We are told by the Communications Security Establishment (“CSE”) that in 2018, “half of all advanced democracies holding national elections had their democratic process targeted by cyber threat activity”.1 The CSE also judged it “very likely” that Canadian voters will encounter some form of foreign cyber interference ahead of the 2019 Canadian federal elections.
In this context, the Canadian government enacted the Elections Modernization Act (also known as Bill C-76) to address these growing concerns over foreign interference in the Canadian democratic process.
Since the coming into force of the new Act on June 13, 2019, foreign entities and individuals are all but completely excluded from any form of participation in Canadian elections. The Act comes at the issue from a number of angles, reinforcing and adding restrictions on the source of funding for third parties for a wide range of political activities and the types of expenses that foreign third parties can incur in relation to Canadian political activities, barring any form of undue influence by foreign entities or individuals, and, finally, enacting a ban applicable to all sellers of advertising space.
a) Prohibition on Foreign Funding for Political Activity
Under the previous version of the Act, non-Canadian citizens and non-permanent residents were banned from giving contributions to Political Actors.2 Under the amended version of the Act, the legislator has brought the prohibitions on foreign intervention one step further by banning the use of foreign funds from political activity.
Political actors are not the only ones who are barred from using foreign funds in connection with political activities. Third parties, which can be any individual or entity, including trade associations, interest groups and even corporations, who engage in political activities are also restricted in the source of the funding for those activities.
Indeed, no third party can use funds from a foreign entity for:
- a partisan activity (i.e., activities, such as making telephone calls to electors or organizing rallies, carried out by third parties that promote or oppose a political actor, like a candidate or a political party),
- advertising that promotes or opposes a political actor, such as a candidate or a political party at any time, not just during pre-election and election periods,
- election advertising, which is an ad placed during an election period that promotes or opposes a registered political party or a candidate or which relates to issues raised by any of the parties or candidates (“issue ads”), or
- an election survey (i.e., an opinion survey of whether persons intend to vote at an election or who they voted for or will vote for at an election or regarding an issue raised by any of the parties or candidates).
For the purposes of this prohibition a “foreign entity” under the Act is (i) an individual who is not a Canadian citizen or permanent resident; (ii) a corporation or entity incorporated, formed or organized outside Canada that does not carry on business in Canada or whose only activity carried on in Canada consists of doing anything to influence the electors’ vote at an election (iii) a trade union that does not hold bargaining rights for employees in Canada, (iv) a foreign political party, or (v) a foreign government or an agent of a foreign government.
Unlike other definitions of foreigner under the Act, there is no carve out for people who, although not citizens or permanent residents, reside in Canada. For instance, a foreign student studying in a Canadian University would be considered a foreign entity and could not give funds to a third party for the purposes set out above. However, as we will see below, that same student can engage directly in political activity during an election period.
b) Prohibition on Spending by Foreign Third Parties
Beyond prohibiting third parties from using money from foreign sources, the Act restricts what foreign third parties can spend money on during the pre-election and election periods. Foreign third parties are prohibited from incurring partisan activity expenses, election advertising expenses, election survey expenses and partisan advertising3 expenses during a pre-election or election period.
c) Prohibition to Unduly Influence Electors
No foreigner can, during an election period, unduly influence an elector to vote or refrain from voting or to vote or refrain from voting for a particular candidate or political party at the election. For this prohibition, a “foreigner” is the same as a “foreign entity” with the exception for those residing in Canada. Under the Act, Foreigners “unduly influence” an elector where they knowingly incur any expense to directly promote or oppose a candidate, political party or leader of a political party or where one of the things done by them to influence the elector is an offence under a federal or provincial law or regulation.
The Act carves out certain exceptions to this otherwise broad prohibition and excludes the following activities from the definition of “unduly influencing” an elector:
- Expressing an opinion about the outcome (or desired outcome) of the election,
- Encouraging the elector to vote in general, or
- Transmitting to the public through broadcasting or the media an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news.
d) Prohibition on the Sale of Advertising Space to Foreigners
The new Act also seeks to involve new stakeholders in the fight against foreign intervention in the Canadian democratic process. To this end, the Act includes a ban aimed not at foreigners but at those who provide the means for a foreigner to place an election ad. Under the Act, no person or entity is allowed to sell any advertising space to a foreigner for the purpose of enabling the foreigner to transmit an election advertising message. Election advertisements include both messages related to candidates and parties and so-called issue ads which are more difficult to identify for parties whose only political involvement is the sale of advertising space. Sellers who knowingly violate this offense are subject to a fine up to $50,000 and imprisonment up to five years, or to both.
With the adoption of these new and reinforced prohibitions, we can expect a heightened scrutiny in a wide range of political activities from the Commissioner of Canada Election. Foreigners and Canadians dealing with foreigners should be ready to answer to the Commissioner in all matters relating to foreign involvement in elections.
The next and last article of our short series outlining the recent changes brought to the Act will turn to the new powers of the Commissioner to enforce the Act and conduct investigations into suspected violations of the Act.
*For more information on the scope and definitions of regulated election-related content, we refer you to the first article of our short series entitled “In the Name of Transparency: The Modernization of the Canada Elections Act”.
1 CSE 2019 updated Report on Cyber Threats to Canada’s Democratic Process.
2 For the purposes of this prohibition, “Political Actors” mean: registered political parties, registered associations, nomination contestants, candidates or leadership contestants.
3 Partisan advertising are ads placed during a pre-election period that promote or oppose a political actor such as a political party or potential candidate, with the exception of issue ads.