Protecting Canada’s elections

When Yves Côté became commissioner of Canada Elections nearly seven years ago, enforcing Canada’s elections law was straightforward.

Make sure people didn’t try to vote twice. Ensure candidates didn’t spend more than the law allowed. Check that the list of people who voted didn’t include names culled from a nearby cemetery.

One of the toughest challenges the long-time lawyer had was trying to get to the bottom of a series of low-tech automated phone calls in the 2011 election that directed voters to the wrong location.

But now, as Canadians prepare for the next federal election in October, Côté and Stéphane Perrault, chief electoral officer, are facing threats to Canada’s elections that they could have never even contemplated a few years ago.

Bots. Internet trolls. Attempts to disrupt or influence elections around the world with fake news, deep fake videos and sophisticated social media disinformation campaigns. Some of it is the work of countries such as Russia, Iran or North Korea. Some of it is the result of domestic players and enterprising hackers.

“We know that we are in a state of not double ignorance, but we don’t know what visage or face some of these threats may take,” Côté explains.

“So we have to prepare for that.”

Donara Barojan, assistant director for research and development for the Digital Forensic Research Lab, which monitors disinformation campaigns and attempts to disrupt elections, says no country is immune.

“In this day and age, every country is potentially vulnerable to foreign interference because the rise of social media has really decreased the barrier to entry for state and non-state actors alike, making disinformation and hostile campaigns a low-cost and high-impact means of attack.”
Barojan puts Canada’s risk of foreign interference at moderate.

“They cannot afford not to take those risks seriously. They have to take them seriously. Manage them as best as they can and be ready to intervene quickly if something happens.”

Côté and Perrault were both raised in Quebec, practised law for decades and have spent their legal careers working for the Canadian government.
But the paths that took them to the roles they are called upon to play today are very different.

Côté, 65, grew up in the tiny northern Quebec town of Métabetchouan, nestled on the shores of Lac St. Jean. His father, a blacksmith, died when Côté was 12 years old, prompting his mother to move the family to Quebec City where she taught primary school.

Côté attended Séminaire St.-Alphonse in Ste Anne de Beaupré, east of Quebec City, and, like many bright, young future leaders growing up in Quebec’s Catholic church-run classical college system at that time, Côte originally thought he wanted to become a priest.

That changed when he was around 16 years old. He gravitated to the law, despite the objections of his teachers.

“When I told my professors I want to study law, they said, ‘What? You’re going to waste your time trying to study law? It doesn’t make sense.”
“But for me, it’s what I wanted to be in.”

After law school at Quebec City’s Université Laval, Côté joined the armed forces and the Judge Advocate General’s office — an uncommon choice for a francophone in 1970s Quebec.

He was posted to Winnipeg, a city he and his family loved. But his wife Carole didn’t speak much English at the time, and he was on the road 120 days a year, leaving her and their young children at home.

So Côté headed for Ottawa in 1981 and began working as a lawyer in the federal public service. This included Health Canada, the Employment and Immigration Commission and as director of the justice department’s human rights law section.

It was during those years in the early 1990s, while working as a government lawyer, that Côté decided to take psychology courses with his wife, who went on to become a social worker. Côté says the experience made him a better manager and a better lawyer.

“The psychology training helped me to understand what the client wants to do and why and how [to] establish a rapport with him or her that is solid. So, when you say no to them, they understand that you just want — it’s not that you want to be a negative person — it’s just that there’s a real issue and then they can engage with you.”

In 1998, Côté opened the first justice department legal office at National Defence headquarters, working with the armed forces in the wake of the Somalia Inquiry, which made sweeping recommendations for changes in the military justice system. The inquiry followed a scandal where members of the armed forces on a peacekeeping mission tortured and killed a Somali teenager.

After a stint at the Privy Council Office, working in part on election reform, Côté became ombudsman for the Department of National Defence — a job that took him briefly to Afghanistan where he got to visit young men and women not much older than his own children and see the medical toll of the mission firsthand.
“It was really an eye opener. I spent a week there, talking to them and exchanging with them in areas where there were no senior people.”

In 2008, Côté returned to the justice department as associate deputy minister of justice for more than four years under former Conservative Prime Minister Stephen Harper’s government — a job he says “was challenging in many, many different ways.”

Côté traded one challenge for another in 2012 when he became commissioner of Canada elections in the middle of the investigation into what became known as the Robocalls Scandal — automated phone calls in the riding of Guelph, Ont. that directed voters, many of them unlikely to vote for the Conservative Party, to the wrong polling station.

One person was convicted — Conservative campaign worker Michael Sona. Côté says he knows there was at least one other person involved, but he lacked the legal tools necessary to get the evidence and charge them.

“We knocked on every person’s door and nobody would talk to us. So that was very frustrating because [if there was] any issue in the last 10 years or so that created such a huge amount of uncertainty on the part of Canadians in terms of the health of our democratic process, that was robocalls. We were simply not able [to get] to the bottom of it because of that.”

Now, with Bill C-76, the new election reform bill adopted just before Christmas,  Côté will have new powers to compel witnesses to talk.

Perrault’s path to the challenges he now faces was also circuitous.

Now 51, he was raised in the leafy, upper-middle-class Montreal suburb of the Town of Mount Royal.

The son of a federal public works manager who supervised buildings such as Montreal’s Guy-Favreau Complex, Perrault attended Collège Jean-de-Brébeuf, the same exclusive private school Prime Minister Justin Trudeau attended a few years later.

Perrault took advantage of Quebec’s system that allows students to go straight from CEGEP to law school without having to complete a bachelor’s degree, graduating from Université de Montréal’s law school at age 22.

“I really enjoyed law school, but after law school, I was at a bit of a loss to find what I was going to do. I did my bar, I articled. Private practice wasn’t particularly appealing to me at that time and I was quite young, too.”

Perrault returned to the Université de Montréal, finishing with a doctorate in constitutional law. He then clerked in 1997 for former Supreme Court Justice Claire l’Heureux-Dubé, but he still wasn’t sure of his direction.

With a young baby at home, he needed to earn money. So, he looked for a job and found his calling.

“I applied to the department of justice human rights law section and that was my first job where I really landed in a place where I felt that this was it. I was surprised to a certain degree by that, but I had extraordinary colleagues, extraordinary files. A real sense that I was doing important work for a public purpose.”
At the justice department, Perrault worked on a range of topics including privacy and criminal law involving search and seizure as well as freedom of expression and freedom of association cases.

“One of the beauties of constitutional law is that it doesn’t hang in isolation,” Perrault explains.

“It’s constitutional law in context of criminal law, labour law, of transport law. So, you get to see a wide range of legal issues. And being at the centre at that time, the human rights section interacted with all the parts.”

Work at the justice department on human rights aspects of the Canada Elections Act led him to the Privy Council Office, working on sweeping reform to Canada’s political financing regime introduced by former Prime Minister Jean Chrétien.

After a year-long sabbatical to take care of his children and allow his wife to focus on her legal career, Perrault moved to Elections Canada in 2007.
“I found here a second calling, really, after the human rights law section, and I’ve really enjoyed every moment here.”

While he didn’t renew his membership in Quebec’s bar after he was nominated chief electoral officer last May, Perrault says having been a lawyer and working as a lawyer for Elections Canada prepared him well.

“As a lawyer, especially as senior general counsel, I basically had a finger in every pie. So, you get to know the organization. You get to know every hot topic within the organization in relation to an election, whether it’s security aspects or operations or HR. So, coming into this role, I already had exposure to pretty much every angle of the organization. That was very useful.”

Perrault’s appointment came shortly after the government introduced Bill C-76, a sweeping overhaul of Canada’s election rules. Both Côté and Perrault are hoping that this will give them the tools they need to fight the prospect of the kind of disruption being seen around the world.

Barojan, who is based in Riga, Latvia, says the attacks can come in several different forms. It could be bots and paid trolls amplifying existing divisions in society, fake news such as changing the captions of a foreign-language news report to make it seem like it was saying something it wasn’t or social media posts that purport to come from local residents that are actually being generated overseas.

“We have seen one of the most common shapes that foreign interference is currently taking is cyber-hacking, then leaking of the hacked material ahead of elections. That is definitely a risk that a lot of countries that are having elections this and next year will have to take into account when preparing to defend their electoral processes.”

Barojan said hackers often target political parties and individual candidates.

“Usually, those are the entities that don’t have enough cybersecurity and build cyber-defences and usually are the weakest link in the chain.”
When it comes to preventing election disruption, she says, good preparation is the best defence.

“What we have seen in the most recent elections in Europe is that countries that prepared the most for foreign interference and disinformation campaigns suffered from them the least. It definitely deters an adversary because they might get caught and that might cost them their international reputation or sour the bilateral relationship even more.”

Mayrand says foreign disruption is something he didn’t have to face during the last election in 2015.

“An external dimension to technology is what we’ve seen especially in the U.S. and we are all afraid that could happen in Canada — the misuse of technology to disseminate myths or false information to try to influence electors. So, to me, that’s a major emerging concern that wasn’t there certainly in the same scope 10 years ago.”

But Mayrand, who played a role in hiring Côte as commissioner and Perrault as an Elections Canada lawyer, is convinced both are up to the task.
Mayrand describes Perrault as bright and knowledgeable with good judgment.

“I think he’s a good team player. He can lead when he needs to lead; then he can be on the team when he needs to be on the team.”

Côté, he says, is an experienced lawyer and “in a sense an iron fist in a velvet glove.”
“He’s very easygoing, very calm but very, very determined and very thorough in everything he does. He should not be underestimated.”

Perrault and Côté are each aware that they face potential threats that their predecessors could barely imagine. They are already preparing for that prospect.
Perrault’s job is to conduct the election and counter potential misinformation about the voting process such as directing people to the wrong polling station or telling people the vote has been cancelled.

Côté’s role is to detect attempts to disrupt the election or break the law, investigate what happened and prosecute offenders.

Both are working with other government bodies including the RCMP and spy agencies such as  the Canadian Security Intelligence Service and Canada’s electronic spy agency, the Communications Security Establishment.

For example, Perrault worked with the CSE and others to improve the security of Elections Canada’s own IT system to guard against any attempts to hack into or compromise it.

Côté has been hiring people such as former police officers with skills such as  monitoring social media for disruption and fake news or investigating online crimes.

The departments and agencies are also looking at possible scenarios and working out in advance what role each government body would play.

In late January, the government announced it was setting up a Security and Intelligence Threats to Elections Task Force including CSIS, the RCMP, the CSE and Global Affairs Canada to “prevent covert, clandestine or criminal activities from influencing or interfering with the electoral process in Canada.”

It has also set up a Critical Election Incident Public Protocol to address any serious incidents that might take place during the election. If an incident is detected, it will be flagged to a panel of senior public servants including the clerk of the privy council, the national security and intelligence advisor and the deputy justice. They will then decide whether the incident is important enough to inform political parties and Canadians.

Meanwhile, Côté and Perrault have reached out to election officials in provinces such as Quebec and Ontario, which have recently held elections, to see if there was any indication of attempted disruption. While some tweets provided erroneous information about voting in the Quebec election, it did not appear to be part of an organized attack.

Perrault plans an online repository of Elections Canada’s official social media posts to allow Canadians to double check if a post really did come from his office.
Perrault and Côté have also begun working with various social media companies such as Facebook, Twitter, Microsoft and Google.

For example, if an attack occurs, Côté wants to know in advance who to contact and what they will need to allow him to get evidence without having to resort to the time-consuming mutual legal assistance treaty process, which can take months.

“One of the main difficulties is if we decide to launch a prosecution, obviously, we need solid evidence that somebody has committed a crime,” explains Côté.

“The solid evidence when you’re talking about the use of social media or perhaps misuse of social media, the kind of evidence that we need to go to a court and get the judge to say ‘Yes you’ve made your case [and they are] proven guilty beyond a reasonable doubt.’ That kind of evidence will often be in the cloud or outside of Canadian jurisdiction. Maybe in Silicon Valley. Maybe an island. Maybe somewhere else.”

While each of the companies has Canadian subsidiaries that could be ordered by a Canadian judge to co-operate, there are questions about just how far a Canadian court can go in enforcing orders beyond Canada’s borders, he says.

Investigating and prosecuting the architects of any foreign attempts to disrupt the election will present challenges, Côté concedes.

“Finding the facts and getting the truth when you’re talking about people outside Canada, maybe people living in countries that are not necessarily the same, [with] the same kind of regime that we have and may not have the same interest as we would have, it becomes very difficult.

“Young people in St. Petersburg, for example. Try to bring them to justice. It’s going to be quite something. And, so, you have to talk to others and see what we can do here and try to help others who may have a role to play in various ways.”

Côté has begun proactively reaching out to election officials in other countries to compare notes and find out what is going on beyond the headlines.

“It’s only if you develop these personal relationships with trust that you can get access to that kind of information. And up to now, we have not really been doing that.”

“So that’s something that we will work hard developing.”

Bill C-76 will give them new tools to guard Canada’s next election against disruption, such as making it illegal to try to hack into a computer system to affect an election or giving the commissioner the power to obtain a court order compelling potential witnesses to answer questions.

Perrault says he would have liked the legislation to also address the databases political parties have built up over the years. While the law calls for parties to have privacy policies, it does not require them to divulge the information they have collected. Currently, they are exempt from Canada’s privacy laws.

“I think Canadians should have the right individually to call parties and say, ‘What do you have on me.  . . . I think Canadians should be able to say, ‘Please remove that information or please correct that information.’”

Barojan says Canada may want to consider laws related to social media.

“One thing that should probably be addressed by lawyers is policy-making and legislation that would make social media services less vulnerable to these actors. But I honestly don’t have an answer to that because I don’t think there’s a good example of legislation thus far that has proven that it can successfully defend our new media from being exploited by these foreign actors or domestic actors for that matter.

In the end, Perrault concedes that it is difficult to know what kinds of challenges he and his team will encounter.

“We know that we will face issues that we haven’t seen and [for which] we haven’t planned. But that’s true at every election.”

The government’s response

Bill C-76, adopted in December, contains several changes to the way Canada’s next election will be held and gives officials more powers to deal with any attempts to disrupt the election campaign or the vote.
Here are some of them:
• The commissioner of Canada Elections will have the power to apply to a court to issue an order compelling a witness to answer his questions or provide a written return during an investigation.
• The commissioner of Canada Elections will have the power to levy administrative monetary penalties for breaches of certain sections of the elections law. Up until now, the commissioner’s options were to charge someone in court or negotiate a compliance agreement.
•The commissioner of Canada Elections will have the power to lay charges for violations to the elections law without having to go through the director of Public Prosecutions.
• Bill C-76 makes it an offence to make a false statement during the election period alleging that a candidate, a political leader or a political party has broken a law or is under investigation for committing an offence. It is also an offence to make false statements about things such as their citizenship, place of birth, education, professional qualifications or membership in a group.
• Bill C-76 prohibits third parties from using money from outside Canada to pay for partisan or election campaign activities. They will also now have to report on money spent in areas such as election surveys and partisan activities, not just the amount spent on advertising.
• Undue foreign influence such as committing a crime or incurring expenses to promote or oppose a candidate or party is prohibited. Media and social media companies can’t sell election advertisements to foreign entities such as individuals, companies, trade unions or a foreign political party or government.
• Social media companies and websites that sell election or partisan advertising will have to maintain a registry of political ads.
• Trying to affect the results of an election by hacking into a computer system, damaging one or trying to destroy data is prohibited.