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.

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.

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.

1. 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

2. 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...