Statements and Speeches: Commissioner of Canada Elections
Remarks of the
Commissioner of Canada Elections
for an appearance before the
House of Commons Standing Committee on Procedure and House Affairs
June 8, 2017
Check against delivery
Thank you, Mr. Chair.
I would like to thank the Committee for its invitation to appear today to assist with your examination of the Chief Electoral Officer's report on the last general election.
I am joined by Marc Chénier, who serves as General Counsel and Senior Director of Legal Services in our Office.
Before I turn to the issues of interest to the Committee today, I would mention that there are several additional recommendations contained in the CEO's report on which the Committee has not yet reported that have a direct bearing on the mandate of my Office.
They are: the power to apply to a court to compel testimony (A33); the authority for the Commissioner to lay charges (A34); and the ability for contract investigators to obtain production orders (C45). These recommendations are extremely important for our office and I hope the Committee will support them.
Let me now turn to the two specific issues that were identified as being of particular interest to the Committee.
These have to do with the publication of false statements about the personal conduct or character of a candidate (s. 91 – B12) and the prohibition on foreigners inducing electors to vote or refrain from voting (s. 331 – B27).
Both of these sections raise—although admittedly in different ways—issues relating to fundamental democratic values. Chief among them is freedom of expression which, as the Supreme Court has repeatedly stated, is at its highest in the electoral and democratic context.
It is therefore essential for Parliament to proceed extremely carefully in this area.
The objective of any amendment should be clearly identified: what is it that should be prohibited or regulated, and why? And the means chosen to achieve this objective should be as minimally intrusive as possible. Otherwise there will be a risk that the courts will intervene and find that Parliament has overreached.
The vague and general language in these provisions also creates false expectations and a perception that these provisions are not enforced as they should be. As a result, it can lead to an erosion of Canadians' trust in our electoral system.
Recommendation B12 – False Statements
Section 91 is one example where this problem exists. The language contained in the provision is extremely broad and does not provide an adequate degree of clarity as to the type of statements that are prohibited. So, while the public believes it is applicable to a wide variety of scenarios, from an enforcement standpoint, the circumstances in which it can be applied are actually quite limited.
The reason for this is that, historically, the courts have set a very high standard on falsehood. For example, they have ruled that in order for a false statement to be captured by provisions of this nature, it must falsely impute a high degree of "moral turpitude" or criminality.
In addition, as it stands now, only false statements about candidates or prospective candidates are caught by section 91. As the role of political parties and party leaders has grown considerably since the section was adopted in 1908, it may be time to consider whether the scope of the provision should be broadened to include false statements made with respect to these key players.
A final point. At present, when a violation of s. 91 occurs and a conviction is entered, the appropriate sentence is imposed on the accused. Nothing else follows. An issue for consideration is whether other consequences should flow from a contravention of the provision. For example, should a violation of s. 91 be identified as an illegal act or corrupt practice? This could provide a basis for challenging the results of the election, in cases where the false statements may have seriously impacted on the results. This is currently the case for a contravention of section 92, which prohibits the making of a false statement about the withdrawal of a candidate.
Failing such changes, I think section 91 should probably be repealed.
Whether section 91 is repealed or not, I would suggest that amendments to paragraph 482(b) should be considered in order to clarify its intent. This is a provision of broad application that is intended to fill any gaps in the Act's offence provision concerning deceitful conduct. While it makes it an offence to use "any pretence or contrivance" to induce voters to vote in a certain way, the aim could be clarified to prohibit, for example, attempts to influence electors using means that are fundamentally opposed to our recognized democratic values or that undermine the processes laid out in our electoral legislation.
The challenge in drafting such a provision will be to ensure that it does not capture typical forms of political expression and debate, which often include exaggerations and "political spin". The prohibition, ultimately, should not stifle debate, or unduly limit political expression. Rather, it should aim to protect our democratic values, including transparency and accessibility. For example, it should target "fake news" in cases where the intent was clearly to confuse electors and undermine their ability to cast an informed vote.
Recommendation B27 – Inducements by non-residents
The breadth of the provision related to inducement by foreigners also creates a number of enforcement challenges.
As the members of this committee will likely recall, there were a number of examples of non-Canadians, who, during the last campaign, expressed opinions either through social media, in editorial comments or during interviews. We received a number of complaints in relation to these types of incidents. Many believed that anyone who is not Canadian, and not residing in Canada, is prohibited from expressing support for a party or a candidate. Although a very literal reading of the provision could lead to that conclusion, it is hard to imagine that, in this day and age, Parliament would want to make illegal the expression of an opinion by a foreigner. Hence, the need, in my view, to consider tightening and refining the wording of the provision.
Considering the Act's focus on maintaining a level playing field, the focus should probably include elements that prohibit foreigners from incurring significant expenses to oppose or promote a candidate or party. These could include, for example, incurring expenses to pay employees to work in a call centre or to organize door-to-door canvassing during a campaign.
The CEO also recommended (C49) that it would be useful to review the wording of the provision to make it clear that it applies to "attempts to influence electors." The use of "induce" in the English version of the Act, causes confusion about what is captured by the prohibition. The reason for this is that it implies that for an offence to have been committed, the attempt to influence had to have been successful. This gives rise to an almost impossible burden of proof for the prosecution.
Finally, I wish to briefly mention one last area of potential reform regarding third parties.
In Canada, third parties are only regulated with respect to their election advertising activities. Provided they act independently from a candidate or party, they may incur limitless amounts of expenses when carrying out activities such as polling, voter contact services, promotional events, etc. They can also use whatever sources of funding – including foreign funds – to finance these non-election advertising activities.
The level of third party engagement in Canada's electoral process will likely continue to grow in the years to come. For that reason, Parliament should consider whether there is a need to re-examine the third-party regime, with a view to maintaining a level playing field for all participants.
In conclusion, I would like to thank the Committee for its support of a number of important recommendations.
In particular, I was extremely pleased to see that the Committee had agreed with the recommendation that a regime of Administrative Monetary Penalties (AMPs) (A26) be adopted. This recommendation, coupled with the ability to negotiate broader terms and conditions included in compliance agreements (A35) would allow my Office the much-needed flexibility it requires to carry out its compliance and enforcement mandate more efficiently.
It would also facilitate the quick and efficient resolution of a number of matters in a transparent manner, eliminating the need to take some of them to court. As criminal courts are dealing with the aftermath of the Jordan decision, this is a highly relevant consideration.
In closing, although I will endeavour to provide fulsome answers to your questions, I would like to remind the members of this Committee that I will not be able to discuss the details of any particular matter that is, or may have been the subject of a complaint to, or an investigation by my Office.
I will be pleased to take your questions.