Election security is one of the hottest topics in political circles, especially given the foreign meddling in the 2016 United States election, and the unsubstantiated allegations of voter fraud in the subsequent 2020 United States election.
The Canadian cyber spy agency, the Communications Security Establishment ("CSE"), has stated that it is "very likely" that Canadian voters will encounter some sort of foreign interference ahead of the September 2021 election.1 This type of interference may come in the way of overt hacking attempts, or the more insidious dissemination of "fake news" on online platforms.
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. In order to ensure Canadians have confidence that the results of our election are not called into question, it is important to understand the mechanisms in place to ensure the integrity of our democratic process.
This election law primer is intended to convey some important steps Canada has (or has not) taken to combat foreign interference in the September 2021 election. It is intended as general guidance only. If you have any specific questions, please contact our Public Sector experts, Awanish Sinha, Hartley Lefton, Amanda D. Iarusso, Jacob Klugsberg, Andrew Butler, or Adam Kanji. We would be pleased to assist you.
What Canada has done to combat foreign interference
Canada has proactively taken steps to safeguard our electoral process from foreign interference, both in the way of legislation and administrative regulation.
In 2019, the Election Modernization Act (the "EMA") came into force, and updated the rules governing our federal election in the Canada Elections Act (the "Canada Elections Act"). More specifically, the EMA introduced a number of amendments that specifically address attempts to disrupt electoral campaigns or voting.
As a general proposition, the EMA prohibits a foreign person or entity from unduly influencing an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party.2 It is important to note, however, that the general prohibition in the EMA contains broad exemptions - such that it does not apply to (1) expressions of opinion about the outcome or desired outcome of the election; (2) statements that encourage the elector to vote or refrain from voting for a particular candidate or political party; and (3) broadcasting transmissions to the public through either electronic or print media of "an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news."3
Critically, the EMA prohibits businesses and interest groups - referred to collectively as "third parties"4 - from using money obtained from a foreign entity to pay for partisan or election campaign activities.5
Prior to the EMA, the Canada Elections Act permitted foreign third parties to spend up to $500 on advertising during a federal election campaign.6 Now, foreign third parties are now prohibited from spending on partisan advertising and activities during both the "pre-election" and "election" periods.7 As the 2021 Federal Election is not occurring on a fixed election date, there is no applicable "pre-election" period under the Canada Elections Act.
When it comes to social media, online platforms that sell advertising space must maintain and publish a registry of partisan advertising during the pre-election period and of election advertising published during the election period.8 Although this mechanism was heavily criticized as not going far enough in how much information it required social media platforms to disclose, Canada has been commended as being one of the first nations to require major online platforms to maintain this type of registry.9 We have previously written about what owners and operators need to know about selling political advertising on their online platform, which is accessible here.
2. Administrative measures
Prior to the 2019 federal election, the Government of Canada announced its plan to defend Canada's democracy and further strengthen its electoral system against threats. The plan focused 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 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.10
Alongside SITE, the Government also participates in the G7 Rapid Response Mechanism ("RRM"). The RRM is an initiative to strengthen coordination across the G7 in identifying, preventing and responding to threats to G7 democracies. The G7 RRM Coordination Unit is tasked with sharing information and threat analyses - and identifying opportunities for coordinated responses when attacks occur.11
What Canada has not done - and what it cannot do
1. Constitutional constraints
When the EMA was enacted, section 91 of the Canada Elections Act was amended to prohibit the publishing of certain false statements during an election period made with an intention of affecting the election results, regardless of whether the publisher knew the statements were false.12
In February 2021, McCarthy Tétrault successfully acted as counsel to an institutional applicant challenging section 91 of the Canada Elections Act, as amended, as violating section 2(b) of the Charter of Rights and Freedoms. Justice Davies of the Ontario Superior Court of Justice held that section 91 of the Canada Elections Act violated section 2(b) and was not saved by section 1 of the Charter, primarily because it captured false statements that were not knowingly made.13
This decision is a clear indication that, despite the laudable objective of preventing foreign interference in our electoral process, governments must always ensure that any measures put in place respect the Charter and, in particular, its provisions on freedom of expression. Indeed, the Supreme Court of Canada has been clear that political speech is as close to the core of section 2(b) as it gets.14
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,15 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.
The EMA requires political parties to publish their policies for protecting personal information on their websites.16 Some commentators, including the Chief Electoral Officer, have previously expressed concern 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.
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.
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.
The bottom line
Election interference is a pressing concern for democracies around the world, including Canada. The CSE has stated that foreign meddling is unlikely to match the scale and influence as seen in the United States,17 yet any meddling nonetheless still has the potential to call into question our democratic process. Recent events in the United States have emphasized the importance of steadfastly safeguarding our democracy at all costs. Canada has taken some steps to prevent foreign interference. Whether these measures continue to remain effective against the ever-evolving threats posed to our society remain to be seen.
This post is part of our 2021 federal election series. You can access related content here.
1. C. Tunney, "Canadian voters are likely to face foreign cyber interference in the next election, says cyber spies", CBC News (July 16, 2021); Canadian Centre for Cybersecurity, "Cyber threats to Canada's democratic process: July 2021 update".
3. EMA, supra at s. 190.
4. Canada Elections Act, S.C. 2000, c. 9, at s. 349 [CEA]: A "third party" is defined 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.
5. EMA, supra at s. 223, amending CEA, supra at 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.")
6. CEA, supra at s. 351.1.
7. EMA, supra at ss. 223 and 225, amending CEA, supra at ss. 349.4(1) and 351.1(1).
8. EMA, supra at s. 208.1 , amending CEA, supra at s. 325.1.
10. Government of Canada, "Security and Intelligence Threats to Elections (SITE) Task Force".
12. EMA, supra at s. 61; CEA, supra at s. 91.
15. 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.).
16. EMA, supra at s. 254, amending CEA, supra at s. 385(2)(k).
17. C. Tunney, "Canadian voters are likely to face foreign cyber interference in the next election, says cyber spies", CBC News (July 16, 2021).
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.