Summary Investigation Report on Robocalls

2. The Legal Context

30. In order to understand the steps taken in the investigation of the complaints and the conclusions reached, it is necessary to provide a brief overview of some of the rules and practices that currently apply to the conduct of elections.

2.1 Voter Registration and Lists of Electors

31. Elections Canada maintains the National Register of Electors, which is a permanent, continually updated database listing Canadians registered as eligible voters. In 2011, the Register contained approximately 24 million electors. The Register contains the name, address, gender and date of birth of electors, their electoral district number, the polling division to which they are assigned, as well as a unique personal identifier to help track changes to each elector's record.

32. Elections Canada informed investigators that about 15% to 17% of elector information changes each year because of factors such as change of residence, attainment of the voting age, death, and new Canadians becoming eligible to vote. For instance, approximately 3 million Canadians relocate every year. Some of these moves occur during election periods or shortly before. Elector information is updated continually in partnership with a number of authoritative sources, as authorized by law. Electors can opt out of being listed in the Register at any time; if they do so, they must establish their eligibility to vote during a campaign period.

33. The Register is used to create quarterly and annual lists of electors, as well as preliminary lists of electors at the beginning of an electoral event. Copies of these lists are provided to political parties and candidates for the purpose of communicating with electors, as required by the Act.Footnote 6 Electors' dates of birth are not included on the lists that go to the parties or candidates, nor are telephone numbers.

34. During the course of an election campaign, the lists of electors are revised at the electoral district level as eligible voters come forward to register, as planned revision activities occur, and as electors update their information at advance or election day polls. Returning officers provide local campaigns (but not national parties) with three successively revised sets of lists during the course of a campaign.Footnote 7 During the revision period for the 41st general election, for example, the lists were revised with 732,234 address updates.

35. Consequently, and very importantly, the content of the national voters list constantly evolves during an election campaign, and its administration is decentralized to give returning officers control over the content for their electoral district.

2.2 Elections Canada's Communication of Poll Locations

36. Each electoral district is divided into a number of geographic areas called polling divisions, each comprising at least 250 electors. Generally, there is one polling station, or ballot box, for every polling division. Up to 15 polling stations may be grouped together in a central polling place. Once an election is called, returning officers secure space for polling stations, often in the same location as used in previous elections, but situations can arise during the election period that make changes of location necessary.Footnote 8

37. Returning officers at the electoral district level notify electors of their poll location by means of a voter information card (VIC), prepared and mailed to each registered elector beginning on the 24th day before election day. Each VIC indicates the address of the elector's polling site, voting hours, dates of advance and election day polls, and a telephone number to call for further information.

38. If it becomes necessary to change the location of a polling site, the returning officer will mail amended VICs to affected electors if time allows. If time does not allow, they will use local media and election workers posted at the previously announced site to advise electors of any change. Elections Canada does not call electors to inform them of changes in poll locations. Subject to very few exceptions, Elections Canada does not have the telephone numbers of electors. The numbers it does have are excluded from the National Register of Electors or any list of electors, and are therefore not communicated to any political parties or candidates.

39. The Act requires that returning officers in electoral districts inform local candidates of the location of polling sites and of any changes. This is because the Act authorizes candidates or their representatives to be present at polling stations and at the counting of votes.Footnote 9 Traditionally, it has been up to the local candidates to communicate polling site information to their respective parties at the national level. The location of polling sites can also be retrieved individually on the Elections Canada website in a search by household address.

40. Following the request of a party during the 41st general election, Elections Canada provided initial polling site information to all registered political parties. In doing so, Elections Canada included several caveats and restrictions, stating that:

2.3 Political Parties' Telephone Communication with Electors

41. Freedom of expression is entrenched in the Canadian Charter of Rights and Freedoms, as are the democratic rights of citizens, including the right to vote. Communications with electors by political entities are essential to the democratic process. To facilitate communication, Parliament has included provisions in the Act requiring the transmittal of elector information to parties, candidates and members of Parliament through lists of electors, containing the name and address of each elector.Footnote 10 While parties communicate with electors in a variety of ways, this investigation is only concerned with telephone communications.

42. Each major party maintains a database of electors. A central element of party databases consists of information that Elections Canada must provide about electors, which parties may use for communicating with them. Investigators were told that each of the major parties has taken steps to ensure their elector databases are password-protected and may be accessed only by individuals authorized to do so by a central party authority, with access limited to that portion of the database relevant to their work.

43. Investigators were also told that parties match elector names with commercially available telephone lists and call electors in order to identify their supporters. This is known as a "voter ID" call. Later in the election period, parties make "get-out-the-vote" (GOTV) calls, intended to maximize their voter turnout. GOTV calls are normally only made to electors whom the respective parties believe to be their supporters, based on the information collected in their elector databases. In the course of the various interviews conducted by investigators, it became clear that many participants in the campaign process see voter ID and GOTV efforts as essential to success.

44. In the 2011 election, parties and many local campaigns made calls to electors using volunteers, third party commercial telemarketers or both. Such calling is to be conducted in accordance with rules issued by the Canadian Radio-television and Telecommunications Commission (CRTC). These rules include various requirements, such as adhering to calling hours, using a clear identification message, and providing a number at which a representative of the caller can be reached, which is often accomplished through a call display number. This number need not be the actual calling number, but one that allows the call recipient to follow up on the call received.Footnote 11 The CRTC is responsible for the enforcement of these rules.

2.4 Prohibitions Under the Canada Elections Act

45. Under section 110 of the Act, parties are entitled to use voters list information for the purpose of communicating with electors and for soliciting contributions. They are, however, prohibited from knowingly using the personal information of electors for a purpose other than one in accordance with section 110.Footnote 12.

46. The Act contains specific provisions that are meant to protect electors from inappropriate practices:

281. No person shall, inside or outside Canada,
(g) wilfully prevent or endeavour to prevent an elector from voting at an election;

482. Every person is guilty of an offence who
(b) by any pretence or contrivance, including by representing that the ballot or the manner of voting at an election is not secret, induces a person to vote or refrain from voting or to vote or refrain from voting for a particular candidate at an election.

47. For these provisions to apply to a call allegedly providing an elector with incorrect poll location information, it is not sufficient to simply prove the content of the call and the identity of the caller. It is also necessary to obtain sufficient evidence to prove that the call was made a) with the intention of preventing or attempting to prevent an elector from voting, or b) for the purpose of inducing an elector by some pretence or contrivance to vote or not vote, or to vote or not vote for a particular candidate. The burden of proof required in such matters is the criminal standard of proof beyond a reasonable doubt.

48. The same intent must be proved in order to apply these provisions to a nuisance call. For example, a call made repetitiously, accompanied by false claims to be representing an opponent party, might amount to an offence should proof of the intent to interfere with an elector's vote be discovered. To transmit false or mistaken information without the requisite intent, however objectionable it may be, is not, in itself, an offence under the Act.

49. Certain provisions of the Criminal Code may also apply in limited circumstances:

2.5 Investigative Challenges

50. Before describing the investigatory steps taken, it is important to explain how aspects of the existing legal framework posed challenges during the course of this investigation. These challenges are more fully set out in the Chief Electoral Officer's March 2013 report, Preventing Deceptive Communications with Electors, to which reference was made earlier, but will be summarized here.

51. First, the lack of contractual information between local or national campaigns and telemarketers employed to call electors had a significant impact on the investigators' search for the source of the impugned calls. The challenge lies in the limited information that must be provided to Elections Canada under the Act. Currently, party expenses are grouped in broad categories and parties do not have to submit supporting documents. Candidates are required to submit supporting documents; however, the purpose for which a firm was retained, the phone numbers called, and the text of any calls made is not reported.

52. Second, the Criminal Code places certain limitations on the means of obtaining information and evidence. Investigations under the Act must meet applicable standards of acquiring evidence. The threshold to obtain a production order, described later in this report, means that any investigation must have made significant progress before a production order can be applied for and obtained. Another limitation is the inability to compel oral evidence from potential witnesses. In the present investigation, these limitations meant that, after a certain point, investigators had to rely on the voluntary participation of any concerned entity or person to obtain relevant information.

53. Third, there are no binding industry standards for the creation and retention of records by telephone service providers and telemarketing companies. Only a minority of the former keep records unless there is a financial interest in doing so (such as outstanding long distance charges), and the latter have inconsistent record keeping policies. In the present investigation, telephone service providers gave varied responses when asked for subscriber information. Some service providers were unwilling to provide information about incoming calls made to complainant subscribers. They cited a concern with third party privacy interests of the incoming callers under the Personal Information Protection and Electronic Documents Act.

54. In addition to challenges posed by the existing legal framework, other challenges relate to the current state of technology. This includes, for example, the present inability to counter technological means that callers may use to prevent being traced or identified. The widespread use of Voice over Internet Protocol (VoIP) allows callers to enter any calling number they wish, greatly limiting, if not eliminating entirely, the ability to trace a VoIP call back to its actual source.

55. Finally, two other factors significantly exacerbated the difficulties encountered during the course of the investigation:

Footnote 6 See s. 110 of the Act.

Footnote 7 Respectively, these are known as the "updated preliminary lists of electors," the "revised lists of electors" and the "official lists of electors." The "final lists of electors" are completed after election day.

Footnote 8 Such a situation might arise, for example, if a poll location has been rendered inaccessible because of a fire or flood.

Footnote 9 See ss. 135-140 and 283-291 of the Act.

Footnote 10 See ss. 45, 94, 93(1.1) and 107(3) of the Act.

Footnote 11 CRTC fact sheet: "Key facts on the telemarketing rules for political candidates, parties and organizations."

Footnote 12 See para. 111(f) of the Act.

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