Evidence of meeting #127 for Procedure and House Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was elections.
A recording is available from Parliament.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Let's not forget that we're talking about two pieces: first is that narrowly defined term “election”, and second is the mens rea element.
We have three in front of us to essentially choose from, I suppose and if one is adopted, the other two become nullified.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I understood CPC-141 to remove that element of intention, whether the act was successful in casting doubt or aspersions over our election.
Perhaps you're suggesting something different, Mr. Sampson. Without too much comment on which of these versions satisfy, if we're looking for something that applies more broadly than just to elections....
What was your second concern? Was that the mens rea, and then the third was something else?
Legal Counsel, Legal Services, Elections Canada
It was the mens rea, but also the reference to election.
Legal Counsel, Legal Services, Elections Canada
“Fraudulently”, I believe, is also being removed in some of these amendments.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Right. In Liberal-41, it's “attempts to commit any offence referred to in paragraphs (a) to (c)”, does that keep it open enough to lose those two concerns that you have?
You can understand, looking at that, how we're really going to rely on you on this one, because all it does is refer to two paragraphs and it says very little. As David has said, it might be the cleanest, but we want to make sure it's actually effective.
Senior Counsel, Legal Services, Elections Canada
I think our concern wasn't really the attempt that's dealt with in Lib-41. Our concern was with respect to the intention of the person who is affecting the election.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Yes. You do want it to be a factor, that they intended to affect—
Senior Counsel, Legal Services, Elections Canada
No. The current provision in Bill C-76 talks about intending to affect the results of the election.
Senior Counsel, Legal Services, Elections Canada
We felt that was too narrow, because it could be a leadership or a nomination contestant, not just an election.
Senior Counsel, Legal Services, Elections Canada
We also feel that it might just not be to affect the results of the election, but also to bring the process into disrepute or generally cause mischief. They don't care who wins, just as long as—
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Sure, it's just casting doubt, but on that first piece you said about intention, intention remains important. If somebody unintentionally does something, reposts something on social media—because that's what we're talking about here—the intention is not to capture somebody without intent, is it?
Senior Counsel, Legal Services, Elections Canada
No. That wouldn't be our intent.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's the two other pieces. First is the broadening beyond elections and second is not whether it was “successful” or not. It's just the fact that it was attempted to cast aspersions.
Again, to go back to what Liberal-41 does in affecting paragraphs (a) to (c) in clause 323, does that keep things sufficiently broad but also effective enough? I'm having a hard time with this piece of the legislation.
Lieutenant-Commander Jean-François Morin Senior Policy Advisor, Privy Council Office
Yes. I would like to comment.
Ms. Sahota asked me a question on this specific topic right after the minister's remarks on Monday. I answered Ms. Sahota's question in English, so this morning, if the committee doesn't mind, I will take the unusual step of answering this question in French.
Please, all of those who don't understand French, hook up to the translation. I was trained in criminal law in French and I want to make sure that my answer is very precise.
The offence referred to in subsection 482(1) includes two elements of mens rea: fraud and the intention of affecting the results of an election.
When the Chief Electoral Officer appeared before the committee earlier this spring, he recommended that the second element of mens rea, intent to affect the results of an election, be deleted. I don't remember the exact wording he used to propose its replacement, but it referred, in the various subsections, to the use of a computer in an election or leadership run.
I would like to draw the committee's attention to the three amendments and to show how they differ from one another because they are not entirely similar.
Amendments CPC-141 and PV-14 are more similar, and the Liberal amendment is more different.
The purpose of the Liberal amendment is really to add a new offence, which is to attempt to commit any of the offences referred to in paragraphs 482(1)(a), (b) or (c) proposed in the bill. As this offence would be described in the new paragraph (d), it would include both elements of mens rea named in subsection 482(1). The Liberal amendment is thus not entirely consistent with the Chief Electoral Officer's recommendation.
Amendments CPC-141 and PV-14 both add an element of mens rea that, where applicable, could substitute for the element of intent to affect the results of an election. The element of mens rea in amendment CPC-141 would be the fact of "undermining confidence in the integrity of an election". In amendment PV-14, it would be "the intention of affecting...[the] integrity of an election".
One of the concerns with these elements of mens rea is that they are highly subjective. It could be very difficult to determine the level of confidence in the integrity of an election. That might subsequently lead to enforcement problems.
I would also like to draw the committee's attention to another point that I addressed in my answer to a question from Ms. Sahota.
Section 342.1 of the Criminal Code refers to a very similar offence. In fact, the offence described in section 482 of the Canada Elections Act, as proposed in Bill C-76, mirrors section 342.1 of the Criminal Code. As I said on Monday, section 342.1 of the Criminal Code does not require any clear mens rea or intent to affect the results of an election.
Section 342.2 of the Criminal Code refers to another offence, possession of equipment enabling the commission of the offence described in section 342.1 of the Criminal Code.
I remind committee members of these provisions for a very simple reason. The Chief Electoral Officer of course plays an investigative role specializing in elections, but it would be false to believe that federal elections take place in a legal void or in a world where other investigative services are non-existent and inactive.
The Government of Canada recently announced the establishment of the Canadian Centre for Cyber Security, which is staffed by employees from Public Safety Canada, the Communications Security Establishment and other specialized cyber security organizations. The government also announced the creation of the National Cybercrime Coordination Unit within the Royal Canadian Mounted Police.
If candidates, parties or government organizations encountered a security breach or a potential unauthorized use of a computer in the context of an election, they would have to file a complaint with the Chief Electoral Officer and with the RCMP or local police departments.
The Privacy Act, the Access to Information Act and our criminal law framework enable investigative agencies to cooperate. Cooperation is encouraged because every investigative organization has its own specialty. Initiatives such as the National Cybercrime Coordination Unit are established precisely to ensure that all investigative organizations collaborate and draw on each other's specialties.
It is true, as the Chief Electoral Officer said, that the criminal law framework provided for under section 482 of the Canada Elections Act may be limited, but many other Criminal Code offences could apply to similar situations, including sections 342.1 and 342.2.
I would like to reassure committee members on this point: if an incident did occur, it would not be the only offence we could rely on. This is all part of a much broader legal framework.
Liberal
The Chair Liberal Larry Bagnell
All that being said, which of these three amendments better reflects the Chief Electoral Officer's recommendations?
LCdr Jean-François Morin
The Liberal motion adds the new offence of “attempt”—thank you, Ms. Sahota—because in the Criminal Code there is a general provision that applies to other offences in the Criminal Code. It is an offence to “attempt” to commit an offence under the Criminal Code.
Of course, that Criminal Code provision does not apply to other federal legislation. That's why the government recommends adding the offence of “attempt” to cover a bit wider.