Statements and Speeches: Commissioner of Canada Elections
Speaking Notes for an appearance before the
Senate of Canada's Committee of the Whole
November 6, 2018
Check against delivery
Thank you, Mr. Chair / Madam Chair.
I am very pleased to appear before you today on the subject of Bill C-76. I am accompanied by our General Counsel, Mr. Marc Chénier.
Impact on the Office of the Commissioner
C-76 contains several measures, which I had previously recommended, with a view to improving the enforcement of the Canada Elections Act.
Among the measures that I consider to be of particular interest are:
- the power to ask a court, in certain circumstances, to issue an order compelling a witness to answer questions in an investigation;
- the elimination of the requirement to seek pre-approval for the laying of charges; and
- especially, the addition of a system of administrative monetary penalties that would allow for swift punishment of certain offences.
If adopted, these changes will significantly transform–and in a very positive way–the entire enforcement regime.
We are extremely happy with these changes.
The bill also contains other provisions that are of particular interest to my Office.
First among these is our proposed return to the Office of the Chief Electoral Officer.
This would greatly facilitate our work, most notably by allowing the easy transfer of information between our two organizations. In addition, it would encourage and facilitate contact and exchanges between employees of both organizations. This can only be positive given our common interest of ensuring the integrity of the electoral process.
It is also important to emphasize that many of the positive measures contained in Bill C-23 that were aimed at protecting the independence of my Office have been maintained in C-76. Notably: the appointment of the Commissioner for a fixed term, subject only to removal for cause; and maintaining the status of the Commissioner as Deputy Head for the purposes of human resource management.
On the other hand, the return of my Office to within that of the Chief Electoral Officer could lead some to believe that our independence is affected.
I do not believe these concerns are justified.
First and foremost, it is important to emphasize that the bill specifically provides that our investigations are carried out in a manner that is independent from the Chief Electoral Officer (section 509.21).
Moreover, we will continue to have our own team of legal advisers and our own communications services.
Additionally, in order to reinforce our independence and the public perception of that independence, we have recently adopted a new logo and a new trademark to promote our activities.
All of this should reinforce, in the minds of the public, the fact that we are an entity different from, and independent of, Elections Canada.
Senators who are members of the Standing Committee on Legal and Constitutional Affairs will remember that I appeared before them in April 2017, to discuss, among other things, some shortcomings surrounding the regulation of third parties, some of which were particularly active during the 2015 general election.
Bill C-76 has several provisions aimed at addressing these concerns.
In particular, I would highlight the proposed ban that would prohibit third parties from using foreign funds to finance their partisan and electoral activities.
I also note the proposal to regulate surveys, advertising and partisan activities carried out by third parties, both during the pre-writ period and the electoral period itself.
In my view, these changes will contribute to greater transparency, to contain the threat that may be posed by foreign influence and to promote a level playing field.
Possible Improvements to C-76
As I have mentioned, C-76 is, from our standpoint, an excellent piece of legislation.
This does not mean, however, that it cannot be improved.
I have two comments on this point.
First, I fully support the CEO's comments on the provision that creates a new offence regarding the unauthorized use of a computer. I am referring here to the new section 482.
The wording of the proposed provision would impose on the prosecution, the burden of proving beyond a reasonable doubt that the accused acted with “the intention of influencing the results of an election.”
This is likely to unduly limit the usefulness of this provision.
Gathering evidence to establish, beyond a reasonable doubt, this constituent element of the new offense may prove be a rather complex task.
For example, if the goal of the accused was to confuse or undermine the confidence of the electorate in our electoral system, it might prove very difficult to obtain a conviction, even if the behaviour of the accused could have caused considerable damage to the electoral process.
For this reason, it seems to me that this element of specific intent should be removed, and the text of the provision amended accordingly.
The other aspect of C-76 that concerns me relates to certain proposed amendments to section 91, which prohibits someone from making false statements about candidates for the purpose of influencing the outcome of an election.
The new version of paragraph (1)(b) seems to me to be unnecessarily restrictive in that it is limited to certain types of very specific false statements (concerning, for example, citizenship or the place of birth of a candidate).
This means that a whole range of false statements that are currently captured by section 91 would no longer be covered.
More specifically, false allegations surrounding an act or conduct that clearly violates accepted community standards without constituting a criminal offence would henceforth be excluded from the scope of the offence.
The courts have ruled that these kinds of allegations—that can be among the most serious and injurious—are currently prohibited under section 91.
As these types of false statements appear to be resorted to more and more in various electoral contests, this proposed amendment seems to me to be a step in the wrong direction.
This bill brings improvements that will better position our Office to deal with some of the new threats that lie ahead – as recent elections and referenda in a number of democratic systems similar to ours have demonstrated.
Nevertheless, we must recognize that there is not, and there cannot be, a secret recipe or perfect solution.
For example, it will always be difficult to conduct investigations involving foreign entities or persons acting on their behalf. And even when such an investigation succeeds, it will be difficult, if not impossible, to force these entities or foreign persons to face our justice system.
To maximize our chances of success against the dangers that lie ahead, we must be constantly vigilant. We must also realize that many have a role to play and that we must act in a concerted manner.
I am appealing to political actors – and I am addressing not only the political parties but their leaders and candidates as well – who have a critical role to play.
To maintain the health of our democracy over the long term, which is certainly an objective that we all share, we must commit to giving up the short-term benefits of using tactics or ploys that are contrary to the Act or that do not comply with the rules of fair play.
For our part, we are committed to using all the tools at our disposal to enforce the legislation and protect the integrity of our electoral process.
We will continue to work closely with, in particular, Elections Canada, intelligence and security agencies and social media platforms to achieve this goal.
We are preparing – and have been for some time now – for the next general election. C-76 contains provisions that will make our work easier.
For this reason, it is important that it should come into force as soon as possible so that we can, at the first opportunity, integrate these changes into our preparations.
I thank you for your attention.
I will be happy to respond to your questions.