Briefing Material – Appearance before the House of Commons Standing Committee on Procedure and House Affairs (November 1, 2022)

Foreign interference: Mandate under the Act

Key Messages

• The Commissioner of Canada Elections (Commissioner or CCE)’s mandate and the scope of our compliance and enforcement activities are prescribed by the Canada Elections Act (the Act).
• The CCE may only examine those allegations that could constitute a contravention under the Act.
• Any person who thinks they may have witnessed or have knowledge of an offence or violation under the Act, including concerns about foreign interference, should contact the CCE.
• It is important to remember that foreign interference is a complex issue that goes beyond what is regulated in the Act.
• The CCE engages with other stakeholders that play a key role in preserving the integrity of elections including, but not limited to, Elections Canada and members of the Security and Intelligence Threats to Elections (SITE) Task Force (CSIS, CSE, GAC, RCMP). We all have a role to play.

Facts

• While “foreign interference” is a common expression, the term does not appear in the Act. The Act regulates very specific activities that are directly or indirectly related to foreign interference.
• Foreign interference in the Canadian electoral process can pose a serious threat to our democracy. All allegations of wrongdoing on the part of a foreign person or entity are taken seriously and are carefully examined to determine whether they fall within the Commissioner’s mandate.
• However, there are a number of ways foreigners can participate in the electoral process – primarily in those areas that could be seen as helping to foster a healthy debate – that are not considered an offence under the Act.
• For example, as long as no expenses are incurred, foreigners are free to:
  • express an opinion about the outcome or desired outcome of the election;
  • make a statement encouraging electors to vote or not to vote for a candidate or a registered party in the election; or
  • share editorial content in print or broadcast media, including an editorial, speech, interview, column, letter, commentary or news.
• Foreign persons or entities are prohibited from unduly influencing a Canadian elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party. Examples of undue influence may include an individual who does not reside in Canada who is neither a Canadian citizen nor a permanent resident knowingly incurring expenses that directly promote or oppose:
  • a candidate in an election;
  • a registered party that has endorsed a candidate in that election; or
  • the leader of such a registered party.
  It may also include attempts to influence the elector that involve committing an act or omission that is contrary to federal or provincial laws and regulations.
• Only Canadian citizens and permanent residents can contribute to a registered party, a registered association, a nomination contestant, a candidate or a leadership contestant.
• Only Canadian citizens aged 18 and over may vote.
• During both the pre-election and election periods, foreign entities are not permitted to incur expenses for partisan activities, election or partisan advertising or election surveys.
• Broadcasting signals that originate in Canada – even if they are re-transmitted elsewhere – and whose subject matter has reference to an election are permitted.
• However, a broadcasting station or broadcasting signals that originate outside Canada, used with the intent to influence persons to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party during an election period is not permitted.
• Additionally, some sections of the Act that apply equally to Canadians and non-Canadians are noteworthy in a discussion of foreign influence.
• While the Act does permit communication of one’s personal views and opinions, it does not permit the publication or distribution of any material that both (1) aims to mislead the public and (2) implies that it was made, distributed, transmitted or published by or under the authority of:
  • the Chief Electoral Officer (CEO)
  • a returning officer
  • a political party
  • a candidate
  • a prospective candidate.
• Knowingly making or publishing, during an election period, a false statement about a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party, could be an offence under the Act, if the statement is made or published with the intention to affect the results of an election. The types of statements that may fall within this category include:
  • a false statement that a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party has committed, or has been charged with or is under investigation for, an offence under federal or provincial law; or
  • a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group or association of any of the individuals outlined above.
• Using a computer to hack, destroy, or disrupt computer data, if this is done with the intent of affecting the results of an election, could be an offence under the Act.
• The Act prohibits coercing another person into voting for or against a certain candidate or not voting at all.

Relevant sections of the Act

Undue influence by foreigners

Meaning of unduly influencing

Publishing false statement to affect elections results

Publishing false statement of candidate’s withdrawal

Not qualified as elector

Voting more than once — general election

Voting more than once — by-election

Impersonation

Misleading publications

Unauthorized use of computer

Preventing elector from voting

Intimidation, etc.

Prohibition — use of foreign funds

Prohibition — circumventing prohibition on use of foreign funds

Prohibition — spending by foreign third parties (pre-election period)

Prohibition — spending by foreign third parties (election period)

Prohibition — use of broadcasting station outside Canada

Prohibition — ineligible contributors

Undue influence by foreigners

282.4 (1) No person or entity referred to in any of paragraphs (a) to (e) shall, during an election period, unduly influence an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at the election:

1. an individual who is not a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act and who does not reside in Canada;
2. a corporation or entity incorporated, formed or otherwise organized outside Canada that does not carry on business in Canada or whose primary purpose in Canada during an election period is to influence electors during that period to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at the election;
3. a trade union that does not hold bargaining rights for employees in Canada;
4. a foreign political party; or
5. a foreign government or an agent or mandatary of a foreign government.

Meaning of unduly influencing

(2) For the purposes of subsection (1), a person or entity unduly influences an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election if

1. they knowingly incur any expense to directly promote or oppose a candidate in that election, a registered party that has endorsed a candidate in that election or the leader of such a registered party;
2. one of the things done by them to influence the elector is an offence under an Act of Parliament or a regulation made under any such Act, or under an Act of the legislature of a province or a regulation made under any such Act.

Exceptions

(3) For greater certainty, subsection (1) does not apply if the only thing done by the person or entity to influence the elector to vote or refrain from voting, or to vote or refrain from voting for the particular candidate or registered party, consists of

1. an expression of their opinion about the outcome or desired outcome of the election;
2. a statement by them that encourages the elector to vote or refrain from voting for any candidate or registered party in the election; or
3. the transmission to the public through broadcasting, or through electronic or print media, of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news, regardless of the expense incurred in doing so, if no contravention of subsection 330(1) or (2) is involved in the transmission.

Collusion

(4) No person or entity shall act in collusion with a person or entity to whom subsection (1) applies for the purpose of contravening that subsection.

Selling advertising space

(5) No person or entity shall sell any advertising space to a person or entity to whom subsection (1) applies for the purpose of enabling that person or entity to transmit an election advertising message or to cause an election advertising message to be transmitted.

Publishing false statement to affect elections results

91 (1) No person or entity shall, with the intention of affecting the results of an election, make or publish, during the election period,

1. a false statement that a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party has committed an offence under an Act of Parliament or a regulation made under such an Act – or under an Act of the legislature of a province or a regulation made under such an Act – or has been charged with or is under investigation for such an offence; or
2. a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group or association of a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party.

Clarification

(2) Subsection (1) applies regardless of the place where the election is held or the place where the false statement is made or published.

Publishing false statement of candidate’s withdrawal

92 No person or entity shall publish a false statement that indicates that a candidate has withdrawn.

Not qualified as elector

281.3 No person shall

1. vote or attempt to vote at an election knowing that he or she
1. is not a Canadian citizen when he or she votes, or
2. is not 18 years of age or older — or will not be 18 years of age or older — on polling day; or
2. induce or attempt to induce another person to vote at an election knowing that the other person
1. is not a Canadian citizen — or will not be a Canadian citizen — when he or she votes, or
2. is not 18 years of age or older — or will not be 18 years of age or older — on polling day.

Voting more than once — general election

281.5 (1) No person who has voted in a general election shall vote again, or attempt to vote again, in that general election.

Voting more than once — by-election

(2) No person who has voted in a by-election shall vote again, or attempt to vote again, at that by-election or at any other by-election that is held on the same day.

Impersonation

480.1 (1) Every person is guilty of an offence who, with intent to mislead, falsely represents themselves to be, or causes anyone to falsely represent themselves to be,

1. the Chief Electoral Officer, a member of the Chief Electoral Officer’s staff or a person who is authorized to act on the Chief Electoral Officer’s behalf;
2. an election officer or a person who is authorized to act on an election officer’s behalf;
3. a person who is authorized to act on behalf of the Office of the Chief Electoral Officer;
4. a person who is authorized to act on behalf of a registered party or a registered association; or
5. a candidate or a person who is authorized to act on a candidate’s behalf.

Exception

(2) A person does not commit an offence under subsection (1) if they establish that the representation was manifestly for the purpose of parody or satire.

Misleading publications

481 (1) Every person or entity is guilty of an offence that, during an election period, distributes, transmits or publishes any material, regardless of its form, that purports to be made, distributed, transmitted or published by or under the authority of the Chief Electoral Officer, or a returning officer, political party, candidate or prospective candidate if

1. the person or entity was not authorized by the Chief Electoral Officer or that returning officer, political party, candidate or prospective candidate to distribute, transmit or publish it; and
2. the person or entity distributes, transmits or publishes it with the intent of misleading the public into believing that it was made, distributed, transmitted or published by or under the authority of the Chief Electoral Officer, or that returning officer, political party, candidate or prospective candidate.

Factors

(2) In determining whether a person or entity has committed an offence under subsection (1) the court may consider whether the material included the use of

1. a name, logo, social media account identifier, username or domain name that is distinctive and commonly associated with the Chief Electoral Officer, a returning officer, or the political party, candidate or prospective candidate, as the case may be; or
2. the name, voice, image or signature of the Chief Electoral Officer, a returning officer, or the candidate or prospective candidate or of a public figure who is associated with the political party.

Exception — parody or satire

(3) A person or entity does not commit an offence under subsection (1) if they establish that the material was manifestly distributed, transmitted or published for the purpose of parody or satire.

Unauthorized use of computer

482 (1) Every person or entity is guilty of an offence that, fraudulently, and with the intention of affecting the results of an election,

1. by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
2. uses or causes to be used, directly or indirectly, a computer system with intent to
1. commit an offence under paragraph (a),
2. destroy or alter computer data,
3. render computer data meaningless, useless or ineffective,
4. obstruct, interrupt or interfere with the lawful use of computer data, or
5. obstruct, interrupt or interfere with a person or entity in the lawful use of computer data or deny access to computer data to a person or entity that is entitled to access to it;
3. uses, possesses or traffics in, or permits another person or entity to have access to, a computer password that would enable a person or entity to commit an offence under paragraph (a) or (b); or
4. attempts to commit any offence referred to in paragraphs (a) to (c).

Words and expressions

(2) Words and expressions used in subsection (1) have the same meaning as in subsection 342.1(2) of the Criminal Code.

Preventing elector from voting

282.6 No person shall prevent or attempt to prevent an elector from voting at an election.

Intimidation, etc.

282.8 No person shall

1. by intimidation or duress, compel or attempt to compel a person to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election; or
2. by any pretence or contrivance, including by representing that the ballot or special ballot or the manner of voting at an election is not secret, influence or attempt to influence a person to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election.

Prohibition — use of foreign funds

349.02 No third party shall use funds for a partisan activity, for advertising, for election advertising or for an election survey if the source of the funds is a foreign entity.

Prohibition — circumventing prohibition on use of foreign funds

349.03 No third party shall

1. circumvent, or attempt to circumvent, the prohibition under section 349.02; or
2. act in collusion with another person or entity for that purpose.

Prohibition — spending by foreign third parties (pre-election period)

349.4 (1) A foreign third party shall not incur the following expenses:

1. partisan activity expenses in relation to a partisan activity that is carried out during a pre-election period;
2. partisan advertising expenses in relation to a partisan advertising message that is transmitted during that period; and
3. election survey expenses in relation to an election survey that is conducted during that period.

Definition of foreign third party

(2) In subsection (1), a foreign third partyis a third party in respect of which

1. if the third party is an individual, the individual
1. is not a Canadian citizen,
2. is not a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, and
3. does not reside in Canada;
2. if the third party is a corporation or entity,
1. it does not carry on business in Canada, or its only activity carried on in Canada during a pre-election period consists of doing anything to influence electors during that period to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at the following election, and
2. it was incorporated, formed or otherwise organized outside Canada; and
3. if the third party is a group, no person who is responsible for the group
1. is a Canadian citizen,
2. is a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, or

Prohibition — spending by foreign third parties (election period)

351.1 (1) A foreign third party shall not incur the following expenses:

1. partisan activity expenses in relation to a partisan activity that is carried out during an election period;
2. election advertising expenses in relation to an election advertising message that is transmitted during that period; and
3. election survey expenses in relation to an election survey that is conducted during that period.

Definition of foreign third party

(2) In subsection (1), a foreign third partyis a third party in respect of which

1. if the third party is an individual, the individual
1. is not a Canadian citizen,
2. is not a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, and
3. does not reside in Canada;
2. if the third party is a corporation or entity,
1. it does not carry on business in Canada, or its only activity carried on in Canada during a pre-election period consists of doing anything to influence electors during that period to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at the following election, and
2. it was incorporated, formed or otherwise organized outside Canada; and
3. if the third party is a group, no person who is responsible for the group
1. is a Canadian citizen,
2. is a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, or

Prohibition — use of broadcasting station outside Canada

330 (1) No person shall, with intent to influence persons to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election, use a broadcasting station outside Canada, or aid, abet, counsel or procure the use of a broadcasting station outside Canada, during an election period, for the broadcasting of any matter having reference to an election.

Exception

(1.1) Subsection (1) does not apply in respect of any matter that is broadcast if the broadcasting signals originated in Canada.

Prohibition — broadcasting outside Canada

(2) During an election period, no person shall broadcast, outside Canada, election advertising with respect to an election.

Prohibition — ineligible contributors

363 (1) No person or entity other than an individual who is a Canadian citizen or is a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act shall make a contribution to a registered party, a registered association, a nomination contestant, a candidate or a leadership contestant.

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Foreign interference: Cases

Key Messages

• The CCE’s work with respect to foreign influence is limited to the obligations and prohibitions that Parliament has imposed in the Act.
• Foreign interference continues to warrant our attention as we have a responsibility to protect the integrity of our elections and to preserve the confidence of Canadians in their electoral system.
• Over the past several years, the Office of the Commissioner of Canada Elections (OCCE) has received complaints that contained allegations of foreign interference. These were carefully reviewed and, when warranted, investigated by our office. There have been no formal measures taken by the CCE in relation to foreign interference. The CCE continues to take the threat of foreign interference very seriously and remains vigilant.

Facts

• Foreign interference in elections is a source of concern for many Canadians and has resulted in complaints to our office. The mere perception of foreign interference can seriously undermine public confidence in our institutions and the electoral process.
• During the 43rd general election, ten separate instances of alleged foreign interference resulted in a total of 158 complaints.
• Of these 158 complaints, 100 were related to an article in a foreign publication featuring a party leader. Following a review of these complaints, it was concluded that there was no contravention of the Act, as it constituted editorial content.
• During the 44th general election, the OCCE did not receive as many complaints regarding alleged foreign interference.
  • 13 separate instances of alleged foreign interference resulted in a total of 16 complaints.
  • All 16 files have been closed.
• Investigations into foreign interference will inevitably continue to raise difficult issues.
• Foreign components in investigations almost always give rise to delays, complexities and other challenges.
• A significant amount of time and resources will often be required simply to obtain the evidence located outside Canada. If evidence is under the jurisdiction of a country with which Canada does not have cooperation agreements, it may even be impossible to acquire the evidence.
• Investigating offences under the Act when foreign actors and evidence are involved will always pose challenges that may, in some cases, prove insurmountable.
• This challenge is not unique to the CCE. It is common to most investigative bodies.
• CSIS and CSE have both warned about the threat of foreign interference in Canadian elections.

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Foreign interference: Recommendations

Key Messages

• Following the 2019 and 2021 general elections, recommendations for amendments to the Act were put forward that, if adopted, would modify the definitions of foreign corporations or foreign entities in the Act. The adoption of these changes would ensure that the related provisions are more difficult to circumvent.
• Transparency is key to ensure the integrity of our electoral system. It facilitates our compliance and enforcement work and can help safeguard against foreign interference.
• For this reason, we have also recommended that advertisers be required to use online platforms that are compliant with section 325.1 of the Act and that the ad registry contains the contact details of the person who authorized the publication of the advertising message.
• The CEO recommended that section 282.4 of the Act (undue influence by foreigners) be amended to include the pre-election period. We strongly support that recommendation.
• Section 282.4 currently only covers the election period. However, a foreign influence operation taking place immediately before the election period could have an undue influence on the election and the electorate.
• We also support the recommendation of the CEO to facilitate searches within registries and to require political entities and third parties to publish detailed and timely information about their paid political communications (e.g. links on their websites to registries of all the platforms used for advertising purposes).

Facts

• In his Recommendations Report: 2019 and 2021 General Elections, former commissioner Yves Côté made the following recommendations:

• Recommendation 2.2 – Foreign corporations or foreign entities
• Paragraphs 282.4(1)(b), 349.01(1)(b), 349.4(2)(b) and 351.1(2)(b)


• Replace the phrase “only activity” with “primary activity”.
• Standardize the definitions of foreign corporations and foreign entities in the Act to include, in all cases:
• foreign corporations and foreign entities that do not carry on a business in Canada, as well as
• those whose primary purpose or whose primary activity carried on in Canada consists of doing anything to influence electors.

• Recommendation 1.5.2 – Use of compliant digital platforms
• Sections 325.1 and 325.2


• Add a provision to the Act requiring any person or entity that uses, or aids, abets or counsels someone to use, or makes available for use, an online platform to publish election advertising or partisan advertising or cause election advertising or partisan advertising to be published, to exercise all due diligence to ensure that the platform that is used (or that is proposed to be used) complies with the requirements set out in section 325.1 of the Act.

Use of compliant online platforms:

• From a compliance and enforcement perspective, making political entities and third parties accountable for the platforms they use would make it easier to obtain the cooperation needed to quickly ensure compliance and minimize the impact on an election.

Recommendations made by the CEO:

• Apart from the CEO’s recommendations on undue influence by foreigners (4.2.1) and on the ad registry (5.2.1), the CCE also supports the CEO’s recommendations on false statements (4.1.1), misleading publications (4.2.1) and on the unauthorized use of a computer (4.2.2).

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Foreign interference: Outreach

Key Messages

• Foreign interference, disinformation and other related issues are not limited to elections.
• The response to these complex and multifaceted issues requires the participation and collaboration of a wide variety of stakeholders, as well as of the population as a whole.
• The CCE engages with a variety of stakeholders both in Canada and internationally to expand its expertise and awareness of emerging threats and trends in the environment, including with regards to foreign interference, and to benefit from lessons learned in other electoral contexts.
• We have also put in place Memorandums of Understanding with some of these stakeholders to allow for information-sharing or assistance should it be required.

Facts

• In anticipation of the last two general elections, the previous CCE took part in interdepartmental committees and groups that focus on election security. OCCE staff actively participated in Deputy Minister, Assistant Deputy Minister and Director General-level committees.

• The OCCE also engaged with several other stakeholders interested in threats to elections, including, but not limited to:
• the Royal Canadian Mounted Police;
• the Canadian Security Intelligence Service;
• the Communications Security Establishment;
• the Canadian Centre for Cyber Security;
• the Rapid Response Mechanism Team at Global Affairs Canada; and
• the police of local jurisdiction.

• The previous CCE has signed memoranda of understanding to facilitate collaboration with other stakeholders. They provide for information-sharing or assistance, and include the following organizations:
• the Canadian Security Intelligence Service;
• the Royal Canadian Mounted Police;
• the Public Prosecution Service of Canada; and
• the Canadian Radio-television and Telecommunications Commission.

• Considering the investigative challenges brought on by the expanded use of social media both at home and abroad, the OCCE directed resources toward developing specialized expertise in this area, and liaised with digital platforms to seek a firm commitment on their part that they would do everything in their power to facilitate the work of the office, particularly as it relates to the gathering of all relevant evidence needed to carry out its investigations.
• Liaison with digital platforms ensured a clear line of communication and a rapid response when dealing with online activities that contravene provisions of the Act.
• The CCE also engages with non-governmental stakeholders, such as academia, and reaches out to the population through its communications.

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Illegal Voting

Key Messages

• There is no indication that there is a systemic problem with illegal voting in Canada.
• At no time has our office identified any case where the outcome of the election in a particular electoral district was affected by fraudulent votes, nor have we had any indication of coercion or malicious or organized action.
• There have been times when non-citizens have voted or have been suspected of voting, or individuals have voted more than once. However, this rarely happens and, in the vast majority of cases, there is no evidence of criminal intent.
• We remain vigilant and will not hesitate to resort to criminal prosecution when the circumstances warrant it. We have laid charges in several cases of illegal voting in recent years, and we can now also impose an administrative monetary penalty (AMP).

Facts

• The Act prohibits non-citizens from voting and prohibits anyone from voting more than once.
• In the 2021 annual report, the previous commissioner noted that there have been times when non-citizens have voted or have been suspected of voting, or individuals have voted more than once. However, he emphasized that this rarely happens and, in the vast majority of cases, there is no evidence of criminal intent.
• For example, there have been cases where a permanent resident has voted because someone told them in good faith (albeit erroneously), that they could do so. Or, an individual who having passed their citizenship test mistakenly believed that they were eligible to vote, when in fact it is only after taking the oath of citizenship that one becomes a Canadian (and therefore an elector). In other cases, what appeared to be a double vote was, in fact, the result of an administrative error: the person's name had been crossed off the list of electors by accident, giving the impression that they had already voted.
• In 2021, Elections Canada referred 552 files to the CCE as a result of possible irregularities regarding potential instances of individuals voting when not qualified or entitled. These files related to events arising out of the 2019 general election and included cases of electors who may have voted while not qualified or cases of potential double voting.
• Elections Canada refers these files to the CCE for review and closer examination. Due to the volume of cases and pandemic-related delays in the gathering of information regarding the potential illegal vote, the OCCE put in place a protocol to prioritize cases to make the best use of resources and ensure a most efficient compliance overall.
• In many of the cases reviewed by the OCCE, alleged occurrences could not be ascertained, it was determined that an administrative error had taken place, or the individual was, in fact, an eligible voter
• The current legislative framework allows for the imposition of an AMP of up to $1,500 in cases of illegal voting. As a deterrent, this penalty compares favourably to sentences imposed by the courts for this offence.
• In the 2021 annual report, the previous commissioner noted that we have laid charges in several cases of illegal voting in recent years. In two cases of double voting (see this final disposition and this other final disposition), the trial court granted the accused a conditional discharge with one year's probation and 75 hours of community service. The Crown appealed the sentence. Its appeal was dismissed. In another case of double voting, the same type of sentence was imposed: a conditional discharge with six months probation and 15 hours of community service.

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Disinformation/False statements

Key Messages

• The speed with which disinformation and false statements can now be spread is a concerning development for many Canadians.
• In the 44th general election, the OCCE received 443 complaints related to 28 different instances alleging the making or publishing a false statement about a candidate, prospective candidate, the leader of a political party or a public figure associated with a political party with the intent of affecting the election results.
• In the 43rd general election, 28 different instances related to false statements generated 392 complaints.
• The CCE evaluates every complaint received to determine whether an offence or violation has been committed under the Act.
• The CCE also recognizes the Charter’s guarantee of freedom of expression and takes this into consideration – along with the provisions of the Act – before taking compliance or enforcement action.
• In 2021, in response to a court ruling, the government modified the wording of the Act to regulate only false declarations made “knowingly”, which aligns with how the OCCE was enforcing the provision.

Facts

• The concept of fake news or disinformation is not new. What is new is the reach of the information and the speed with which it travels.
• We have seen practices and tactics worldwide taking advantage of our connectivity, whether it is disinformation campaigns, amplification of existing divides in social media, or hacking incidents, to only name a few examples.
• For law enforcement, there’s an added component of trying to identify the source of the information, which can be very complex.
• On various occasions, the previous commissioner called on candidates and parties to denounce disinformation when it occurs – regardless of whether it is used against them or as a means of undermining their competitors – and to refrain from profiting from false news that may give them a short-term advantage. Over the longer term, it is to no one’s advantage to undermine our democratic elections.
• Free speech is highly protected in Canada and perhaps never more so that during an election. Comedy, parody and satire are all acceptable and expected during an election period; what isn’t acceptable is intentionally setting out to mislead voters.
• Bill C-76, the Election Modernization Act, which received royal assent in 2018, significantly changed section 91 of the Act, which refers to false statements. Bill C-76 reduced the scope of section 91 in some ways and expanded it in others. In response to a court ruling, the associated offence was amended to clarify intent.
• Previously, the Act only prohibited false statements made about candidates, but C-76 expanded the provision to include people wishing to become a candidate, the head of the party, and public figures associated with a party.
• Despite applying to a broader range of participants, C-76 actually removed an important element of the scope of section 91. Previously, the section had focused on false declaration made about the criminality and the personal character of a candidate. The courts had interpreted this according to a high bar; not all false declarations about the conduct and personal character of a candidate would have met the bar, only those that alleged a particular “moral turpitude” on the part of the candidate. C-76 dispensed with this last part, which included the type of false statements that could have a devastating effect on a campaign.
• C-76, however, included specific facts about a person, for example, their nationality and their education.
• A contravention of section 91 committed directly in Canada or from outside Canada by an individual who is not resident in Canada and who is not a Canadian or permanent resident of Canada, or by a foreign entity, constitutes a contravention of the Act. Moreover, subsubsection 282.4(2) provides that an offence under an Act of Parliament or an Act of the legislature of a province committed by such an individual or entity for the purpose of influencing an elector to vote constitutes undue influence.
• If false declarations are made about a voting place, the manner of voting, the eligibility of electors, with the goal of trying to prevent or discourage someone from voting, this could be a contravention of section 282.6, which applies in Canada and abroad with the application of section 281.
• In a submission to this committee in 2018 as part of the discussion of Bill C-76, the previous CCE analyzed the proposed changes in Bill C-76 as follows:
• “Courts have interpreted the existing section 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 section 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.”
• The previous CCE then recommended the following:
• “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.”

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Third parties

Key Messages

• Bill C-76 considerably increased the scope of regulation for third party activities to include “partisan activities” and election surveys, in addition to partisan advertising and election advertising, for the purposes of the pre-election and the election period.
• After receiving a considerable number of complaints related to the 43rd general election in 2019, the OCCE received far fewer complaints related to third parties in the last election.

Facts

• As noted above, in his Recommendations Report: 2019 and 2021 General Elections, former commissioner Yves Côté recommended that discrepancies between the definitions of foreign corporation and foreign entity in the Act be modified.
• There are AMPs for third parties; that, in and of itself, should send a strong signal to people who are inclined to violate the Act to be very careful about what they do.
• As noted in the 2021 annual report, unlike the previous general election (October 2019), when an entirely new regime had just been adopted to regulate the activities of third parties, the OCCE received far fewer complaints about this issue in 2021. This was likely due in large measure to the fact that the system had been fine-tuned and stakeholders had had a chance to familiarize themselves with the new rules.
• In the same report, the previous CCE mentioned receipt of complaints about policy and research institutes ("think tanks") that are (or appear to be) closely associated with particular political parties, and that carry out activities that allegedly provide benefits to the political party and its affiliated entities. Organizations (including, of course, think tanks) that carry out partisan or election advertising or partisan activities are required to follow the rules for third parties set out in the Act.
  • Where contributions are made to a third party by an organization that solicited contributions for the stated purpose of funding the third party, the Act's anti-avoidance provisions may very well apply. As such, the organization and the third party may be in breach of the prohibition against circumventing the rules on contributions, or against hiding the identity of a contributor.
  • Indeed, in such a case, the third party would only report a contribution having been received from the organization; the identity of the persons or entities that provided funds to the organization to make this contribution would remain hidden, contrary to the transparency objective sought by the Act.
• With third parties and foreign interference, there are certain enforcement issues, which have already been detailed above.

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The Office and the Commissioner’s mandate

Key Messages

• The CCE is the independent officer responsible for ensuring that the Act is complied with and enforced.
• The CCE’s dual roles of ensuring compliance with, and enforcement of, the Act, are carried out with the aim of promoting the integrity of the electoral process.
• In the exercise of her mandate, the Commissioner is always guided by the principles of independence, impartiality and fairness.
• The Commissioner enforces the Act, but Elections Canada is responsible for its interpretation.

Facts

Mandate

• The CCE is the independent officer responsible for ensuring that the Act is complied with and enforced.
• The Commissioner is appointed by the CEO after consultation with the Director of Public Prosecutions for a non-renewable term of 10 years. Only the CEO may remove the Commissioner for cause.
• As one of only a handful of organizations worldwide that carry out electoral compliance and enforcement activities, the CCE’s work helps to safeguard Canadians’ trust in their democratic system.
• The Commissioner and her staff work to make sure that Canadians and political participants follow the rules set out in the Act.

Independence

• The Commissioner carries out its work independently of Elections Canada and the government of the day.
• Since 2019, the CCE has been part of the Office of the CEO but, by law, all compliance and enforcement decisions are made independently. The only exception would be the review by the CEO of certain AMPs issued by the Commissioner.

Relationship with Elections Canada

• Care and measures have been taken to ensure the continued independence of Elections Canada and the CCE in the pursuit of their respective mandates.
• The CEO and the former Commissioner agreed upon guiding principles and signed an internal services agreement in 2021 to lay out how services are delivered to the CCE. While respecting the independent nature of the OCCE’s work, the agreement defines parameters for services related to human resources, financial and IT services delivered by Elections Canada.

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Complaints: Process

Key Messages

• Anyone with concerns or an allegation of wrongdoing related to a federal electoral event should submit a complaint to our office.
• Every complaint is reviewed to determine if it falls under the Commissioner’s mandate. If it does, a review or investigation may be carried out to determine if there was, in fact, wrongdoing under the Act.
• The Commissioner can also initiate a review or an investigation on her own initiative, absent a complaint being made.
• The CCE's decisions are always guided by the principles of independence, impartiality and fairness.

Facts

Complaints

• The CCE receives complaints from the public and reviews them to determine if the issue falls within its mandate.
• Members of the public are the eyes and ears of the CCE. We rely on them to advise us when they see or hear something that could be against the law.
• The Commissioner can also decide to conduct an investigation of her own initiative.
• The Commissioner takes all complaints seriously and, where appropriate, conducts a thorough investigation.
• Under the Act, the Commissioner decides when to take corrective action. These actions can include everything from informal communications to formal administrative measures or criminal charges.

Capturing information

• We have a small team of analysts that is tasked with capturing publicly available / open source information within our compliance and enforcement mandate and in accordance with corresponding laws. This type of work is performed in a criminal and regulatory context, rather than for security or intelligence purposes. The material captured could be used in legal proceedings and would be subject to disclosure principles. Our analysts do not do social media monitoring.

Confidentiality

• The Act contains provisions designed to keep information related to the CCE’s investigations confidential.
• The CCE and her staff do not disclose investigative information, including the identity of a complainant, the subject of a complaint, or any witness, except in some very limited instances provided in the Act.
• Most of the time, that also means the CCE won't comment on whether a review or an investigation is even underway.

Time required for investigations

• Some files are resolved relatively quickly and informally, while others take more time.
• The duration of a review or an investigation can vary greatly. It could depend on several factors, such as the complexity of a file, the level of cooperation from the people or entities involved, and the information shared with the CCE.

Compliance and Enforcement Measures

• When the CCE selects the measure of compliance or enforcement in a specific case, she always does so with the objective of choosing the measure that is most likely to best serve the public interest, based on the specific circumstances of each case.
• The Commissioner has a variety of tools at her disposal to ensure that the Act is complied with and enforced. Among them are:
  • laying charges;
  • entering into a compliance agreement;
  • issuing a Notice of Violation (NOV) imposing an AMP; or
  • accepting an undertaking.
• The Commissioner can also use informal means, such as an information or a caution letter.
• The Commissioner’s Compliance and Enforcement Policy outlines the factors the CCE considers when determining which tool to use in a particular case.
• It’s only in the event that an investigation leads to formal compliance or enforcement action that limited information is made public – usually outlining the nature of the allegation and the measures taken by the Commissioner. These decisions are always published on our website and shared with media.

Criminal versus Administrative Investigations

• An offence is a contravention of the Act that may be subject to a criminal investigation and for which the person who committed the offence may be charged.
• Like an offence, a violation is a contravention of the Act. However, violations are subject to an administrative investigation and do not expose the person who committed the violation to the risk of criminal prosecution in court.
• For contraventions that are both offences and violations, the Commissioner may decide, depending on the circumstances of each case, to address the contravention as an offence or a violation, depending on the severity and the circumstances of the case.
• A person who contravenes the Act cannot be subject to both an administrative measure and criminal charges for the same contravention.

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Complaints: Volume

Key Messages

• Throughout 2021, the OCCE continued to review and investigate files stemming from previous election periods.
• In addition to ongoing files stemming from complaints to the office, the OCCE also received a significant number of referrals from Elections Canada.
• In total, 3942 new files were opened in 2021, in addition to the 803 files from prior years that remained open on January 1, 2021.
• In 2021, the OCCE received 2,500 complaints, requests for information and letters in relation to the 44th general election.
• Statistics on most common complaints and referrals for 2022 will be released as part of the CCE’s next annual report.

Facts

Appendix A – Disposition of Cases

Disposition of cases

*The difference of 3 active files between the beginning and end of the year (when adding the new files and removing the ones that were closed) can be explained by administrative corrections.

Comparison of the Number of Active Files per Year

*Reporting covers an extended period between April 1, 2018 to December 31, 2019.

Most Common Referrals from Elections Canada

In addition to ongoing files stemming from complaints to the office, the CCE also receives referrals from Elections Canada.

Although some referrals may be in relation to incidents during a campaign, many are only received by the office well after the end of the election period, either for reasons of administration or stemming from legislative timelines associated with political financing.

In 2021, the most common referrals from Elections Canada were related to the 2019 general election:

• 552 files were referred as a result of possible irregularities regarding potential instances of individuals voting when not qualified or entitled;
• 331 files were referred as a result of possible irregularities regarding potential instances of electors requesting a second ballot.

Most Common Potential Contraventions Having Given Rise to Complaints from the Public

• 111 distinct instances related to influencing or attempting to influence a person to vote or refrain from voting by any pretence or contrivance;
• 101 distinct instances related to preventing or impairing the transmission of election advertising;
• 99 distinct instances related taking a photograph or making a video of a ballot or special ballot that has been marked;
• 63 distinct instances related to the transmission of election advertising on polling day;
• 60 distinct instances related to the failure of a candidate, registered party, or a person acting on their behalf, to indicate on election advertising that its transmission was authorized (i.e. “tagline”)

Most Common Complaints Related to the 2021 Election Period

The most common complaints received by the OCCE during the 44th election period were the following:

Making or publishing a false statement

443 complaints were received by the OCCE alleging false information about a candidate, prospective candidate, leader of a political party or a public figure associated to a political party with the goal of affecting election results. The majority of these complaints were closed as no offence was found.

Preventing or impairing the transmission of election advertising

Under the Act, it is an offence to prevent or impair the transmission of an election advertising message. Most of the complaints received related to online video footage showing a candidate removing campaign material from a person’s porch. This particular case was resolved through the imposition of an AMP.

Preventing an elector from voting or influencing a person to vote or refrain from voting by any pretence or contrivance

The OCCE received 115 complaints alleging that an elector had been prevented from voting, or that, by pretext or contrivance, a person had influenced or attempted to influence another person to vote or refrain from voting. Out of the 115 complaints on this issue, 29 were linked to the need to wear a mask inside polling stations. In various places throughout the country, individuals were not permitted to enter a polling place if they did not follow the health and safety measures in place.

Showing a marked ballot

During the election period, the OCCE received 66 complaints falling in this category. Most of those were related to circumstances concerning electors posting pictures of their marked ballots on social media. Taking or sharing a photo of a marked ballot is illegal in Canada.

Failure to indicate on election advertising that its transmission was authorized

The Act requires that advertising contain an authorization or 'tag line' indicating the message is being transmitted with the consent of either the official agent for a particular candidate or the registered agent of the party. The Act does not stipulate how large the font must be or – in the case of a radio broadcast – how quickly the authorization may be spoken.

Most common complaints related to the 43rd general election of 2019

Between September 11 and October 21, 2019, the OCCE received 2,698 complaints or enquiries related to the 43rd general election. The most common complaints during this period of time were the following:

Making or publishing a false statement

Of the 392 complaints related to false statements, the majority of the complaints were the result of allegations that a party leader was under investigation by the RCMP. This was seen by many complainants as a contravention of subsection 91(1) of the Act. Following a review of these complaints, the Commissioner concluded that the intention of Parliament was not for this provision to apply to statements that are based on reasonable interpretations of credible information from a source reasonably expected to be knowledgeable in the matter.

Foreign attempt to influence electors to vote or refrain from voting

Out of the 158 complaints regarding foreign interference, 100 were related to an article in a foreign publication featuring a party leader. Following a review of these complaints, it was concluded that there was no contravention of the Act, as it constituted editorial content.

Failure to indicate on election advertising that its transmission was authorized

The Act requires that advertising contain an authorization or 'tag line' indicating the message is being transmitted with the consent of either the official agent for a particular candidate or the registered agent of the party. The Act does not stipulate how large the font must be or – in the case of a radio broadcast – how quickly the authorization may be spoken.

There were 106 complaints alleging election advertising that failed to contain an authorization statement. Many of these complaints were resolved informally during the campaign by communicating with the candidate or party; others were deemed to be unfounded as the authorization was present albeit difficult to read.

Preventing or impairing the transmission of election advertising

Under the Act, it is an offence to prevent or impair the transmission of an election advertising message. During the campaign period, the office received 97 complaints related to interference with the transmission of election advertising, most of them relating to the vandalism or removal of signs.

Influencing a person to vote or refrain from voting by any pretence or contrivance

The OCCE received 70 complaints regarding the possible influencing of a person to vote or refrain from voting by using a pretence or contrivance. Following a review of these complaints, an informal resolution was reached and all cases are now closed.

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