Inside Politics

UPDATED - Did American political tourists run afoul of Canadian election law by campaigning for Conservative MPs in #elxn41?

UPDATE: Check this post for the latest developments. 

As some readers are doubtless aware, the last few weeks have seen a still ongoing kerfuffle over allegations that two employees of the US-based campaign consulting firm Front Porch Strategies may have violated Canadian election law by going door-to-door with Conservative candidate Rick Dykstra during the 2011 campaign: specifically, Section 331 of the Canada Elections Act, which forbids non-residents from attempting to "induce electors" to vote for, or against, a candidate during the writ period.

The story first surfaced two weeks ago in the Brock University student newspaper, courtesy of journalism student Jeremy Colangelo, who tracked the movements of Front Porch associates
Matthew Parker and Philip Wenzel during the last campaign via twitter and Facebook dispatches detailing their Canadian activities:

Several tweets from feeds associated with the Ohio-based campaign organizer Front Porch Strategies indicate that executives from the company describe visits to various locations in Canada during which they provided physical support to Conservative Party candidates. [...]

The tweets frequently refer to Matthew "Matt" Parker and Philip "PJ" Wenzel, both of whom are listed on Front Porch Strategies's Web site.

"Matt and PJ are heading to Toronto tomorrow [April 19, 2011] to campaign for the Conservative Candidates!" said one tweet.

"Front Porch is on the front lines as Conservatives are taking over Canadian Parliament!" said another, from May 2.

Another tweet mentions "knocking [on] doors" for St. Catharines's Conservative Member of Parliament (MP) Rick Dykstra. Dykstra was unable to offer comment on this story as he had been dispatched on what one of his aids called "a fact finding mission" in Sri Lanka.


Although Front Porch Strategies apparently declined to be interviewed for that article, the company's "Canadian liaison," Jim Ross -- who was Dykstra's campaign manager during the election -- did respond to the Vancouver Observer, which followed up on the story last week, and denied any wrongdoing:

"They were in Ontario for a day and a half (in April), for the purpose of acquiring new clients," political consultant Jim Ross told the Vancouver Observer. "They knocked on doors for roughly an hour with Rick, traditional canvassing to identify support. While waiting for a delayed meeting they made roughly 30 minutes worth of phone calls for Minister Fantino, again to identify support.

"Other than teleforums, brief incidental volunteerism as described above over the course of a day and a half that was mostly spent trying to acquire new clients. There was no other involvement."

So, was this "brief incidental volunteerism" cricket under Canadian election law?

Short answer: It's not clear, and as usual, Elections Canada hasn't been willing to provide a direct answer on how it interprets the provision in question. But my research would suggest that the impromptu swing through the streets of St. Catharine's alongside Rick Dykstra, at least, may very well have violated the intent of the law.

At this point, it's probably worth noting -- and emphasizing -- that if it did, any charges that might be forthcoming would be against the offending non-residents -- Parker and Wenzel -- and not the candidates or campaigns involved. As such, it would seem that the headlines on the above linked articles -- which suggest that the Conservative Party/Tories may have broken the law -- would seem to be inaccurate even if the canvassing itself was ultimately deemed to be contrary to the Act.

Okay, with that caveat out of the way, let's take a quick trip down electoral law memory lane, shall we?
 

Despite having lain dormant for nearly a century since it came into effect in 1908, over the last decade, S 331 has sparked similar allegations against US film maker Michael Moore on not one but two previous occasions.

In 2004, while in Toronto to promote his documentary Farenheit 9/11, Moore implored Canadians not to vote for the Conservative Party. "My silent plea is not to go our way," he told a local radio station. 

Those comments triggered a formal complaint from a Queen's University student, who claimed that his reverse endorsement constituted inducement. Despite a concerted effort to galvanize public opinion with a website -- the now defunct chargemoore.com -- and an online petition that garnered several thousand signatures, despite an initial flurry of media coverage, the story dropped out of the headlines. No charges were ever filed.

Although he apparently took a pass on the 2006 election, Moore returned to the Canadian electoral hustings in 2008, when he spent an hour and a half going door to door with NDP candidate Tony Martin in Sault Ste. Marie.

Once again, he found himself accused of violating the ban on foreign interference -- this time, by the Conservatives, but this time, he fought back. 

According to the Toronto Star, Moore told Elections Canada that it was actually the campaign team for Conservative candidate Cameron Ross who had initially invited him to canvass. It was only when Ross failed to show up that he wound up tagging along with Martin
, who eventually won the seat.

Meanwhile, then-NDP spokesperson Brad Lavigne, noted that Moore "was not handing out literature or persuading people to vote one way or another," but simply "documenting" the canvass, which, in his view, made the Conservative complaint "fairly bogus."

Once again, no charges were filed.

In fact, as far as I could determine, no charges have ever been filed under S331 or its earlier iterations, despite the fact that it has been on the books, in one form or another, since 1908.

I asked Elections Canada if they could clarify whether this was the case, but alas, they were unable to do so.

Even more frustrating, however, was the agency's unwillingness to explain how the provision in question has been interpreted in the past, as the word "induce" is not defined in the Act, despite the fact that such a definition is crucial to understanding the intent of the clause.

Canadian ex pat David Mader, who now practices law in New York, pointed out, via twitter, that British Columbia's Election Act actually does provide a definition of "inducement," which, according to BC law, it includes "money, gift, valuable consideration, refreshment, entertainment, office, placement, employment and any other benefit of any kind" -- but not "merely transporting an individual to or from a voting opportunity."

Under that definition, door-knocking would seem to be exempt.

But, as Mader noted, although other provincial courts have tended to interpret inducement-related election law provisions in a similar way, in a 1993 case related to the procurement of an advance ballot for an individual who was ineligible to vote, the New Brunswick Court of Appeals found that "there does not have to be some reward or promise of material gain to induce an action," and dismissed the appeal.

From that ruling:

In my view, the offence created by section 111(1) of the Elections Act does not create a threshold that is crossed only when there is bribery or vote-buying. The inducement is sufficient if it results in voting by a person who is not qualified, provided the defendant knows that the voter was not qualified. The availability of extended voting procedures, such as absentee voting, does not lessen the effect of the inducement. Indeed, the existence of such procedures means that high standards must be maintained to ensure the integrity of the electoral process.

Whether Mr. Harvey acted as a facilitator or induced Miss Thomas to commit an illegal practice is a matter of semantics. Either way, he was the person that brought about the vote of Miss Thomas, a person who he knew was not eligible to vote at that election. The evidence disclosed that Mr. Harvey approached Miss Thomas and Mr. Campbell, that he secured the application for the absentee ballot, that he located Miss Thomas on her school bus, that he had Mr. Campbell's absentee ballot and that he had her complete the ballot and again write Mr. Campbell's name on the envelope containing the ballot.

Some might characterize these actions as only an over-zealous attempt to have an eligible voter, Mr. Campbell, vote. In my opinion, however, these actions, particularly when they are coupled with Mr. Harvey's assurance to Miss Thomas that her actions were "legal", amount to an inducement by Mr. Harvey to secure the vote of a person who he knew was not eligible to vote.

Given the above interpretation of a similar clause, it appeared that entreating a potential voter to cast a ballot in support of a particular candidate could indeed qualify as inducement, at least under the broadest definition, although it's worth noting that the judge put considerable weight on the fact that the defendant in that case was aware that the individual was not legally entitled to vote.

What, if anything, could be drawn with regard to the meaning of the federal provision, however, was still very much unknown.

Out of sheer desperation, I hit the virtual stacks at parl.gc.ca, and began going through every election-related bill introduced in Parliament since 1997 -- which is as far back as the online archives extend -- in hopes of coming across even a parenthetical reference to S331 that would shed light on its original purpose. 

And that's where I finally found an, if not the answer, in the form of a legislative analysis of C-2, the Chretien government's 1999 electoral reform bill.

A bit of background: C-2 represented the first major revamp of the Canada Elections Act since its creation in 1970. It dealt with poll blackouts, campaign financing and third party advertising, among other issues* related to the administration of elections that had arisen over the past three decades.

It also reorganized the law, and updated the language of existing provisions, and that, as it turned out, was where I found the first real evidence that S331 could, indeed, apply to American election tourists who embark on an impromptu door-knocking campaign.

Just one line is devoted to the relevant section, but in context, it's a doozy:

Clause 331 prevents non-residents of Canada from canvassing during an election campaign.

 
Case closed? Well, not necessarily.

Unfortunately, the analysis provides no additional context for its explanation of the clause beyond the above description, which makes it difficult to determine how the researcher came to the conclusion that it was designed to prevent foreign interference on the campaign trail. (In contrast, similar provisions barring non-Canadian donations and advertising, which can be found in the same section of the Act, have been the object of considerable debate, which makes it a comparatively simple task to determine the will of the parliaments that passed related amendments.) 

UPDATE: Good news: I was eventually able to dredge up the transcript from the 1999 clause by clause review of C-2. Bad news: It made everything even more confusing. Read the full post here
 
Also, as noted earlier, this particular prohibition has never actually been used, so it's difficult to hazard a guess at what would be required for the elections commissioner to lay charges. 

At the very least, though, it would seem that there may, indeed, be grounds to launch a complaint against the Front Porch-affiliated foreigners who went door-knocking in Ontario during the last campaign. 

Heck, even Michael Moore may not be safe from the long arm of Canada's election police, given that his most recent alleged violation of the ban was during the 2008 campaign, which would put it just within the five year statute of limitations. Perhaps the three Americans could team up and mount a joint defence.

I fully admit that I, too, was surprised by this turn of events -- the absence of a specific definition of "induce" in the act, coupled with the failure to lay charges in response to the Moore canvassing controversies, had left me -- and, likely, others -- with the distinct impression that Elections Canada had quietly determined that it did not apply to canvassing and other campaign activities, a misapprehension that was not helped by the agency's refusal to provide a clear, unambiguous answer to the question.

According to the most recent available interpretation, however, that is, in fact, exactly what it was designed to deter, and f
or the life of me, I can't understand why, after the initial complaint against Moore, Elections Canada wouldn't have made it clear that such practices are, in fact, prohibited, if only to prevent unwitting non-Canadians from inadvertently violating the law of the land.

In any case, that's why this job is so very interesting. You learn something new every day.

Over to you, Commissioner!

Note: I am indebted to the authors of the articles that ran in the Brock Press and Vancouver Observer articles, as well as (as always) the many twitterversians who weighed in on the issue, particularly Stephen Lautens, who provides a helpful overview of the law here, and David Mader, who provided valuable perspective on provincial election law. Any errors in logic or interpretation are, of course, mine alone.


*Trivia note: That same bill established a new process for contesting election results, which was previously dealt with at the provincial superior court level, under the Dominion Controverted Elections Act. Which is, admittedly, largely irrelevant to the matter at hand, but since I went through the trouble of researching it, I figured I may as well mention it. One never knows when these things might come in handy down the line. 

Tags: blackberry jungle, canada elections law, elections canada, front porch strategies, jim ross, robocalls, the "inducement" imbroglio, what do you do when you catch a meme?

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