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Discussion Paper: Issues Arising from Improper Telecommunications with Electors

4. What More Can Be Done to Promote Compliance and Enforcement in the Future

This part of the paper lists a number of potential remedies that could be considered to avoid the problems that gave rise to the complaints received regarding the 2011 general election and to promote greater compliance and enforcement in the future. It is important, however, to keep in mind that legal prohibitions and disclosure requirements are of little impact on those determined to operate outside of the law. In this regard, it is critical that potential remedies have a deterrent value and be accompanied by effective enforcement tools.

  1. Public information on the electoral process
    • As indicated earlier, Elections Canada is responsible for managing polling locations and ensuring changes are communicated to electors.
    • In preparing for the next election, the agency will have to consider means to promote public awareness of its procedures (in particular, the fact that the agency does not communicate with electors by phone), as well as means to warn electors about misleading calls and inform them of available remedies.
    • This may involve collaboration with other agencies, such as the CRTC.
  2. Prohibition against impersonating an election official or knowingly providing false information on the electoral process
    • Ontario's An Act to amend the Election Act with respect to certain electoral practices, S.O. 2011, c. 17, creates a new offence for a person who, inside or outside Ontario, falsely represents himself or herself to be an employee or agent of the office of the Chief Electoral Officer, a person appointed under the Election Act, a candidate or candidate's representative, or an authorized representative of a registered party or registered constituency association.
    • In the Ontario legislation, if a judge finds that the offence has been committed knowingly, the person is guilty of a corrupt practice and is liable to a fine of a maximum of $25,000, imprisonment for a maximum of two years less a day, or both.
    • While the offence in the Ontario statute applies to the person making the calls, the offence set out in s. 482(b) of the CEA of inducing a person to refrain from voting would also apply to the originator of the scheme (that is, the person who directed the calls to be made).
    • That said, an offence similar to that of Ontario should be considered not only for someone representing himself or herself as an employee or agent of Elections Canada, but also for a person falsely representing himself or herself as a candidate or candidate's representative, or as an authorized representative of a registered party or registered electoral district association. In both cases, proving the offence would not require evidence that the offender's conduct was aimed at interfering with the right to vote or at inducing electors not to vote for a particular candidate. It would be sufficient to show that the person falsely represented himself or herself.Footnote 19
    • Such an offence should be crafted broadly enough to include deceptive practices on the Internet, such as the abuse of campaign domain names and false campaign websites.
    • Consideration should also be given to including a prohibition on falsely representing oneself as a registered "third party" (or an agent or employee thereof). In the US, there are examples of messages sent purportedly from minority rights associations giving false information about the voting process.
  3. Expansion of the Unsolicited Telecommunications Rules or creation of a similar regime in the Canada Elections Act to cover "voter contacts" in order to better protect the privacy of electors
    • Both the CRTC's Telemarketing Rules and ADAD Rules, to which this paper previously referred, already apply to political entities with respect to some types of calls: live and automated calls for the purpose of solicitation. Some rules also apply when an automated call is made for a purpose other than solicitation. This includes the obligation for the caller to identify the person on whose behalf the call is made as well as a mailing address and phone number for reaching this person.
    • There are, however, some limitations: the regime rests on telemarketers identifying themselves. If originators do not identify themselves and the automated calls are made using anonymizing technology to avoid detection, there is currently little that can be done by agencies involved in compliance and enforcement activities.
    • In this context, the following issues need to be discussed.
    • Should the Telemarketing Rules be expanded, or a separate but similar regime created, to cover voter contacts (that is, the gamut of calls made by or on behalf of political entities during an election campaign)? These rules would cover as do the Telemarketing Rules obligations such as the prior registration of the telemarketer or client, the maintenance of a DNCL by telemarketers and clients with respect to voter contacts, providing the names of the caller, telemarketer and client at the beginning of a voice telecommunication, and restrictions as to the hours during which the calls can be made.
    • The Telemarketing Rules currently apply to provincial and municipal elections. Would potential rules on voter contacts also apply to them?
    • Should these rules be applicable only during the election period or should they continue to apply outside electoral events?
    • The benefits associated with expanding the CRTC's Unsolicited Telecommunications Rules are that the regime already exists and that the CRTC has gained some experience in its administration. The CRTC also has the authority to impose administrative penalties when the rules are violated and sufficient evidence of the violation exists. It has established contacts with the industry, which gives it access to better intelligence with respect to technological developments.
    • Would it be better that a similar regime be authorized under the CEA and be administered and enforced by the Office of the Chief Electoral Officer?
    • As a separate but important issue, should the CEA be amended to allow electors to opt out of receiving these calls from political entities by indicating this preference when registering or updating their information in the National Register of Electors? This information, made valid for a defined and renewable period of time (e.g. five years), could then be added beside the names on the lists of electors transmitted to parties and candidates. Political entities would be required to respect the expressed preference of electors by including them on their internal DNCLs. An advantage of this option would be that the CRTC or Elections Canada could monitor complaints and intervene with the political entity.
    • However, such an approach may have perverse effects: individuals or organizations could make deceptive calls to targeted electors (supporters of their political opponents) in the hope that they would ask not to receive calls in the future, thereby interfering with another party's or candidate's ability to reach out to supporters or potential supporters (e.g. to raise funds, get out the vote).
  4. Extension of the application of privacy protection principles to political parties
    • The Privacy Commissioner recently sponsored a report on federal political parties and the protection of personal information.Footnote 20 This report points out that the information collected by political parties concerns many individuals, including party volunteers and employees, donors to the parties, as well as registered electors whose personal information they receive from Elections Canada and from a variety of other sources.
    • There are privacy risks associated with these databases. Parties not only handle large amounts of personal information, but also share this information with a small army of volunteers and local campaign workers. As indicated in the report:

      Some risks include personal information getting into the wrong hands or being used for unauthorized purposes. Information can also get into the wrong hands through carelessness, lack of appropriate controls, inappropriate sharing, or nefarious intent. This may result in harm to individuals in terms of identity theft, harassment or the denial of services and rights. (22)

    • As the authors point out, "[b]eyond the individual risks, there are also social risks as individuals lose trust in organizations when it is discovered that personal data is being used and disclosed for purposes they were not aware of, and to which they had not consented" (24).
    • They describe various incidents occurring over the last few years that put the personal information of certain electors at risk, including a reference to "potential vote suppression in key ridings through the practice of 'robocalling'" in the last federal election (ibid.).
    • It may be time to require and ensure that political entities respect broadly accepted privacy principles similar to those set out in Schedule 1 of PIPEDA (reproduced in the Annex to this paper) regarding the collection, use, disclosure and retention of records; and the need for accountability, for the consent of the person whose personal information is collected, used or disclosed, and for safeguards.
    • One way of regulating the practices of parties while reducing what could be perceived as intrusion by the state in their internal business may be to require parties to obtain a certification from an external management auditor. This certification would be to the effect that the party has systems in place to protect the personal information of electors and that these systems respect the principles set out in PIPEDA. A party would need this certification to continue to receive lists of electors from Elections Canada.
    • This certification would not necessarily be a panacea among other things, it may not be practical to apply it to candidates but it could act as a preventive measure and possibly limit the damage that can be done by negligent people or people who do not wish to respect the rules. It would also preserve the reputation of political parties that have the certification and reassure electors as to the protection given to their personal information, particularly in the wake of events that took place in the last election. This is critical in preserving the ability of parties and candidates to communicate with electors.
  5. Increased reporting requirements

    The following options for increased reporting may be considered as means to facilitate investigations when complaints are received regarding improper calls.

    All clients of telecommunications companies during a general election must have their identity registered and verified

    • This recommendation, which was included in the motion unanimously passed by the House of Commons on March 12, 2012,Footnote 21 following media disclosure of the robocalls investigation, casts a very broad net by requiring all clients of telecommunications companies to register (with the telecommunications company or Elections Canada?) and be verified (by the telecommunications company or Elections Canada?), whether or not the purpose of their telecommunications are related directly or indirectly to the election. However, if all clients have their identity registered and verified during the election period (normally 36 days), it may be easier after the fact to trace back the originator of phone calls that may be legally challenged. The outstanding issue is one of who would administer such a regime.

      This proposal was clarified and simplified in Bill C-453, a private member's bill introduced in the House of Commons on October 17, 2012, which sets out requirements for the registered parties, candidates, third parties engaging in election advertising and electoral district associations that, during an election period, use telephone or other telecommunications devices or systems for the purpose of transmitting voice messages related to the election to electors. They would be required to keep records of the method of delivery, timing and destination of the voice messages and the name of the company with whom they entered into a contract for the purpose of transmitting the messages. This information would be retained for at least two years by the political entity, but would have to be provided to the CEO or to the Commissioner of Canada Elections within four months of either official requesting the information.Footnote 22
    • A slightly different approach, which would facilitate a more rapid investigation of allegations of improper calls, would be to require at least parties and candidates to advise the CEO of the names and contact information of any person or entity they retain to provide voter contact services before or during an election, as soon as a decision has been made regarding the means of voter contacts or an arrangement has been made with an outside organization (rather than possibly several months after the election).

    Telecommunications companies that provide voter contact services during a general election must register with Elections Canada

    • This recommendation, also included in the House of Commons motion, assumes that the telecommunications companies (or telemarketing companies, as may be the case) are told by their clients not only what phone numbers are to be targeted using the company's telecommunication facilities but also the common characteristic of the intended call recipients, that is, that they are all potential voters. Enforcement of such a provision could be difficult, but would make these companies more aware of the ultimate recipients of calls by parties and campaigns. That said, telecommunications companies are not otherwise regulated by Elections Canada.
    • Bill C-453 proposes a different approach, which mirrors the obligation it seeks to impose on political entities to keep records. In this case, the obligation to keep the same records would be on the telephone or other telecommunications company, person or other entity that has entered into a contract with the registered party, candidate, third party or electoral district association to provide devices or systems, during an election period, for the purpose of transmitting voice messages related to the election to electors. The information would then be transmitted to the CEO within four months after polling day. The obligations would apply to any such company, person or entity, whether they are located in Canada or elsewhere.
    • As noted above with regard to political entities, the investigation could proceed much more rapidly and efficiently if this information was forwarded to Elections Canada on a more timely basis (i.e. as soon as an arrangement has been concluded). This would also facilitate the tracking of alleged improper calls before records are erased in the companies' normal course of business.
  6. Increase in the Chief Electoral Officer's audit tools

    The number of improper calls may be reduced significantly by means of legislated administrative deterrents. The following possible audit mechanisms may be considered.

    Authority to request that political entities produce all documents necessary to ensure compliance with the Act

    • The first element of the motion passed unanimously by the House of Commons was that Elections Canada's investigation capabilities be strengthened to include giving the CEO the power to request all necessary documents from political parties to ensure compliance with the CEA. This is similar to the proposal contained in the CEO's 2010 recommendations report, whereby he or she would be authorized to request that registered parties provide any documents and information that may, in the CEO's opinion, be necessary to verify that the party and its chief agent have complied with the requirements of the Act with respect to election expenses returns.

    Authority to make any audit or examination required for and in the exercise of the Chief Electoral Officer's mandate

    • As with legislation in a number of other jurisdictions, the CEA could also authorize the CEO to make any audit, examination or inquiry that the CEO considers necessary for and in the exercise of his or her mandate. This power would be available to the CEO for administrative purposes, not for conducting penal investigations.

    Authority to require additional information from political entities regarding telemarketing or promotional services

    • Finally, increased reporting requirements (for example, providing the text of telecommunications messages transmitted to electors during the election period), not only for parties but for all entities (i.e. electoral district associations, candidates) regarding the use of telemarketing or promotional communication services would both facilitate verification and discourage their use for unlawful purposes.
  7. Increase in the Commissioner of Canada Elections' investigation tools

    The following mechanisms should be considered to assist the Commissioner in the gathering of evidence when there are allegations of improper calls having been made to electors.

    Requirement for telemarketing companies to preserve records of all telecommunications made during an election period

    • To facilitate investigations of improper calls, companies that provide telemarketing services could be required to keep records of all communications made in Canada during the election (including client information, payment information, scripts, outgoing and incoming calls). These records would be kept for a period of at least one year after the election but would be made available to the Commissioner only after judicial authorization, through a traditional search warrant or production order.

    Authority to require telecommunications companies to preserve specified records pending the obtaining of a production order

    • It would also be useful to grant the Commissioner (or individuals acting on the Commissioner's behalf) the authority to require telecommunications companies to preserve specified computer records in their possession or control when such a demand is made. This would protect the information from being disposed of by the telemarketing companies as part of their normal business practices.
    • Investigators could only make such demands if they had reasonable grounds to suspect a) that an offence was (or will be) committed under the Act, b) that the computer record is in the possession or under the control of the person to which the demand is made, and c) that the record would assist in the investigation of the offence. A demand would not require judicial authorization but would only be valid for a limited duration (e.g. 90 days), until a production order has been obtained from a judge.
    • However, in order for such a mechanism to be useful, the Commissioner would need to know in advance details regarding the telecommunication service providers of candidates and political parties. Currently, this information is not available with respect to parties. With respect to candidates, it only becomes known to Elections Canada once the candidates file their financial returns, which are due four months after polling day. Accordingly, candidates and parties should be required to report information on their telecommunication service providers (including phone and Internet account numbers) as soon as a contract is signed or an arrangement concluded, during or before the election period. As indicated above, the same obligation should extend to telemarketing services.

    Authority of the Commissioner of Canada Elections to compel testimony, subject to prior judicial authorization

    • Another mechanism, which already exists in the Competition Act,Footnote 23 would be to authorize the Commissioner to make an ex parte application to a judge to obtain an order providing that a person who has or is likely to have information regarding an investigation be examined on oath by the Commissioner or one of his or her representatives on any matter relevant to the investigation. The order could also require the person to produce documents.
    • Prior to obtaining such an order, the Commissioner would have to establish, on the basis of affidavit evidence, that an investigation is taking place and that the person to be examined has or is likely to have the information sought.
    • No testimony given by an individual pursuant to such an order could be used or received against that individual in a criminal proceeding.
    • It is worth noting that Quebec's chief electoral officer has the power to require the attendance before him or her, without prior judicial authorization, of any person whose evidence may be material to the subject of inquiry, and may order any person to bring before him or her such books, papers, deeds and writings as appear necessary for arriving at the truth.Footnote 24

Footnote 19 However, at least in the case of a person falsely representing himself or herself as a candidate, such an offence would need to be crafted so as to exclude bona fide political satire. This could be achieved by indicating that the false representation must be such that a person could reasonably be confused as to the impersonator's true identity.

Footnote 20 Colin J. Bennett and Robin M. Bayley, Canadian Federal Political Parties and Personal Privacy Protection: A Comparative Analysis (Ottawa: Privacy Commissioner, 2012).

Footnote 21 House of Commons, 41st Parliament, 1st Session, Journals, No. 94, March 12, 2012.

Footnote 22 See s. 328.4 of Bill C-453, An Act to amend the Canada Elections Act (preventing and prosecuting fraudulent voice messages during election periods)

Footnote 23 See s. 11 of the Competition Act, R.S.C. 1985, c. C-34.

Footnote 24 Section 494 of Quebec's Election Act, R.S.Q, c. E-3.3 vests Quebec's chief electoral officer, with respect to his or her own investigations, with the powers and immunities of a commissioner appointed under Quebec's statute respecting public inquiry commissions (c. C-37). This includes the power described above.