Statements and Speeches: Commissioner of Canada Elections

Amendments to Bill C-76 Recommended by the Office of the Commissioner of Canada Elections

Topic and Clause Bill C-76 proposal Analysis Recommendation
Publishing false statement to affect the election results [Clause 61] The Bill proposes to amend the existing s. 91 to make it applicable to false statements about prospective candidates, party leaders and public figures associated with a registered party, in addition to candidates. It also proposes to limit the application of the provision to false statements concerning criminal activity, as well as about specific information about the person such as: citizenship; place of birth; education; professional qualifications; or membership in a group or association. Courts have interpreted the existing s. 91 as applying to false statements about criminality or moral turpitude. Nevertheless, Canadians read the existing wording as applying to more benign false statements. The Commissioner therefore recommended that s. 91 be reviewed to address the obvious disconnect between the way the courts applied the provision, and what Canadians understand the provision to mean. While the Bill specifies more clearly what the prohibited conduct would be, it would no longer cover allegations of "moral turpitude" that do not constitute criminal conduct. This could result in a lessening of the protection offered by the Act as it has been interpreted by the courts over the years, at a time when "false news" is becoming a concern in many world democracies. This could result in serious allegations being made that have a serious effect on an election, without the Office being able to take any compliance or enforcement action. In its 35th report, a majority of the Standing Committee recommended that the provision apply to false statements in relation to the personal character or conduct of a person that is likely to have a significant prejudicial effect on the impression electors have of the person by reason that it falsely ascribes serious defects and failings to the person including the commission of a criminal act, views or behaviours fundamentally inconsistent with what is generally expected of an elected official, or feelings of hatred, contempt for or deep-rooted prejudice against an identifiable group. The Standing Committee may wish to consider whether this criterion should instead be retained.
Undue influence by foreigners [clause 190] A new s. 282.4 is proposed to replace s. 331. It would amend the provision to prohibit "undue influence" by foreigners. The new provision lists what constitutes "undue influence", including publishing a false statement as defined in the new s. 91, or doing something that is an offence under any Canadian law. Including a breach of s. 91 as constituting "undue influence" is redundant, since the foreign entity could already be charged under s. 91. In any event, any offence committed under a Canadian law is also included as "undue influence". The current wording of the Bill's provision does not capture as "undue influence" many potential false statements by foreigners that could conceivably be used by them to purposefully influence electors' choices. The Commissioner is of the view that foreign entities should not be allowed to disseminate false news to affect Canadian elections. In its 35th report, the Standing Committee recommended that any false information that is produced or transmitted by a foreign entity with the intent of causing serious confusion and to influence the exercise of an elector's vote should be prohibited. The Commissioner is of the view that this is the better approach.
Selling advertising space to a foreign third party [clause 190] A new ss. 282.4(5) would prohibit any person or entity from selling advertising space to a foreign person or entity for the purpose of enabling them to unduly influence an elector's vote. The wording of this provision appears to be unnecessarily complex and could give rise to enforcement difficulties. The behaviour that is intended to be prohibited is the selling of advertising space to a foreign person or entity to allow them to transmit election advertising. The wording of the provision should be simplified to prohibit any person or entity from selling advertising space to a foreign person or entity to allow them to transmit election advertising.
Sources of funding for third parties – prohibition against using foreign funds [clauses 190 and 372] A new s. 349.95 and amendments to s. 358 are proposed to prohibit a third party from using funds received from a foreign entity to finance regulated activities Unlike the contributions rules applicable to regulated political entities, there is no general anti-avoidance provision proposed in Bill C-76 to prohibit attempts to circumvent the prohibition against the use of foreign funds to finance third party activities. This could allow a third party to knowingly accept foreign funds, for example, if those foreign funds were first funneled through a Canadian person or group. The proposed s. 349.95 and s. 358 should both include a prohibition against anyone circumventing or attempting to circumvent the prohibition against third parties using funds from a foreign entity to finance their regulated activities, in a manner similar to the general anti-avoidance provision currently found at subsection 368(1) of the Canada Elections Act. The Acting CEO also made this recommendation.
Advertising to name third party [clauses 223 and 225] A new s. 349.5 and amendments to s. 352 are proposed. These provisions would require third parties to include a tagline in, respectively, their partisan and election advertising. Some third parties exist only for the purposes of an election, and may have a generic name that does not identify who are the persons behind the group. This leads to enforcement difficulties when complaints are received about an unregistered third party. Further, it does not ensure transparency for Canadian electors, as intended by this type of provision. British Columbia and New Brunswick election laws require that third parties include, in or on their advertising message, a telephone number or mailing address for the third party.

Further, at every election, many Canadians complain to the Commissioner that some advertising does not include the required tagline. In some cases, it is technically present–meeting the legal requirement–but its colour or size may not allow for it to be reasonably visible.
To facilitate compliance and enforcement action, and to increase transparency, these provisions of the Bill should be amended to require that third parties include a telephone number or a mailing address, as is the case in some provinces, and for the tagline to be "reasonably visible".
Unauthorized use of a computer [clause 323] The Bill proposes a new section 482 that creates an offence under the Canada Elections Act similar to the offence found at section 342.1 of the Criminal Code. This new offence provides the Commissioner with the authority to take action in cases where there is illegal access to and use of a computer system or data with intent to affect the results of an election. The Commissioner is in agreement with the CEO that this provision should be expanded to include leadership and nomination contests. Further, the Commissioner believes that the specific intent in the chapeau of the provision should be removed, since it does not cover situations where a computer system would be used illegally to undermine the election or to cause mayhem. The specific intent element of the offence found in the chapeau of the provision should be removed. Instead, paragraphs (a) and (b) should refer to "a computer system used at or for an election, nomination contest or leadership contest". The Acting CEO also made this recommendation.
Office of the Commissioner as a "government institution" for the purposes of ATIP

[not addressed in Bill C-76]
The Bill proposes to place the Commissioner within the Office of the CEO. For the purposes of the Access to Information Act and the Privacy Act (the privacy legislation), the head of the government institution would be the CEO. Information in the Office's possession can be very sensitive. As head of the Government institution, the CEO would be the official responsible for reviewing the Commissioner's investigative files, making decisions about the release of information, and defending such decisions. To protect the Office's independence and the integrity of its investigations, the Commissioner should be solely responsible for requests for information. A permanent solution would involve opening provisions of statutes outside the scope of Bill C-76 and require further policy development, and is not recommended at this time. The Commissioner notes that, should the bill be adopted as is, the Acting CEO intends to fully delegate his authorities (except for complaints about the timely release of information) with respect to documents under the Office's control, as a short-term solution.

Date modified: