Moderator: Nomi Claire Lazar, Research Council Member
Panelists:
- Richard Moon, Distinguished University Professor of Law, University of Windsor
- Hoi Kong, holder of the Rt. Hon. Beverley McLachlin Professorship in Constitutional Law, University of British Columbia
- Stephen Maher, journalist
- Tanja Börzel, Professor & Director of the Contestations of the Liberal Script Cluster of Excellence, Freie Universitaet, Berlin
- Quassim Cassam, Professor of Philosophy, University of Warwick, United Kingdom
For elections to serve their intended purpose, eligible participants – and only eligible participants – must choose a representative through a trusted process, which is free, fair, and well-informed. It is partly because foreign interference (FI) can impact freedom, fairness, the information environment of elections, and trust in that process that FI is a cause for concern. But FI is a complex problem, and we need strategies to build resilience across society. An effective strategy cannot be limited to legal tools to detect, deter, and punish FI attempts because:
- interference can be ambiguous, making a single legal definition challenging;
- Modes of foreign interference may shift shape to evade the boundaries of law;
- Information on foreign interference gathered in intelligence contexts is difficult to use in court, and FI can be difficult to prosecute when interferers act from abroad.
These factors may make democratic resilience critical for confronting FI. Typically whole of society approaches that aim to build resilience include: (1) raising public awareness of dangers FI poses to democratic processes; (2) educating the public regarding how to recognize foreign interference tactics and on available protective measures, building community capacity to support those targeted, as well as building civic capacity to detect and counter mis- and disinformation; (3) encouraging a robust Canada-based media to support a robust information environment, while inviting or requiring media platforms to take measures to control the flow of disinformation; and (4) reducing exposure of people deemed vulnerable to foreign interventions.
Yet many of these resilience-building mechanisms could themselves negatively impact democracy. For example, efforts to safeguard the information environment may risk limiting access to diverse perspectives that enrich that environment. Efforts to support reliable, Canada-based media may lead to claims that that media is biased. Efforts to call out instances of foreign interference may also raise suspicion in and toward Canada’s diasporas. And raising civic awareness about the dangers of foreign interference may contribute to a loss of confidence in the very democratic institutions we hope to protect. In addition, limiting exposure of people deemed vulnerable to FI by virtue of their identity, for example by removing them from certain positions in the foreign service or at home, may risk curtailing their freedom and opportunities on the grounds of identity.
Furthermore, the gray area around what counts as interference can make civic education challenging. The concept of interference is evidently unclear. But even the concept of ‘foreign’ can be ambiguous. For example, transnational political coalitions have historically played important roles in political movements. Interests, ideas, funds and strategies flow across borders for all kinds of political reasons. When those ideas and interests are shared and actively supported transnationally, how can we best differentiate foreign from domestic action? Given such transnational coalitions sometimes support anti-democratic interests, but work through persuasion, what is ‘acceptable’ and what is not and why?
Moderator: Nomi Claire Lazar, Research Council Member
Panelists:
- Michael Morgan, Associate Professor of History, University of North Carolina at Chapel Hill
- Henri-Paul Normandin, former Ambassador, Fellow of the Institut d’études internationales de Montréal, Université du Québec à Montréal
- Daniel Jean, former National Security and Intelligence Adviser to the Prime Minister, former Deputy Minister, Global Affairs Canada
- Anne Leahy, former Ambassador
- Alex Himelfarb, former Clerk of the Privy Council and former Ambassador
In her Initial Report, Commissioner Hogue mentions common concerns about distinguishing foreign influence, understood as legitimate or acceptable behavior, from foreign interference, understood as problematic. Influence may ‘become’ interference, the report notes, when it is “clandestine, deceptive, or personally threatening.” Yet, the report also notes that this distinction can be difficult to draw. Indeed, many reports and observers have described a substantial ‘gray zone’ of ambiguous behaviors that deeply concern members of some areas of government, while striking others as ‘business as usual’.
This ambiguity may generate at least three potential difficulties. First, ambiguity makes it more difficult to confidently identify inappropriate political behavior, while also potentially chilling legitimate political or diplomatic efforts. Second, disagreements between different parts of government around what counts as concerning or illegal behavior may hamper a government’s ability to take appropriate action in a timely manner. And third, ambiguity may contribute to public confusion, which may in turn make it less likely that citizens will recognize foreign interventions of potential concern which, in turn, may lead to a lack of confidence in our institutions.
A common proposal is to formulate a definition of foreign interference that eliminates ambiguity. Yet, any such definition would have to manage genuine, not just semantic ambiguities: for example, could any definition capture the contextual complexities of diplomacy? If it turns out definitions cannot be made specific enough to be workable while remaining abstract enough to capture real ambiguities, are there other ways to guide citizens and officials?
Questions may include:
- Are there foreign activities that are legal both domestically and internationally, but nonetheless illegitimate? Are there borderline cases that could illustrate?
- Are definitions the right approach to classifying foreign interference? What other approaches might be useful?
- What levels or types of interactions between politicians and diplomats or foreign representatives in Canada are in compliance with the Vienna Convention? How can Parliamentarians, their staff, and members of the public be educated on where to draw the line?
- Diplomacy changes over time. Are international law tools and guidelines around intervention, such as the Vienna Convention on Diplomatic Relations, adequate for the contemporary context? If not, what might be the benefits and drawbacks of seeking new tools and guidelines for the international community, for example through Canada spearheading a global initiative?
- Might a (domestic) statement of principles and values that goes beyond definition, help guide Government evaluation of questionable foreign actions and appropriate responses?
- Alternatively, might the existing ambiguity be in Canada’s interest, overall?
- What is the role of non-state actors in this conversation?
- How do these considerations play into the role of the Panel of Five during elections?
Moderator: Lori Turnbull, Research Council Member
Panelists:
- Marcus Kolga, Investigative Journalist, Senior Fellow, McDonald-Laurier Institute
- Shelly Ghai Bajaj, Postdoctoral Fellow, University of Waterloo
- Heidi Tworek, Canada Research Chair and Professor of international history and public policy, University of British Columbia
- Emily Laidlaw, Canada Research Chair in Cybersecurity Law, Associate Professor, University of Calgary
- Chris Tenove, Assistant Director, Centre for the Study of Democratic Institutions, University of British Columbia
- Vivek Krishnamurthy, Associate Professor, University of Colorado Law School
- Elizabeth Dubois, Associate Professor & University Research Chair in Politics, Communication and Technology, University of Ottawa
Disinformation and misinformation refer to verifiably false claims, in the latter case shared without intent to deceive, and in the former, with intent to deceive and mislead. A third category, malinformation, refers to information that stems from the truth but is exaggerated or used out of context in order to mislead and cause potential harm. The acronym MDM in this document is used to capture misinformation, disinformation and malinformation.
Regardless of intent, MDM is potentially harmful in many ways, including in reducing trust in institutions and the media, breaking down social cohesion and undermining the integrity of democratic processes. For this reason, some states may leverage MDM for the purpose of foreign interference.
MDM is not a new phenomenon: states disseminated lies and propaganda long before the rise of social media. However, social media platforms and the digital ecosystem in general have considerably increased the spread and impact of MDM. This explains why MDM, on the one hand, and social media, on the other, are often discussed and addressed simultaneously. More recently, advances in generative AI tools have added another layer to the discussion.
Finding appropriate ways to respond to foreign-based MDM in the current digital landscape raises significant challenges, which democratic states around the world are facing. One such challenge is to ensure that the means and tools that we develop to detect and counter MDM do not violate the very principles and values that we are trying to preserve. Among these are freedom of expression, access to reliable information and the protection of privacy. Another challenge is to design protection and prevention mechanisms that are flexible enough to keep pace with accelerating technological change. Fundamental to all these challenges is the need for clarity around the substantive nature of the threat that MDM represents, and the extent to which it affects democratic processes and institutions.
This reality raises many questions, including:
- What approach should Canada take in confronting the challenge posed by MDM to our democratic institutions: targeting the substance of the information, those who produce it, the mechanisms by which it is disseminated?
- In the context of foreign interference, identifying the source of MDM for the purpose of attribution is often difficult. Are there appropriate and effective means to do so? What should be the threshold for attribution of MDM to a foreign actor? Should the thresholds for attribution be different when the actor is a state vs. non state actor?
- Should the government publicly identify and attribute MDM to foreign actors and, if so, when and how?
- What is the role of civil society in combatting MDM? Does government have a role to play in “correcting” MDM?
- Is there a role for building citizen resilience to MDM? What is the role of public education in building that resilience? How might the federal and provincial governments cooperate to achieve this? Are there international models to follow?
- What tools currently exist to counter MDM? Are these tools effective? Are they likely to be effective in the case of AI-generated information, such as deepfakes?
- What should be the responsibility of social media platforms in dealing with MDM in democratic processes? Is self-regulation of these platforms compatible with democratic principles?
- Research has shown that different diaspora communities are unevenly affected by MDM spread by social media and messaging applications. What strategies could respond effectively to the diversity of audiences likely to be affected by MDM?
- Should there be a distinct strategy to detect, deter and counter offline MDM?
Moderator: Lori Turnbull, Research Council Member & Matthew Ferguson, Commission Counsel
Panelists:
- Laura Stephenson, Professor, University of Western Ontario
- André Blais, Professor Emeritus, Université de Montréal
- Marc Mayrand, former Chief Electoral Officer of Canada
- Ken Carty, Professor Emeritus, University of British Columbia
- Michael Pal, Associate Professor, Faculty of Law, University of Ottawa
Nomination contests are one process by which political parties may choose the candidates who will represent them in each riding in a general election. These processes can be thought of as the first step in an election. Each political party has its own rules to govern nominations processes and these rules are enforceable by the party rather than by Elections Canada; they are not enshrined in law. Elections Canada’s role in nominations processes is to monitor the flow of money to nomination contestants through contributions, which are regulated by the Elections Act.
In her interim report, Commissioner Marie-Josée Hogue writes that “nomination contests can be gateways for foreign states who wish to interfere in our democratic process.1 Nomination contests may be vulnerable to foreign interference for various reasons. Potential factors might include rules around membership and voting, voting procedures, proof of citizenship and residency requirements, or consistency of rule enforcement.
Leadership contests may face the same vulnerabilities for similar (or perhaps different) reasons.
Given what appear to be vulnerabilities of nomination and leadership contests to foreign interference, what can be done to fortify these processes, and perhaps other political party processes, against foreign interference?
Questions might include:
- What rules for nomination processes in the various political parties may make them vulnerable to foreign interference?
- How might rules around nomination and leadership contests be reformed to make them less vulnerable to foreign interference?
- What are the advantages and disadvantages of regulating/imposing rules on political party processes?
- Who ought to be allowed to vote in nomination contests and leadership races?
- What type of rules should be set by political parties and what type of rules should be legislated (if any)? Who should be responsible for supervising and enforcing them?
- What other vulnerabilities may exist in political party processes, and how might these be addressed?
1 Hogue, The Honourable Marie-Josée. May 3, 2024. “Public inquiry Into Foreign Interference in Federal Electoral Processes and Democratic Institutions: Initial Report,” p. 23.
Moderator: Leah West, Research Council Member
Panelists:
- Stephanie Carvin, Associate Professor, Carleton University
- Daniel Jean, former National Security and Intelligence Adviser to the Prime Minister, former Deputy Minister, Global Affairs Canada
- Maria Robson-Morrow, Program Manager, Harvard Intelligence Project
- Lex Gill, Senior Fellow, Citizen Lab, University of Toronto
- Alan Jones, former Assistant Director, Canadian Security Intelligence Service
- Richard Fadden, former National Security Adviser and Deputy Clerk, former Canadian Security Intelligence Service Director
The Commission is mandated to examine and assess the capacity of the federal government, including its intelligence agencies, to detect, deter, and counter foreign interference in Canada’s democratic processes.
The Commissioner’s Initial Report noted difficulties in identifying, confirming, and attributing foreign interference – especially online activities- and the process of making intelligence-informed decisions in response to that threat. The Report also discussed the challenge of effective communication of foreign interference intelligence and information to stakeholders, the public, and to those likely most vulnerable to foreign interference.
This aspect of the Commission’s mandate may raise several questions, including:
- Do Canada’s intelligence agencies have the legal authorities, technical capabilities and resources necessary to detect, collect and analyze information regarding foreign interference, especially in the online environment? Do they have the authorities and tools they need to effectively counter foreign interference? What more can be done to improve Canada’s capacity to detect and counter the threat?
- What measures can be taken to make the relationship between Canada’s intelligence agencies and government decision makers effective and efficient?
- What measures can be taken to improve the communication of intelligence and the understanding of the implications of foreign interference threats with external stakeholders such as political parties and candidates? Can amendments to section 19 of the Canadian Security Intelligence Service Act in Bill C-70 be expected to improve information sharing? What will they address and what will they not address?
- How should the tension between providing information specific enough to be meaningful and protecting the operational and security imperatives that require limits on information-sharing best be resolved?
- What is the current public perception of Canada’s national security agencies? Does this perception differ between different Canadian communities? If a lack of public trust exists, either generally or within certain communities, how has this affected the agencies’ capacity to deter, detect and counter foreign interference? What measures should be taken to rebuild that trust?
- Should Canada’s national security agencies better communicate with the public about the threat of foreign interference and how to protect themselves against it and, if so, how?
Moderator: Leah West, Research Council Member
Panelists:
- Bob Paulson, former Royal Canadian Mounted Police Commissioner
- Rob Currie, Professor, Dalhousie University
- Alex Wilner, Associate Professor, Carleton University
- Michael Nesbitt, Associate Professor, University of Calgary
- Croft Michaelson, former Senior Counsel, Public Prosecution Service of Canada
Several aspects of foreign interference can make investigating and prosecuting its perpetrators challenging. While there are laws that criminalize some types of foreign interference there are relatively few foreign interference prosecutions. The Commission heard evidence during its Stage 1 hearings in the spring about some of the actors responsible for investigating and prosecuting offences linked to foreign interference, and some of the challenges that they face. This evidence suggests that there are important questions to ask about whether Canadian laws, procedures, and enforcement agencies are designed and resourced to effectively investigate, deter and prosecute foreign interference activities.
Questions that could be considered within this theme include:
- Is the criminal law an appropriate way of responding to foreign interference? Are there reasons why other approaches could be preferable?
- Do Canada’s laws prohibit the right things? Are there gaps in our legislation? Should the definition of existing offences be revised to better account for the reality of foreign interference or to enhance the prospect of successful prosecutions? How has this changed since the passage of Bill C-70?
- Does law enforcement have the right powers to enforce the laws that exist? Can those powers be exercised in a way that makes them of practical value in foreign interference investigations?
- There are multiple agencies that may play a role in detecting and investigating foreign interference. This includes traditional law enforcement like the RCMP or local police of jurisdiction; intelligence agencies like CSIS or the CSE; and specialized entities like the Commissioner of Canada elections. Is the current distribution of responsibility and authority between these bodies conducive to effective investigation of foreign interference? Are there aspects of their relationships that create challenges for prosecutions and, if so, could they be reformed?
- Prosecuting foreign interference crimes in a courtroom presents its own challenges, including – but not limited to – the “intelligence to evidence” problem. Are there ways that criminal procedures could be reformed to make foreign interference prosecutions more viable?
- Could the common law disclosure regime be adapted to account for the challenges of investigating and prosecuting national security matters in an international context?
- How does the Canadian Charter of Rights and Freedoms come into play in foreign interference prosecutions? Would reforms to our foreign interference laws be consistent with Charter rights and values?
- Do the mechanisms contained in Bill C-70, such as a transparency registry and mechanisms to use sensitive information in administrative proceedings, provide a useful alternative to the criminal law?
- Are other means, such as sanctions, effective means to deter states and non-state actors from engaging in foreign interference into Canada's democratic processes? What other costs can impose on those who engage in FI or tools can Canada employ to deter actors from targeting Canada? Is Canada effectively leveraging those means, and if not how might that be improved?
- Are the mechanisms for deterring online FI activities different than deterring physical intimidation, threats and coercion?
Moderator: Lori Turnbull, Research Council Member
Panelists:
- Lisa Young, Professor, University of Calgary
- Jessica Davis, President, Insight Threat Intelligence
- Michelle Gallant, Professor, University of Manitoba
- Andrea Lawlor, Associate Professor, McMaster University
- Robin Sears, Broadbent Institute Fellow, former communications, marketing, and public affairs adviser
The Canada Elections Act places limits on the size of annual contributions to political parties, candidates, leadership and nomination contestants, and riding associations. Further, there are limits on the amounts that political actors, including third parties, can spend before and during election campaigns. Third parties – people and organizations or groups that seek to participate in and influence the election debate but do not seek election themselves – are required by law to keep separate bank accounts for their election expenses so that election expenses and contributions can be more easily tracked and scrutinized. Political actors must submit reports to Elections Canada outlining their expenditures as well as the donations received. These rules, including the specific limits on contributions and spending, are all enshrined in law and enforceable by Commissioner of Canada Elections.
Political finance rules have evolved considerably over the years with the goal of increasing transparency and fairness in electoral competition. Only Canadian citizens and permanent residents are permitted to donate to political campaigns; contributions from corporations, trade unions, organizations, and foreign entities are prohibited by law. Financial contributions have been recognized as an important form of political expression in public debate and in jurisprudence on the regulation of third parties. 1
The limits on financial contributions seek to ensure a level playing field between contestants so that competing political messages can be heard without having some campaigns effectively drowned out by others that have more financial support.
Though the law prohibits donations from foreign entities, it may prove difficult to “follow the money” with precision.
Questions related to the implications and effectiveness of the political finance regime, and its capacity to protect against foreign interference, include:
- Are existing rules and authorities adequate in ensuring transparency in political financing? Are there barriers to effectively identifying political donors?
- Are there additional measures that would enhance the ability of the political finance regime to detect and counter foreign interference?
- Who should be allowed to make contributions to political actors and who should not? Should the rules be the same for all types of contributions?