Ruling by Commissioner of Canada Elections much too narrowly interprets key Canada Elections Act measures that prohibit influence of voters by foreigners, and uses invalid excuses for not investigating
Ruling means no foreigner will likely ever be prosecuted, and raises questions about enforcement standard being applied in robocall and many other cases
Public inquiry is clearly now needed to disclose and audit rulings on more than 3,000 complaints filed with the Commissioner since 1997 to ensure past enforcement has been proper and effective, and will be in the future
Thursday, July 12, 2012
OTTAWA – Today, Democracy Watch made public what it believes is a legally incorrect ruling by the Commissioner of Canada Elections on a recent complaint. Democracy Watch received the ruling from the person who filed the complaint. In the ruling, the Commissioner refused to investigate the complaint based upon a much too narrow and restrictive interpretation of a key measure in the Canada Elections Act that prohibits influence of voters by foreigners.
Given this very flawed recent ruling, Democracy Watch called for a public inquiry into the Commissioner’s enforcement standards and practices from the past 15 years.
The Commissioner also refused to investigate the complaint because “some of the relevant information or persons are not within Canada.” These were the same excuses that the Commissioner used in 2008 after failing to investigate fully the complaints about a fraudulent election robocall scheme filed by voters in the B.C. riding of Saanich-Gulf Islands. That failure likely encouraged the people behind the massive fraudulent robocall scheme during the 2011 federal election.
The Commissioner also says in the ruling that “the activity complained of was of very limited duration” – essentially setting a ridiculous enforcement standard that means if what you do to illegally influence voters doesn’t last very long, you will not be prosecuted.
Overall, the ruling indicates clearly that the Commissioner will likely never prosecute a foreigner for illegal influence of voters in Canadian federal elections.
As a result, the ruling calls into question what standards the Commissioner has been using for enforcement for the past several years, and is using in the 2011 fraudulent robocall scheme cases. Democracy Watch recently filed an access-to-information request with the Commissioner after the office refused to disclose the rulings it has made on more than 3,000 complaints from the 1997 election on through the 2011 election.
“Elections Canada’s ruling on this complaint guts enforcement of a key measure aimed at prohibiting foreigners from influencing Canadian voters, and makes it clear that a public inquiry is now needed to disclose and publicly audit the Commissioner’s rulings on the more than 3,000 complaints filed since 1997 to ensure the Commissioner has been enforcing the law properly and effectively, and will do so in the future,” said Tyler Sommers, Coordinator of Democracy Watch.
The complaint was filed on March 19th with Elections Canada about a non-Canadian campaigning for Rick Dykstra and Julian Fantino in their ridings in St. Catharines and Vaughan in Ontario. As set out in the complaint, after flying in from the United States, Front Porch Technologies president Matthew D. Parker tweeted that he was “Knocking on doors for MP Rick Dykstra (St. Catharines)” and was photographed working in the campaign office of Julian Fantino.
Section 331 of the Canada Elections Act states specifically that non-residents who are not Canadian citizens or permanent residents of Canada are prohibited from doing anything during an election period to “in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate.”
In the July 4th ruling, the Commissioner interpreted this measure as meaning that, in order even to investigate, the Commissioner would have to have evidence indicating that a voter “was actually induced or affected in their voting behaviour due to the activity complained of.”
In Democracy Watch’s opinion, the legally correct definition of this measure is that “induce” also includes trying to persuade someone to vote one way or another (or not to vote), especially given that the heading of section 331 reads “Non-Interference by Foreigners” and the sub-heading is “Prohibition – inducements by non-residents”. “Interference” of course includes any act of interfering whether or not it is successful, and “inducement” is defined in the dictionary as: “the act of reasoning or pleading with someone to accept a belief or course of action (e.g. gave up smoking only after prolonged inducement by all the other family members).”
As Democracy Watch does not know whether Matthew Parker is a Canadian citizen or resident, it is not in any way alleging that Mr. Parker violated the Canada Elections Act measures. It is only questioning the Commissioner’s decision not to investigate the situation based upon what it believes is an incorrect interpretation of the Act, and a much too weak enforcement approach.
The Commissioner’s ruling also calls into question what enforcement standards are used for other situations, in particular cases involving alleged violations of section 5 of the Act (which prohibits actions to “induce” a person to vote who is not qualified to vote); section 282 and 482 (which prohibit actions to “compel” voters through “intimidation” or “duress”, or to “induce” voters “by any pretence or contrivance” to vote a certain way or not vote); subsection 549(4) (which prohibits actions to “induce” a person to falsely take an oath), and; subsection 281(h) of the Act (which prohibits actions that “wilfully prevent or endeavour to prevent an elector from voting at an election”). Clearly, prohibitions on illegal influence actions by foreigners must also be extended to cover actions by residents and citizens of Canada.
– 30 –
FOR MORE INFORMATION, CONTACT:
Tyler Sommers, Coordinator of Democracy Watch
Tel: (613) 241-5179
Democracy Watch’s Voter’s Rights Campaign
Canada Elections Act (S.C. 2000, c. 9)
NON-INTERFERENCE BY FOREIGNERS
Prohibition — inducements by non-residents
331. No person who does not reside in Canada shall, during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate unless the person is
(a) a Canadian citizen; or
(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
2000, c. 9, s. 331; 2001, c. 27, s. 211.