4. Protecting Against Threats to the Electoral Process – Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43rd and 44th General Elections
The Act sets spending limits and requires most political entities to report on the money they raise for and spend on an election campaign. The content of electoral communications is, for the most part, not restricted.
In certain limited situations, however, the content of a communicator's message is regulated by the Act. Parliament has enacted such regulation to promote fairness and trust in elections and, in some instances, to promote healthy democratic discussion.
4.1. Prohibiting Certain False Communications
False information about the electoral process and the integrity of elections can harm public trust in elections. This can serve to facilitate voter suppression and, in the longer term, jeopardize trust in the entire electoral system on which democracies rest.
There are no specific prohibitions in the Act against making false statements about the electoral process. For example, statements that wilfully mischaracterize when, where and the ways to vote are not specifically prohibited, nor are false statements that portray official results as having been manipulated. When such statements are knowingly made to suppress participation, they may trigger the application of existing prohibitions against actions to interfere with the voting process.
However, in some cases, the deliberate dissemination of inaccurate information may serve a broader purpose—namely, to undermine the legitimacy of the election itself or the counting of the votes. Even if the person making the statements knows them to be untrue and makes them for the clear purpose of undermining the election, they would not be caught by existing prohibitions.
To protect freedom of expression, the threshold for any provision that seeks to circumscribe speech must be high. While recognizing the importance of freedom of expression, it seems appropriate to limit expression where the speaker knows the information to be false and communicates it in order to disrupt the conduct of an election or to undermine the legitimacy of election results.
To protect against inaccurate information that is intended to disrupt the conduct of an election or undermine its legitimacy, amend the Act to prohibit a person or entity, including foreign persons and entities, from knowingly making false statements about the voting process, including about voting and counting procedures, in order to disrupt the conduct of the election or to undermine the legitimacy of the election or its results.
4.2. Broadening the Scope of Existing Prohibitions
- In 2018, the Elections Modernization Act clarified the prohibitions against foreign interference and added the prohibition against misleading publications that falsely purport to be from an election worker, political party or candidate. These prohibitions apply only during an election period. To deter such threats to the integrity of elections, the period to which these prohibitions apply should be extended.
- To better protect against foreign interference and the spread of inaccurate information about elections and electoral participants, amend the Act to extend to the pre-election period the prohibitions against foreign interference and extend to all times the prohibition against misleading publications that falsely claim to be by an election worker, political party, leadership contestant, nomination contestant or candidate.
Since 2018, the Act has made it an offence to use a computer system fraudulently with the intention of affecting the outcome of an election. However, the offence does not capture activity that is designed to interfere with or discredit the electoral process.
In a world at risk from cybersecurity threats, phishing scams and automated bots that have the unprecedented ability to amplify messages, our electoral law should seek to deter the potential damage that can be done by electronic means to our democratic processes, including by foreign actors who may wish to discredit our democracy.
- To ensure the more appropriate targeting of an existing offence, amend the Act to broaden the scope of the offence of using a computer system to include acting fraudulently with the intention of disrupting the conduct of the election or undermining the legitimacy of the election or its results.
4.3. Political Parties That Promote Hatred
A "political party" is defined in the Act as an organization, one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.
A political party may apply to register with the CEO. Registered political parties obtain a number of benefits, including the ability to issue tax receipts and becoming eligible for expense reimbursements. They also receive access to free broadcasting time and to lists of electors, and the party's name appears on ballots. To maintain their eligibility to receive these benefits, a party must have a minimum of 250 confirmed members and endorse at least one candidate to run for office in a general election.
In recent years, parties and candidates involved in the dissemination of hatred against particular communities have attracted attention from the media, the public and political actors. Concerns have been raised about such individuals and groups gaining access to lists of electors and to financial support from the state.
The Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott has defined hate speech as "speech that exposes a group to hatred, that seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society."footnote 1 In this respect, hate speech must be more than merely offensive or hurtful: it must present an "extreme and egregious example of delegitimizing expression."
Canadian case law recognizes 11 hallmarks of hateful expression, which have been applied by courts and tribunals. These hallmarks include portraying a targeted group such as an ethnic or religious minority as a powerful menace and as responsible for society's or the world's current problems. Hateful expression also uses highly inflammatory language; dehumanizes a targeted group through comparisons to and associations with animals, vermin or excrement and other noxious substances; trivializes or celebrates past persecution or tragedy involving members of the targeted group; and calls for violent action against a targeted group.
When a party has as one of its primary purposes the promotion of hatred against a targeted group, there is at present no ground for barring the party's registration, or requiring the party's deregistration, under the Act.
It is not appropriate for the CEO (or the Commissioner of Canada Elections) to have a role in choosing which political parties are registered based on their political views, even when those views may be hateful. The CEO should remain strictly impartial in the administration of elections and the enforcement of the Act, and it is therefore proper that the Act not provide an election administrator any scope to make judgments about the positions of political entities in determining whether or not to register them. Nevertheless, the possibility of registering an organization that has the promotion of hatred as one its primary purposes as a political party entitled to benefits raises obvious policy concerns.
In order to ensure that the CEO and Commissioner remain non-partisan, and be seen as such, electors could be given the authority to apply to a court when there is reason to believe that an organization seeking party registration, or that is already registered, has as one of its primary purposes the promotion of hatred against an identifiable group. In making this determination, a court could use the test that has been applied under Canadian law.
- To ensure that an organization that has as one of its primary purposes the promotion of hatred against an identifiable group does not enjoy the benefits of being a registered party, including access to lists of electors and public financing, give electors the authority to apply to a court for a determination as to whether the organization has such a primary purpose. If the court determines that it does, the organization would not be eligible to register as a political party or would be deregistered.