians living just in Hong Kong.
Senator Dasko: I think we’ve established that American citizens living abroad enjoy full voting rights, regardless of how long they have lived abroad.
Mr. Frum do you know how many Americans live abroad?
Mr. Frum: I do not.
Senator Dasko: Has there ever been an effort by the American government to abrogate the right of Americans abroad to vote?
Mr. Frum: No, but I do know as a practical matter that voting abroad is quite difficult. You have to maintain regular contact with the United States government and keep them informed of your changes of address. Also, because of the tax rules in this kind of long-term expatriation, you have to file a tax return forever. This kind of long-term expatriation is less of a feature of American society than it is in Canada. It is also much harder to become an American citizen than it is to become a Canadian citizen.
Senator Dasko: How do you think Americans would respond if the government took away the voting rights of expats?Would they think that would be a good idea, or do you think that wouldn’t be welcomed?
Mr. Frum: American voting rights are so tied to residency and registration. American governments regularly make it quite difficult for people to vote — their own residents — in ways that I am horrified by. But given the lattice work of actually informal and usually quite unfair actual voting rules as opposed to the formal rules, these kinds of questions don’t come up. One of the differences between Canada and the United States is that voting rights in Canada really are rights in a way that voting rights in the United States are the beginning but not the end of the discussion.
Senator Dasko: I have another question for you, Mr. Jacob.
You have told us about the social media campaigns run by the Russians, the hacking run by the Russians. Can you tell us if any of those campaigns have been directed at American expats living abroad? From what I understand, there is an argument being made here to say there is a particular risk for Canadians living abroad with regard to hacking and so on. It would be my understanding that the vast majority of the efforts you described have been focused on the domestic voting population.
In your knowledge, have any efforts been made to focus on expat communities in terms of hacking and social media by the Russians or other players?
By the way, who were those other actors? You said that in addition to Russian, there have been other actors or countries trying to influence.
Mr. Jacob: Those are multiple questions disguised as one question.
The key expression you used is “has been” in that, in 2016, what we know that happened did not really pertain to expats. Then again, before 2016, we hadn’t seen the kind of interference we saw from Russia. In other words, it’s very hard to predict what could be attempted in 2020, 2024 or 2028. It’s worth keeping that in mind. It’s not because something didn’t happen before that it’s not bound to happen in the future. That’s one thing.
Another thing I want to point out and underline from Mr. Frum’s answer is that when you compare Canada and the U.S. when it comes to expats, it’s one thing. We have to keep in mind that the baseline is different when it comes to people who actually live in both countries, respectively.
The difference in terms of registering to vote or not even having to register to vote between Canada and the U.S. is pretty substantial. In the United States, it is not just that you have to register when you are a resident; you have to re-register every time you move out of state. There is nothing even remotely like that in Canada. If you are going to compare the situation between expats of both countries, you also have to compare the baseline situations when it comes to the voting rights of both countries.
As it pertains to your sub-question about other actors, I was talking about China, but China has attracted a lot less attention than Russia. But Mr. Frum was talking about major, powerful authoritarian actors, and China is pretty hard to miss.
Mr. Frum: I will offer a metaphor that might clarify. You are essentially saying that we have a locked door over there. I don’t see that anyone has tried to kick it open, and therefore there should be no harm in leaving it unlocked.
Senator Dasko: I’m not sure what you’re referring to.
Mr. Frum: Given the extraordinary difficulty of America maintaining their voting registration, if you are trying to manipulate an American election, it is not a very lucrative way of doing it — to work on American expats. But Canada is contemplating taking a step that would make it lucrative — that of unlocking the door. And if you unlock the door, it’s just amazing who walks through it.
Senator Dasko: I was just interested in whether all the efforts you told us about had even been tried. From what you know, they have not even been tried on the American expat community, as many millions of American expats as there are?
Mr. Frum: Not as far as I know.
Senator Pratte: Mr. Frum, I’m trying to reflect on the relevance of the scenarios you describe. If you believe, as the current government does, that expats have the right to vote because they are Canadian citizens, whether in some countries or regions, like Hong Kong, they might be susceptible to manipulation isn’t really relevant. If they have the right to vote, then the government should provide them the means to vote honestly and with integrity.
The issue is not whether some Canadian expats could be manipulated. The issue is simply this: Do you think Canadian citizens living abroad have the right to vote? If you do but think that some rules are in order, then we can discuss what the rules should be. But the issue is whether expats, Canadian citizens living abroad, have the right to vote just as citizens of many other countries who live abroad have the right to vote in their native country.
Mr. Frum: Senator, I suppose this goes down to a really interesting philosophical question of how you see the job of political leadership, what you think your job is and how you think political action is judged. My instinct is that you are judged by consequences. You may say, “Here is this thing we think people have a right to do. It’s quite foreseeable it will lead to some negative consequences, but the consequences do not matter. I have a complete Kantian morality: If the axe murderer comes to my house and asks whether Mr. Smith is hiding in the attic, I tell the axe murdered that that’s indeed where Mr. Smith is hiding, because as a good Kantian, I cannot tell a lie, regardless of consequence.” If that’s your approach, then yes, you go ahead and follow your conception of rights, regardless of consequences.
My own view of the political job is that political morality is different from personal morality. Political morality is judged by outcomes. If it’s reasonably foreseeable that a certain approach will lead to bad outcomes, then you have to consider that. Then you need to ask whether rights can be guided by reasonable restrictions, like a five-year residence limit. It doesn’t have to be five years; choose your number. There is nothing magical about one number, but choose it with a realistic understanding of the dangers that exist in the social media age, in an age of relatively declining Western power and relatively rising power in other places, interpenetration, much more globally mobile populations and knowing that this is the century you will be living in. You’re not going to be coming back to this law for a long time, so what are the reasonably foreseeable risks and dangers over the next 10, 20, 50 years and how do you act to protect your country against them?
Senator Pratte: The other view would be that the risks you describe may apply to Canadian citizens living in Hong Kong, but besides Hong Kong — and I don’t have the statistics; maybe others here have better stats than I do — it is hard to see where a large number of Canadian citizens are living in the kinds of countries you describe. But if there is a risk in the case of Hong Kong, for instance, then we would deprive the overwhelming majority of Canadians living in other countries of the right to vote because we think there might be risks that we cannot prevent or fight in the case of Canadians living in Hong Kong.
Mr. Frum: Cast your mind ahead, because you’re writing not for today; you are writing a law that will last a long time. So cast your mind ahead to the situation of 20 years from now. How many Canadians at that point with the rights of Canadians will be living in mainland China? How many Canadians will be living in other places where these kinds of changes are foreseeable?
As I say, you have a rule of thumb right now that’s a little arbitrary but that works. What you are going to substitute for it is either a very open-ended grant, which has the risks I’ve described, or you’ll end up compromising it with regulations that are much less clear and predictable, and that will wreak their own hardships that are less arbitrary, perhaps less predictable and maybe less freedom-enhancing than a clear bright-line rule.
Senator Pratte: Thank you.
The Chair: I think nobody will be surprised if I ask Senator Frum to conclude given the special guest we have this morning.
Senator Frum: When we’re discussing the difference between the Canadian and American condition, and the difference between voting in a presidential system and Westminster system, here is a quick scenario.
A minister of industry is elected in his riding by a majority of 1,000 votes or fewer. The Chinese government sends him a message that they have registered 4,000 Chinese Canadians from his riding, and they tell him, “Don’t mess with us.” Is this a scenario you can foresee and the kind of thing we should be concerned about?
Mr. Frum: That’s a perfect example of the kind of thing that could happen in the Westminster system. It might not come from the Chinese government, by the way. Messages like that could be delivered indirectly in all kinds of ways. You could have a rally in Shanghai. That power can be flexed and displayed, and one of things that politicians — you are all politicians of a kind — know is that power can often be latent. It is most frightening when it’s latent.
The Chair: In thanking you, Mr. Frum and Mr. Jacob, I cannot resist putting a question to you.
You mentioned that the reaction to the Russian intervention could be twofold. One could be the legislative route. Mr. Frum, you mentioned that in the United States it was rather weak. The other is diplomatic, which seems to have been more robust because Vice-President Pence has been expressing concern to the highest level. As you said, the United States is stronger and more powerful than Russia.
For a country like Canada, am I right to conclude that our legislative initiative should be much stronger because our diplomatic approach is not comparable to the United States? If there are two ways to react and we have only two tools in our hands, we should be mindful that the legislative approach should be very strong, and then we could look into Bill C-76 and conclude if it is strong enough. But what are you suggesting in relation to Canada?
Mr. Frum: It is an extremely lucid way of putting it; thank you.
Mr. Jacob: Nothing to add.
The Chair: On that, thank you so much for making yourselves available this morning. All senators appreciate that both of you came from long distances in difficult circumstances.
Mr. Jacob, thank you so much.
Mr. Frum, I hope we will have another opportunity to hear from you around this table in the future.
Honourable senators, our next guests are representatives of Twitter and Google.
[Translation]
We’re pleased to be joined this morning by Michele Austin, Head Government, Public Policy and Philanthropy (Canada) at Twitter. Welcome, Ms. Austin.
[English]
I don’t think I need to say more than that. Everyone knows Twitter, of course.
And we also have with us Mr. Jason J. Kee, Public Policy and Government Relations Counsel, Google Canada.
I think we are all regular users of Google, so we know who you are. I will ask you to make a short presentation and then we will have a conversation around the table. I think you are familiar with our way of proceeding.
Michele Austin, Head Government, Public Policy and Philanthropy (Canada), Twitter: Thank you very much, chair, for the invitation to appear today and for the opportunity to share Twitter’s perspective on Bill C-76, the elections modernization bill. You should have a copy of my notes in front of you.
On behalf of Twitter, I am grateful for the chance to speak with you about the work we are doing to help protect the integrity of elections around the world. We appreciate what this bill is seeking to achieve and we are supportive of its goals. We currently have a political advertising transparency centre that is being piloted in the United States. What is being proposed in Bill C-76 is similar to the level of transparency we want to achieve around the world.
In the United States, political advertisers are subject to additional transparency requirements over and above what we require of any other type of advertiser. We require advertisers who want to run political campaign ads for federal elections to self-identify and certify that they are located in the United States.
Candidates and political action committees have to provide their Federal Election Commission, or FEC, identification number to Twitter. Non-FEC registered organizations and individuals have to submit a different notarized form to Twitter. We then send a letter to the mailing address registered with the FEC, business or individual to validate the identity and location of all political campaign advertisers. In addition, we do not allow foreign nationals to target political ads to people who are identified as being in the United States.
We have stated publicly that eventually we intend to expand this political advertisement transparency centre pilot to markets around the world. It is the right thing to do. This approach allows anyone to access the Ads Transparency Centre, not just Twitter users.
We, like many of our peer platforms, have created this centre voluntarily. As a point of clarity, the honest ads bill in the United States was never passed by the legislature or signed into law. However, requests by individual governments to re-engineer the existing Ads Transparency Centre structure for different markets may prove extremely difficult. Twitter has to weigh the time, effort and cost of these individuals requests and national models against changing our existing transparency centre model to deliver better, not just different, outcomes for users.
The three key differences between the advertising transparency centre we are voluntarily piloting in the United States and the proposed Canadian registry in Bill C-76 are scope, information integrity, and liability.
On the issue of scope, the scope of the information being requested by Bill C-76 is very different from the information we currently publish about election advertisers in the United States. For example, Bill C-76 requires Twitter to track different, uniquely Canadian titles such as financial agent, registered agent and official agent. In our opinion, adding this subset of information will add layers of cost and complexity to the engineering build and may make searching the registry more difficult for users.
In addition, this database of titles will not improve transparency for users as it does not tell them who paid for the ads. In the United States, we simply publish information regarding the entity that has paid the advertising bill, including their name and the city and state in which they are billed.
On the issue of information integrity, like in the United States, Bill C-76 requires advertisers who want to run political campaign ads to self-identify. In the United States, the identity of the majority of political advertisers is verified by the Federal Election Commission, or FEC. The FEC issues a unique number to organizations such as political parties, political action committees and candidates. The FEC publishes that number on a public database. The unique identifying numbers issued by the FEC allow voters to authenticate the information about the advertiser from a source other than Twitter. The FEC identifier provides an additional layer of certainty to users that a political advertiser is who they say they are. The FEC identifier also makes it easier for voters to find additional information and context about the advertiser and improves the overall integrity of the information available on advertisers.
Almost 90 per cent of political advertisers certified by Twitter to advertise in the United States have an FEC number. That type of partner who provides de facto two-factor authentication and identity verification is missing from the Canadian proposal. This bill asks Twitter, as well as our peer platforms, to assume the risk of verifying identity. This amount of risk makes us uncomfortable. We are not entirely convinced that organizations who advertise during an election will do so honestly and fairly simply because the government asks them to.
If the intention of this bill is to provide better security for elections, it is our recommendation that a government entity such as Elections Canada be primarily responsible for verifying the identity of potential political advertisers. Elections Canada’s registry of political parties, third-party advertisers, electoral district associations and candidates should include issuing a unique identifying number to each entity.
We have been actively working to improve information integrity across Twitter, especially as it relates to elections. To ask us to simply trust the information being sent to us by an advertiser seems counterintuitive.
That brings me to the issue of liability. We are also not comfortable with the liability provisions in Bill C-76. The penalty is broken into two parts: a strict liability offence and an offence requiring intent.
The strict liability offence in section 495(1) includes imprisonment as a penalty, while the “knowingly” offence is just a monetary penalty. “Knowingly” is not defined in Bill C-76; in the act it amends, the Canada Elections Act; or anywhere in the Criminal Code of Canada. We ask the committee to include a definition of “knowingly” in this bill and that the knowledge requirement should encompass both offences. We also ask the committee to amend the legislation to ensure online platforms can use information provided by advertisers in good faith by inserting a good faith clause.
Thank you for allowing me to speak with you today. I look forward to your questions.
The Chair: Thank you very much, Ms. Austin.
Jason J. Kee, Public Policy and Government Relations Counsel, Google Canada: Thank you, Mr. Chair. We appreciate the opportunity to participate in your review of Bill C-76, particularly the provisions pertaining to online platforms.
Google is committed to supporting democratic processes and greater transparency in political advertising. This year, we rolled out new tools for the U.S. midterms, including enhanced verification requirements for U.S. political advertisers, in-ad disclosures of who paid for legislation ads, and a new Transparency Report and Political Ad Library that provides new insights into who is purchasing ads, how much they are spending, what kind of ads they’re running and much more. Just last week, we announced that we would be rolling out similar tools in Europe to support the EU parliamentary elections in May 2019.
While we support the objective of greater transparency in Bill C-76, unfortunately the specific provisions regarding online platforms introduced at the Procedure and House Affairs Committee do not reflect international practice or how online advertising actually works across the open web. It will be extremely difficult for both the publishers and platforms to implement in the very short time we have before the new provisions would take effect.
Clause 208.1 creates a new obligation that any online platform that meets certain minimum traffic thresholds publish a registry of all partisan and elections advertising they display along with prescribed identification information. Under clause 333, failure to publish this registry is a strict liability offence, so knowledge may not be required for the liability and includes potential fines and imprisonment.
Under the bill, online platforms are defined as any Internet site or Internet application that sells advertising space directly or indirectly. This definition of online platforms and the corresponding obligations introduced are so broad they capture not just social media or large online advertising platforms but also most national and regional news publishers, and virtually all multicultural publications, as the low traffic thresholds for non-English and French sites means that minority linguistic groups will be disproportionately impacted.
Furthermore, online advertising is very different than print or broadcasting, and there is not necessarily any direct relationship between the advertiser and the site that shows their ad. Rather, there is an entire complex ecosystem built to show relevant ads to relevant audiences regardless of where a site may be located. This is why you see Canadian ads on non-Canadian sites like the New York Times or the Guardian. Consequently, this broad definition sweeps in every ad-supported site or app popular with Canadians in the world, including many that are not Canadian, raising serious enforceability questions.
Also, election advertising includes not just advertising promoting a party or candidate but also any advertising taking a position on any issue with which a registered party or candidate is associated — that is, what is generally referred to as issue ads. Issue ads are highly contextual and notoriously difficult to identify reliably, especially as the definition is fluid and will change and evolve during the course of a campaign. For instance, if cannabis legalization is raised by a candidate, do government PSAs on cannabis suddenly become election advertising. This is extremely unclear. Yet, if a third party unknowingly fails to properly identify an advocacy campaign as election advertising or an online platform fails to properly identify these ads on its system, we may be liable for failing to include these ads in the registry.
The bill also requires each site to maintain its own individual industry. Most web pages are not a single static page a like a newspaper, but rather are code that pull information from different sources and assemble it into the user’s browser. Most publishers use automated systems to fill the ad space on these web pages. While the page is loading, the site sends a signal to an ad exchange that a user meeting certain demographic criteria is available to be advertised to. Then advertisers bid for the opportunity to display an ad to that user. The exchange then signals which advertiser won the bid, and the winning advertiser’s ad server displays the winning ad in the user’s browser. Consequently, the publisher might not even know they displayed a political ad and might find themselves unknowingly subject to the registry requirement. Further, they may never see a copy of the ad that was displayed. Currently, there is no means for a publisher to retrieve political advertising that displayed on their site in a timely manner. So, for these systems to accommodate the new provisions, the entire infrastructure underlying online advertising would need to be changed. This is simply not achievable in the very short timelines contemplated.
Given the tremendous challenges these new provisions pose and that major online advertising platforms are already publishing similar registries voluntarily, we recommend a cooperative approach whereby platforms coordinate on a registry rather than prescriptive obligations that will introduce unintended consequences, reduce flexibility to address political ads issues, and potentially compromise the launch of planned registries.
Alternatively, we recommend removing the ambiguity around issue ads by clearly defining what advertising does need to be registered; helping Canadian publishers comply by creating a registry that is compatible with current online advertising systems; and establishing liability based on publishers and platforms knowingly not complying with the law as it’s laid out, allowing them to also rely on information provided by advertisers.
We have a list of proposed amendments that will achieve these objectives, and they have been circulated to the committee for review.
We hope that you will consider making the necessary amendments to achieve the policy objective the bill is intended to meet but in a manner consistent with international practice and that can be effectively implemented by the publishers and platforms in the time allowed.
I am happy to take questions.
The Chair: Thank you very much, Mr. Kee, for that effective presentation.
Senator Frum: As a non-techie, if I distill your testimony, to some extent you’re saying that the liability and responsibility for monitoring political ads and putting them on a registry is falling entirely on the shoulder of social media and that you do not have a partner in Elections Canada in helping to monitor what’s going on online.
Ms. Austin, you made a specific suggestion, namely, to model our system on the U.S. system and that advertisers are issued a specific identifying number. Did you present this idea to Elections Canada?
Ms. Austin: Thank you very much for that question, senator.
Yes, we have socialized this idea for the past couple of months with officials in the office of the Minister of Democratic Institutions as well as Elections Canada.
As you noted, this is a big, complicated bill and the amendments that introduced the advertising registry were only made in October, so I can understand why they might have been lost in the forest of discussion that we often have. It takes me at least an hour oftentimes to educate and train individual organizations about social media. I know many of you are Twitter users, and I thought I knew a lot about Twitter as well until I joined the company.
This has been socialized since September with a number of government organizations, and I am happy to sit down and meet with them again.
I would also note that this is not unique. In Alberta, they issue a unique identifying number to candidates for door-knocking purposes so that if you see somebody at your door and wonder who they are, you can ask the candidate in Alberta for their identity number.
Senator Frum: It seems to me it’s not a complicated or difficult process to ask political parties, third-party advertisers, electoral district associations and candidates to receive an identifying number from Elections Canada. That seems simple and straightforward and not complicated.
Ms. Austin: We hope it’s that way. If you look up third party advertisers on the Elections Canada website, they have a list. We’d like them to add a number.
It might be more complicated for candidates, riding associations or electoral district associations. As I’m sure many of you know, EDAs have a number, so Ottawa Centre has an identifying number, but the Liberal Party EDA of Ottawa Centre does not.
Senator Frum: The point here is that if they have this number and want to purchase advertising on social media of any sort or electronic advertising, the traceability and the trackability of that ad — who placed it and paid for it — becomes much easier to track.
Ms. Austin: It becomes much easier for us to track and for users to track because they can use that number across platforms.
Senator Frum: It seems a bit of a no-brainer, but it’s not in the bill?
Ms. Austin: It is not.
Mr. Kee: To support Michele’s point, certainly in our own transparency report, the FEC number is actually the critical locus on which a lot of the transparency information is laid. You click on that number and you will see the entire range of political advertising that number has come into our system, regardless of the Google platform that was demonstrated.
Senator Frum: Ms. Austin, and Mr. Kee as well, you spoke about the voluntary transparency model that you have in place now. If you compare the voluntary model of transparency you have today to the measures that are prescribed in Bill C-76, which ones would you say create higher levels of transparency?
Ms. Austin: We appreciate what Bill C-76 is trying to do with regard to improving transparency, and that’s exactly what we’re trying to do at Twitter.
There are some key differences. For instance, this bill does not ask you to, as an advertiser, identify who your target is. With our Ads Transparency Center in the United States, you can drill down and find out who they targeted, their location, if it was men or women, a number of issues like that.
Further, I don’t know if you’re aware, but in advertising often political parties use advertising agencies, and those agencies are empowered to pay the bill. In our system, you would see what agency had paid that bill, where that agency was located and how much they paid for that particular advertisement. We feel as if that level of transparency is a step up than what is required here from this bill.
Senator Frum: Will you change your model? Will you step down to meet the level of Bill C-76?
Ms. Austin: I can’t answer that question. I don’t know if Jason can. Because this was a late amendment to the bill, we’re certainly still studying what is required of us. We intend to roll out this Ads Transparency Center, so at this time I cannot answer your question.
Senator Frum: Potentially one consequence of Bill C-76 is that your transparency levels would in fact be reduced.
Ms. Austin: We intend to roll out our Ads Transparency Center as is around the world, but we would have to take into consideration rights from each individual government if they ask us to do this, how we would sequence and engineer a build and whether or not that transparency goal that we have as a company, which we’re very focused on in terms of health, is better and provides more context to users than what we are already doing.
The Chair: As a supplementary, did you present your request of amendments to the House of Commons?
Ms. Austin: We were not called.
Mr. Kee: Essentially, we did not have the opportunity because the amendments were introduced during clause-by-clause consideration after the witness list had closed, so we didn’t have an opportunity to respond or comment on those amendments and certainly not to propose alternative language.
[Translation]
Senator Boisvenu: I want to thank our guests. Mr. Kee, am I to understand that, in the current bill, to identify advertising carried out by candidates, it’s very difficult for the current system to detect the expenses in order to justify them to Elections Canada? Is that what you said?
[English]
Mr. Kee: It depends on the system. What we deployed in the United States, which we’re deploying in the European Union, is that we actually require specific verification for any advertiser who is engaging in political advertising. That includes a similar system that Michele described for Twitter, which was that very robust identification verification with passport information and so forth and the FEC number to verify they were eligible to engage in political advertising. Basically, that is the list.
The challenge we have with respect to the registry obligation is by virtue of having a proactive obligation to create a registry that has to include a class of advertising. It also means that failure to meet that obligation is actually an offence.
It’s the challenge in being unable to identify those actors who do not engage with the system, who attempt to engage in political advertising without having registered with Elections Canada or without having notified us with the requisite information, and then our ability to detect that on our systems is what’s creating challenges with the language of the bill.
[Translation]
Senator Boisvenu: Am I to understand that the bill before us doesn’t include this obligation?
[English]
Mr. Kee: The obligation to detect? It does insofar as it creates a registry obligation whereby as platforms we are obligated to include all partisan election advertising in the registry, and failure to do so is a contravention of the act.
[Translation]
Senator Boisvenu: In terms of advertising expense reporting with either purely Canadian tools or foreign tools — since with Facebook and other social media, borders no longer exist — do you know whether Elections Canada has the necessary tools to detect all these types of expenses?
[English]
Mr. Kee: It’s a difficult question for me to answer simply because I only have knowledge of what we have in our own systems, and it’s quite conceivable that any actor engaging in political advertising will be advertising across a number of platforms, such as Facebook, Google, Twitter and other platforms as well. Only they will actually have knowledge of the full range of their expenses.
They’re the ones who have the proactive obligations of disclosure to Elections Canada, and in the event there is a violation, the commissioner’s office would pursue an investigation. When the commissioner was in front of you last week, he signalled that he’s been engaged with all of our platforms with respect to pursuing those investigations. We would be relying on Elections Canada to pursue that and identify if there was a failure to properly report.
[Translation]
Senator Boisvenu: Historically, advertising done by candidates appeared mostly, if not entirely, in print media — local and regional newspapers. It was easy to track. At the next election, there will be about 2,000 or 3,000 candidates. Will they have the required knowledge to manage that type of advertising and the technical knowledge needed to report their spending to Elections Canada? Advertising costs on a number of those networks are very random.
[English]
Ms. Austin: With regard to reporting, the wonderful thing about our Ads Transparency Centers is they are public, so anybody can see what those ads are, and there are reporting requirements within this bill, which we will obviously adhere to.
With regard to the knowledge of individual candidates and individual electoral district associations, I think we’re all very keen to train individuals about how to do it.
The most important transaction that will happen, there will be, in advance to registering with us, that you intend to be a political advertiser and then for us to verify your identity.
Mr. Kee: Essentially for us it would be similar. It’s worthwhile noting under the current version of the Canada Elections Act, online advertising is a form of advertising. Therefore, any campaign engaged in that has to take account of those expenses and report them to Elections Canada, much as they would with print and broadcast, and that would be managed essentially through a campaign.
You’re right insofar as these are very different tools; and while they’re actually quite easy to use, there is certainly a level of knowledge, understanding and education that needs to go on. This is probably what animates the discussions we were having with organizations like Elections Canada to ensure all the candidates and parties have the requisite information they need so that they understand what their obligations are.
[Translation]
Senator Boisvenu: However, it will be increasingly complex.
[English]
Mr. Kee: It will be more complex insofar as there are additional avenues for them to pursue their advertising. The process by which you can set up an advertising campaign is not complicated, but it does require a certain level of knowledge. It will be incumbent on them to track their expenses. However, that’s no different from the obligations they have presently.
[Translation]
Senator Dupuis: Thank you for joining us today, Ms. Austin and Mr. Kee. I was struck by something in your presentation, and I thank you for saying it so directly. At Twitter, you have created a transparency centre. You specified that the centre was created voluntarily and that U.S. legislation has not been adopted or enacted. I understand that there are technical difficulties. Regardless of how the electoral process will be changed in Canada, technical changes will affect all platforms.
You think that it’s working well, although I believe that some people from Twitter have recognized that there are interference problems on your platforms, but we are assuming that things are working well. Are you telling us that you are having difficulty adjusting to the requirements of Bill C-76 because you have not developed the required tools so far? In other words, you have responded to the U.S. request, even though that request was not of a legal nature. So one country, the United States, has observed you over time and saw that there were issues. Political pressure was applied. It did not lead to the drafting of legislation, but you were forced to take steps. You did so voluntarily and you have implemented measures. However, the European Union has had other types of requirements toward platforms like yours.
Could we not say that Bill C-76 involves obligations imposed on you by another state — in this case, the Canadian federal state — because those are new requirements, but they are not fundamentally different from what you are already doing, be it in the United States or in Europe? My question is for both of our witnesses.
[English]
Ms. Austin: There is a lot to unpack there, so I apologize in advance; please remind me of your questions.
This Advertising Transparency Center was not in existence before the 2016 election. We obviously had a lot of lessons learned, as did many other companies. We created the Advertising Transparency Center as part of a more holistic approach to improve health on our platform. If people don’t feel safe communicating on our platform, this is a problem, so we created the Advertising Transparency Center.
The honest ads act, to the best of my knowledge, is what they would call in the United States a messaging bill. It was never introduced. We were not compelled, legally or legislatively, to create this registry.
This registry is the right thing to do. It is the right thing to do for our users; it’s the right thing to do in terms of supporting democracies; and it’s the right thing to do for governments to help them understand what’s happening in terms of the dialogue that happens on the public conversation layer of the Internet, which is Twitter.
We will abide by whatever decision you make with regard to this registry and this bill. However, we would say to you that we have 38 legislations worldwide next year. When you build something like an advertising registry, the engineering in the digital world is similar to engineering in the real world; you have to plan, sequence, and build a system that is workable. For us, especially given our experience with regard to elections and how important they are, this provides excellent information to users both of Twitter or anyone who comes to visit our Ads Transparency Center.
Mr. Kee: I would echo those points and make two additional ones. Similarly, we engaged in this process because it’s the right thing to do. We engaged in this process because it was abundantly clear that we had to make efforts to make political ads transparency more accessible. This isn’t just in terms of creating reports but is also available to the public, researchers and elections regulators so they can examine the niche of the political ads that are available to them.
On a similar basis, we will be deploying it in the European Union as well for the upcoming elections. The European Union recently developed a code of practice with respect to this information, which we agreed to and which also addresses this, among many other things. It sets out the basic guidelines that accord with many of the ongoing efforts with the major online platforms. The challenge that I have is not with the principle underlying it. The differences that are specifically being articulated in Bill C-76 and that are substantially different, and even just a few words off, are what will create the potential challenges for us.
As I was articulating, the very fact that each individual Internet site is responsible for maintaining its own registry does not account for the way online advertising works across the open web. The way our transparency report works is that if an advertiser advertises with Google, Google has a network of over 2.5 million website publisher partners that can accept those ads. Those ads are displayed and there is a revenue sharing that goes on. The website will take the majority of the revenue.
For any of the advertising that’s coming through Google right now through our transparency report, we take on the responsibility of including that ad in our registry. We are the centralized repository. The ad buy was made through us. That makes the most sense.
The way the bill is constructed, the individual publisher who showed that ad would have that obligation, even if they didn’t mean to serve political ads or did so unknowingly. That is a real challenge. It’s also a challenge for us because we have no means by which we could help deliver to them the advertising that was displayed on their systems because the advertising architecture is not designed for that. We may be inadvertently causing them to be offside of the bill. We can’t be in a position where we do that to a publisher partner, so that may impact our ability to take on political advertising that was showing on third-party websites, for example.
The words “on the platform” are what cause this challenge. It is three words that have this impact. Similarly, Michele discussed at great length the issue with respect to it being strict liability, knowledge is not required. It’s easy to inadvertently run afoul of this bill simply by virtue of the fact that you failed to detect there was an issue ad that turned out to be an election ad later on.
Even in preliminary discussions we’ve had with the regulator, it’s similar. It’s very contextual. It’s very much they know it when they see it. When they receive a complaint, they can determine if it’s electoral advertising or not, if it’s an issue ad or not. When we’re relying on automated systems because of the sheer scale in which we operate, where we’re accepting hundreds of millions of ads, we need a degree of certainty about what does and does not need to be included so that we can have automated systems that are doing the initial analysis whenever we receive ads.
[Translation]
Senator Dupuis: I have an ancillary question that has to do specifically with what you just said. In your presentation, you mention the difficulty of verifying advertisers’ identity. In a way, we could conversely say that, if the advertiser’s responsibility is clear, that absolves Google because the responsibility belongs to the advertiser.
Is the difficulty to verify related to the fact that your processes are entirely automatic and it becomes very complicated for you to create an additional step, that of verifying the automatic work that has been done by your systems?
[English]
Mr. Kee: Monitoring already occurs with respect to any advertising that comes in. Separate from the political advertising question, we have very robust ads policies. There are plenty of areas in terms of advertising that we will not permit on our platforms. We will not permit advertising of, for example, any harmful goods and so forth. We will not permit advertising the sale of cannabis, as an interesting fact, despite the legality or illegality in various jurisdictions.
We have automated systems that automatically screen ads that are uploaded to our systems to detect whether or not they are compliant with those ads processes. Those automated systems need to be trained but are relying on set criteria about what is allowed and what is not, so we can detect them.
Actual political advertising in the sense of promoting a party or candidate is something we can actually train our systems to proactively identify and therefore apply the appropriate policy, namely, “You are not permitted to engage in this form of advertising unless you are verified to us as being a political advertiser, including providing the requisite information we require. Therefore, you either provide us the information or your ad is not going to run.”
In the event we can’t identify that, which is the challenge we have with issue ads because of the sheer contextual nature of those ads, we would have a hard time doing that. Because we were not able to identify the ad, we wouldn’t be able to include it in the registry. By virtue of not including it in the registry, it means we are running afoul of that obligation, which is what subjects us to liability. Again, it was not intentional; it was simply because the systems could not detect that class of advertising.
[Translation]
Senator Dupuis: When it comes to advertising that deals with specific issues or topics, you should modify your system and make it non-automatic.
[English]
Mr. Kee: That would be one approach we would have to look at. It’s one of those things where issue advertising is a challenge we face in a number of jurisdictions. It’s actually one of the reasons why the European code actually distinguishes between political advertising for parties and candidates and issue advertising, recognizing that issue advertising is a much harder challenge for online platforms. That would be one of the approaches we would look at.
Senator Pratte: I have short questions. I understand that the digital advertising universe functions differently with programmatic advertising and so on, which is why I was surprised when we got the brief from Facebook, another digital company. They briefly say that Facebook supports Bill C-76 and will comply with these requirements should the bill receive Royal Assent.
What is different in Facebook’s business model or technical systems that they don’t seem to have any problem with these proposed requirements, and for both of your companies it’s apparently extremely difficult to comply with these future requirements?
Mr. Kee: It’s difficult to speak to Facebook’s systems since we have an understanding of our systems versus theirs. It may come down to risk tolerances. I think we are more concerned about the potential risk around strict liability and the application of that than they might be in this particular instance. To be honest, it is difficult for me to speak to why they would have a different attitude towards it.
Ms. Austin: I’m not prepared to comment on Facebook’s approach. Health has been a key priority for our company. We realize we need to provide a better, more trustworthy system of — the ability to verify who you are speaking with on Twitter. This happens with regard to product changes we are making, so now we give our users more context with regard to who follows them.
We are making policy and product changes daily. We want to ensure we provide the best product that users can trust. That’s why we have some concerns, which we’ve addressed.
Mr. Kee: One follow-up point, which I should have mentioned, is that each individual platform operates very differently. For example, the concern I raised with respect to third-party publishers is not a concern Facebook would have because they operate differently than we do in that respect.
Ms. Austin: We are not programmatic advertisers. Our system is closed.
Senator Pratte: Thank you.
To clarify something in your presentation today, Ms. Austin, you write that, “Twitter has to weigh the time, effort and cost of these individual requests” — that is, requests from individual governments — “and national models against changing our existing transparency centre model . . . .” If this becomes law, that’s not an individual request by a government. It would be a legal requirement.
Ms. Austin: Correct.
Senator Pratte: So you would abide by the legal requirement if the bill was to be adopted, I suppose?
Ms. Austin: I would encourage you to consider the amendments that we’ve put forward, but absolutely we will abide by the law in Canada.
Senator Pratte: Thank you.
The Chair: Before I recognize Senator Batters, we had invited a representative of Facebook. They accepted in principle but finally informed us they were not available this morning and that’s why you have received their brief. I hope that honourable senators have had an opportunity to look at it. We could make it available also.
Senator Batters: Thank you both for being here.
Ms. Austin, the common sense amendments that you have proposed to the federal government for Bill C-76 regarding the advertiser numbers, I want to make sure I have this right. You proposed those amendments to the federal government, but that was after Bill C-76 amendments were dealt with at the house committee; is that right?
Ms. Austin: No. In September we had a series of meetings after we took the time to analyze the bill internally and compare what the requirements were in the original version of Bill C-76 versus what we were doing in the United States. That was in September.
I think we saw these amendments first on October 12, and that was at report stage in committee. We actually also testified in June with regard to this in the Procedure and House Affairs Committee.
We got these amendments in October and took the time to take them back to our various legal counsels and also to compare with how they worked in the United States, which we consider a viable system. We jointly had another meeting in November to discuss these issues: scope, information integrity, and liability.
Senator Batters: To this point the minister has not indicated they would be willing to propose those particular amendments to those sections that you are suggesting. What sort of reaction have you received from the government on that?
Ms. Austin: I can’t comment on whether or not the minister is open. I can only comment on the fact that we have discussed it and we have sent some examples of what it looks like. I’m happy to send what an Advertising Transparency Centre looks like for Twitter in the United States.
We certainly hope they are open to these amendments. They have been excellent partners so far in terms of being open to discussion. We would encourage you and them to consider these amendments.
Senator Batters: Generally this particular government tends to bring a lot of technical amendments at the end of the Senate’s committee stage, so we’ll see if they do that on this one. I hope so.
With respect to the liability section, I was absolutely stunned to hear you say that the strict liability offence of section 495(1) includes imprisonment as a penalty. Strict liability — and perhaps you can expand a bit more — would be an offence that just because a particular set of facts has occurred, there is no intent required. That alone is enough to prove that particular offence occurred, and then someone would potentially be subject to imprisonment. Yet the intent offence, the “knowingly” offence, would just be a monetary penalty. I find this absolutely bizarre, and I wonder how this ever got by the Department of Justice lawyers. Can provide more information about that particular part of it?
Mr. Kee: In terms of commentary with respect to Justice, I defer to the government on that. I will say that I shared a similar response when I realized what the penalties were on the basis that it didn’t seem to make sense to me that a strict liability offence that doesn’t require knowledge was subject to a lesser penalty money-wise, but more significant is prison. It is exactly why the proposal we presented includes that it doesn’t actually make sense for this offence to belong there at all. It should exclusively belong in the section with respect to knowledge.
The concern we have is by virtue of being strict liability, essentially you are liable. The only defence you have is due diligence. Pursuant to the conversation we have had today, it’s difficult to assess what would constitute due diligence in this context. Would any systems that we built to try to properly identify the advertising or the advertisers here be sufficient to cross the threshold? It is completely uncertain, which is what generates considerable concern from our perspective.
Senator Batters: Absolutely.
Was that another issue you brought up to the minister’s office, and what was their response?
Ms. Austin: We jointly raised that issue. I feel comfortable just stopping there.
Mr. Kee: We did raise it with them and that has been the extent of discussions.
Senator Batters: I understand they made a ton of different amendments at the end of this process in the House of Commons, tet neither of these areas were included in that, which is unfortunate.
As well, yesterday we heard testimony from the Chief Electoral Officer, and he said he had never heard this particular idea about the advertiser numbers before yesterday. Are you surprised to hear that?
Ms. Austin: No, it’s a big bill. It’s very technical. Even our sections alone are very technical issues.
Senator Patterson: But it is the Chief Electoral Officer’s business to understand the bill.
Ms. Austin: I’m happy to return to work with them. We have worked with them really well so far, the same with the commissioner’s office. I would assume that given the speed at which technology changes, we will continue to work with them as the election approaches. So I am happy to go back and rediscuss that with them at any time.
Senator Batters: Thank you very much.
Senator Dalphond: I’m following up on the question put to you a minute ago about the advertiser number. I understand that could be worked out, not in an amendment to the bill but in a memorandum of understanding between the platforms and the Chief Electoral Officer. That would be more flexible than having it in the bill because if the technology changes, we don’t have them in law.
Ms. Austin: We would love to see it in the bill. We would love to see it also in regulation. We would like to have a legal backstop with regard to the creation of that number. But we are happy to work our way through it. Our best recommendation is to include it in the language of the bill.
Mr. Kee: It’s worthwhile noting that with respect to the FEC number in the United States, we build our entire transparency reports, our registries around this, and so I share Michele’s point of view. The challenge we have is that three years hence, when we have an obligation to display this registry for two years and then store the data for five and if Elections Canada changes their mind to deploy a different system, we would be in a difficult situation.
Senator Dalphond: But I understand that reality should prevail.
The second issue I wanted to cover with you is that you referred to the time left in order to implement the bill and you expressed some concerns. Are we at the end of the process? Is time of the essence by now?
Ms. Austin: The short answer for us is yes, it does take us a long time to build an advertising transparency centre. In addition, we want to reflect the changes that this bill has asked of us in our advertising policy, socialize those changes, put them up on our website so people can refer to them and lean on them if they have questions.
There is the actual architecture of the system and whether or not we have to make changes to make it uniquely Canadian, as well as due diligence in informing our advertising partners about what is coming down the pipe.
Mr. Kee: I would share that sentiment, especially in light of the particular concerns I flagged with respect to third-party publishers and how that system works. This bill would contemplate, assuming that it passes, that these obligations would go into force as of June 30, which is when the pre-election period commences. It would simply not be feasible to re-architect the underpinnings of online advertising within that time frame.
The Chair: Thank you very much, honourable senators. Seeing the clock and the house sitting soon, it’s my pleasure on behalf of the members of the committee to thank you. You will understand that we are moving on different grounds. Before the platforms, we were totally self-regulated, if I can put it that way, and now we are trying to develop some kind of collaboration between the platforms and the public interest that is at stake with the use of those platforms.
I’m not surprised to see that there are different elements of the regime in the United States and European countries and in Canada. I think we will all learn in the years to come on how to have the best regulation possible to allow you to function but also protect public interest, which is essentially what is at stake.
I would like to thank you, but I want to say that we had invited Facebook. They had not confirmed that they would be here, but finally they were not available this morning. I want to be very clear on that as I don’t want to spread fake news.
Thank you so much, Ms. Austin and Mr. Kee. I’m sure we will have an opportunity to meet with you along the road of life because, as I say, this is an evolving issue and we will appreciate your cooperation in the years to come. Thank you so much.
Honourable senators, I suggest that we move in camera to discuss the report or the substance of the report.
Senator Batters: Before we go in camera, I wondered why we need to go in camera on this particular aspect of the bill, especially because this is a bill about the next federal election. We want to make sure that Canadians are receiving all the information they can about this. It is an important deliberation and I am not sure why we need to go in camera. I would propose that we have this discussion; I don’t see any reason that we can’t have this discussion on camera, in public.
The Chair: We have a proposal to not sit in camera for this discussion. Can I have other views from around the table?
[Translation]
Senator Dupuis: This is what I said last time. I think the reflection that needs to be done, as the practice has been, can be done in camera and should be done in camera.
Senator Boisvenu: We are considering a bill that is at the heart of Canadians’ democratic lives and we will issue observations on favourable or unfavourable situations. This bill is different from other bills because it concerns all Canadians aged 18 and over. I think that, by holding a public meeting, we are showing our deep concern while being transparent.
[English]
The Chair: Any other views around the table?
[Translation]
Senator Pratte: I have no objection to the meeting being public.
Senator Dalphond: Neither do I.
[English]
The Chair: Do I see consensus around the table that we stay in public?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Agreed, on division.
[Translation]
Senator Dawson: I am not a regular member of the committee. However, I would not want us to create precedents. I have no objection to holding the meeting in public. However, according to my experience, the custom is to prepare reports in private. I don’t object to doing it publicly, but I would not want this to become a precedent that will lead to committees always debating report preparation in public from now on.
[English]
The Chair: The objective of this meeting, after hearing witnesses this morning, is to determine the way ahead with the report. As you know, and I have heard around the table repeatedly, there are issues that honourable senators would want to see appended as observations in relation to this bill. To help our support and research staff from the Library of Parliament, we ought to give them direction so that they will be in a position to prepare a draft we will circulate after.
I will need from honourable senators some sense of direction. I’m in your hands.
Senator Frum: It would be valuable to add some observations to the bill. One reason is because of the truncated amount of time we’ve had to study this bill. In fact, my very first observation to suggest is that this feels like a completely unsatisfactory amount of time. The testimony we heard moments ago was very complex. We have two of the most major social media platforms telling us they would like to see important amendments made to the bill. Yet, we have now ended our deliberations on the bill; we can’t even consider those amendments or challenge or test them.
At a minimum, I would like to suggest that we have an observation attached to the bill that expresses our regret that we did not have sufficient time to fully study the bill here in the Senate.
The Chair: Are there any other comments in relation to that point?
[Translation]
Senator Dupuis: I think that, when those kinds of observations are made, the public context should be added, where those in charge of the federal electoral process have clearly indicated that this bill should be urgently dealt with if we wanted it to apply to the next election. In other words, we may feel that we have been rushed in our consideration and analysis, but I think that very important elements have been highlighted by the two senior officials in charge of the electoral process: First, the fact that this bill is the outcome of their recommendations and, second, the fact that they felt it was necessary for it to be passed quickly, so that it could apply to the next election.
[English]
Senator Pratte: We had representations as far as the social platforms are concerned, from Twitter and Google. Both organizations presented amendment suggestions that are very clear. The committee can decide whether they like the amendment proposals. We also have representations from Facebook, which said they had no problems with the bill.
So I think the committee has ample time to decide whether it accepts the suggested amendments made by Google and Twitter, or whether it prefers the approach of Facebook. I don’t have a time issue with studying this bill, so I would disagree with such an observation.
[Translation]
Senator Boisvenu: I share Senator Dupuis’ point of view that it is urgent to pass this bill, so that it would apply to the next election, most specifically to provide officers with tools in terms of controls and policies. However, we should have had more time to discuss certain factors further, such as social tools, which we only touched on. I think the two elements can be used in the same observation.
The Chair: Any other comments?
[English]
Senator Batters: I agree that time has been very short on this particular consideration. I note that, yes, there have been a couple of times when the Chief Electoral Officer has taken it upon himself to mention how we need to get this bill passed very quickly, but on a couple of occasions in response to that, I raised the point about when the Senate received this bill. It’s important to note that in this report.
We have only had it for a few weeks, and we have done a very good job of getting as much work done on it as we can, but that’s a very short time. I also note that yesterday the Google and Twitter issue — advertising and identifying numbers — is just one example of the type of amendments that could be required on the bill, but we have not had sufficient time to study them.
Another one is what I brought up to the Chief Electoral Officer yesterday: having full-page ads in Canadian newspapers by foreign governments. The Chief Electoral Officer was not even aware of that issue and had no response as to whether he thought that was problematic as far as foreign influence in elections. He testified before the end of the day yesterday, but we don’t have a response from him yet. That is yet another example, but there are many.
Senator Frum: I’ll add an example to that of Senator Batters.
We have Twitter proposing amendments that they say they made to the House committee, the minister’s office and they made it here today. We have heard from the Chief Electoral Officer yesterday that this is all news to him. To be polite about it, Twitter is saying, well, it’s a big bill.
You are happy with the amendments that have been proposed in three meetings, but what about the amendments we have not heard about that might be proposed from the other parties? We have only had three meetings. It is a truncated period of time to study a bill the Chief Electoral Officer himself doesn’t seem to be very well acquainted with.
[Translation]
Senator Dupuis: I would like to come back to what Michele Austin said earlier. They received the amendments from the House of Commons in October. They analyzed them and met with the government in November following their amendments. I think we should be careful.
I have a proposal concerning the report itself. We should use the same format as the one you used for Bill C-46 — in other words, a factual report that lays out the elements in play that have been examined and for which positions defended by various parties have been heard. Some were in favour of that, and others were in favour of the principle but raised a concern with regard to terms and conditions. In other words, this bill cannot be turned into something that was concocted yesterday morning to respond to a supposed emergency that is not an emergency.
We have known since 2016 that there were issues and we wanted to propose changes to the electoral process. We know that it will not resolve all the problems and that it will require adjustments by Twitter and Google, as they have said. I think we should keep to what we have heard in testimony before the committee. We have heard a number of things, but I would not want us to forget the two elements the minister mentioned: privacy protection and gender parity. She put forward the possibility of a parliamentary study being conducted. Those are things we have heard. So we can report on what we have heard.
[English]
The Chair: If I may suggest an element of reflection.
As you know, the report should not be commenting directly on some sections of the bill, because we can have a debate at the report stage and at third reading, and any one of us can focus on one aspect of bill and explain his or her position on it. I thought if we add to the report on the bill, it would be on issues whereby we think that we want to draw the attention of Parliament or of the Senate that there is more to do and investigate. This bill answers, in a particular set of circumstances, a reality that the government, Parliament and certainly Canadians expect we will be legislating.
But as I said and as we heard this morning, for instance, the issue of foreign influence is still very much open. Parliament is just venturing into legislating that issue, and there are elements that are still open. As you know, we produced a report a year ago.
Humbly, I suggest to you that that should be one element of our report, because, as Senator Dupuis and Senator Boisvenu have mentioned, we have to add further reflections down the road. Maybe after the election we will want to come back to this issue — how it has been tackled by the Chief Electoral Officer, the commissioner, the system generally — that we heard yesterday from the centre of communications.
I thought the report could focus on some of those issues, one of which is that the minister has invited us to reflect on the fact that the political parties are not really subjected to any system in relation to the protection of privacy. Yesterday, the Chief Electoral Officer said there is no system. That was more or less his answer. I remember that I intervened and said, “We take notice of your answer.” This is, to me, an issue that we should raise among others that have not been covered by the bill. Some are mentioned in the bill but are not really the object of a system in the bill. There is the issue of gender parity in the election, which was mentioned by the minister. I thought the bill could concentrate on some of these issues.
As we do normally, we can mention that the bill arrived in the Senate on a certain date, was read a second time and referred to committee on a certain date, and then we will report on a certain date. Anyone who reads the report will understand the time frame under which we were operating.
We might have liked to have more time; there is no doubt about it. On the other hand, we work under the duress of the deadline if we want those provisions to be implemented. That could be mentioned fairly in the bill without impinging any bad ivy or bad intentions on anyone. Those are the facts, in my opinion.
I would like to get from senators around the table some of the concerns to which they feel we should draw the attention of our other colleagues in the Senate who have not had the benefit of sitting around the table and seeing that I have raised some of the issues. I’m sure there are other issues that we could append to the bill.
Personally, and I say this very candidly, there is a perception that the Senate doesn’t have a role in the election because we’re not elected. Well, we have, in my opinion, a very important role. It’s a Charter right. Voting rights, as some of you have said, are exercised by 23 million Canadians; it’s not two people.
I think for us to do that kind of work is essential to strengthen democratic life in Canada. That’s why I’m open to suggestions from you to add to that, which in my opinion would be a fertile road to open. We could raise that in our speeches at third reading because I think the overall Senate and public opinion will benefit from realizing that there are issues that need to be addressed. The public is concerned that those issues be fairly addressed by governments and Parliament as a whole.
I am sorry to admonish you in that way, but I thought it would be helpful to move the work forward.
[Translation]
Senator Dalphond: I have few comments to add after what has been said by Senator Dupuis and Senator Boisvenu, as well as the chair. We have had enough time to understand certain parts of the bill that were of greater interest to us than others. Like any bill, this one is not really perfect, but I know that we often say not to let perfection be the enemy of the good.
An election is just around the corner. Something else that stands out to me is that witnesses who appeared before the committee today, and the Chief Electoral Officer yesterday, told us that time was running out and that the government wanted the next election to be held in accordance with the new rules contained in this bill, which needs to be passed quickly.
Also, the minister felt that this was only the beginning of the reform and that important issues have gone unaddressed. There is the issue raised by Senator Dasko during her speech in the Senate at second reading, concerning effective means to ensure greater gender parity among candidates and within the House of Commons. That important issue is not covered in this bill, and it should be covered eventually. I think our report should mention that we are looking forward to seeing what the government will propose, especially in that area.
Senator Pratte: Mr. Chair, I agree with the approach you are proposing. As Senator Dalphond was saying, there are still concerns and problems. We cannot hide that. On the contrary, we must point it out.
I think we could mention in the report that, after the agenda was established, some committee members did not have enough time. It should be doable. However, the most important thing is the list of concerns senators have expressed on the unaddressed issues and future problems that may arise.
[English]
Senator Frum: There are enough substantive issues to be concerned about that if this observation is not acceptable to the committee I can forego it.
I would simply like to take the chance to say that we are potentially in the last six months of a majority government’s mandate, and we have a gun to our head being put to us by the government, the Chief Electoral Officer and the commissioner saying that we’ve hit the deadline and we need to hurry up. Well, why did the majority government wait until the last minute to introduce a piece of legislation that has such a huge impact on the country?
I will have said that now and we don’t have to put it in observations.
In terms of substantive matters, we heard from the minister herself, which was supported by virtually every witness, that it will be virtually impossible to prevent foreign interference in the 2019 election. I think that observation could be put in the report by saying that we agree with the minister that it will be virtually impossible to prevent foreign intervention in the 2019 election.
The Chair: I think the minister is concerned about our report. We heard testimony this morning in relation to that.
I will invite senators at third reading to bring that issue forward. I think it’s a very compelling issue that is in the minds of Canadians generally, because they know what’s going on around the world. I suggested that we have a line in relation to that, inviting Parliament to continue to reflect and analyze the impact of the next election and follow up on that very issue of foreign interference.
I want to quote, along your lines Senator Frum, the brief of the Chief Electoral Officer yesterday, who clearly stated there are measures that are appréciable, but when it’s appréciable it doesn’t mean the bill contains significant measures. It is not the end of the world. Everyone has recognized that, even the expert witnesses we heard. That is part of what we have heard. I think we could certainly work something along those lines.
[Translation]
Senator Dupuis: I think that Mr. Jacob’s appearance this morning should alert us to the fact that this is not a pre-election or an election issue. This is an issue that is part of life, as interferences happen regularly at different points in a country’s history. We saw the Brexit referendum and the referendum in Scotland. That is a concern that must become constant and not be limited to Bill C-76 or to the next bill that will be presented.
Following the discussion with Mr. Jones, I was struck by the fact that this was the first time the centre was appearing before a Senate committee. I think we must make a commitment or express a concern, as senators, regarding the need for us to constantly take an interest in the issue of cybersecurity or cyber-threats. We must indicate that witnesses have said so and that we recognize that we have this specific responsibility, as senators, because, as you say, this is not just a matter of elections and of senators not being elected. This happens in all aspects of a nation’s life.
The Chair: At the risk of repeating myself, regardless of the election’s outcome, it may lead to more numerous interventions, depending on the context in which the outcome will be revealed.
[English]
Senator Dasko: I am here today substituting for Senator Lankin. I’m very happy to be part of this process.
I want to follow the comments of Senator Dupuis and Senator Dalphond with regard to the importance of trying to include something about gender parity in this bill. The Chief Electoral Officer in Committee of the Whole did say to us that if there were a provision in terms of penalties or benefits given to political parties for nominating more women, for example, he could administer that. He said that quite clearly to us.
We know that the amendment was introduced in the house and was turned back. We also hear that the minister expressed openness to doing something about that, but it is not clear in whatever form. So I want to echo my two colleagues today to say that I think this is something very important.
As to the form it takes, that is not entirely clear given the desire to move quickly with the bill. I think this is very important and could be very easily achieved here or in another way.
[Translation]
Senator Carignan: I think we should also remember the concerns we expressed in the report produced by this committee in 2016, if memory serves. It is a bit disappointing to know that we raised the alarm in 2016 and, in 2018, the government is coming up with a bill and telling us that there was insufficient time to think about it. I think we should mention our 2016 report in the transcript to stress the fact that we are giving this recommendation all the necessary weight, as it was issued in 2016.
[English]
The Chair: I think the point is well made, senator.
Senator Frum: On this one, chair, I’ll be interested in your response as the Charter expert on the committee. There is the issue about the bill in effect preempting the Frank decision that we are awaiting from the Supreme Court on the Charter compliance of the existing law versus what’s written here. It’s almost as though by not waiting for the Supreme Court decision, the government is forcing the hand of the court or they are going to nullify, in effect, the decision of the Supreme Court.
I think it might be worth making an observation that the government chose not to wait for the decision of the Supreme Court and that it’s difficult for us to assess the Charter compliance of the existing provisions in the law.
The Chair: If it is as simple as you just stated, I think it’s a fact that has been raised around here. I think we have to recognize that the issue is in front of the Supreme Court and that there might be other considerations to be brought around the constitutionality of this bill in relation to the right to vote. I think the way you expressed it was perfect. I will certainly make sure that we reflect around that.
Senator Frum: Thank you.
[Translation]
Senator Dupuis: As far as I remember, we have not heard from any witnesses who frightened us or told us that Parliament’s respect for the Supreme Court will result in Parliament having its hands tied by a potential decision by the Supreme Court on the current legislation, while the government wants to amend the legislation. We must be careful what we say in this area. We must refer to the fact that the current legislation is being challenged before the Supreme Court. It is one thing that the decision has not been made yet, but we cannot say that we are unable to assess the constitutionality of the bill itself, since we always have ways to do that. Like for any other piece of legislation, constitutionality can be challenged. That is clear.
Senator Boisvenu: I was the one who put the question to the minister. It was basically to highlight the contradiction where, in a bill, the right is given to indefinitely extend, and at the same time, that same government is still challenging. That is all we are saying, and that is the reality.
The Chair: I think there is a way to say this factually and it is important to bring it up to the Senate, as I am pointing out, so that our colleagues can understand that this issue is still unaddressed.
Senator Boisvenu: It may be current in a few months.
The Chair: Yes. Bringing it up is entirely logical, since we are talking about a section of the bill that has been subject to a number of questions and debates.
[English]
I think we could mention that factually without — and any one of you can stand up in the Senate and make any kinds of comments you want in relation to this issue.
I think the important thing, honourable senators, is that when we append an observation, it is to signal to the public in general that an issue is still open. To raise the issue in the context of the Frank case is in my opinion quite factual. That’s how I see it. I think it’s totally receivable. I was going to raise it myself, by the way, senator.
Senator Batters: Under the same issue of non-resident Canadians voting, I asked the Chief Electoral Officer yesterday about the current voting declaration that non-resident Canadians would fill out and whether there was an indication proximate to the signature of that particular voter about the offences that they could be subject to in the event of a false declaration. I actually printed it off, because he wasn’t giving me clear information about that.
Today I had a look at the Elections Canada website and the form entitled “Application for Registration and Special Ballot (For Canadian electors residing outside Canada).” It’s form EC 78500-X. At the end of that, it does not have anything about the offences. It simply says right above the signature:
I certify that the following statements are true and correct.
1. I am a Canadian citizen. I am 18 years or older . . . .
2. I intend to return to Canada for the purpose of resuming residence.
Because that’s what the situation is right now.
3. All statements made in this application are true and correct.
I would suggest an observation to say that in that same section, the committee suggests that the Chief Electoral Officer includes a statement alerting voters about the significant penalties that could be applicable in the event of a false declaration, in order to draw that to people’s attention right before they sign the form.
The Chair: It could have been, in a way, an amendment to the act. If it is covered by the act or a violation of the act, then is it caught by the general penalty or sanction in the act.
Senator Batters: Well, the Chief Electoral Officer was indicating yesterday that they hadn’t yet revised this sort of a form, so I think it’s something that he easily could include on a revised form. They will need to revise it given number 2 that I just mentioned. So it doesn’t seem like something needs to be amended.
The Chair: I very well understand your point because when you come back through an airport in Canada and you make your declaration for customs purposes, you have the warning that if you make a false declaration —
Senator Batters: Absolutely. It should be no different.
The Chair: — you are susceptible to legal proceedings.
Senator Batters: Yes.
Senator Dupuis: Would you mind expanding on your observation in the sense that because the Chief Electoral Officer, I think, has the mandate to educate people, we should be of the view that he has a special mandate, in this case, to change the forms, making sure that people are made aware of this; so actively engaging in public education, including changes to whatever forms are used.
Senator Batters: Yes, as to the significant consequences and penalties. That would be acceptable, absolutely.
The Chair: We will check with the Chief Electoral Officer. When I say “we,” not me. I will ask the library to check. If someone makes a false statement such as declaring that he or she is 18 but, in fact, is 17, what is the penalty presently under the act? We’ll check that.
We could certainly add the point that we invite the Chief Electoral Officer, under his general mandate, to make sure the form reflects the penalty or the sanction that might be attached to a wrong declaration or a false declaration.
Senator Batters: I would suggest proximate to the signature, not two pages ahead or where people can easily skip over it.
The Chair: I think it’s fair to do that, because we expand the right to vote. People should be made aware that there are risks in thinking they can say anything without responsibility.
Senator Dalphond: I’m in agreement with Senator Batters. It should be clearly spelled out. As Senator Dupuis said, it is to educate expats about the conditions to vote.
We heard concerns that maybe a foreign government could try to interfere, and some people could try to play strategically and try to register in a riding that is not the last riding where they were before. So maybe we should have something in the report that says we invite or urge the Chief Electoral Officer to ensure that the form is a thorough review of the applicant, done in order to ensure they are connected to the riding they are selecting and how they are connected with the riding they would like to vote in. There should be more than a simple form where you just put your name down and you sign.
[Translation]
Senator Boisvenu: Was the implementation of an identification coding system, as suggested by the social media representatives, mentioned this morning? Has that been mentioned as an observation?
Senator Dupuis: In the terms and conditions of questions that should be under discussion?
The Chair: It was mentioned.
Senator Dupuis: Among platforms and following the discussions with the concerned departments.
Senator Boisvenu: Can it be added as an observation?
The Chair: Yes, of course, it can.
Senator Dupuis: We can specify it.
The Chair: We can specify it. According to the testimony we have heard, that would help ensure better monitoring of the system’s integrity.
[English]
There is no harm in mentioning that; on the contrary.
[Translation]
So it will be integrated, Senator Boisvenu.
[English]
Honourable senators, we will certainly work with the research staff on a draft. We will circulate it among members of the steering committee over the weekend, I hope, or Monday. We will make sure that you have a copy before the next meeting so that you have the time to read it and, of course, come back to us. You don’t need to wait until the last minute to make your comments. If you feel you can add to the draft, I would appreciate that very much.
(The committee adjourned.)