Statements and Speeches: Commissioner of Canada Elections

Remarks for General Counsel for an appearance before the
House of Commons Standing Committee on Procedure and House Affairs

June 6, 2018

Check against delivery

Thank you, Mr. Chair.

The Commissioner has asked me to send his regrets for being unable to attend today’s session.

This Bill contains measures that stem from recommendations that were previously made by both the Commissioner and the former Chief Electoral Officer. I am pleased to be here today in the context of your study of Bill C-76.

Impact on the Commissioner’s Office

Among these extremely positive measures are the system of Administrative Monetary Penalties (AMPs), eliminating the requirement for prior approval in order to lay a charge and the power to ask a court order to compel witnesses.
In addition to these changes, there are a number of other elements that are of particular interest to us.

First, is the return of the Commissioner to within the Office of the CEO. This change would be beneficial because our work is closely tied to elections. We would be able enhance our ability to fulfil our mandate by maintaining better contact with those responsible for the election machinery.

We are happy to see that the important safeguards that were set out in Bill C-23 to protect our Office’s independence have been kept in this bill, including: the statement that our investigations be carried out independently; a fixed term for the Commissioner with removal only for cause; and his status as deputy head for human resources.

Third Party Regime

With respect to the third party regime, the Commissioner asked that I report that the review of complaints about third-party activities during the last general election has been completed, and that we have not found any evidence of illegal collusion, coordination or foreign influence. However, the narrow regulation of third parties under the current Act has limited our examination. Third parties now carry out opinion polls, conduct canvassing activities, and hold events. To date, provided they are carried out independently from parties and candidates, these activities are unregulated. Thus, the bill makes significant progress towards leveling the playing field for electoral participants.  

Our Office has a few suggestions for improvements. First, the Bill would require a third party to identify itself in a tagline on its advertising messages. However, a third party can be a group that is formed only for one election and its name alone may be meaningless. This is not consistent with the goal of transparency sought by the Act and also causes enforcement difficulties. Some provinces require third parties to provide a telephone number or address in their tagline, and the Committee may wish to consider requiring this of third parties.

New Challenges to Elections

Furthermore, we generally support provisions to provide tools allowing us to deal with new challenges to elections. This includes new offences related to cybercrime and misleading communications, as well as clarifying the offence for foreign inducement and for false statements about candidates and party leaders.

On that last point I note that the clarifications related to these two provisions of the Act are not as broad as what had been endorsed by the Committee in its 35th report.

In the case of false statements about candidates and leaders, allegations of criminality and about a few personal characteristics would give rise to the offence. In our view, this is not sufficient to protect the integrity of our elections against false claims that can have a devastating impact on a campaign. While courts have recognized that false allegations concerning moral turpitude are currently covered, this would be lost if the bill is adopted as is. At a time when “false news” has become a pressing concern, weakening one of the only provisions that protects our democratic process against false allegations may not be advisable.

With respect to undue influence by foreigners, one of the ways of exerting such influence would be to make a false statement about a candidate or leader. Again, this is much more limited than what the Committee had endorsed. The Commissioner continues to believe that any false information disseminated by a foreigner to influence a Canadian election should be prohibited.

I would also point out that the Commissioner supports the suggested amendments put forward by the acting CEO. In particular, as our Office suggested to Elections Canada, a circumvention offence should be added to prohibit attempts to go around the ban on foreign funds being used to finance third-party activities. It is also important that the specific intent element should also be removed from the cybercrime offence.

Information about the amendments recommended by the Commissioner is included in the chart that was distributed to the Committee.

Conclusion

There are many useful elements to this Bill. The Commissioner asked that I mention that there will nevertheless always be limits to what can be accomplished in some cases. While Canada has agreements with some countries to carry out investigations beyond our borders, there are others with which cooperation will be impossible. That said, we are working with our government security counterparts to minimize such barriers.

I will be pleased to take your questions.

Thank you.