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Alberta

TDF expresses concern over Election Canada’s new mis/disinformation policy

Published

1 year ago

10 minute read

From The Democracy Fund

TDF’s Legal Team

Written by 

The Democracy Fund sends a letter to Elections Canada and Minister LeBlanc.

Elections Canada has recently developed a policy to monitor and dissuade the publication of “misinformation” and “disinformation.”

In January 2024, it launched its ElectoFacts website to provide “correct information about elections that Canadians can easily access.” Elections Canada claims that it does not intend to establish Elections Canada as “the arbiter of truth” that will actively monitor the accuracy of statements and information distributed by parties and candidates.

However, The Democracy Fund (TDF) fears that the ambiguous language and the apparent lack of legislative authority to engage in such an endeavour will lead to an expansion of the program. Elections Canada has also contacted social media companies to remove “inaccurate” information: this is troubling because it is arguably an infringement of free speech rights, and there appears to be no judicial oversight of this censorship.

Canadians have the right to criticize their government and its processes – even if this criticism is wrong, inapt, trivial, unfair or unjustified. Efforts by the Western governments to constrain criticism using fashionable terms such as “misinformation” or “disinformation” are just state censorship rebranded for modern audiences.

TDF outlined its concerns in a letter to the Office of the Chief Electoral Officer and the Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs, Dominic LeBlanc.

Our letter is attached below.

February 9, 2024

via email

Stéphane Perrault
Acting Chief Electoral Officer
Office of the Chief Electoral Officer
Elections Canada
30 Victoria Street
Gatineau, Quebec
K1A 0M6

Dear Mr. Perrault,
Re: Elections Canada Misinformation/Disinformation Monitoring

We are a civil society organization and registered charity that defends and promotes civil liberties in Canada. We are writing to express our concerns regarding comments around election “misinformation” and “disinformation” on the Elections Integrity and 1 ElectoFacts website.2

On its Election Integrity website, under “Disinformation or Influence Campaign,” Elections Canada outlines several types of objectionable conduct, namely:

  • Elections Canada: Influence campaigns aimed at discrediting parts of the electoral process.
  • Political Parties/Candidates: Social media campaign to spread false information about a candidate.
  • Electors: Foreign online campaign aimed at specific diaspora communities to influence their vote.

In addition, Elections Canada purports to monitor the “information environment” (the news media, the Web, social media, etc.) to detect:

  • Incidents that could affect the smooth administration of a general election or by-election;
  • Inaccurate information on the electoral process, which could prevent people from exercising their rights to register, vote or be a candidate; and,
  • Social media accounts and websites that impersonate Elections Canada, which could lead to confusion.3

We note that Elections Canada has previously contacted social media companies – including Facebook, Twitter, Google, Snapchat, LinkedIn, Reddit, YouTube, TikTok, and Instagram:

  • Elections Canada (EC) engages with digital platforms that have a significant Canadian presence as well as those that have reached out to EC.
  • For the 44th general election (GE44), EC worked with Facebook/Instagram, Google/YouTube, Twitter, LinkedIn, Snapchat, and for the first time, TikTok and Reddit, to establish protocols for reporting cases of false information on the voting process and impersonation of EC.4

The purpose of this contact was to report online content to these platforms and, presumably, have them remove “false information.” This was done without prior judicial oversight and review.

There are a number of problems with this approach to monitoring online information.

First, it is not clear that Elections Canada has the legislative authority to report citizens or their online comments, or attempt to influence platforms to remove “false information.” Even if it did, doing so without judicial review and oversight is arguably improper.5 Where there was authority to regulate “false statements” in the Canada Elections Act6 (“the Act”), we note that the court, in Constitution Foundation v. Canada (Attorney General), held that s.91(1) of the Act breached s.2(b) of the Canadian Charter or Rights 7 and Freedoms.8

Importantly, the legality of prohibiting the publication of “false news” has been adjudicated by Canadian courts, and the relevant Criminal Code provisions have been 9 struck down.10

Second, the ability to identify “misinformation” and “disinformation” requires resolution of one of the most difficult problems in epistemology. Simply put, an assessment of the truth of a statement engages the central questions of epistemology: what is meant by the claim that a statement is true, and under what authoritative conditions can one be certain that a statement is true (“the Epistemic Problem”). This Epistemic Problem has bedeviled philosophers for millennia, and remains unresolved. Until such time as it is resolved, claims to epistemic certainty are unfounded.

There is no evidence that Elections Canada has resolved the Epistemic Problem. It cannot, therefore, arrogate to itself the required certainty on matters of truth or falsehood.

Third, we note that the language used by Elections Canada regarding “false information” is ambiguous. Linguistic ambiguity allows for expansive regulatory powers. Further, the language used does not allow for “false information” that is comedic, parodistic or satirical. As a result, removal or attempted removal of “false information” will be overbroad and imprecise.

Fourth, given the concerns outlined above, it is not clear that Elections Canada could implement any process that would be better at ascertaining truth than citizens using normal human discernment.

Consequently, any removal or attempted removal of “false information” will be an exercise in either arbitrary or politically-motivated censorship. This is particularly troubling because the type of “false information” that attracts attention usually relates to contested or controversial political and moral statements, rather than trivial falsehoods.

Worse still, in our experience, punishment for contravening speech laws is typically inflicted upon minority communities, vulnerable groups and political dissidents: those with privilege avoid sanction.

Finally, attempts to remove “false information” will ultimately result in the erosion of civil liberties and democratic engagement. The reduction in exposure to moral and political information – both true and false – prevents citizens from engaging with complex arguments, and, thereby, diminishes their critical-thinking capacity. For, if the information expressed was correct, participants would have gained the benefit of exchanging their wrong information for correct information. If the information expressed
was wrong, participants would have gained the benefit of intellectual justification for their beliefs, without which they possess not knowledge, but dead dogma.11

For these reasons, we would respectfully recommend that Elections Canada restrict its conduct to publishing factual information about elections and the electoral process. It is safer and more practicable for the citizens as Canada to remain the arbiters of truth.

As always, we would be pleased to meet with you to discuss our concerns and any questions you may have about our position.

Regards,

Mark A. Joseph
Senior Litigation Counsel
c.c.: Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs

  1. Election Integrity and Security Including Foreign Interference
  2. ElectoFacts
  3. Supra, note 1.
  4. Agreements with social media platforms to address inaccurate information
  5. Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 SCR 1120
  6. Canada Elections Act, S.C. 2000, c. 9
  7. Constitution Foundation v. Canada (Attorney General), 2021 ONSC 1224
  8. Canadian Charter of Rights and Freedoms, s.7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 a
  9. Criminal Code, RSC , 1985, c. C-46
  10. R. v. Zundel, [1992] 2 SCR 731
  11. Chicago. Mill, John Stuart. 2002. On Liberty. Dover Thrift Editions. Mineola, NY: Dover Publications.

About The Democracy Fund:

Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education and relieving poverty. TDF promotes constitutional rights through litigation and public education. TDF supports an access to justice initiative for Canadians whose civil liberties have been infringed by the government lockdowns and other public policy responses to the pandemic.

 

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It is a mistake to dismiss the movement as too small

In light of the poor showing by separatist candidates in recent Alberta byelections, pundits and politicians will be tempted to again dismiss threats of western separatism as over-hyped, and too tiny to be taken seriously, just as they did before and after the April 28 federal election.

Much of the initial skepticism came after former Leader of the Opposition Preston Manning authored a column arguing that some in central Canada never see western populism coming. He cited separatist sympathies as the newest example.

In response, (non-central Canadian!) Jamie Sarkonak argued that, based upon Alberta’s landlocked reality and poll numbers (37 per cent Alberta support for the “idea” of separation with 25 per cent when asked if a referendum were held “today”), western separation was a “fantasy” that “shouldn’t be taken seriously.” The Globe and Mail’s Andrew Coyne, noting similar polling, opined that “Mr. Manning does not offer much evidence for his thesis that ‘support for Western secession is growing.’”

Prime Minister Mark Carney labelled Manning’s column “dramatic.” Toronto Star columnist David Olive was condescending. Alberta is “giving me a headache,” he wrote. He argued the federal government’s financing of “a $34.2-billion expansion of the Trans Mountain pipeline (TMX)” as a reason Albertans should be grateful. If not, wrote Olive, perhaps it was time for Albertans to “wave goodbye” to Canada.

As a non-separatist, born-and-bred British Columbian, who has also spent a considerable part of his life in Alberta, I can offer this advice: Downplaying western frustrations — and the poll numbers — is a mistake.

One reason is because support for western separation in at least two provinces, Alberta and Saskatchewan, is nearing where separatist sentiment was in Quebec in the 1970s.

In our new study comparing recent poll numbers from four firms (Angus Reid Institute, Innovative Research Group, Leger, and Mainstreet Research), the range of support in recent months for separation from Canada in some fashion is as follows, from low to high: Manitoba (6 per cent to 12 per cent); B.C. (nine per cent to 20 per cent); Saskatchewan (20 per cent to 33 per cent) and Alberta (18 per cent to 36.5 per cent). Quebec support for separation was in a narrow band between 27 per cent and 30 per cent.

What such polling shows is that, at least at the high end, support for separating from Canada is now higher in Saskatchewan and Alberta than in Quebec.

Another, even more revealing comparison is how western separatist sentiment now is nearing actual Quebec votes for separatism or separatist parties back five decades ago. The separatist Parti Québécois won the 1976 Quebec election with just over 41 per cent of the vote. In the 1980 Quebec referendum on separation, “only” 40 per cent voted for sovereignty association with Canada (a form of separation, loosely defined). Those percentages were eclipsed by 1995, when separation/sovereignty association side came much closer to winning with 49.4 per cent of the vote.

Given that current western support for separation clocks in at as much as 33 per cent in Saskatchewan and 36.5 per cent in Alberta, it begs this question: What if the high-end polling numbers for western separatism are a floor and not a ceiling for potential separatist sentiment?

One reason why western support for separation may yet spike is because of the Quebec separatist dynamic itself and its impact on attitudes in other parts of Canada. It is instructive to recall in 1992 that British Columbians opposed a package of constitutional amendments, the Charlottetown Accord, in a referendum, in greater proportion (68.3 per cent) than did Albertans (60.2 per cent) or Quebecers (56.7 per cent).

Much of B.C.’s opposition (much like in other provinces) was driven by proposals for special status for Quebec. It’s exactly why I voted against that accord.

Today, with Prime Minister Carney promising a virtual veto to any province over pipelines — and with Quebec politicians already saying “non” — separatist support on the Prairies may become further inflamed. And I can almost guarantee that any whiff of new favours for Quebec will likely drive anti-Ottawa and perhaps pro-separatist sentiment in British Columbia.

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This dynamic again became obvious, pre-election, when I talked with one Alberta CEO who said that five years ago, separatist talk was all fringe. In contrast, he recounted how at a recent dinner with 20 CEOs, 18 were now willing to vote for separation. They were more than frustrated with how the federal government had been chasing away energy investment and killing projects since 2015, and had long memories that dated back to the National Energy Program.

(For the record, they view the federal purchase of TMX as a defensive move in response to its original owner, Kinder Morgan, who was about to kill the project because of federal and B.C. opposition. They also remember all the other pipelines opposed/killed by the Justin Trudeau government.)

Should Canadians outside the West dismiss western separatist sentiment? You could do that. But it’s akin to the famous Clint Eastwood question: Do you feel lucky?

Mark Milke is president and founder of the Aristotle Foundation for Public Policy and co-author, along with Ven Venkatachalam, of Separatist Sentiment: Polling comparisons in the West and Quebec.

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