Briefing Material – Appearance before the House of Commons Standing Committee on Procedure and House Affairs (November 1, 2022)
Foreign interference
Questions and Answers
Question
Was there any foreign interference in the last general election?
Answer
- During the 43rd and 44th general elections, the OCCE did receive complaints containing allegation of foreign influence.
- These were carefully reviewed and, when warranted, investigated by our office.
- To date, there have been no formal measures taken in relation to foreign interference.
- The office continues to take the threat of foreign interference seriously.
- The term ‘foreign interference’ is broadly used in public discourse to cover a wide variety of scenarios.
- In an electoral context, and as it applies to the mandate of the office, it has a much more limited meaning.
- Any activities carried out by the office, including those involving allegations of foreign influence, may only be examined within the legal framework of the Act.
Responsive:
- 13 separate instances of alleged foreign interference were brought to our attention in 2021 and 10 in 2019.
Question
Canadians are worried about foreign interference in their elections. What have you done to prevent this from happening?
Answer
- Foreign interference is a subject that our office takes very seriously.
- We do not, however, have a mandate to carry out surveillance activities that would detect and prevent interference before it happens.
- Given our limited role, we have built, and continue to build, collaborative working relationships with other departments and agencies to contribute to a whole-of-government approach to this issue.
- We all have a role to play.
Question
Do you have the powers you need to investigate cases of foreign influence?
Answer
- The powers of the Commissioner have been broadened significantly over the last few years.
- The tools that we currently have at our disposal, as well as the ability to access specialized resources as required, allow us to carry out our work.
- Of course, there can always be unforeseen challenges.
- In the event that additional powers may improve our ability to address those challenges, those would form the basis of recommendations to Parliament.
Question
As the organization responsible for enforcing the Act, what role, if any, does your office play in defending the Canadian electoral process from cyber threats from outside the country?
Answer
- A cyber threat or attack on our electoral system would necessarily involve a variety of different law enforcement organizations.
- Regardless of the circumstances, our enforcement responsibilities only extend so far as what is covered by the Act.
- However, we, along with Elections Canada, consult with government security and intelligence partners to ensure the proper safeguards are in place to protect the security of Canada’s electoral system.
Question
What avenues are available to your office to investigate and impose consequences for individuals or groups who create or spread false statements?
Answer
- The scope of our mandate and activities are dictated by what is regulated in the Act.
- The Act does prohibit certain types of false statements.
- However, this prohibition is limited to very specific categories of false statements about a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party. Moreover, in order to constitute an offence, these false statements must have been made knowingly and with the intention of affecting the results of an election.
- There are also provisions related to misleading publications, impersonation and unauthorized use of a computer.
- The responsibility to address false statements and disinformation in the public environment belongs to all of us.
- The media, government and non-governmental institutions, political parties and even candidates themselves all have a role to play in bringing cases of disinformation to light.
Question
Is illegal voting a problem in Canada?
Answer
- 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.
Question
Are you investigating issue X?
Answer
- In keeping with the confidentiality provisions of the Act, we generally don’t confirm whether we have received a complaint or have initiated an investigation into a particular issue.
- If you have information suggesting that an offence or violation may have been committed under the Act, including concerns about foreign interference, I invite you to contact my office with the details.
- Every complaint is reviewed to determine if it falls under our mandate. If it does, a review or investigation may be carried out to determine if there was, in fact, wrongdoing under the Act.
- I can also initiate a review or an investigation of my own initiative, absent a complaint being made.
- Following an investigation, and in the event that I was to determine there is a need for formal compliance or enforcement measures to be taken, those outcomes would be made publicly available on our website.
Question
We know the Act prohibits foreign contributions. However, with the rise in the use of cryptocurrency, how will you be able to keep foreign donations out of Canadian elections?
Answer
- Cryptocurrency is considered a non-monetary contribution for the purposes of the Act.
- As a result, situations involving cryptocurrencies would fall under the Commissioner’s compliance and enforcement mandate.
- As with any issue falling within our mandate, if allegations involving cryptocurrencies were to be brought to our attention, we would examine it and determine if action would need to be taken.
- If our office requires additional expertise in this, or any other, area, the Act provides that the Commissioner can engage persons with technical or specialized knowledge to advise and assist.
- The presence of foreign components may also pose significant operational and legal challenges and increase the degree of complexity of our work.
- However, this challenge is not unique to our office.
Question
Are you able to enforce the provisions that are currently in the Act?
Answer
- The powers of the CCE have been broadened significantly over the last few years.
- The tools that we currently have at our disposal, as well as the ability to access specialized resources as required, allow us to carry out our work.
- Foreign interference cases may pose significant operational and legal challenges for our work.
- This challenge is not unique to our office. The presence of foreign components can significantly increase the degree of complexity of an investigation
- It is also important that Parliament – and Canadians – recognize that there are, and will likely always be, limits to what we can reasonably accomplish.
- This is true not only for our office, but for any law enforcement organization.
- We will continue to work collaboratively with our government security counterparts to help protect the integrity of our elections.
Question
What changes to the Act would you recommend to better address foreign interference?
Answer
- The powers of the CCE have been broadened significantly over the last few years.
- The previous CCE has also made some recommendations of potential amendments to the Act in his recent recommendations report.
- For example, he recommended to modify and standardize the definitions of foreign corporations or foreign entities in the Act to make the relevant provisions more difficult to circumvent.
- He also recommended that advertisers be required to use online platforms that are compliant with section 325.1 of the Act. From a compliance and enforcement perspective, making political entities and third parties accountable would make it possible to take corrective action more quickly than if the responsibility lay solely with the platforms’ owners or operators, thereby minimizing the impact on an election.
- I support these recommendations, as well as some of the recommendations made by the CEO, such as extending the scope of the provision on undue influence by foreigners to include the pre-election period.
- As time goes on, in the event that I determine that further changes to the Act are required to better address foreign interference, I commit to making recommendations to that effect.
Question
Does the Act currently prevent foreign third parties from influencing our elections or the use of foreign funds by third parties to influence our elections?
Answer
- Yes, to a large degree.
- Third parties cannot incur expenses to promote or oppose parties and candidates during the pre-election and the election periods, be it for election or partisan advertising, partisan activities or election surveys.
- Moreover, third parties are prohibited from using foreign funds to finance their regulated activities.
- As mentioned by the CEO in his report, there is currently a degree of uncertainty about third parties using their own funds to finance their activities: it could be that the original source of these funds was foreign. I note that the CEO has made a recommendation on how to potentially correct this issue.
Question
If you received complaints, why has there been no action taken on foreign interference files?
Answer
- During the 43rd and 44th general elections, the OCCE did receive complaints containing allegations of foreign influence. To be more precise, 13 separate instances of alleged foreign interference were brought to our attention in 2021 and 10 in 2019.
- It is important to remember that any activities carried out by the office, including those involving allegations of foreign influence, may only be examined within the legal framework of the Act.
- As a result, it is very common for us to receive complaints that are unfounded or that fall outside the scope of the Act.
- For instance, allegations that a person–foreign or domestic–misrepresented a party’s electoral platform or Parliamentary record is not generally regulated by the Act.
- It is for this reason that the former commissioner recommended that the offence of undue influence by a foreign person or entity include situations where they knowingly spread disinformation to confuse electors. This Committee voted to support this recommendation in its 35th report of the 1st session of the 42nd Parliament, with some members strongly objecting. When the OCCE appeared before this Committee on Bill C-76, we reiterated that undue influence by a foreign person or entity should include wilful misrepresentation intended to confuse electors, but the Bill was not amended to include this element.
- Finally, the absence of formal measures does not mean that cases involving interference in our elections have not been or will not be pursued.
- Our office takes the matter of foreign interference seriously and we will not hesitate to take action when it is appropriate to do so.
Question
Would scenario X be against the Act?
Answer
- Every complaint is reviewed to determine if it falls under our mandate. If it does, a review or investigation may be carried out to determine if there was, in fact, wrongdoing under the Act.
- If you have information suggesting that an offence or violation may have been committed under the Act, including concerns about foreign interference, please contact the office with the details.
(Based on the hypothetical situation presented, Deputy Commissioner can provide a general explanation on how the Act may apply.)
Question
What has been your experience with platforms? How about alternative platforms? Did you ask some platforms to take down information during the last two general elections?
Answer
- Our engagement with certain digital platforms has been very constructive.
- In the lead-up to the last two general elections, we were able to inform platforms of our requirements and expectations, make them aware of our legal framework and put in place collaboration mechanisms.
- We also interacted with them to get a sense of their own assessment of potential threats in the lead-up to the election.
- However, we know there may be other platforms with which we may not be able to easily engage.
- To-date, it would be fair to say that those platforms with whom we have had dialogues, have been cooperative – both during and after an election period.
- We plan to continue outreach efforts with platforms going forward and include others in the dialogue as required.
Question
Some countries, including the US and Australia, have created registries of foreign agents (some context).
In Canada, Bill S-237 aims to help counter foreign intimidation and interference in elections through the creation of such a registry.
In your opinion, would this be helpful in protecting our electoral process?
Answer
- Our office would be pleased to review and submit comments from a compliance and enforcement perspective on any current or future bill on foreign interference that includes an electoral component.