Chief electoral officer wants law against false claims meant to undermine elections

Chief Electoral Officer Stephane Perrault speaks at a press conference about Elections Canada’s recommendations report from the 43rd and 44th general elections in Ottawa on Tuesday, June 7, 2022. THE CANADIAN PRESS/ Patrick Doyle

OTTAWA — Canada’s chief electoral officer is calling for changes to the country’s election law to combat foreign interference in elections and the spread of misinformation.

Stéphane Perrault has suggested creating a new offence of making false statements to undermine an election — for example, claiming that the results have been manipulated.

The recommendation is one of many made by Perrault in a report for MPs on issues arising from the last two general elections in Canada in 2019 and 2021.

The report released Tuesday said the changes are needed to “protect against inaccurate information that is intended to disrupt the conduct of an election or undermine its legitimacy.”

The new offence in the Canada Elections Act would stop people or bodies from knowingly making false statements about the voting process to disrupt an election or undermine its legitimacy.

At a news conference, Perrault said the law would be applied narrowly to statements designed to undermine trust in the election or its result and would not hinder free speech by voters.

Currently, it is not illegal to deliberately mislead someone about how, where and when to vote.

The Canadian Civil Liberties Association warned against too broad an application of a law outlawing statements during an election.

“You need to narrowly define what kind of falsehoods you are talking about and the intention behind the statement so it doesn’t capture people making mistakes,” said Cara Zwibel, a CCLA lawyer.

“What this is aimed at and trying to regulate is a statement such as ‘voting got changed to tomorrow,’ which is designed to mislead.”

Emmett Macfarlane, a constitutional expert at the University of Waterloo, said such a law would not apply to foreign entities making such claims, and would have to be carefully crafted to make sure it does not apply to fair commentary.

The political science professor also said that proving a statement was intended to disrupt an election would be a challenge.

“Just the power to investigate can be chilling for free expression,” he warned.

The chief electoral officer’s report, entitled “Meeting New Challenges,” also suggests that MPs outlaw hate groups from registering as political parties, which would give them the names and addresses of all voters.

It follows concerns raised by ministers that groups promoting racism, antisemitism and homophobia could access tax breaks and broadcast time designed for political parties.

Politicians are particularly alarmed at the prospect of giving hate groups the names and addresses of racialized Canadians. Dominic LeBlanc, the minister responsible for Elections Canada, wrote to Perrault about the issue last year.

The election chief’s report suggests that voters be able to go to court to determine whether a group’s “primary purpose” is to promote hate against an identifiable group. If so, it would be banned from registering to run in elections.

The Elections Canada report also calls for an update to election laws in the digital age, recommending online platforms be required to publish policies on how they will deal with content misleading electors.

It also suggests stricter rules to stop third-parties — groups which support political parties or seek to influence elections — from receiving funding from abroad.

The report recommends a further clampdown on cybersecurity threats to Canadian elections, including from foreign states.

Since 2018, it has been illegal to use a computer system fraudulently to influence the outcome of an election. But the report suggests the offence be broadened to apply to activity designed to disrupt the way an election is run or to undermine the legitimacy of the election or its results.

The move follows former president Donald Trump’s challenge to the legitimacy of the 2020 American election, which he lost but claimed was stolen from him.

“We have seen declines in trust in democracies around the world so we need to be alert to the challenges,” Perrault said.

He warned that there had been “deliberate attempts to undermine confidence” across Canada, and measures were needed to respond to this.

However, public trust in the Canadian electoral system remained very high, he said, with 91 per cent of voters surveyed by Elections Canada saying they had confidence in the electoral system and its administration.

The report also recommends MPs extend current rules designed to stop foreign interference during elections to the period before the campaign kicks off.

It also recommends a series of practical updates to election laws to make it easier to vote and bring election law up to date in the digital age.

These include making it easier to vote by special ballot, including postal votes, and extending the period to register to 45 days before polling day.

It suggests that voters should be able to vote at their local polling station, even if they have previously applied to vote by special ballot.

They should also be able to vote with a political party name on a special ballot, rather than a candidate name.

The suggestion follows complaints that thousands of special ballots, including those mailed in by expats based abroad, were not counted at the last general election. At the 2021 general election, more than 90,000 special ballots were returned late and could not be counted.

The report suggests an end to a prohibition on types of election advertising — which do not currently include signs and pamphlets — on polling day.

“In Elections Canada’s view, the advertising blackout period has largely been rendered meaningless in the digital age,” the report says.

It also recommends measures to ensure that the date of an election does not fall on important religious holidays.

The report also suggests tweaks to the law to make it less bureaucratic for people in care homes to vote, and simpler for people with disabilities to go to a polling station with a support person.

Also on Tuesday, Yves Côté, the elections commissioner, tabled a report in Parliament that made recommendations including broadening financial penalties for breaking elections law.

He suggested that making false claims in support of a nomination paper be made an offence, with a financial penalty, along with filling in a nomination paper knowing that it contains false or misleading information.

This report by The Canadian Press was first published June 7, 2022.

Marie Woolf, The Canadian Press

Note to readers: This is a corrected story. An earlier version misspelled CCLA lawyer Cara Zwibel’s surname.