Evidence of meeting #64 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 provision.
A video is available from Parliament.
11:35 a.m.
Liberal
The Chair Liberal Larry Bagnell
Thank you, Commissioner.
We'll now go to Mr. Stewart. Welcome to the committee, Mr. Stewart.
11:35 a.m.
NDP
Kennedy Stewart NDP Burnaby South, BC
Thank you very much for having me today.
Thank you for the testimony.
I had a question about the foreign influence and how we regulate that. I was speaking with an Internet advertising firm, and they said they have an ability to do something called geofencing, which is taking a geographic area and buying all the social media and all the online ad presence in one particular geographic area, for example, an electoral district. That's very useful for us, because we know during our election that perhaps we could spend some of our advertising saturating our own local area with election pledges and those types of things.
However, my concern is that this technique can also be used by non-Canadians. We just had an election in British Columbia, which was very close. The balance of power hangs on one seat. You could see somebody seeing that coming and deciding to buy all the social media and all the online presence within that one particular electoral district and try to push it toward one party or another.
Say, a Chinese company decides they want to do that, and they flood this particular electoral district with hundreds of thousands of dollars of online advertising. What is the recourse under the current law? Obviously that's foreign money coming into our electoral system, but because it's through an online presence, how would you approach laying charges or even investigating that situation?
11:35 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
As you said, this would raise very complicated and very difficult issues. For the purpose of simplicity, I will assume there has been no co-operation with a Canadian party or player, so we have a Chinese company on its own doing that. First, it becomes very difficult to investigate, as you suggested. Second, even assuming you could get the information you needed to proceed with a charge, I would think the only thing you could contemplate doing, based on the wording of the legislation as it is now, would be essentially to lay a charge in Canada. If the company has some presence in Canada now or at some point in time, you could take them to court and perhaps do something with respect to their assets if they were convicted. However, if they operate only outside of Canada—in China, in the example you use—it is extremely difficult to enforce the legislation in circumstances like this.
11:35 a.m.
NDP
Kennedy Stewart NDP Burnaby South, BC
Say, it's an online newspaper that has column ads, and that's what they're buying. Could you change legislation so that you actually go after the website on which these are hosted, which would be hosted within Canada?
11:35 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
Assuming there is this real Canadian connection in the example you gave, depending on the facts of the case, you could possibly investigate and lay charges against the Canadian outfit or enterprise that did that on the basis that they became party to the offence committed by the Chinese company, again, using your example. So assuming you could show that they counselled, abetted the commission of the offence, then technically, legally, there are those steps that could be taken.
11:35 a.m.
NDP
Kennedy Stewart NDP Burnaby South, BC
Does the act as it stands facilitate that? We've just had all kinds of testimony in the United States about how Russia is apparently influencing their elections. We've heard this has now spread to the U.K. and to the Brexit referendum. Most of that would be through online spending. Some of it would be through other means, like hacking and those types of things, but a lot of it could be through advertising.
Do you think improvements could be made in the act to help you stop what I think would be a new threat coming in the coming years?
11:40 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
Yes, there are improvements that could be brought to the legislation to make it easier to do that. At the same time, when you keep in mind that very often for us Canadians the companies or the Internet players involved, if you will, are outside Canada, whether it be Google or Facebook, all kinds of issues also arise in trying to get to these companies in a legal way to make them co-operate or cease what they have been doing.
On that point, Mr. Chair, I would mention that in Germany very recently, in the last couple of months, the government has taken steps to implement a system that would subject companies like Facebook and Google to pay huge fines—and I think the maximum is 45 million euros—if they fail, when required to do so, to take fake news off their networks. That's one way the Germans have apparently found to address the issue. It is a very complicated issue.
You may know that this morning the Senate committee, before which Marc and I appeared a few months ago, just issued its report, which I only could glance at because it only came out a few minutes before we came here. They did a lot of thinking around those issues, and they formulated some recommendations that you may find useful and interesting.
11:40 a.m.
NDP
Kennedy Stewart NDP Burnaby South, BC
Okay, thank you.
I have another question about false statements. Could you perhaps give us examples of false statements? Could you, say, give an actual statement that was claimed to be false but that you did not consider false and did not investigate, and an example of a statement that was considered false? Do you have those at hand?
11:40 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
I have a couple of examples that I can share with the committee.
11:40 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
One is a case going back to the 2000 general election involving somebody by the name of Shannon Jones. In the course of an electoral campaign, she stated that the outgoing MP, who was running again, had, as I think she put it, one of the worst attendance records in Parliament at only 53%, and she was saying something like, “Well, if anybody showed up for work only 50% of the time, they would be fired.”
11:40 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
She was charged with an offence under the provision at play here, and the judge found that this was not sufficient to justify or to warrant a conviction under the provision. The judge said that the provision should be used where the candidate is alleged to be, and I'm quoting from the judge's reasons, “a thief, a criminal, a felon, or that some type of moral turpitude was involved.”
Also, I think there are some cases.... By the way, I think that six or seven provinces have essentially the same provision as we have here and the wording is almost exactly the same, about the personal conduct or character of the individual.
In another case, which comes out of Manitoba, the person said the candidate who was running against her was “a liar, a thief, a drug peddler.” The judge in that case found that this was sufficient to...and, in fact, she pleaded guilty and she received a fairly significant fine.
The point I would make on this is that I think there is a need, because many people in Canada think, when they look at this provision, that any time a false statement is made about a candidate, let's say, that is enough to trigger this, and the courts are not there at all. They understand that freedom of expression in the political realm is pretty broad, and, as I said in my remarks, political spin, insinuation, and exaggeration are part of the way, for better or for worse, that electoral campaigns are run in this country and in many other countries. Courts recognize that and will be careful before they intervene.
That said, when somebody crosses the line and impugns somebody by way of, as I said, criminal conduct or fraud or anything like that, then the courts would be more open to perhaps considering issuing a verdict of guilt.
11:40 a.m.
NDP
Kennedy Stewart NDP Burnaby South, BC
But you're requesting just eliminating that power from your purview.
11:40 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
No, I'm not suggesting that.
11:40 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
I think what I said in my opening remarks is that I think there is a role to be played by that provision, and I think the challenge for you MPs and for Parliament is to find a way to refine it, to make it better adjusted to the reality so that it's easier for us to apply and also so that citizens, when they look at the provision, understand that it is not any and all false statements that are caught by the provision.
11:45 a.m.
Liberal
Ruby Sahota Liberal Brampton North, ON
Thank you.
Thank you for being here today, Commissioner.
My questions will be based on recommendation B12.
I am a bit confused by your statement. I know you want more clarity in the provision and if it's not there, then you'd like it repealed, but in your written remarks, in the first paragraph regarding recommendation B12, you stated that “the provision is extremely broad.” That's what I understand it to be, but then I was a little confused when the third paragraph said “it may be time to consider whether the scope of the provision should be broadened to include false statements made with respect to these key players.”
I'm just a little confused. I do think that false news, fake news, and a whole bunch of things need to be addressed in today's world. We are seeing a lot of problems in election campaigns around the world, but we already have a problem with provisions being too broad, so I don't know whether adding more things will in fact broaden or make it even harder to implement.
I'm just confused. Could you clarify? I think I'm of the position that I would like to strengthen it, especially given the current climate. I think that false statements about personal character are really important to me as a woman, because I do believe that women candidates oftentimes have their character called into question more than male candidates do, so I am a little concerned about that.
If you would answer that question, then I'll have a follow-up question.
11:45 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
Yes.
It's probably my not expressing myself clearly enough, so I'll try to clarify what I meant when I said that perhaps there would be an issue in whether it should be broadened.
Section 91 as it reads now applies only to candidates or prospective candidates, and yet people could make some very damaging comments about, for example, a political party or a senior organizer in a political party that, by nature of these words, could have a very detrimental effect on the outcome of an election.
The question I am putting to you is, when this was passed in 1908 perhaps we didn't have the same kind of involvement by senior officials of parties, or parties, so that issue, to me, is an open issue in whether you'd like to broaden it. That's why I am saying this.
In terms of narrowing it, I am suggesting looking at the way that courts and judges have applied that provision in various court cases. You find they are looking for something that's pretty narrow. For example, one of the judges said that if you make a comment about the way somebody carried out their official duties, a lot of leeway will be given to people making those kinds of statements, but if you impugn or attack somebody's personal reputation, that's something else. That's why I'm saying to you that false statements.... You may wish to add words to clarify so that courts have an indication of what Parliament would like them to do, or would like the legislation to say.
As I said at the outset, we are in the realm of freedom of expression, so it is extremely important for any new legislation—if you decide to open it up and change it—to bear that in mind. The court will give lots of leeway to people expressing themselves in the course of a political debate, so you have to make sure that your objectives clearly outline and define, and that the means you use are as narrow as possible to achieve the goal.
11:45 a.m.
Liberal
Ruby Sahota Liberal Brampton North, ON
Of course, and I'm sure you have these occurrences where people allege false statements in political debate, but I think most of us around the table here can agree that if you're debating an opponent and you're talking about the way their party voted or what they had implemented, that is political spin at times and can be seen in different perspectives.
For example, in the last election my Conservative opponent, Mr. Gill, sent out letters to each household in my riding implying that I had supported a private member's bill and introduced it in the House, but I had never been a member prior to running; I was a new candidate. That was definitely a false statement, but previously there was another member with the same first name as mine, so by eliminating the last name and sending out a letter to each household, it could be stated that somebody with that first name had done this, but it was done during my election campaign, implying that I had introduced this bill.
That's where things become murky and it's a false statement, but I had never thought of making a complaint about that necessarily because I think there are ways to address that, through media, through responding to allegations like that.
It's the personal character that really bothers me, and as we want to encourage more women to run, I feel we should not send a message that as an elected body, we don't care if these types of things happen in a campaign. We should be sending the message that yes, on the books we have something, but it isn't enforceable and I want to help you make it enforceable.
How do we make this an illegal act or a corrupt practice? You said that it doesn't go that far.
11:50 a.m.
Commissioner of Canada Elections, Office of the Commissioner of Canada Elections
That would be easy enough. There are provisions in the act that set out illegal acts or corrupt practices. That's section 502.
If you decide to go that route, it would be a question of adding a paragraph to one of those two sections to make it clear that from now on this would be that.
At the same time I think it's important for me to highlight for the committee, Mr. Chair, that if consideration is given to going in that direction, I would urge you to think very carefully, because if you do that, it could open up the possibility to challenge the results of an election. I think one of the things you would want to avoid, or at least consider seriously, is to avoid having a multiplicity of challenges after an election if somebody says a false statement was made about their character and now they'd like to challenge the result of the election.
I would urge you to think very carefully where you would set the bar in how such a challenge could be launched, and then give guidance to the court, to the judge, as precisely as possible on how they should decide whether or not the results of the election should be quashed.
11:50 a.m.
Liberal
Ruby Sahota Liberal Brampton North, ON
Okay. I don't have enough time now, but I would love to have more input on how we can make it enforceable but maybe not take it that far, so that we don't have this occurring time and time again.
11:50 a.m.
Liberal
The Chair Liberal Larry Bagnell
Thank you, Ms. Sahota.
Before we go to Mr. Richards, I want to reiterate something the witness said. It's sort of serendipitous that while we're talking about recommendation B27 on section 331 of the act, the prohibition on foreigners inducing electors to vote, this morning the Senate tabled its report, “Controlling Foreign Influence in Canadian Elections”.
Mr. Richards, you're on.
11:50 a.m.
Conservative
Blake Richards Conservative Banff—Airdrie, AB
That was a great segue for me, because I wanted to mention that as well and ask the commissioner about it.
The Senate put out this report. I don't know if you've seen it yet. It just came out. In “Controlling Foreign Influence in Canadian Elections”, they made a number of recommendations in order to ensure that foreign funding isn't playing a direct or indirect role in Canadian elections.
There are things like prohibiting influence by foreign entities, modernizing the regulation of third parties' involvement, increasing penalties, and removing the six-month limitation on that requirement to report contributions. Then, of course, they're also asking that Elections Canada be required to perform random audits of third parties' election advertising expenses and the contributions they receive that may be used during an election period. Those are some of the recommendations they made.
You've indicated to us, obviously, that you think we need to look at third party financing and consider modernizing and updating that. You indicated in a response to me earlier that in order for provisions to be effective, they must apply to all possible election expenses. I'm looking for your suggestions on what the committee can do, because I firmly agree with you that we should be looking at this. This is an issue that needs to be dealt with. I would assume that when you say it must apply to all possible election expenses, you're indicating that the provision that it's only for advertising expenses is not broad enough, and that you believe we need to expand that further. I'd love to hear your thoughts on that.
In particular, I'd also like to hear your thoughts on the six-month limitation. With the fixed election dates, as I mentioned earlier, in terms of it being six months before the writ is dropped, everyone knows that if they want to get that money in, they can do it six months plus a day before then, and nobody knows. Nobody is the wiser. As a result, there could be very significant foreign funding that could seriously influence our election.
I'd love to hear your thoughts on those two things.