Procedure and House Affairs Committee on Nov. 1st, 2022

[The Chair, Liberal, Bardish Chagger]

I call this meeting to order.

Welcome to meeting No. 37 of the Standing Committee on Procedure and House Affairs. The committee is meeting today to begin its study of foreign election interference.

The first panel of witnesses we will be hearing from is made up of the Chief Electoral Officer, the Commissioner of Canada Elections, and the staff accompanying them.

During the second hour of the meeting, we will be hearing from a representative of the Canadian Security Intelligence Service and a representative from the Communications Security Establishment.

Today's discussion will relate to the new security threat presented by foreign interference in Canadian elections.

I would inform committee members that all witnesses who are attending virtually have successfully done the sound and connection tests before the meeting.

I would just like to remind members and our guests that all comments should be made through the chair.

My understanding is that our guests today will be sharing a combined eight minutes for their opening comments, and I will commence with Mr. Perrault.

Welcome back to PROC.

[Stéphane Perrault, Chief Electoral Officer, Elections Canada]

Thank you, Madam Chair.

I am accompanied today by Serge Caron, deputy chief electoral officer for the digital transformation sector.

Thank you for giving me the opportunity to address the committee on the important issue of the risk of foreign interference in our elections.

I should state, at the outset, that, during the past two general elections, Elections Canada did not experience any breaches to its IT infrastructure or interference with our electoral operations. We are also unaware of efforts by foreign actors to undermine the ability of electors to vote.

The expression "foreign interference" refers not to any particular activity but to a source of threat, which can take different forms: cyber attacks, illicit funding of candidates, parties or third parties, disinformation campaigns, even intimidation. Because of the diversity of means though which it can occur, but also because it involves state-to-state relationships, addressing foreign interference in our electoral process requires efforts by a range of agencies and departments.

Today, I will talk about Elections Canada’s partnerships with other agencies in this area, as well as our specific role and our governing legal framework.

It is important to note that the Canada Elections Act does not define foreign interference. Rather, the Act prohibits the involvement of foreigners in our elections in specific ways that are primarily related to the political financing regime. For instance, only an individual who is a Canadian citizen or a permanent resident may contribute. As well, the act prohibits foreigners from registering as third parties, and third parties are prohibited from using foreign funds for their regulated activities.

The act also prohibits certain activities as representing what the act calls "undue influence by foreigners," such as incurring any expense to directly promote or oppose a candidate or a registered party during the election. However, the Act recognizes that foreigners can have some level of influence, for example, by making a statement encouraging electors to vote for a specific candidate or registered party.

The role of Elections Canada is to administer elections and protect them from threats, irrespective of their source. This includes taking appropriate steps with the advice and support of security partners in protecting election IT infrastructure. Elections Canada has made significant progress in that area in recent years, and we are fortunate to be able to receive ongoing support from the Canadian Centre for Cyber Security, including close monitoring of our IT infrastructure.

Another key role for Elections Canada is to ensure that electors have correct information about the electoral process. This includes information necessary to register and to vote, as well as information that enables them to trust the electoral process and its results. To counter the spread of inaccurate information about the electoral process, whether the source is foreign or domestic, Elections Canada continually monitors publicly available information. When inaccurate information is detected in news media, on the Internet or on social media, it is addressed by communicating correct information.

It's important to note that our focus is on content related to the voting process and electoral administration. My mandate is not to scrutinize or to police what is said about party or candidate platforms by individuals or media organizations, whether domestic or foreign.

Protecting the security of our elections is a team effort and requires a whole-of-government approach. Elections Canada has been actively working with a variety of Government of Canada intelligence and security agencies, whose roles include detecting and responding to potential foreign interference, especially interference by state actors. These include the Canadian Security Intelligence Service and the Communications Security Establishment, among others.

Together, we have developed protocols and practices for discussing threats to an election, sharing information when necessary, and ensuring that each of us is properly prepared to play our own role in the promotion of electoral security.

Madam Chair, I know the committee will be hearing from representatives of the Canadian Security Intelligence Service, and of course they will be best positioned to speak to matters relevant to their own mandate.

[Caroline Simard, Commisioner, Office of the Commissioner of Canada Elections]

Thank you for the invitation to testify before the committee today, Madam Chair.

I am accompanied by Marc Chénier, deputy commissioner and chief of legal services in my office.

The issue of foreign interference is one that my office takes very seriously. As commissioner, my role is to ensure compliance and enforcement of the Canada Elections Act, which provides a legal framework for the activities of my office.

Activities that could be attempts at foreign interference are captured by several provisions in the act. The wording of the obligations and prohibitions of the act as adopted by Parliament determines the scope of our compliance and enforcement work.

For instance, the provision on undue influence is limited to the election period and does not capture the pre-election period.

It is also important to note that we are a complaint-based organization that operates primarily on the basis of complaints received from the public. We encourage Canadians to contact us when they believe an offence under the Canada Elections Act has been committed.

I would like to inform you that my office did not observe any significant change in the number of issues giving rise to complaints containing allegations of foreign interference in either the 43rd or 44th general elections.

As you can imagine, cases of foreign interference can pose significant operational challenges for our work. The presence of activities, individuals or entities from outside of our borders can significantly increase the complexity of an investigation.

Of course, these challenges are not unique to our office.

Over the years, my office has worked with key law enforcement and national security and intelligence organizations. This was helpful to gain a better understanding of the potential threats to elections. It has also served to ensure effective communication, when appropriate, during an election period.

In conclusion, I wish to remind members of this committee that I am not in a position to discuss the details of files that may or may not be the subject of an investigation by my office. This includes any issues that may currently be the subject of a complaint or may have been the subject of a complaint in the past.

I would be happy to take your questions.

Thank you.

[The Chair, Liberal, Bardish Chagger]

Thank you, Commissioner.

We will now go to the first set of questions, in which each speaker will have six minutes.

We will start with Mr. Cooper, who will be followed by Ms. Romanado, Ms. Gaudreau and Ms. Blaney.

Mr. Cooper, the floor is yours for six minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Madam Chair, and thank you to the officials for being here.

I want to pose my question to Mr. Perrault. I want to specifically ask about foreign funding of third parties.

In the 2015 election, it was well established that a number of U.S.-based organizations laundered money through various entities. That money ended up in the hands of registered third parties. For example, nearly $800,000 of U.S.-based Tides foundation money was transferred to the Sisu institute society, based in British Columbia, which in turn was laundered to Leadnow, which actively campaigned to defeat Conservative candidates in the 2015 election.

Amendments were made to the Canada Elections Act in 2018 with Bill C-76. Would you agree that the loophole that existed at the time of the 2015 election was not fixed in Bill C-76?

[Stéphane Perrault]

Madam Chair, I agree that there remain areas where foreign funding could find its way through parties, though I'm not aware that it has. This is why I have made a recommendation to Parliament, which I will be happy to explore with this committee in future months, regarding the potential use of foreign funding.

Essentially, that loophole, if you may call it that, relates to the ability of a third party to use its own funds, so unless the money was provided specifically for a regulated purpose, then it would not be captured. What is an owned fund, and how can you address that?

I have made some recommendations, and I could expand on them today if the committee wants to hear.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I'd be interested in any recommendations you have.

Would you agree there is nothing in the act that would prevent U.S. money from going to a Canadian entity, then to another Canadian entity, and then to another entity, for example? The source of that money might then be considered Canadian.

[Stéphane Perrault]

There are opportunities for flows of money to make their way through a third party. If the party, however, raised the money for a regulated activity, they must disclose the source of the funding. It must be a Canadian source.

The concern is with money received for general purposes, which may, later on, become their own money, flow through various groups, then be used. In this case, it becomes an expense reported as from the source of the entity itself.

We have seen an increasing percentage of third parties funding their election activities with their own funds.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In short, loopholes exist with respect to third parties. You acknowledged that in your testimony on May 28, 2018, when you appeared before this committee. You said, “There is in my view a residual opening for foreign funding through third parties.”

Nothing has changed. Isn't that right?

[Stéphane Perrault]

I committed to look into this and come back with recommendations, which I have.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

One recommendation you put forward was an anti-avoidance clause.

[Stéphane Perrault]

No. It's a recommendation that groups funded, in large degree, through contributions be required to have a separate bank account. If they use money for regulated activities, it comes from that bank account, and every penny comes from individual Canadians.

Groups, however, whether they be corporations or unions, that are not fundraising entities but earn money in Canada would continue to be able to use their own funds, as would individuals.

A fundraising entity—someone who receives money by way of contributions—should be regulated in a different manner. That's an avenue I'm putting forward to explore with this committee.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

To be clear, a foreign third party can accept foreign money. That's clear. They can accept foreign money.

[Stéphane Perrault]

They cannot accept foreign money for the purpose of regulated electoral activities, but any—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Otherwise, if it's not specific to one of the regulated activities, there's no limit.

[Stéphane Perrault]

Any individual in Canada is a third party, unless they're a candidate. They may receive funds through investments or earnings from different sources, including foreign sources. That may also include contributions, unless it's for the purpose of regulated activities, you're quite correct. People and groups in Canada receive funds from different sources.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

As you said, it could be commingled, and there's nothing in the act that clarifies this. How do you enforce...?

You said, set up a separate bank account if money is ostensibly donated on the basis of an administrative purpose. Then, it's commingled and used for a different purpose.

[Stéphane Perrault]

That is correct.

If money is given for general purposes, and not specifically for regulated activity purposes, it becomes their own money. It can then be used and reported only as their own money, even though it was a contribution.

I think that's an issue Parliament could choose to address in the legislation that reviews it.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Right.

What about an anti-avoidance clause?

[Stéphane Perrault]

There are a number of anti-avoidance clauses in the act. I'm not aware of any prosecutions, although I may be incorrect.

Mr. Chénier has a long history of knowledge about these things and how effective they are. I'd leave that, perhaps, to Mr. Chénier.

[Marc Chénier, Deputy Commissioner and Chief Legal Counsel, Office of the Commissioner of Canada Elections]

Yes, there's a prohibition against circumventing the prohibition against using foreign funds. That was added by this committee when Bill C-76 was before this committee.

[The Chair, Liberal, Bardish Chagger]

Thank you.

Ms. Romanado, the floor is yours for six minutes.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you, Madam Chair.

I would like to thank the witnesses for being with us today.

Mr. Perrault, I would like to thank you for saying in your testimony that Elections Canada had not experienced any breaches to its IT infrastructure or interference with its electoral operations during the past two general elections.

It's important to highlight that, because there were a lot of conversations and reports on whether or not there was interference in the last two elections. I want to thank you.

I understand, Madam Simard, that you also mentioned there was nothing in the last two elections, in terms of foreign interference.

One area I'd like to touch on is the pre-election period. We hear a lot about initiatives happening and efforts made during an electoral period.

Could you elaborate on some of the work you're doing in a pre-election period, in terms of making sure our elections are safe?

[Stéphane Perrault]

I would like to make one brief comment. As I tried to make clear in my opening remarks, the expression "foreign interference" can have several meanings, depending on the context. That is why I tried to be relatively precise when I said we had not experienced any such situation at Elections Canada.

I would say there are two work streams in a pre-election period.

One stream is working with our partners in the Government of Canada in terms of ensuring the security of elections. A lot of the work that goes on there, because people come and go between elections, is making sure everyone understands who is responsible for what, who you speak to when you have an issue, and which kinds of issues which agencies are responsible for. It's a lot of making sure the parameters of the mandates are understood and we have contacts. We also receive fairly high-level briefings from the security community in terms of the overall environment.

That's one stream of work. I would include in that stream our work in terms of cybersecurity.

The other one is making sure Canadians have the right information about the voting process. That is critical for us. That's really at the core of our mandate. For example, in the last election we put a lot of effort into putting information on our website about postal ballots, just because there was concern. How do we count them? What is the transparency? What are the safeguards in place to ensure the integrity of the process? That is an important part of our work.

Moving forward, I think we'll need to continue and expand on explaining to Canadians why they should be trustful of our elections and the procedures we have in place for them.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you very much.

I have a follow-up question to that. You mentioned mail-in ballots. I understand that approximately 200,000 special ballots were not returned in the last election. Obviously, with COVID, a lot of people availed themselves of special ballots.

Can you speak to that a bit? There have been some comments that perhaps the results of the election would have been different if the ballots that weren't returned on time had been counted. I would like to get your comments on that.

Thank you.