Update: So, about that ban on inducements by non-resident non-Canadians ...

So, remember how I thought I'd solved the Mystery Of The Rarely Used And Little Understood Provision Against Inducements By Non-Residents (short title: The Michael Moore-Front Porch Strategies Clause)? 

Well, it turns out that I may have spoken too soon.

After I'd finally managed to cobble together what I hoped was a coherent, yet comprehensive post on the controversy -- and no, I'm not going to recap it, so just click, skim the highlights and come back -- I made the possibly unwise decision to make one more attempt to discern just what was on the minds of the parliamentarians who gave a pass to the most recent iteration of the 1908 law: specifically, the committee charged with studying the Chretien government's electoral reform bill in 1999, which rewrote the existing Canada Elections Act, albeit keeping many provisions, including the clause banning foreign inducements.

That was how I found myself reading the transcript from the November 30, 1999 clause-by-clause review of the bill in question, during which S 331 was debated at length without a single committee member so much as mentioning the ostensible purpose, at least according to the background paper prepared by the Library of Parliament in response to the bill -- namely,  "to prevent non-residents from canvassing during an election campaign."

Which isn't to say that it wasn't a lively discussion -- quite the contrary, in fact.

Among the concerns raised: the question of whether the ban should be extended to cover political parties, policies and "political opinions," not just candidates, as was (and is) the case with the law as written (the eventual conclusion was no, that isn't necessary, since electors vote for candidates, not parties or ideas); whether religious sects that counsel adherents not to exercise their franchise could claim an exemption based on freedom of religion (yes, possibly); and how such a law would could be applied outside the country (unclear). 

What did not, however, come up even once was any reference to "canvassing" -- either in person, or by phone.

As for the interpretation of "induce," committee members weren't sure what it meant -- although they did notice that it wasn't defined in the Act, making one wonder why no one took the initiative and attempted to do so. Eventually, the chair suggested that they should use "the dictionary definition of inducement", which would seem to suggest that the BC interpretation (which you can read in the original post) might well be cited in any eventual court proceeding related to the clause.

All parties did appear t agree that, as written, the clause would not bar a non-resident from expressing an opinion through a statement -- "Don't vote for so-and-so, he's a crook" -- but would prevent, say, a Ford Motor Company executive from exhorting company employees not to vote for a particular candidate.

(There is even a cameo appearance by a distinctly wakeful Rob Anders, who raised the issue of extraterritorial application, which seems somewhat fitting, given his well-documented adventures on the campaign trail in Oklahoma.)

The upshot? Although it seems plausible that the parliamentarians responsible for passing the original provision under then-Prime Minister Wilfrid Laurier in 1908 may well have intended it to keep non-Canadians off the canvass circuit, it's difficult to say with any degree of certainty that the same was true for the MPs who decided to keep it on the books nearly a century later.

Indeed, it's not clear whether they were even aware that it was a factor, let alone the purpose of the law.

In any case, here's the relevant section of the clause-by-clause review, from the official transcript, which is available here.

Note: For clarity and ease of reading, I have stripped the language transitions and redacted a short segment dealing with a previous clause:

(On clause 331--Prohibition--inducements by non-residents)

The Chair [Liberal MP Derek Lee]: On clause 331 there is an amendment proposed by the BQ, BQ-58, which is shown on page 109 of the brick.

Mr. Bergeron, would you introduce BQ-58?

Mr. Stéphane Bergeron: Mr. Chairman, the purpose of this amendment is to broaden the prohibitions that prevents interference by foreigners encouraging people to vote for political parties or opinions, always with a view to respecting the electors' choice, Mr. Chairman.

[...

Mr. Gar Knutson: I appreciate Mr. Bergeron's attempt, but the officials advise me there are a number of other sections in the act that use the language in the act as written. I don't think it makes any difference whether we adopt the amendment or not.

If we were to adopt it and we want to make the act consistent we would have to go through a number of other sections to make it consistent. Given that I don't think Mr. Bergeron's amendment adds anything in particular--I think we're on a very fine point here, which doesn't change the substance of the legislation--I'm asking members to vote against it.

The Chair: Okay. As far as things have evolved, we can't vote for a party. Sorry. Electors are not capable of voting for a party on the ballot. They vote for individuals who may or may not have party affiliations appended to their name on the ballot.

Dealing with the term "option", would this section ever be called upon to apply to voting for an option in an election?

Ms. Mondou.

Mr. Michael Peirce [Director of Legal Operations, Legislation and House Planning/Counsel, Privy Council Office]:We're trying to determine in what way this applies to a referendum.

The Chair: This part or section does not apply to referenda. So the only thing an elector would ever vote for under this section of the act would be a candidate. Is that correct?

Mr. Michael Peirce: Yes.

The Chair: Okay. We understand Mr. Bergeron's intent here.

Now, do you have something to add, Mr. Bergeron?

Mr. Stéphane Bergeron: Of course, Mr. Chairman. I always appreciate such positive and objective comments coming from you.

That said, I think we're putting our heads in the sand. When Mr. Knutson repeats that he doesn't really see what this amendment adds to the legislation which, if one is to believe him, is just about perfect, I'm not surprised because there's nothing in our proposals that seems to add anything good, specific, new or very positive.

That said, I would simply like to emphasize that if I understand Mr. Knutson's very restrictive, very narrow-minded, interpretation, that means that a foreigner could come onto Canadian territory and tell someone not to vote, for example, for Mr. Knutson. That, you don't have the right to do. On the other hand, you can tell someone not to vote for the Liberal Party. That is not prohibited under the law as theoretically one does not vote for a political party. So you can allow someone to campaign and say you shouldn't vote for the Liberal Party or for the Conservative Party or again that you should vote for the Conservative Party, preferably, or for any other party, goodness knows which one.

Mr. Chairman, we know full well what happened many times in Canadian and Quebec history when elections were held mainly on a specific question. The 1988 Free Trade Agreement was mentioned before. What did voting in favour of free trade mean at the time? It meant you voted Conservative. At the time, if you wanted to vote against free trade, you had to vote for the Liberal Party of Canada, which has changed a lot since then, or for the New Democratic Party.

That's what I mean when I talk about options. There have been election campaigns in Canada's history where one voted for or against conscription, for or against free trade and so on. In the past, in the days of Wilfrid Laurier, people voted on French schools in the West. That's what I mean.

If we want to hide our heads in the sand and say that, in theory, this legislation only applies to a vote concerning the candidates, let's go ahead. But what it might mean is that we might possibly accept, under the auspices of this beautiful Act, that someone go around campaigning and saying to vote or not vote for the Liberal Party. That would pose absolutely no problem because, in theory, you only vote for candidates in this country.


The Chair: Your chair would like to bootleg a question to Mr. Bergeron's submission here.

My understanding would be that this section would also make it impossible for a foreigner, either inside Canada or outside Canada, to be a third-party advertiser. Is that correct?

A person not residing in Canada, being in Canada during the election, who spends a half million dollars in election advertising would be incapable of spending that money. He would be prohibited from spending it under this section. Is that correct?

Ms. Isabelle Mondou [Counsel, Legislation and House Planning/Counsel, Privy Council Office]: There is another section, which says a foreigner should not campaign in Canada. I can find that section for you. It is even more specific than that.

The Chair: But this section has that same effect, because it prohibits a person who is a foreigner from inducing an elector to vote for or against--

Ms. Isabelle Mondou: For a candidate or against a candidate.

Mr. Michael Peirce: Yes, it would have that effect.

The Chair: Okay. There's one religious faith out there right now that calls upon its members not to participate in voting. Would this particular section cause that religious faith residing outside Canada to commit an offence if they continued to induce their faithful not to vote, to refrain from voting, as this section provides, or would they have the benefit of a constitutional religious exemption?

I won't mention the faith, but I know there is one, and I've met adherents of that faith.

Mr. Gar Knutson: There's more than one. Baha'is don't vote. Jehovah's Witnesses don't vote. Lots of people in my riding don't vote.

The Chair: If they're not based in Canada--

Mr. Stéphane Bergeron: Maybe they vote in your riding.

The Chair: I asked the question; I bootlegged it on Mr. Bergeron's intervention. Maybe we've made it too complicated.

So quite possibly is the answer.

Mr. Michael Peirce: Yes, possibly.

The Chair: Okay, that's fine.

Mr. Stéphane Bergeron: Mr. Chairman, in light of your interventions which are always, of course, most relevant, I must say that here, in clause 331, we're not talking about foreigners who would set themselves up as third parties engaging in publicity. Nor are we talking here about foreigners campaigning in favour of or against a candidate. We're talking here about one or several foreigners who might induce Canadian citizens to vote in such or such a way in favour of or against a candidate.

For example, let's say that I'm working in a small business belonging to a Dutchman. This Dutchman tells me that, if he were in my shoes, he wouldn't vote for such or such a party. If I understand this correctly, that would be allowed. It's allowed right now. From what I'm reading here, if I were told not to vote for the Liberal Party, in which case I'd answer that I quite agree, then this would be allowed under this clause. My boss, the Dutchman, would have the right to tell me not to vote for the Liberal Party of Canada. What would not be allowed, would be to tell me not to vote for Gar Knutson. That would not be allowed under this clause. But if my boss, the Dutchman, told me not to vote for the Liberal Party of Canada, that would be acceptable. There would be no problem. Is that the case?

The Chair: Mr. Knutson.

Mr. Gar Knutson: It's the word "induce" in clause 331. If a foreigner in my riding says "Gar Knutson is a crook, don't vote for him", that's not an inducement; it's just a statement. But if the foreigner comes in, say, a Ford Motor Company, which would be a person who tries to induce its employees not to vote for me.... It's probably a bad example, but it's the word "inducement". If they're just making a statement, then that's not necessarily an inducement.

I'll just make a general point. We seem to be getting bogged down in some very obscure hypotheticals. I don't mean this as disrespect to Mr. Bergeron, because they're coming from a number of members of the committee, but we can go through every conceivable hypothetical for every different section and be here for a very long time.


Mr. Stéphane Bergeron: Excuse me, Mr. Chairman...


Mr. Gar Knutson: I still have the floor.

We can ask officials about whether foreign laws apply and whether the Constitution overrides, whether the freedom of religion overrides, and I am fearful that we're going to be here for a long time.

To go back to my main point here, it depends how you look at the word "inducement". I think "inducement" is fairly clear. Others may disagree. It's not defined in the act, so we'll just have to use a dictionary definition of what the word "inducement" means.

The Chair: Okay, we've had a good discussion of this. We've had full discussion.

Mr. Rob Anders: No, there's an aspect I'd like to touch on here that hasn't been touched.

The Chair: All right, if it's relevant, I'm happy to hear short interventions. We're going to get to a vote on this.

Mr. Rob Anders: I understand.

Mr. Chairman, I wonder about something you raised earlier on another amendment. That was the whole idea of the extraterritorial application of Canadian law.

If an American wishes to go ahead and take a position on the election--and to be respectful to Mr. Bergeron, whether they take the position on a candidate, a political party, or an option, either refraining or in favour of--first, how would clause 331 apply? And secondly, how could the government possibly try to enforce this in any reasonable way upon an American citizen who chose to set up a website or even advertise such that it spilled into the Canadian market?

The Chair: Thank you. We'll note the question. We'll get to it in a minute.

Mr. Bergeron.

Mr. Stéphane Bergeron: Mr. Chairman, first I'll answer Mr. Knutson, which will lead me into what I have to say on the clause.

Mr. Knutson seems to worry about the fact that our work seems to be slowing down. I would have serious questions if I were him. Maybe he's getting nervous because he's accountable for the speed with which we get through this bill. Or, if there's a slowdown, maybe there are reasons that he'll have to explain to someone somewhere. I think that he'll certainly be accountable in that respect.

When he says "in any way induce", I understand the term "induce" full well, Mr. Chairman. I'm not talking about making a broad statement saying that you shouldn't vote for Gar Knutson because he's a crook. That's not what I'm talking about. What I'm talking about here is inducing someone not to vote or vote for Gar Knutson. Presently, that is prohibited by law. But if I induce someone to vote or not vote for the Liberal Party of Canada or for another option, that is not provided for in the Act. That is not a hypothetical case.

I think it's very mean and scornful of Mr. Knutson to presume that we shouldn't raise some hypothetical cases. It seems to me that it's the lawmakers' work to provide for any and all contingencies to avoid the ones that the committee might not have thought of happening during an election period, and having no provision to deal with it.

We have to avoid leaving cracks in the legislation. From what I can see, and you haven't been able to show me wrong, there is a crack in the legislation. Even if you find that what I'm saying is totally useless, we could find ourselves, perhaps, in a situation where a foreigner may have attempted to induce someone to vote in favour of a party or against a party and then you'll say that question wasn't raised.

The Chair: Mr. Harvey.

Mr. André Harvey: Mr. Chairman, I'd like to give an opportunity to the parliamentary secretary to consult the Minister because my colleague's recommendation is not commonplace. This recommendation will oblige us to take on the whole leadership in the campaigns or in any of the causes we'll have to defend here, in the country.

With this in mind, I would suggest that we reserve this matter and defer the vote to allow the parliamentary secretary to check whether the adding of these two conditions might not allow us to accept them, maybe even unanimously, Mr. Chairman. It is a way of showing more responsibility and consolidating the idea that an election campaign is to be done here in Canada and there will be no...


The Chair: Colleagues should keep in mind that there is another clause that regulates third parties and third-party election advertising.

Mr. Stéphane Bergeron: I'm not talking about that, Mr. Chair.

The Chair: I realize that, Mr. Bergeron.

So we've had--

Mr. Rob Anders: Is my question going to be...?

The Chair: Oh, yes.

Mr. Anders left you a question about extraterritorial application and how one would enforce this extraterritorially.

Mr. Michael Peirce: I don't know the answer to that question.

The Chair: Okay. Clearly it has extraterritorial application. How it would be enforced remains to be seen.

Mr. Michael Peirce: I don't know the enforcement mechanism.

The Chair: Okay. There's always a problem with extraterritorial application.

Now I'm going to put the question. We've had good discussion of the issues.

(Amendment negatived)

The Chair: The amendment is negatived. I will therefore put the clause.

Mr. Rob Anders: I would like a recorded vote--

The Chair: I'm sorry, a recorded vote on the amendment...?

Mr. Rob Anders: On the clause.

(Clause 331 agreed to: yeas 7; nays 6)