Election 2019: What Canada is – and isn’t – doing to prevent foreign interference

#TrudeauMustGo, or so the hashtag said, as it trended on Twitter some weeks ago. Was this a surge in public discontent? A poor omen for the Prime Minister? None of the above – the “trend” found its fuel in assorted “fake” accounts, masquerading as members of the public. It snowballed as legitimate accounts joined in.

The Communications Security Establishment (“CSE”) and the Canadian Security Intelligence Service (“CSIS”) have already found foreign actors attempting to influence Canada’s upcoming federal election. As the Government of Canada’s Canadian Centre for Cyber Security has predicted, foreign cyber interference ahead of and during the campaign is “very likely”.

This is no surprise. Foreign meddling has only become more prevalent since Donald J. Trump won the White House, with Russian help, in 2016. The internet has become a powerful means by which state actors can seek to further their interests around the world; cyber space offers fertile ground for our adversaries’ lies and misinformation. Those adversaries are increasingly savvy and sophisticated in coopting unsuspecting social media users to disseminate their propaganda. It can be difficult for the average internet-literate person to spot the difference between truth and fiction, between public consensus and bot-amplified bait, and between honest debate and deliberately driven wedges designed to corrupt our democratic process for foreign ends.

Improper election interference stands to destabilize and delegitimize Canada’s democracy. Meaningful democratic participation depends on the public having access to accurate information, as well as confidence in government institutions.

This election law update provides an overview of the actions that the federal government has taken to combat foreign interference in this fall’s election. It also describes steps that could be – but have not been – taken, and surveys the constraints on the government’s response. This update is intended as general guidance only. If you have specific questions or concerns, please contact Awi Sinha, Adam Goldenberg, or Will Horne. We would be pleased to assist you.

Canada’s response

Canada is proactively taking measures aimed at safeguarding our electoral processes from foreign interference. Broadly, these measures either strengthen existing protections or set out new mechanisms for anticipating and responding to threats of election interference.

  1. Legislative amendments

Parliament’s response to the threat of foreign meddling has come in the form of amendments to the Canada Elections Act.[1] Bill C-76, now known as the Election Modernization Act (the “EMA”),[2] received Royal Assent on December 13, 2018, and entered into force on June 13, 2019. The EMA updates several of the rules that govern Canadian elections. We have reviewed some of these changes in previous blog posts. The EMA introduced a number of amendments that specifically address attempts to disrupt electoral campaigns or voting.

a) Foreign funds

The EMA prohibits businesses and interest groups – referred to collectively as “third parties”[3] – from using money obtained from a foreign entity to pay for partisan or election campaign activities.[4] Foreign entities are defined to include individuals who are neither citizens nor permanent residents; corporations outside Canada; trade unions outside Canada; foreign political parties; or foreign governments or their agents.[5]

Previously, the Canada Elections Act permitted foreign third parties to spend up to $500 on advertising during a federal election campaign.[6] Under the EMA, foreign third parties are now prohibited from spending on partisan advertising and activities during the “pre-election” and “election” periods.[7]

b) False statements

Under the EMA, a person or entity may not make or publish a false statement during the election period with the intention of affecting the election results. This applies regardless of where the statement is published or made.[8] This prohibition raises difficult constitutional questions about the freedom of expression, which we will explore below.

The EMA prohibition applies only to false statements that are:

(1) about a candidate, prospective candidate, party leader, or public figure associated with a party;

(2) made during an election period; and

(3) made with the intention of affecting election results.

If a statement meets all of these criteria, then it will be prohibited if it falls into one of the following two categories:

(1) it falsely states that the person has broken the law or been charged with an offence; or

(2) it makes a false statement about the person’s citizenship, birth place, education, professional qualifications or membership in a group or association.[9]

It addition, the EMA makes it an offence to falsely state that a candidate has withdrawn from an election. The legislation does not limit this prohibition to statements made during an election period with the intention of affecting results.

c) Social media

Online platforms that sell advertising space must now maintain and publish a registry of partisan advertising published during the pre-election period and of election advertising published during the election period.[10] We examined the registry requirement in greater detail in an earlier post.

The registry requirement has been criticized for only obliging online platforms to include limited information about each recorded advertisement. Users will not be able to determine why they were targeted for a particular advertisement, for example. Nevertheless, others have commended Canada for taking the first step in increasing advertisement transparency; we are one of the first countries to require major online platforms to maintain this type of registry.

  1. Administrative measures

In January 2019, the Government of Canada announced its plan to defend Canada’s democracy and further strengthen its electoral system against threats. The plan focuses on four pillars: enhancing citizen preparedness; improving organizational readiness; combatting foreign interference; and expecting social media platforms to act.

Under the third pillar, the government has created the Security and Intelligence Threats to Elections (“SITE”) Task Force to assess and respond to foreign threats. SITE is comprised of officials from CSIS, the RCMP, Global Affairs Canada, and CSE. 

Cabinet also issued a new directive in early July that explains the new rules governing when – and how – Canadians will be informed of attempts at foreign interference during the federal election. The Government of Canada has established the Critical Election Incident Public Protocol, a non-partisan process for informing Canadians about incidents that threaten Canada’s ability to have a free and fair election. If an incident is detected, it will be brought to the attention of a panel of senior officials, including the Clerk of the Privy Council and the National Security and Intelligence Advisor. The panel will decide whether the incident is sufficiently grave to warrant informing political parties and Canadians.

What Canada has not done – and what it cannot do

(1) Constitutional constraints

Some of the legislative provisions described above – especially those that regulate and prohibit “false statements” – may limit the freedom of expression. The EMA’s constitutionality has not yet been tested in court. Neither has the constitutionality of other elements of the government’s response. It goes without saying that the regulation of political speech raises difficult constitutional questions. Courts have, however, generally been more willing to defer to Parliament where the integrity of elections is said to be at stake.[11]

The Supreme Court of Canada has defined broadly the scope of the freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. Any activity that conveys or attempts to convey meaning short of violence or threats of violence is protected.[12] The “vital importance” of “free and uninhibited speech”, and particularly speech about political matters, in a democratic society explains why the courts have been willing to interpret section 2(b) in such generous terms.[13]

However, not all protected expression is created equal. The Court has recognized that, while protected by section 2(b), hate speech,[14] pornography,[15] and the advertising of harmful products[16] are all types of expression attenuated from the “core” of the right.[17] The courts characterize such speech as being of “low value”. The government has an easier time justifying limits on such speech for the purpose of section 1 of the Charter;[18] the salutary effects of a limit on low value expression is more likely to outweigh the detrimental effects on Charter-protected interests.[19]

Political speech is “high value” speech; it is as close to the core of section 2(b) as it gets.[20] It is consequently exceedingly difficult for the government to justify limits on it. To withstand Charter scrutiny, such limits “must be supported by a clear and convincing demonstration that they are necessary, do not go too far, and enhance more than harm the democratic process”.[21]

It follows that the constitutionality of the government’s efforts to crack down on foreign meddling – peddling false statements (i.e., “fake news”) within the reach of the EMA – will turn in large measure on whether these provisions of the EMA limit political expression, which is entitled to the highest level of protection under section 2(b). On its face, they plainly do. By its terms, the EMA sets out to limit speech that is political and intended to influence elections.

But this is not the end of the inquiry. Speech that is prima facie political is not ipso facto impervious to reasonable and demonstratively justified limits. The Supreme Court of Canada has held this to be the case where the integrity or fairness of the electoral process is at stake. As the Court noted in Harper, “[t]he Court should not substitute judicial opinion for legislative choice in the face of a genuine and reasonable attempt to balance the fundamental value of freedom of expression against the need for fairness in the electoral process”.[22] On this basis, the Court has upheld limits on political advertising,[23] the broadcasting of election results,[24] and third party spending during an election.[25] 

Whether the courts would uphold some of the more stringent limits on expression imposed under the EMA remains to be seen. The answer to that question is beyond the scope of this blog post. Suffice to say, the government would have to discharge a heavy burden to satisfy the courts that measures designed to prevent Canadians from communicating freely about politics in the run up to an election are reasonable and justified limits on the section 2(b) right. Whether it will succeed in doing so in respect of the EMA will depend on whether the courts agree that the EMA, properly interpreted,[26] goes no further than necessary to protect electoral integrity; that less expression-restrictive measures would not have accomplished the legislative objectives, and that the benefits of the restriction outweigh its detrimental impact on the Charter-guaranteed freedom. With respect to the last step, contemporary political realities of “fake news” and election interference would almost certainly weigh on the courts’ reasoning.

(2) Privacy legislation

The Privacy Act and the Personal Information Protection and Electronic Documents Act (“PIPEDA”) set out the general principles that govern the collection, use, and disclosure of personal information. However, neither statute applies to political entities; the Privacy Act only applies to federal government institutions,[27] while PIPEDA is limited to personal information that has been collected, used, or disclosed in commercial activities.

The legislative vacuum around how political entities manage and protect personal information is noteworthy, especially because the data compiled and accessed by political parties – information about voters, volunteers, employees, and donors – could be immensely attractive to those who would attack the integrity of Canadian elections. If these political databases are attacked and personal information is compromised, Canadians will presumably want to know about it. However, right now, there is no requirement for political parties to report any such breach.

In 2017, CSE identified political parties, politicians, and media as uniquely vulnerable targets for cyber-attacks:

We expect that multiple hacktivist groups will very likely deploy cyber capabilities in an attempt to influence the democratic process during the 2019 federal election. We expect some influence activities will be well-planned and target more than one aspect of the democratic process.

After an incident in 2006 in which a Conservative Member of Parliament alarmed her constituents when she sent them birthday cards using data from passport applications, the federal Conflict of Interest and Ethics Commissioner had an opportunity to comment on the standard to which political parties should be held when it comes to privacy and data protection. He reminded MPs that they should be “guided by the principles” of Canada’s privacy protection laws – although those laws do not apply to MPs.

The EMA requires political parties to publish their policies for protecting personal information on their websites.[28] Some commentators, including the Chief Electoral Officer, are concerned that this is insufficient. In June 2018, the Chief Electoral Officer commented to the press that legislation should address the databases that political parties have built over the years. The Canadian Bar Association has proposed introducing mandatory disclosure requirements when data privacy is breached.[29]

Additional legislative intervention in this area could bring the data security and privacy requirements for political parties in line with the standard to which commercial entities are held. For instance, political parties could be required to report a data breach which implicates previously collected personal information. Given the sensitivity of political entities’ data, and the immense value such data could have for adversaries’ efforts to interfere with our elections, legislative intervention may not only be warranted – it may be necessary.

(3) Enforcement

Because the threat of election meddling can come from both domestic and foreign actors, the efficacy of some of the government’s tools to combat such interference may be limited. The two main barriers to the efficacy of legislative efforts to quell election interference by foreign state actors and non-state actors are jurisdiction and enforcement.

For a Canadian court to order someone to do, or not to do, something, the court must have jurisdiction over the person against whom the order is sought. Even if a Canadian court exercises jurisdiction, enforcing its order abroad – wherever the foreign actor or their assets are – can be a legal and practical challenge.

Under section 6(2) of the Criminal Code, courts in Canada have jurisdiction over criminal matters committed within the territory of Canada. This is consistent with the notion that the primary basis of criminal jurisdiction is territorial.[30] The linchpin for enforcement of the various legislative prohibitions against foreign actors, therefore, is that the offence be committed in Canada.

Election interference efforts originating abroad could be characterized as having been committed in Canada, since their intent and effect would be localized here. In the (civil) defamation context, by analogy, “publication” occurs when someone, other than the subject of the statement, receives a statement, such that the tort of defamation occurs in the place where the defamatory statement is received or accessed.[31]

In 2018, American authorities charged individuals based in Russia with interfering in the 2016 presidential race. This has been identified as a change in the U.S. government’s approach; rather than merely identify election interference, officials demonstrated their readiness to prosecute and confront cyber threats. The defendants were charged criminally for conspiracy, as well as for breaching numerous other statutes. Under the indictment, there was no discussion of jurisdiction or how the penalties would be enforced. Rather the case is considered to be part of a “naming and shaming” strategy, which attempts to decrease election interference through publicity and deterrence.

The bottom line

Election interference is a pressing concern for – and a threat to – democracies around the world, including Canada. The Canadian Centre for Cyber Security anticipates that Canada will not face threats of the same magnitude as those seen during the 2016 U.S. presidential election. Still, we have not seen the last of election interference efforts. Preparation within constitutional bounds must be Canada’s first line of defense.

The government has taken – and, we expect, will continue to take – legislative and administrative measures to protect Canada’s democracy. Whether these measures are effective, or even constitutional, is yet to be seen.

Our team at McCarthy Tétrault has experience navigating the legal uncertainties that can arise in the run up to an election. Please contact Awi Sinha, Adam Goldenberg, or Will Horne with questions or for assistance.

This post is part of our 2019 federal election series. You can access related content here.

 

 

[1] Canada Elections Act, S.C. 2000, c. 9 [CEA].

[2] Elections Modernization Act, S.C. 2018, c. 31 [EMA].

[3] A “third party” is defined in s. 349 of the CEA as anyone other than a candidate, a registered party, or electoral district association of a registered party. The CEA includes a broader definition of “third parties” outside of the election period, which captures eligible parties, potential candidates and nomination contestants.

[4] EMA s. 223, amending CEA s. 349.02 (“No third party shall use funds for a partisan activity, for advertising, for election advertising or for an election survey if the source of the funds is a foreign entity.”)

[5] EMA s. 223, amending CEA s. 349.01(1).

[6] CEA s. 351.1.

[7] CMA ss. 223, 225, amending CEA ss. 349.4(1), 351.1(1). The “pre-election” period for the upcoming federal election began on June 30, 2019 and will end on the day before the earlier of (a) the first day of an election period or (b) the 37th day before election day, which is the Monday referred to in subsection 56.1(2) (or if the Governor General makes an order under subsection 56.2(3), the 37th day before the alternate day referred to in that order.). The “election period” is usually the period beginning with the issue of the writ, and ending on polling day.

[8] EMA s. 61, replacing CEA ss. 91(1), 91(2) (“Subsection (1) [the prohibition on false statements] applies regardless of the place where the election is held or the place where the false statement is made or published.”).

[9] EMA s. 61, amending CEA ss. 91-92.

[10] EMA s. 208.1, amending CEA s. 325.1.

[11] See, e.g., Harper v. Canada (Attorney General), 2004 SCC 33, at para. 88, per Bastarache J. [Harper].

[12] Irwin Toy Ltd v. Québec (Attorney General), [1989] 1 S.C.R. 927, at para 42, [1989] SCJ No 36.

[13] Edmonton Journal (The) v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at para. 78. [Edmonton Journal].

[14] R. v. Keegstra, [1990] 3 S.C.R. 697 at 766 [Keegstra].

[15] R. v. Butler, [1992] 1 S.C.R. 452 at 500 [Butler].

[16] RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at para. 75. [RJR-MacDonald].

[17] Ibid at paras. 73-74.

[18] Section 1 states that the rights and freedoms set out in the Charter are guaranteed, but also are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

[19] Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para 91 [Thomson Newspapers]; Keegstra, supra note 14 at p. 766; Butler, supra note 15 at 500; RJR-MacDonald, supra note 16 at para. 75.

[20] B.C. Freedom of Information and Privacy Assn. v. British Columbia (Attorney General) at para 16 [B.C. Freedom of Information]; Harper, supra note 11 at para. 1, per McLachlin C.J. and Major J.; see also Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 29 [Libman]; R. v. Zundel, [1992] 2 S.C.R. 731, at 752-53, per McLachlin J.;  Keegstra, supra note 14 at 763-64, per Dickson C.J.; Edmonton Journal, supra note 13 at 1355-56, per Wilson J.

[21] Harper, supra note 11 at para. 21, per McLachlin C.J and Major J. (dissenting in part).

[22] Harper, supra note 11 at para. 111, citing Thomson Newspapers, at para. 268, per Berger J.A. (dissenting).  

[23] B.C. Freedom of Information, supra note 20 at para. 59.

[24] R. v. Bryan, [2007] 1 S.C.R. 527 at paras. 53, 82, 83.

[25] Harper, supra note 11 at para. 147.

[26] B.C. Freedom of Information, supra note 20 at para. 17.

[27] Privacy Act, R.S.C. 1985, c. P-21, s. 3 (“government institution” is defined to mean “(a) any department or ministry of state of the Government of Canada, or any body or office, listed in the schedule, and (b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act. Political parties fall outside this definition.).

[28] EMA s. 254, amending CEA s. 385(2)(k).

[29] Canadian Bar Association. 2018. “Bill C-76: Elections Modernization Act.” Ottawa, ON: Canadian Bar Association Privacy and Access Law Section at p. 4.

[30] Libman, supra note 20 at para. 11 (CanLII).

[31] Haaretz.com v. Goldhar, 2018 SCC 28 at para. 36.

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