Excerpts of Parliamentary Debates with respect to section 91 during debate on Bill C-76 (Elections Modernization Act) – CEO Appearance on the subject of Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures

Mr. Duff Conacher (Co-Founder, Democracy Watch),
Nathan Cullen (NDP)

[Mr. Duff Conacher] While clause 61 of the bill adds some specifics to the measures in sections 91 and 92 of the Canadian Elections Act concerning false statements about candidates, the measures actually significantly narrow the range of prohibited false statements. That is a move in the wrong direction. [...]

In terms of the "knowingly" standard, the social media companies will easily be able to come up with evidence that they didn't know an ad had been placed. It's not going to be enforceable. They'll get off every time, so that doesn't discourage them from allowing secret, false, online election ads by people in the country or foreigners.[...]

[Mr. Nathan Cullen] I'm just reading through some of our background documents on this. Has the CEO not asked for the repealing? I'm talking about false or misleading statements, particularly about the personal character of the candidates. Has the CEO not recommended repealing this section? They thought his feeling at the time was that defamation and libel can be dealt with better at court than it could be by Elections Canada.

[Mr. Duff Conacher] Yes. I don't have the definition right in front of me...that you've committed a crime and something about your professional qualifications.... It's been narrowed to make it more enforceable and also to say that you have withdrawn as a candidate, obviously. I don't think it should be more narrow.

Again, libel court doesn't help you very much a year later if it's damaged the election result, so I think the definition should be broad. I think it should include blatantly false promises, which you have to catch after the fact. However, for blatantly false statements, Elections Canada, or a commissioner under it, should be there.

Marc Chénier (General Counsel and Senior Director, Legal Services, Office of the Commissioner of Canada Elections),
Mr. David de Burgh Graham (LPC)

[Mr. Marc Chénier] Furthermore, we generally support provisions to provide tools allowing us to deal with new challenges to elections. This includes new offences related to cybercrime and misleading communications, as well as clarifying the offence for foreign inducement and for false statements about candidates and party leaders.

On that last point, I note that the clarifications related to these two provisions of the act are not as broad as what had been endorsed by the committee in its 35th report.

In the case of false statements about candidates and leaders, allegations of criminality and about a few personal characteristics would give rise to the offence. In our view, this is not sufficient to protect the integrity of our elections against false claims that can have a devastating impact on a campaign.

While courts have recognized that false allegations concerning moral turpitude are currently covered, this would be lost if the bill is adopted as is. At a time when false news has become a pressing concern, weakening one of the only provisions that protects our democratic process against false allegations may not be advisable.[...]

[Mr. Marc Chénier] The commissioner believes that the recommendations contained in the 35th report of the committee, which discussed section 91, regarding false statements about candidates and leaders, as well as the provision concerning undue influence by foreign nationals, are the best indication of what could be a problem in a world where false news has become a real and acute problem. He strongly encourages the committee to review the recommendations it made to the House of Commons and to consider whether it would be worthwhile to proceed with those.[...]

[Mr. Marc Chénier] In the limited jurisprudence we have on the existing section 91 about false statements about candidates, the courts have recognized that it would include such things as allegations about criminality, which the bill does address, but also something else that they call "moral turpitude". You're right. It is a soft legal concept. It's more recognized in the United States in the immigration context. Even then, in the United States it's very much limited to criminality, so some crimes have a high level of moral turpitude.

In the way it's applied in Canada with respect to section 91, it involves some serious character flaw or something about the character of the person that is problematic and untenable. That's the way the jurisprudence has described it.[...]

[Mr. Marc Chénier] I think the courts have been very careful in excluding typical political spin from what is captured by section 91. They require a very high threshold, and it's totally incompatible with the role of an MP.

Mr. Jean-François Morin (PCO),
Mr. Nathan Cullen (NDP),
Ms. Ruby Sahota (LPC),
Mr. John Nater (CPC)

[Mr. Jean-François Morin] This motion would amend section 91 of the act. Section 91 is a prohibition. We're not yet at the offence stage. The offences are in part 19 of the act, so this is the prohibition associated with it.

Although you will see "knowingly" many times in prohibitions in the act, it's often considered bad practice in criminal law to include an intent provision such as "knowingly" in the prohibition itself, especially where there's already an element of intent that is expressed. In this case, we already have two: the intent to affect the election as well as the false nature of the statement.

[...]

[Mr. Nathan Cullen] What's the problem with the practice? A Canadian reading this would say that the infringement is included in that, and that the person knowingly sought to, in this case, mislead on the results of an election.

[Mr. Jean-François Morin] The "knowingly" is a mens rea element that is associated with the offence. When we try to craft legislation, we want to make sure that every offence that Parliament wants a mental element associated with has at least one of those mental elements–so it's those dual procedure offences versus strict liability offences, which don't have a huge intent criterion.

What I am saying is that in many prohibitions we already have an intent criterion. For example, in section 91 we already have the intent to affect the results of the election, and of course the person making the publication would need to know that the information that is published is false.

We already have two intent requirements here.

[Mr. John Nater] We live in a digital age where people share things on Facebook and retweet stuff. I think that's part of where adding "knowingly" came from. If someone retweets information that he or she sees, is that individual committing an offence simply by retweeting? The individual doesn't know that it's wrong, doesn't do it "knowingly", so is this an element that we need to be looking at?

[Mr. Jean-François Morin] Well, we'll get to that when we study part 19 of the act, which includes the offences. However, you will see at this point that all offences that relate to part 6 of the act are offences for which an intent is required, so there are no strict liability offences for part 6 of the act. Every time somebody republishes something on Facebook or on Twitter, if they do so without intent, if they mistakenly believe that the information is true, that would not usually be sufficient to lay a charge. These charges will really be laid when the person knows that the information is false–in the case of section 91, when the person intends to affect the results of the election by making that publication.

[...]

[Mr. Jean-François Morin] There is no presumption of intent if somebody repeats information that is false about an election result or a candidate. However, if somebody knowingly repeats and distributes information and tries to affect the election–that is the outcome of this–that seems to be the difference.

If somebody retweets something that in all good intention they think is accurate, or they're just retweeting for the sake of it, that's one case. However, if somebody is knowingly disseminating information that is wrong.... That's my understanding of this section. That's why I was generally appreciative of this, because it includes that.

I'm looking for the redundancy, and I haven't seen it yet. Repeating something that's wrong is not the problem if you have no intent to do it. If you've had intent to do it, then that's the problem.

Mr. Jean-François Morin (PCO),
Ms. Stephanie Kusie (CPC)

[Mrs. Stephanie Kusie] CPC-142 and CPC-143 are similar in that they maintain the element of "knowingly" to the offence of false publications.

Again, if someone were to do something.... If we remove "knowingly", it just leaves it very subjective in terms of people reposting or redistributing information, whereas the "knowingly" adds the intention around which we've had a lot of discussion this morning.

We're advocating to maintain the element of "knowingly" in both CPC-142 and CPC-143. These amendments were not accepted by the Committee.

[Mr. Jean-François Morin] The prohibition associated with both CPC-142 and CPC-143 is in proposed subsection 91(1) of the bill. This prohibition says that no person or entity shall, with the intention of affecting the results of the election, make or publish a false statement.

Yes, the intent requirement is already reflected in the intent to affect the results of the election, and of course, the person committing the offence would also need to be aware that the information that is published is false. I think that adding in "knowingly" here would be adding some uncertainty in the level of proof that would be required to successfully convict someone under that provision.

Nathan Cullen (NDP)

Mr. Cullen moved that Bill C-76, in Clause 190, be amended by replacing line 30 on page 100 with the following:

"(b) they knowingly make or publish a false statement that is prohibited under paragraph 91(1)(a) or (b) in respect of a candidate in that election, a registered party that has endorsed a candidate in that election, the leader of such a registered party or the electoral district association of such a registered party; or"

The amendment was defeated in the House.