in·duce/inˈd(y)o͞os/ Verb:
1) Succeed in persuading or influencing (someone) to do something.
2) Bring about or give rise to.
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The Twitterverse has been talking about whether the open use by the Conservative Party of a US company called “Front Porch Strategies” and its employees in front line voter contact breached section 331 of the Canada Elections Act. This was first raised by Creekside, @ConBGone and then Brock University students on Twitter and I have tweeted the relevant sections of the Canada Elections Act, but it requires a longer discussion than 140 characters to get to the ambiguous heart of it.
First of all, the reported facts are that US company Front Porch Strategies assisted the Conservative Party of Canada in the 2011 Federal election. According to its website (http://frontporchstrategies.us/about-us/), “Front Porch Strategies is an award winning international voter contact and constituent communications firm based out of Columbus, Ohio. Our passion is helping Republican candidates, elected officials, and conservative causes win by personally connecting them with voters and constituents.”
What caused a flurry of tweets was a photo posted of Front Porch Strategies “President Matthew Parker sitting in the campaign offices of Con MP Julian Fantino with a phone to his ear, a pencil in his hand, and a paper with the header ‘Election Day is Monday May 2nd – You Can Vote Now’ in front of him”. Also published (see: http://backofthebook.ca/2012/03/14/robocalls-and-republicons/6180/ ) were a series of tweets from Front Porch Strategies talking about their active involvement in door knocking and other activities in the Fantino and other CPC candidates’ campaigns.
The question first raised by the Brock University students is, was this activity illegal?
They were specifically looking at section 331 of the Canada Elections Act:
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.
S.C. 2001, c. 27, s. 211.
(See: Canada Elections Act )
This section appears in Part 16 of the Act, headed “Communications”. Much of the section deals with broadcasting, polling and advertising prohibitions during elections. It has been suggested that this prohibition in s. 331 may only deal with “inducing electors” by way of broadcasting, polling or advertising, however, s. 331 does not contain any language that limits it to those means of communications. “Inducing” is not a defined term in the Act, and so has its ordinary meaning, which is to “persuade or influence someone to do something”. The section speaks in absolutes: "No person..." It is also important to note the use of the all-encompassing phrase: “in any way”, which carves out no exceptions.
That is a pretty broad definition, but it has a valid policy purpose, which is a general belief in democracies that foreign elements should not be able to influence the outcome of domestic elections. Elections are the sole preserve of effected citizens, and the sinister (or even well-meaning) hand of foreign interests should not influence who we elect to govern us. This includes advertising (ie: a US company running ads in Canada during an election to support a sympathetic party).
It may be that Elections Canada has narrowed the definition of s. 331 in some decision or policy statement, but I am not aware of it. There appear to be no prosecutions under this section, so no helpful decisions in determining what it means. In fact, Elections Canada may determine it means one thing, but again the ultimate decision about interpretation and application belongs to the courts.
I think s. 331 may be reasonably read to be limited (although artificially) to prevent foreigners (as defined in the Act) from interacting directly with Canadian voters as front line workers or content creators. It may not prohibit Canadian political parties from contracting non-Canadian 3rd party services, like election technologies, provided no “foreigners” are in direct contact with Canadian voters or control the message. It is a very fine distinction.
On the plain meaning of s. 331, it appears contrary to the Elections Act to hire or accept volunteer non-citizens to work for a candidate if their role is to “in any way induce” electors to “vote or refrain from voting or vote or refrain from voting for a particular candidate”.
The Brock University students posted the photo of US citizen and President of Front Porch Strategies apparently working the phones in the Fantino election campaign. Front Porch also tweeted that they were “knocking doors for MP Rick Dykstra”, presumably directly interacting with Canadian voters and encouraging them to vote for their candidate.
What are the penalties for violating s. 331 of the Canada Elections Act? Section 495(3) states that "Every person who willfully contravenes section 331 (inducement by foreigners) is guilty of an offence." With regard to penalty, section 500(3) says “Every person who is guilty of an offence under any of subsections 484(2), 486(2), 495(3) and 497(2) is liable on summary conviction to a fine of not more than $2,000 or to imprisonment for a term of not more than six months, or to both.”
Section 495(3) makes the penalty apply to any person who “willfully contravenes section 331”, so it probably would not be just the “foreigner”, but also the people who allowed, hired or placed the foreigner in a position to “induce” electors to vote for their candidate, including the campaign manager, candidate or any other person in authority who knew they had a prohibited person working on the campaign.
As I cautioned, I am not aware of any interpretations, precedents or prosecutions under this section, and am curious to know what if any action Elections Canada may be prepared to take. CBC House of Commons uber-reporter Kady O'Malley is currently asking Elections Canada for their view on the section. So far Elections Canada has said that there have been no prosecutions under this section.
Regardless, there are valid policy concerns involved in ensuring that Canadian elections are conducted in Canada by Canadians when it comes to directly “inducing” voters to support or reject any candidate. Elections should not be subject to the influences of a foreign satellite economy or policy, or the party that can hire the most cross-border muscle to work on their behalf.
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Here's the promised update from CBC's Kady O'Malley. The answer? A resounding maybe...
"Did a pair of American political tourists run afoul of Canadian election law by campaigning for Conservative MPs in #elxn41?" - Inside Politics http://bit.ly/IyJ5i2
