Statements and Speeches

Remarks of the Chief Electoral Officer before the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-30 An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures

May 12, 2021

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Introduction

Thank you, Madam Chair, for the opportunity to appear before the Committee as it studies the proposed amendments to the Canada Elections Act contained in Bill C-30.

Section 91 of the Canada Elections Act

The Elections Modernization Act, which received Royal Assent in December 2018, modified section 91 of the Canada Elections Act to prohibit a person or entity from making or publishing during the election period specific types of false statements, with the intention of affecting election results.

The benefit of section 91 as enacted in the Elections Modernization Act is that the list of prohibited statements is clear and specific, ensuring that the restrictions on speech are narrowly crafted. However, section 91 no longer includes express language regarding the knowledge element of the offence, as it relates to the falsehood of the statements.

The Committee debates in the other place show that there was agreement regarding the need to prove that the person or entity making the statement had knowledge that it was false. Nevertheless, it was the view of the government officials involved in drafting the new provision that this language in section 91 was redundant, in light of the fact that the related offences in section 486 were ones that required intent.

Ontario Superior Court judgement

In February 2021, the Ontario Superior Court struck down section 91, finding that the associated offenses did not include the word “knowingly” and therefore infringed upon freedom of expression to an unjustifiable degree.

Budget Implementation Act

Bill C-30 proposes to remedy this by inserting the word “knowingly” in the offences related to section 91.

Allow me to acknowledge that changes to electoral legislation have rarely, if ever, been included in a budget implementation bill. In this case, however, the change is not intended as a change in legislative policy, but merely seeks to address a drafting issue that has resulted in a provision being struck down by the Ontario Superior Court. Therefore, I support this amendment.

Thank you, Madam Chair.