Good morning, everyone. Welcome to the 64th meeting of the Standing Committee on Procedure and House Affairs. The first hour of the meeting will be televised.
Today we are continuing our study of the Chief Electoral Officer’s report entitled “An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election”, with a specific focus on recommendations B12, publishing false statements to affect election results, and B27, foreigners inducing electors to vote or refrain from voting. If people want to raise other items with the commissioner while we have him here, or if he wants to raise items, I'm sure that's fine.
In order to assist us in our deliberations, we are joined today by Yves Côté, the Commissioner of Canada Elections, and Marc Chénier, general counsel and senior director of the Office of the Commissioner of Canada Elections.
Welcome, and thank you for coming here. This will be very helpful.
The commissioner has distributed his remarks to all of you, so you have them in writing.
I will now turn the floor over to the commissioner for his opening statement.
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.
As you said, I am joined by Marc Chénier, general counsel for our group and senior director of legal services in our office.
Before I turn to the issues of interest that you mentioned a few minutes ago, Mr. Chair, 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.
There are three: the power to apply to a court to compel testimony, the authority for the commissioner to lay charges, and the ability for contract investigators within our office to obtain production orders under the Criminal Code. These recommendations are extremely important for our office, and I dearly hope the committee will support them.
Let me now turn to the two specific issues that were identified as being of interest to the committee. They have to do with the publication of false statements about the personal conduct or character of a candidate and the prohibition on foreigners inducing electors to vote or refrain from voting. Both of these sections raise, although admittedly in different ways, issues related to fundamental democratic values. Chief among them is freedom of expression, which, as the Supreme Court has repeatedly stated, is probably 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—this is extremely important—the means chosen to achieve this objective should be as minimally intrusive as possible. Otherwise there will be a risk that the courts will interfere and find that you as members of Parliament have 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 is with regard to false statements. Section 91 of the act is one example of 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 false statements that are prohibited. 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 the concept of falsehood. For example, judges 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”, to use the expression they have used, 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—more than 100 years ago—it may be time to consider whether the scope of the provision should be broadened to include false statements made with respect to these other key players.
A final point.
At present, when a violation of section 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 section 91 be identified as an illegal act or corrupt practice? This could provide a basis for challenging the results of an 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 to section 91, I think this section 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 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, and this is a major challenge, will be to ensure that it does not capture typical forms of political expression and debate, which often include exaggeration and what is often referred to as 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.
Let me now turn to recommendation B27. The breadth of this provision related to inducement by foreigners also creates a number of enforcement challenges. As the members of this committee will likely recall—in fact, will no doubt recall—there were a number of examples of non-Canadians who, during the last campaign, expressed views or opinions, either through social media, in editorial comments, or during interviews.
We received at the office 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, in 2017, 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—in recommendation 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, as you can appreciate.
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, and so forth. 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, Mr. Chair, I'd like to thank the committee for its support of a number of important recommendations concerning our office. In particular, I was extremely pleased to see that the committee had agreed with a recommendation that a regime of administrative monetary penalties be adopted. This recommendation, coupled with the ability to negotiate broader terms and conditions included in compliance agreements, will allow my office the much-needed flexibility it requires to carry out its compliance and enforcement mandate more efficiently. It would also—and I think this is a very important point—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 across the country are dealing with the aftermath of the decision of the Supreme Court in Jordan, this is, I would submit, a highly relevant consideration.
In closing, Mr. Chair, 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.
If we receive a complaint about electoral fraud, we assume it is something major and relatively big. We begin with a preliminary review of the allegations and facts brought to our attention. If we confirm that there are sufficient grounds to proceed and launch an investigation, we would open a formal investigation and would then talk to the people we believe might have been involved.
The reason for recommendation A33 is that, in certain circumstances—and I have experienced this in the past four or five years since I have been in my position—we ask persons to appear because we strongly suspect and, in some cases, know with certainty that they are aware of certain things and have information. For their own reasons, they refuse to cooperate. They say they do not want to tell us anything.
You as members of Parliament are in a position to properly assess what I am going to say. In politics, loyalty to the party and the team is often considered a fundamental value. For these people, it is very difficult to cooperate and give information that could help us move forward with our investigation.
If, for example, after contacting all the individuals to whom we wanted to ask questions, no one wanted to cooperate, a provision such as the one suggested in recommendation A33 could be useful. We could go before a judge, an independent party, and explain what is going on, what the allegations are, how serious they are, and the fact that, unfortunately, we cannot convince anyone to talk. We would then ask the judge to issue an order compelling a particular person to talk to us.
There would of course be guarantees attached to this process if the judge agreed to issue the order. To begin, it would be clear that nothing said by the person compelled to speak to us could be used against them. The person would have the right to legal representation. The meeting would be private and not public.
It should be noted that such guarantees do not mean that we would use this power left and right to conduct investigations into all kinds of minor matters. It would be for circumstances that could seriously affect public confidence in the electoral system. Citizens need to be reassured that an investigation was conducted in order to obtain the information we need to move on to the next steps.
That is my opinion on recommendation A33. In five or six provinces in Canada, the commissioner or person in an equivalent position currently has this power. I am including officials from the office of the chief electoral officer of Quebec.
This is already the case federally since the head of the competition bureau has this power and may, under certain circumstances, ask a Federal Court judge to issue an order to compel someone to testify.
This is the main point I wanted to make with regard to recommendation A33.
Let me move to the other question that I had for you.
When you were at the Senate legal and constitutional affairs committee in April, you indicated that you had a number of complaints about third parties. I don't know if we're talking about the same subject matter that you just indicated here or not, but I'm wondering if you can indicate whether that's become an issue, that third parties are so significantly involved there may be unfair electoral outcomes as a result.
You also stated today, and I believe at the Senate committee as well, that 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. You also have indicated that, when third parties are able to receive foreign funding and use that foreign funding during the election period, provided they receive the funds prior to six months before the election is called, it means that, really, third parties can use unlimited foreign funding and there's really no restriction on the amounts they can use, outside of election advertising. You said today that you believe we should look at the other expenses, like polling, voter contact services, promotional events, and these types of things.
I wonder if you could expand on that and give us an idea of any other suggestions you have that we could use to strengthen the third party financing regime to ensure that there is that level playing field you're talking about, that it is maintained in relation to foreign funding, and specifically fleshing out this idea of the other types of expenditures that are completely unlimited at this point. Do you think we need to go beyond that six-month period, so there can't just be someone at six months and a day, especially with a fixed election date, which obviously drops a bunch of money in and is able to significantly influence a Canadian election?
She was charged with an offence under the provision at play here, and the judge found that this was not sufficient to justify or to warrant a conviction under the provision. The judge said that the provision should be used where the candidate is alleged to be, and I'm quoting from the judge's reasons, “a thief, a criminal, a felon, or that some type of moral turpitude was involved.”
Also, I think there are some cases.... By the way, I think that six or seven provinces have essentially the same provision as we have here and the wording is almost exactly the same, about the personal conduct or character of the individual.
In another case, which comes out of Manitoba, the person said the candidate who was running against her was “a liar, a thief, a drug peddler.” The judge in that case found that this was sufficient to...and, in fact, she pleaded guilty and she received a fairly significant fine.
The point I would make on this is that I think there is a need, because many people in Canada think, when they look at this provision, that any time a false statement is made about a candidate, let's say, that is enough to trigger this, and the courts are not there at all. They understand that freedom of expression in the political realm is pretty broad, and, as I said in my remarks, political spin, insinuation, and exaggeration are part of the way, for better or for worse, that electoral campaigns are run in this country and in many other countries. Courts recognize that and will be careful before they intervene.
That said, when somebody crosses the line and impugns somebody by way of, as I said, criminal conduct or fraud or anything like that, then the courts would be more open to perhaps considering issuing a verdict of guilt.
Thank you for being here today, Commissioner.
My questions will be based on recommendation B12.
I am a bit confused by your statement. I know you want more clarity in the provision and if it's not there, then you'd like it repealed, but in your written remarks, in the first paragraph regarding recommendation B12, you stated that “the provision is extremely broad.” That's what I understand it to be, but then I was a little confused when the third paragraph said “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.”
I'm just a little confused. I do think that false news, fake news, and a whole bunch of things need to be addressed in today's world. We are seeing a lot of problems in election campaigns around the world, but we already have a problem with provisions being too broad, so I don't know whether adding more things will in fact broaden or make it even harder to implement.
I'm just confused. Could you clarify? I think I'm of the position that I would like to strengthen it, especially given the current climate. I think that false statements about personal character are really important to me as a woman, because I do believe that women candidates oftentimes have their character called into question more than male candidates do, so I am a little concerned about that.
If you would answer that question, then I'll have a follow-up question.
It's probably my not expressing myself clearly enough, so I'll try to clarify what I meant when I said that perhaps there would be an issue in whether it should be broadened.
Section 91 as it reads now applies only to candidates or prospective candidates, and yet people could make some very damaging comments about, for example, a political party or a senior organizer in a political party that, by nature of these words, could have a very detrimental effect on the outcome of an election.
The question I am putting to you is, when this was passed in 1908 perhaps we didn't have the same kind of involvement by senior officials of parties, or parties, so that issue, to me, is an open issue in whether you'd like to broaden it. That's why I am saying this.
In terms of narrowing it, I am suggesting looking at the way that courts and judges have applied that provision in various court cases. You find they are looking for something that's pretty narrow. For example, one of the judges said that if you make a comment about the way somebody carried out their official duties, a lot of leeway will be given to people making those kinds of statements, but if you impugn or attack somebody's personal reputation, that's something else. That's why I'm saying to you that false statements.... You may wish to add words to clarify so that courts have an indication of what Parliament would like them to do, or would like the legislation to say.
As I said at the outset, we are in the realm of freedom of expression, so it is extremely important for any new legislation—if you decide to open it up and change it—to bear that in mind. The court will give lots of leeway to people expressing themselves in the course of a political debate, so you have to make sure that your objectives clearly outline and define, and that the means you use are as narrow as possible to achieve the goal.
Of course, and I'm sure you have these occurrences where people allege false statements in political debate, but I think most of us around the table here can agree that if you're debating an opponent and you're talking about the way their party voted or what they had implemented, that is political spin at times and can be seen in different perspectives.
For example, in the last election my Conservative opponent, Mr. Gill, sent out letters to each household in my riding implying that I had supported a private member's bill and introduced it in the House, but I had never been a member prior to running; I was a new candidate. That was definitely a false statement, but previously there was another member with the same first name as mine, so by eliminating the last name and sending out a letter to each household, it could be stated that somebody with that first name had done this, but it was done during my election campaign, implying that I had introduced this bill.
That's where things become murky and it's a false statement, but I had never thought of making a complaint about that necessarily because I think there are ways to address that, through media, through responding to allegations like that.
It's the personal character that really bothers me, and as we want to encourage more women to run, I feel we should not send a message that as an elected body, we don't care if these types of things happen in a campaign. We should be sending the message that yes, on the books we have something, but it isn't enforceable and I want to help you make it enforceable.
How do we make this an illegal act or a corrupt practice? You said that it doesn't go that far.
That was a great segue for me, because I wanted to mention that as well and ask the commissioner about it.
The Senate put out this report. I don't know if you've seen it yet. It just came out. In “Controlling Foreign Influence in Canadian Elections”, they made a number of recommendations in order to ensure that foreign funding isn't playing a direct or indirect role in Canadian elections.
There are things like prohibiting influence by foreign entities, modernizing the regulation of third parties' involvement, increasing penalties, and removing the six-month limitation on that requirement to report contributions. Then, of course, they're also asking that Elections Canada be required to perform random audits of third parties' election advertising expenses and the contributions they receive that may be used during an election period. Those are some of the recommendations they made.
You've indicated to us, obviously, that you think we need to look at third party financing and consider modernizing and updating that. You indicated in a response to me earlier that in order for provisions to be effective, they must apply to all possible election expenses. I'm looking for your suggestions on what the committee can do, because I firmly agree with you that we should be looking at this. This is an issue that needs to be dealt with. I would assume that when you say it must apply to all possible election expenses, you're indicating that the provision that it's only for advertising expenses is not broad enough, and that you believe we need to expand that further. I'd love to hear your thoughts on that.
In particular, I'd also like to hear your thoughts on the six-month limitation. With the fixed election dates, as I mentioned earlier, in terms of it being six months before the writ is dropped, everyone knows that if they want to get that money in, they can do it six months plus a day before then, and nobody knows. Nobody is the wiser. As a result, there could be very significant foreign funding that could seriously influence our election.
I'd love to hear your thoughts on those two things.