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Past CEO Recommendations and Parliamentary Debate Related to Section 91 of the CEACEO Appearance on the subject of Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures

CEO Recommendations

In his report An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election, tabled September 27, 2016, the former Chief Electoral Officer (Mr. Mayrand) made one recommendation related to section 91 of the Canada Elections Act (CEA).

That recommendation (B12), to amend section 91 of the CEA, included:

"The Commissioner has suggested to the CEO that Parliament may wish to clarify or repeal this provision. The CEO recommends that section 91 be repealed. Serious cases of defamation or libel can be dealt with through alternative civil or criminal legal mechanisms."

In the report, the CEO explained that "Section 91 prohibits the making of false statements about the personal character or conduct of a candidate with the intention of affecting the results of an election. The intended scope of the provision is unclear in terms of the behaviour it seeks to capture (that is, what constitutes a false statement about personal character or conduct). It is also unclear how the provision applies when the intent is to affect the results of the election in general, rather than the election of a candidate in a particular electoral district. The Commissioner has noted that the provision's lack of clarity causes enforcement difficulties. It also raises expectations of what can be prosecuted."

PROC Study of the CEO's Recommendations

Between October 4, 2016 and June 15, 2017, the Standing Committee on Procedure and House Affairs (PROC) held 22 meetings to study the CEO's recommendations, 17 of which were held in camera.

There was very little discussion of recommendation B12 in public meetings. During one public meeting on June 8, 2017, when the Commissioner of Canada Elections (CCE) appeared to discuss recommendation B12 and others, current PROC Chair Ruby Sahota voiced concern over "false statements about personal character". Ms. Sahota noted that "women candidates oftentimes have their character called into question more than male candidates do" and said that it's important to send a message to women that Parliament cares about this type of thing happening.

PROC's report A Third Interim Report in Response to the Chief Electoral Officer's Recommendations for Legislative Reforms Following the 42nd General Election included the committee's findings on recommendation B12.

In the report, the committee noted it had requested the CCE provide it with "amendments to the CEA that would broaden the application of section 91 and provide for the behaviour that would constitute a false statement of fact."

The amendment provided by the CCE was:

91 (1) No person shall, with the intention of affecting the results of an election, knowingly make or publish any false statement of fact in relation to the personal character or conduct of a candidate, prospective candidate, leader of a registered party, or of a person closely associated with the campaign of a candidate, prospective candidate, registered party or the leader of a registered party.

(2) For the purposes of subsection (1), a false statement of fact in relation to the personal character or conduct of a person is one that is likely to have a significant prejudicial effect on the impression electors have of the person by reason that it falsely ascribes serious defects and failings to the person, including

  1. the commission of a criminal act;
  2. views or behaviour fundamentally inconsistent with what is generally expected of an elected official; or
  3. feelings of hatred, contempt for or deep-rooted prejudice against an identifiable group.

A majority of PROC members agreed with the CCE's amendment, and recommended that the change be made to the CEA. However, the recommendation was not supported by the Official Opposition.

In its supplementary opinion the Official Opposition (Conservative Party) noted that it "strenuously" disagreed with the CCE's proposed amendment, and agreed with the recommendation of the CEO, that section 91 of the Act should be repealed in its entirety.

The Official Opposition argued it did not support "any expansion of the power to police political speech during an election period, or retrospectively, and especially does not support this power being wielded outside of a court of law."

The government's response to PROC's reports noted that the government was "generally supportive of the recommendations" and that the government was considering further amendments to the CEA in response to the CEO's recommendations. The amendment provided by the CCE, however, was not included in Bill C-76. PROC's reports on the CEO's recommendations were not debated in Parliament.