Chief electoral officer says it should be illegal to spread misinformation about voting

Canada's chief electoral officer has issued a wide-ranging report on the last two federal elections that calls for action to crack down on hate groups, improved regulation of third parties and new laws to make it illegal to spread disinformation about elections and voting.

"This report … is the beginning of an important conversation with parliamentarians and Canadians on ways to improve our electoral process," Stéphane Perrault said Tuesday. "It is a critical exercise that we must periodically undertake to ensure the vitality of our democracy in the face of evolving circumstances, challenges and aspirations."

Perrault's report calls for an amendment to the Canada Elections Act to make it illegal to spread information that disrupts an election or undermines its legitimacy.

Specifically, the report says  "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."

The report is not calling for the policing of policy messages from candidates or parties. It says action must be taken now because the continued spread of disinformation could "jeopardize trust in the entire electoral system on which democracies rest."

"To me this is about drawing a line in the sand on a matter of principle," Perrault said. "It is not OK to deliberately undermine our electoral process by spreading information a person knows to be false and to do that for the purpose of undermining the process."

The report calls on online platforms to publish policies explaining how they will address the spread of disinformation "that inaccurately depicts election-related procedures during the election period."

Perrault would not offer examples of disinformation targeting Canada's electoral system. The Canadian Election Misinformation Project, run by McGill University and the University of Toronto, looked at the issue during the 2021 election.

In its March report, the project found that messages claiming that Canadians who were not fully vaccinated would be unable to vote were widely circulated on social media.

The report also found false messages were being spread on social media claiming that candidates were being removed from ballots and that machines counted all the votes cast, when in fact all votes are counted by hand.

Perrault said there are laws on the books to deal with disinformation that were used when misleading robocalls were made to voters in Guelph, Ont. during the 2011 federal election.

"But there's nothing right now in the legislation where there is a deliberate campaign to undermine the process or undermine confidence in the result," he said. "This complements a number of existing provisions."

Improving transparency

The report also calls for stronger transparency in political messages from political parties, candidates and third parties, arguing there are drawbacks to regulating only those messages defined as advertising when social media and other online platforms are able to spread political messages that do not meet that definition.

Perrault said he wants the rule that requires ads by political actors to identify who authorized the message to be simplified and extended to text messages, YouTube videos and other social media messages that may now be spread anonymously.

All political messages must disclose their authors and tell voters how they can get more information about those behind the messages, the report said

To get there, Perrault recommends that websites operated by political entities — such as political parties, candidates and third parties — be required to link to a searchable registry of paid digital communications to improve transparency.

Policing hate groups

To crack down on hate groups seeking to register as political parties, Perrault wants to allow voters to ask a court to determine whether the primary purpose of an organization seeking to register as a political party is the promotion of hate against an identifiable group.

"There is currently no mechanism in place right now to address this issue," Perrault said. "If there is a hate group that wishes to register right now as a party, it could do so and in so doing would gain access to a number of benefits."

Among those benefits, he said, are access to lists of registered voters, free television air time and tax credits on contributions which hate groups should not enjoy.

Perrault said that voters should challenge such organizations in the courts because it's not appropriate for him or the commissioner of Canada Elections to have a role in choosing which political parties should be registered. 

Third party financing

In order to ensure that foreign entities are not funding third-party advertisers in an election, Perrault's report says that any third party that claims to be self-funded should prove that it gets no more than 10 per cent of its funding from donations.

Perrault said a distinction should be made between third parties — such as corporate entities and labour unions — that use revenue raised in Canada to fund political communications and smaller third parties that rely partly on donations to survive.

He said that there is no way currently for Canada's chief electoral officer to track where smaller groups are getting their money from, and that's a problem. 

"What I am proposing is a mechanism to make sure that only contributions of Canadian citizens or permanent residents would go in terms of financing third parties," he said.

The report also calls for the regulation of "issue-based" communications that do not name a party or candidate but "can reasonably be seen as having the purpose of promoting or opposing a party or candidate during the election and pre-election periods."

The report also calls for a number of other changes, including:

• Allowing candidates to register earlier to permit Elections Canada to better manage its communications regulations.
• Enhancing the protection of voters' personal information by granting them the right to opt out of receiving electoral communications.
• Extending the minimum number of days in a non-fixed election from 36 to 44 days to allow Elections Canada to reduce the number of late ballots.
• Allowing voters to register for a special ballot 45 days before voting day.
• Permitting special ballots to be marked with just a political party name rather than a candidate name.
• Requiring the head of Elections Canada to recommend an election date that does not interfere with religious or cultural days of significance.
• Repealing the election day advertising blackout regulations in light of the widespread use of social media and the internet to spread information.

Election rules enforcer wants more authority to fine for violations

In a separate report, the officer responsible for enforcing election rules recommended changes that would allow for fines for a wider number of election violations.

In a document tabled in Parliament Tuesday, Commissioner of Canada Elections (CCE) Yves Côté recommended his office be given new powers to impose Administrative Monetary Penalties (AMPs).

"Currently, the CCE can only impose AMPs for illegal voting and contraventions related to the communications rules and the third-party and political financing regimes," the report says.

"It would be beneficial to broaden the AMP regime to cover a wider range of situations of non-compliance with the Act."

The report says the CCE would like to, for example, fine employers who do not give workers time off to vote on election day, and property owners or building managers who deny political candidates access to a property.

"The tools the CCE currently has to deal with these types of contraventions are either cumbersome (criminal prosecutions or compliance agreements negotiated with the individual or entity) or not very effective at ensuring compliance (caution or information letters)," the report says.

Unlike criminal prosecution, fines are intended not to punish but to increase compliance with election laws, the report says.

The report also recommends better enforcement tools for cases of individuals counselling others to commit an offence, a shorter timeline for paying fines and a new offence to cover those who knowingly file an incomplete document.