Statements and Speeches: Commissioner of Canada Elections

Remarks of the Commissioner of Canada Elections for an
appearance before the Standing Senate Committee
on Legal and Constitutional Affairs

May 12, 2021

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Thank you, Madam Chair.

I am very pleased to be here today to assist the Standing Committee with its examination of the provisions of Bill C-30 pertaining to the application of section 91 of the Canada Elections Act.

In 2018, during the study of Bill C-76, my Office stated that a provision like section 91 must strike the right balance between allowing normal debate and usual political jousting expected during an election period, and prohibiting wilful false statements that are serious in nature and that can unfairly impact a candidate or party's chances at an election.

I would note that at that time, while there was some debate surrounding the scope of section 91, there was nothing in the Parliamentary deliberations that suggested that the amendments were intended to capture statements that were made without knowledge that they were false. For this reason, following the adoption of Bill C-76, we announced our intention to continue to enforce section 91 as though the requirement to establish knowledge of the false nature of the statement was part of the offence. Although an argument could be made that a lower threshold might be used to prove mens rea (mere recklessness, for example), my position was that the best interpretation of the provision was that there was still a need to prove knowledge.

The decision of the Ontario Superior Court of Justice concerning section 91, and the subsequent decision of the Government of Canada not to appeal the decision, means that the provision could not be applied in the province of Ontario should a federal election be held before the change proposed in Bill C-30 is enacted.

I wish to clarify that in keeping with the usual practice, when a provision is declared invalid by courts in one province, we apply such a judgment across the country. It would definitely not be in the public interest for different rules to apply in different provinces for the same federal general election. This means that, should a general election be held before the problem identified by the Court with respect to section 91 is addressed, we would not enforce the provision anywhere in the country.

The current absence of rules surrounding false statements about candidates is of concern to many. In light of this, and given the legislative vacuum that the recent decision has created, I support the amendment to section 486 that is before you today, which makes it clear that, in order to prove that an offence has been committed under section 91, the prosecution must prove the accused knew the statement they made was false.

I thank you for your attention.

I will be happy to respond to your questions.

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