Preventing Deceptive Communications with Electors

Introduction


This report is in response to incidents that occurred during the 41st general election of May 2, 2011, involving deceptive communications with electors. While the investigation by the Commissioner of Canada Elections remains ongoing and the full scope of these incidents as well as the identity of persons involved remain to be established, the nature of the conduct that took place is well known. The public reaction to those incidents demonstrates the importance that Canadians attach to the integrity of their electoral process and the need to take steps to prevent a recurrence of such tactics in the future.

This report is the first of two thematic recommendations reports following the 41st general election. Given the importance of the matters at stake and the need to implement measures in time for the next general election, it was necessary to deal immediately with the issue of deceptive communications. A subsequent report will more broadly address the need to review and modernize the compliance and enforcement mechanisms in the Canada Elections Act with a view to making them more effective and better tailored to the regulatory nature of the regime. We plan to present this second report in the spring of 2014.

As indicated to the Standing Committee on Procedure and House Affairs on March 29, 2012, the purpose of this first report is to examine preventive and enforcement measures that should be taken to deal with deceptive communications. While some of the measures proposed in the report are administrative, the majority require legislative changes.

The report builds on a discussion paper released in early November 2012. In preparing the report, Elections Canada consulted Canadian electors and used the discussion paper to engage political parties as well as experts on the matters at play. The aim was to capture their concerns and insights with respect to communications with electors by Elections Canada and political entities, in the context of the electoral process.

A firm was retained to conduct a telephone survey with 1,011 electors within the general population. The purpose of the survey was to evaluate the opinions and attitudes of electors on a number of questions related to communications with electors. That survey was conducted from November 21 to December 2, 2012. The full report on the survey may be found on Elections Canada's website at www.elections.ca.

As well, Elections Canada entered into a contract with the Institute for Research on Public Policy (IRPP), a think tank based in Montréal, to convene and facilitate a day-long roundtable discussion with experts and practitioners from a range of disciplines. The purpose of this roundtable was to provide information and advice to the Chief Electoral Officer on how the Canadian electoral process could be improved in the future. A link to the report of the IRPP may also be found on Elections Canada's website at www.elections.ca.

In responding to the events that took place at the last election, it is important to achieve a proper balance between competing values and interests. New technology offers tremendous opportunities for political parties and candidates to gather information, in order to target and reach out to electors. More importantly, for electors, communications from and with candidates and parties are fundamental to their effective participation in the electoral process, which is the very essence of the right to vote. In both the survey of electors and the roundtable discussion, it was broadly recognized that the ability to effectively communicate with electors is critical. At the same time, however, Canadians and experts strongly endorse the view that respect for the privacy of electors and the preservation of trust in the integrity of the electoral process are essential.

In this regard, our regime needs to be improved. While political parties and candidates must continue to be able to communicate with electors effectively, measures are required to provide basic privacy protections and help prevent deceptive communications.

As well, the challenges experienced in investigating the deceptive calls that were made during the 41st general election have demonstrated the need for better tools to assist the Commissioner in conducting investigations. Recommendations are made in this report for tools that are already available in the federal context for other regulatory regimes and that are available to a number of electoral management bodies in other jurisdictions.

Of course, legislative measures alone cannot prevent improper conduct from taking place. All participants in the electoral process have a responsibility to act in a manner that respects and promotes democratic values and the rule of law.

For electors, the revelation of various scandals, at both the federal and provincial levels, involving illicit fundraising methods, abuse of spending limits and deceptive communications tactics, raises disturbing questions. The issue is not simply one of compliance with legal requirements, but also respect for values of fair play. The line separating conduct that is a normal part of a healthy and vigorous electoral competition from conduct that undermines the legitimacy of the election is at risk of becoming increasingly blurred and uncertain.

In this regard, the fact that, in the context of the survey referred to above, electors are more likely to indicate that they have not very much confidence (46%) or no confidence (10%) in federal political parties should be of concern to all. For this reason, the report goes beyond strict concerns over legal requirements and recommends that consideration be given to the adoption of codes of conduct by political parties that would set out rules of behaviour for political parties and their supporters.

But codes of conduct are not enough. The electoral legislation must be sufficiently robust, not only in terms of the penalties but also of the tools available to effectively uncover acts of wrongdoing. If it is not, there is a real danger that participants will increasingly take the position that it is more advantageous to ignore the rules than to respect them, particularly if they are under the impression that their opponents are not abiding by these rules. While trust in the electoral process remains high (85% as per the survey of electors), it should not be taken for granted. Ultimately, what is at stake is the ability of the electoral process to play its fundamental role of legitimizing political power.