Briefing material – Appearance before the House of Commons Standing Committee on Procedure and House Affairs (March 2, 2023)
Key Messages: Mandate
Mandate and Principles
- The Commissioner of Canada Elections’ (CCE or Commissioner) mandate is to ensure that the Canada Elections Act (the Act) is complied with and enforced.
- The CCE’s duties are carried out independently of any political, ministerial or government interference or influences.
- The Commissioner’s work is guided by the principles of independence, impartiality, and fairness.
- When deciding on a compliance or enforcement measure in a case, the Commissioner always considers which measure is likely to best serve the public interest in light of the specific circumstances of that case.
- The scope of the Commissioner’s compliance and enforcement work is determined by the wording of the provisions of the Act, as adopted by Parliament.
Foreign interference in the context of the Act
- We take the issue of foreign interference and our role in protecting the integrity of our elections very seriously.
- Foreign interference is a complex issue that goes beyond what is regulated in the Canada Elections Act (the Act).
- 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 CCE, it has a much more limited meaning.
- The Act contains provisions that address very specific types of foreign interference activities.
- The Office of the CCE examines allegations of foreign interference within the legal framework of the Canada Elections Act.
- For example, some activities are only regulated during the election period.
- Other activities that the public may perceive as foreign interference are either permitted or not regulated under the Act. For example, if a foreign actor merely expresses an opinion on the desired result of an election, that by itself would not be against the Act.
See also the section on the complaint process.
- We have collaborative working relationships with other departments and agencies, and we contribute to a whole-of-government approach to this issue.
- We engage with other stakeholders that play a key role in preserving the integrity of elections, including Elections Canada and members of the Security and Intelligence Threats to Elections (SITE) Task Force (CSIS, CSE, GAC, RCMP).
- We have also put in place Memorandums of Understanding with key stakeholders, including CSIS and the RCMP, to allow for information-sharing or assistance when required.
- We all have a role to play to protect the integrity of our elections and we will continue to work on improving our collaboration in this regard.
Relationship with SITE and the Panel
- The Office of the CCE is not part of the Panel of 5 or of the SITE Task Force.
- That being said, we have working relationships with all departments and agencies that are members of SITE and participate in meetings on election security with key departments and agencies in preparation for the election.
- We have also put in place Memorandums of Understanding with some key stakeholders, including CSIS and the RCMP, to allow for information-sharing or assistance should it be required.
From intelligence to evidence
- The use of intelligence in investigations is severely limited because transitioning from intelligence to evidence is challenging.
- In a democratic system based on the rule of law, such as ours, enforcement decisions must be based on facts that can be objectively verified, and ultimately tested in a judicial process.
- Allegations that are not accompanied by verifiable information, such as names of individuals who may have supported information, contextual facts or other relevant information, as is sometimes the case with intelligence, are not considered as sufficient reason to suspect a contravention and, therefore, to launch an investigation. This type of information could not be presented and would not be admissible as evidence in court.
- This challenge is common to other law enforcement agencies.
Public and MPs
- Everyone can play an important role to help safeguard our elections.
- Whether it is you or a member of the public, we encourage anyone who has witnessed or may have tangible information on a potential contravention of the Canada Elections Act, including with regard to foreign interference in a federal election, to contact our office.
- We encourage you to contact our office as soon as possible after witnessing a potential wrongdoing given that the passing of time can affect the quality and availability of evidence.
- This information can be key in the context of an investigation in order to ascertain the facts and ensure that the Act is complied with and enforced.
- Please don’t hesitate to contact us. We can be reached by our online web form at cef-cce.ca, by phone at 1-855-759-6740, or by teletypewriter, email, fax or mail. Our contact information can be found on the Contact us page of our website.
- With regard to the work of MPs on any bill with a component of foreign interference in elections, our office remains available to review and submit comments from a compliance and enforcement perspective.
- The Office of the CCE takes all complaints seriously. The first step after a complaint or referral is received is a preliminary review. This review considers whether the allegations fall within the scope of our mandate, and if so, whether there is sufficient information available and if an investigation is warranted.
- After the preliminary review, if we determine that the allegations may have merit, a more thorough review or an investigation may be conducted to clarify the facts and gather the relevant evidence.
- We encourage complainants to provide as much detail and tangible information as possible to substantiate their allegations, including any supporting documentation, to help us determine the facts of the case.
- If a review or an investigation determines that there was a contravention and formal compliance or enforcement measures are taken, those outcomes will be published on our website.
Duty to maintain confidentiality
- In keeping with the confidentiality provisions of the Act, we do not generally disclose information related to our files.
- This includes details of complaints received by the CCE, such as the identity of complainants.
- This also includes information received from other stakeholders in the context of our compliance and enforcement mandate.
- Confidentiality is essential to protect the integrity of our reviews and investigations. It is also necessary to ensure fairness and the presumption of innocence, which are at the core of the rule of law.
Exceptions to confidentiality
- The Act contains very limited exceptions to maintaining confidentiality for circumstances where the Commissioner believes that sharing information may be in the public interest.
- The Act specifies three factors that the Commissioner must take into consideration before deciding that disclosure is in the public interest: the need to protect privacy, the presumption of innocence, and the need to maintain public confidence in the fairness of the electoral process.
Initiating an investigation
- The decision to launch an investigation must be based on facts and verifiable details that give the Commissioner reason to suspect that wrongdoing has been committed under the Act.
- Once launched, the result of an investigation depends on decision-making that is guided by evidence.
- The courts and Canadians expect that investigators will be rigorous in their work and that their actions will be based on solid grounds.
- In the absence of a complaint, the CCE may also decide to launch an investigation of her own initiative if she has reason to suspect that there may have been a contravention under the Act.
Closing of files
- Some files may be closed at a preliminary stage. This may happen, for example, if the allegations fall outside of the Commissioner’s mandate or if the allegation is too vague or clearly unfounded.
- Generally, when a file has been closed, complainants are notified and are informed of conclusions reached.
- We do not carry out surveillance activities or social media monitoring that would detect and prevent interference before it happens.
- We have a team of analysts tasked with capturing publicly available information within our compliance and enforcement mandate.
- The analysts perform targeted searches in support of the office’s investigations.
- The material captured is subject to disclosure rules and court accountability.
Compliance and Enforcement Measures (General)
- We have a variety of means at our disposal to ensure that the Act is complied with and enforced, which include both penal and administrative measures.
- Formal measures include the laying of charges, entering into a compliance agreement, the issuance of a Notice of Violation (NOV) imposing an administrative monetary penalty (AMP), and the acceptance of an undertaking.
- We can also use informal measures, such as an information or a caution letter.
See also the section on recommendations.
Key Messages: Allegations of foreign interference in the public environment
Foreign interference in 2019 and 2021 elections
- Over the past several years, our office has received complaints that contained allegations of foreign interference.
- As the CCE reported in her letter to PROC on November 18 of last year:
- During the 2021 general election, 13 separate allegations of foreign interference were brought to our attention.
- These 13 allegations generated a volume of 16 complaints.
- In comparison, the CCE received a total of 3,942 complaints in 2021, all topics combined, in addition to 803 files that remained active at the beginning of the year.
- During the 2019 general election, 10 separate allegations of foreign interference were brought to our attention, generating 158 complaints in total.
- Of those 158 complaints, 100 involved an article in a foreign publication concerning a party leader.
- Following a review of these complaints, we concluded that there was no contravention of the Act since the content was of an editorial nature. In comparison, the CCE received a total of 8,117 complaints in 2019, all topics combined, in addition to 688 files that remained active at the beginning of the year.
- It is important to note that these are allegations of what was perceived by the complainants as foreign interference. As explained in the CCE’s first appearance, it is very common for us to receive complaints that fall outside the scope of the Act or that are unfounded.
- To date, the CCE has not laid any charges or taken any other formal measures in relation to foreign interference in either the 2019 or 2021 general elections.
- The CCE can confirm that the Office has received complaints in response to the allegations that have circulated in the public environment.
- These are serious allegations, and the CCE is seized with the importance of this matter. We commit to carefully and thoroughly review all information to which we have access, including any new facts that come to our attention regarding this and any other allegation of foreign interference.
- On that note, the CCE encourages anyone who has witnessed or may have tangible information on a potential contravention of the Canada Elections Act, including with regard to foreign interference in a federal election, to contact our office.
Allegations of foreign interference in elections
- The CCE requires more facts and details than what is provided in media articles and the public environment to assess whether the allegations of foreign interference could constitute a contravention of the Act.
- The specific facts available will determine which provision may apply, if any, and how we could proceed in each case.
- Generally speaking, there are several provisions in the Act that can be of interest depending on the facts and circumstances. For example, under the Act, no person or entity other than a Canadian or a permanent resident can make a contribution to a candidate. It is forbidden to circumvent that prohibition.
- Some of the provisions of the Act allow for either a response through administrative means (imposing an administrative monetary penalty or accepting an undertaking) or a response through the criminal route (laying charges or signing a compliance agreement) while other provisions can only be addressed through the criminal route.
Key Messages: Trust
Free and fair election
- The Commissioner’s role is to ensure that the Canada Elections Act is complied with and enforced, which is essential for free and fair elections.
- There is a process in place when citizens or candidates are concerned that an election was not free and fair in a particular riding.
- As set out in the Act (s. 524) (and as explained by the Chief Electoral Officer during his appearance on November 22), an elector or candidate may contest an election on the basis that there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.
- This is done through a competent court and not through our office. It will be for the court to make that determination.
Informing the public – transparency
- If a review or an investigation determines that there was a contravention and formal compliance or enforcement measures are taken, those outcomes will be published on our website.
Public confidence in our electoral system
Independence and impartiality
- Our office’s independence is critical to maintaining confidence in our electoral system.
- Our decisions are made and our investigations are completed in an independent manner. We do not report to the government of the day, the public service, or the Chief Electoral Officer.
Getting the public involved
- The Office of the Commissioner has made a lot of effort to better connect with the public, through its website, its social medias platforms but also through outreach with some stakeholders both within and outside government.
- Despite our current efforts in that area, we are committed to do more to preserve and strengthen the trust Canadians put in us and our democratic system but also to make sure that they know how to contact our office if they need to share a concern regarding something that may contravene the Act.
Rule of law – general
- Our democracy is based on the rule of law. As such, due process matters.
- Our decision-making is guided by an evidence-based approach (as it should be in a democracy based on the rule of law).
- Corners cannot be cut: due process must be followed every step of the way, as any Canadian would expect from their enforcement organizations.
- We respect and value the key role that journalists play in our democracy. We also recognize the need for journalists to protect their sources.
- It is also important to understand the legal framework in which enforcement organizations such as ours operate, which is different from the media, and the importance of the applicable legal requirements to ensure that we have a democracy that is based on the rule of law with institutions that follow due process and that Canadians can trust.
International perspective: Foreign financing of elections
- Canada is one of the only countries in the world that has an independent officer responsible for carrying out investigations under federal electoral law. This role, which was then called Commissioner of Election Expenses, was created 49 years ago. It shows the respect and importance that Canada places on protecting its democratic process.
- Keeping in mind that each country has its own laws, international comparisons can be quite complicated. Each country may have a different definition of a foreign person, a contribution, a third party, or the electoral period.
- Canada has robust regulations on foreign financing of elections, which are some of the strictest among like-minded countries.
Key Messages: Recommendations
- The powers of the CCE under the Act 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, 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.
- While the CCE believes the recent amendments to the Act constitute a significant step to fight foreign interference in the elections and will use them when needed, there are some areas where those tools could be improved.
- As the CCE wrote to PROC on November 18, the previous Commissioner recommended several potential amendments to the Act, which she supports.
- In addition to these recommendations, we are considering whether there may be other amendments that could help better achieve the objective of the Act from a compliance and enforcement perspective, which could form the basis of future recommendations.
Recommendations: Foreign interference
- The previous Commissioner recommended standardizing the definitions of foreign corporations and foreign entities in the Act to make the relevant provisions harder to circumvent.
- Some provisions that currently apply only during the election period may need to apply to a longer period, such as the pre-election period or at all times. For example, the CEO recommends that the prohibition on undue influence by foreigners applies to the pre-election period.
- There might be other provisions where the period may need to be revisited.
Recommendations: Party to a violation, conspiracy, attempt and others, AMPs
- The previous Commissioner recommended amending the Act to enable the Office of the CCE to investigate and take action in cases of party to a violation or conspiracy, attempt, accessory after the fact and counselling in relation to a violation or an offence that is not committed. These would enable a more fulsome response to foreign interference, taking into consideration the large scope of activities and actors that it may involve.
- The previous CCE also recommended broadening the AMP regime. The current Commissioner agrees with this recommendation and thinks it could go further to include other provisions, including undue influence by foreigners. Foreign influence can encompass a wide range of activities.
- The Commissioner is also concerned that the maximum AMP amount is just the cost of doing business for entities such as foreign governments and corporations or wealthy individuals. It may be useful to increase the maximum amount in some cases.
- In other Acts, additional tools are available for administrative investigations. These tools would make a major difference in the way that we conduct investigations of allegations of foreign influence and for other types of files.
Recommendation: Third parties (transparency, foreign funding, undue influence)
- Additional provisions may be needed to increase transparency with respect to third-party funds, in particular the source of a third party's own funds and the source of contributions received by the third party's donors.
Recommendation: Confidential information
- The previous Commissioner recommended making changes to the Act to better protect the information that we obtain in the context of our investigations. Confidentiality is essential to protect the integrity of investigations and ultimately of elections.
Registry of foreign agents
- Transparency is key to ensure the integrity of our electoral system. Greater transparency may facilitate the CCE’s compliance and enforcement work and help safeguard against foreign interference. It must, however, be implemented with care.
- The CCE 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.