Wonks and War Rooms

Season 7 Episode 6 - Canadian Election Laws with Mike Pal

• Elizabeth Dubois • Season 7 • Episode 6

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In this episode, Elizabeth talks to Mike Pal, a law professor at the University of Ottawa, about election laws in Canada. Elizabeth and Mike discuss the laws and institutions that govern elections in Canada, including the Canada Elections Act and Elections Canada.   They discuss threats to election integrity and security posed by new technologies in an age of democratic decline. Elizabeth and Mike also delve into the threat of foreign interference, voter privacy in big data elections, and a changing media environment prone to misinformation and disinformation. They close out by talking about artificial intelligence (AI), specifically its potential to transform our electoral landscape and how we should best prepare to ensure our laws and institutions continue to bolster public trust in our democracy. 


Additional Resources

Host: Elizabeth Dubois
Research Lead: Michelle Rodrigues
Transcript: Michelle Rodrigues 
Audio Editing: Ayman Naciri
Translation: Els Thant & Helena Legault
Publishing and Promotion: Helena Legault & Michelle Bartleman 
Producer: Michelle Hennessey

Check out www.polcommtech.ca for annotated transcripts of this episode in English and French.

Elizabeth Dubois: [00:00:06] Welcome to Wonks and War Rooms, where political communication theory meets on the ground strategy. I'm your host, Elizabeth Dubois. I'm an Associate Professor and University Research Chair in Politics, Communication and Technology at the University of Ottawa. My pronouns are she/her, and today we're talking about election laws in Canada and all of the potential threats and concerns and what we do about them with Mike Pal. Mike, can you introduce yourself, please?


Mike Pal: [00:00:30] Thanks for having me, [I’m] Mike Pal. I'm a law professor at the University of Ottawa. I work on democracy and constitutional law, and especially these days, election law things like campaign finance, voting rights, disinformation and how law structures how elections and democracy operates.


Elizabeth Dubois: [00:00:51] Amazing. Just a few little, you know, topical things that you focus on. We're going to have a lot to talk about today. Usually I start episodes out with an academic definition. We're not going to do that today. Instead, what I'd like is to sketch out what we mean when we say election law because there are specific election laws. And then there's the laws that apply in elections. And my understanding is that there's also a whole bunch of differences in terms of laws and regulations and guidelines and who's in charge. Can you help us understand what are the basic things we mean when we're saying election laws?


Mike Pal: [00:01:33] In Canada, it's relatively straightforward. We've got the Canada Elections Act. For federal elections, it's not the complete code that tells us everything, but it tells us a lot. There's other kinds of statutes that are out there if we're drawing electoral boundaries, which is something that just happened. There's the Electoral Boundaries Readjustment Act. We've got Elections Canada. We've got the Commissioner of Canada Elections and all these different institutions. The provinces and territories have their own laws. And then the Canadian Constitution has a lot to say. [The] Charter of Rights [and Freedoms] says every citizen has the right to vote. Everyone has freedom of expression, including freedom of political expression. And there's lots we can say about that. There's a whole host of constitutional rules, actual statutes, institutions. 


Mike Pal: [00:02:27] The field I work in [is] election law or law of democracy. Why this all matters is because it shapes how we exercise our political rights. And these rules and laws might change who actually wins elections, so it changes the outcome. And so this kind of field exists. Not to take too long of a detour in history, but basically the Bush v Gore [Consult: Bush v. Gore, 531 U.S. 98 (2000)] disputed election in the United States, [was] where who the leader of the United States depend[ed] on what the rules on counting ballots [were] in counties in Florida. That creates a whole academic movement in [the] US but other countries [as well] to study election laws and what their impacts are and what better ways [are] to design them. What do we do if we have bad election laws? What [is] the role of the courts and all that?


Elizabeth Dubois: [00:03:13] And so there's a lot of moving parts, but then there's these core components. And as you've described, there's this whole study around it right now and, honestly, for the past five to ten years at this point, there's also been a lot of conversation around the threats to election integrity and election security, particularly when we think about the role of technology [to learn more about threats to election integrity and security in Canada, [consult: Election Integrity and Security].


Elizabeth Dubois: [00:03:39] So next step, let's map out what we mean when we're talking about the potential threats to elections and how election laws might then be updated or changed. What are the key threats that you identify at this point?


Mike Pal: [00:03:57] The first thing I would say is sort of big picture. We are in a moment of democratic decline. So the number of democracies around the world has gone down. The quality of democracy, even in long standing democracies, has decreased. Like the United States, for example. So I start from the point of view that even though Canada is doing pretty well comparatively, democracy is very fragile, and we do have to take the threats very seriously, even if we are in a better position than some of our friends and neighbours around the world.


Mike Pal: [00:04:35] So, big threats. Technology is one [to learn more about how technology threatens Canadian democracy, consult: Cyber threats to Canada’s democratic process (PDF)[3.4MB]]. Obviously something you're an expert in. It used to be [that] we talked about social media platforms. That was the new technology. And online politics. And how that changed how politics is practiced. But also opportunities to undermine electoral integrity. And what advertisements are being run on Facebook. What foreign governments are putting on social media platforms, in terms of misinformation and disinformation.


Mike Pal: [00:05:06] Now, obviously, AI is one of the really big threats or challenges [Learn more about how AI threatens Canadian democracy, consult: Defending Canada: The battle against AI-driven disinformation]. But, new things [are] defining how everything operates, including democracy and elections. We've got a Foreign Interference Commission going on now. So foreign interference is one other threat. Foreign interference happening online has preoccupied us for a few years now, at least since 2016. But old-fashioned intimidation and those kinds of things, there's evidence about that in front of the [Foreign Interference] Commission [to learn more consult the Foreign Interference Commission’s Initial Report: Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions (PDF)[2.4 MB]]. So foreign interference of older versions and newer versions.


Mike Pal: [00:05:45] I mentioned democratic decline earlier. One of the things people have identified around the world is how does democracy get undermined? Governments that don't believe in democracy pass laws to make it harder for people to vote, harder to hold the government to account, harder for election commissions to operate in a non-partisan and independent manner.


Mike Pal: [00:06:10] So, we've got technology. We've got foreign interference. And then we've got this kind of way of undermining the integrity of elections and the meaningfulness of participation.


Elizabeth Dubois: [00:06:20] And those things also start to intertwine and impact one another. You mentioned the Foreign Interference Commission or Inquiry rather. And shout out to [an]other episode in this season, we're talking about foreign interference at the nomination level [For additional context on foreign interference on the nomination level, consult: Season 7 Episode 4 - Foreign Interference at the Nomination Level with Conner Coles].That's a really good example, you see technology involved there, but also approaches that aren't necessarily using the latest AI tools to get people to vote a particular way or not.


Elizabeth Dubois: [00:06:52] We've talked a little bit about how we get a sense of what's even happening here. I want to take a moment to say we're going to say threats a whole bunch because that's the language that gets used right now. And sometimes it is [a] "threat" in [a] kind of scary way. But sometimes it also just means going to challenge what our existing laws look like. And so thinking about what [sorts of] loopholes [there] are is a much softer way of saying essentially the same thing. So just a little shout out to [we] don't always need to be terrified. Sometimes, the change is just an update.


Mike Pal: [00:07:29] And there's always change. It used to be that radio advertisements were the new thing and then television advertisements. And we had to update the [Canada] Elections Act for that. Now we take it for granted. Now we regulate social media platforms, which we didn't do before [to learn more about digital ad registries on social media and online platforms in Canada, consult: Registry Requirements for Political Ads on Online Platforms]. So the next thing will be AI as well. So it's always this process of updating, as you say, closing loopholes. That's the right way to put it, with the kind of underlying values in mind that drive how we try to regulate elections, to make them free and fair.


Elizabeth Dubois: [00:07:56] So let's talk about that a little bit. One of the things with laws is changing them goes pretty slowly, which you know, probably it should. We don't really want our laws to be so quickly changeable, particularly when you're thinking about the potential partisan power when a new government comes in. How do we balance the speed at which technology changes and the speed at which campaigns are going to adapt their strategies with the speed at which laws can actually be adapted?


Mike Pal: [00:08:28] That's a great question. So law moves slowly in terms of passing it. But sometimes if you do something that's too precise, what value does it have when technology changes, right? You're trying to regulate Facebook and all of a sudden there's some new thing. So what that suggests is it needs to be agile enough and broad enough and flexible enough to still work going forward.


Mike Pal: [00:08:53] The biggest hammer in the toolkit is essentially criminalizing something, prohibiting some behaviour. And I'd say [the] Parliament [of Canada] has done some of that recently to try to deal with threats. It's illegal to impersonate the Chief Electoral Officer now. It's illegal to impersonate a candidate. It's illegal to hack into a computer to try and interfere with the integrity of an election [For more information on Canada’s laws on illegal and corrupt practices, consult: section 502 of the Canada Elections Act]. So there's things that [the] Parliament [of Canada] has done to try to update very specific things.


Mike Pal: [00:09:30] And then there's the more general laws around trying to keep the system clean, which helps deal with these new threats as they evolve. So that's often rules around third parties or interest groups registering so we know who they are; disclosure requirements of all kinds; spending limits and those kinds of things that aren't super hyper-specific, but that still regulate what political entities of all different kinds do. They all spend money. They all have people who direct them. Transparency rules let us know who's doing what. Spending limits try to level the playing field. So those are general types of rules that we have that are forward looking rather than being so precise that they could be outdated really quickly [to learn more about Canada’s laws on election interference and security, consult: the Canada Elections Act]. 


Elizabeth Dubois: [00:10:12] And so then those kinds of rules, whether you've spent the money on television advertisements versus Facebook advertisements versus whatever other kinds of advertisements are going to be most popular moving forward, it's still spending on advertisement. And you don't have to be as concerned with the technology, because that law about spending is superseding the medium being used.


Mike Pal: [00:10:36] Right. And so to take a particular example that's hopefully relevant to your students because it's about data. You can make financial, monetary contributions to a political party or a candidate, but you could make non-monetary contributions. I could give my services as a lawyer, or you as a consultant. But there's some monetary value attached to that, right?


Mike Pal: [00:10:58] So there are true volunteers, but there are [also] people, accountants, consultants, professionals of various kinds, and there's a monetary value. So that gets given a money value when Elections Canada does a count. It counts as a contribution. And you're subject to all the contribution limits. An organization giving its list, giving data to a nomination contestant or a party, that has a monetary value. And it's because we have these general rules about making contributions, even if they're not in cash, but giving some service that has a value that now gets applied in new ways [ Learn more about Canada’s limits on election contributions, consult: Elections Canada: Limits on Contributions – 2024]. No one 4 years ago was talking about giving membership lists or data, and what the monetary value of that was or is. Now we do; that counts as a contribution. So these general contribution limit rules end up playing a role in regulating big data politics.


Elizabeth Dubois: [00:11:46] That's a really helpful example of how, as you said, four years ago nobody was thinking of that. It was happening. There probably were examples, but now it's not that we need something brand new for this. We can just count it and be explicit that it is included and see how norms around costs of that develop in terms of counting your in-kind.


Elizabeth Dubois: [00:12:11] What about the privacy concerns related to that? Because, okay, are you counting the contributions? Sure. But also a whole bunch of personal data. I gave it to a company, and then they decide to give it to a political party. That feels uncomfortable to me.


Mike Pal: [00:12:27] That is a very big issue these days. There are generally accepted privacy law principles that apply almost to every entity in Canadian society. That's an exaggeration, but you get my point, right? You do something with IBM [International Business Machines]; you do something with a private sector company; you do something with the University of Ottawa. There are privacy rules of various kinds, but political parties federally are an exception [Learn more about why political parties are exempt from federal privacy laws, consult: Guidance for federal political parties on protecting personal information]. They don't fall under the public sector privacy laws or the private sector privacy laws. And it used to be [that] there were almost no rules that applied.


Mike Pal: [00:13:02] Now parties have to have a privacy policy and it's got to cover certain topics. So they have to say what their policy is on selling the data they collect from you. But that's a very unsatisfying end point because parties have databases about voters. They make it their business to know as much as they can about every current and potential voter because that's how they try to win elections. That's how they try to raise money. That's how they try to communicate in a more effective way [and] use their resources efficiently. So, they have a ton of data about us.


Mike Pal: [00:13:38] But the privacy protections that apply are not non-existent, but pretty minimal compared to any other sophisticated public or private sector entities. So we should, as Canadians, have pretty serious concerns about how well protected the data that we give to parties is. And sometimes they come and knock on your door in a classic scenario. How many people live here? How are you planning on voting? How many kids are in the household, if any?


Mike Pal: [00:14:05] But they're also drawing inferences from our consumer behaviour. Do you shop at Whole Foods or Costco? Do you get coffee at Tim Hortons or Second Cup or Starbucks? And so they're drawing inferences from all this commercially available data as well. The commercial entities have privacy laws that apply. So there's some on that end if the parties are trying to get data that way, but a lot of the information they collect is not done subject to meaningful federal privacy restrictions. And so that is very concerning to me, and I think should be to your listeners.


Elizabeth Dubois: [00:14:41] Absolutely. And you think about political engagement platforms. These are software that are designed specifically for campaigns to be able to collect lots of data and then to combine it in meaningful ways. You talk about consumer data that they pull in. There's the stuff they get door to door. There's if you've ever donated, if you've voted in the past, if you've linked your social media to them in some way at any point in time. They build out these huge databases profiling potential voters and these platforms, the political engagement platforms, they are also now integrating augmented analytics. So basically using an AI machine learning supported approach to analyzing all that data.


Elizabeth Dubois: [00:15:29] And so not only is your data getting used by these parties and you maybe didn't consent to that, but it's being used in ways that are very black boxy. We don't actually understand necessarily how the inferences are being made for things like deciding whether or not your door is worth knocking on on Election Day to try and get you to the polls. And that starts to have really meaningful implications on who's being invited into democracy and who's being happily ignored.


Mike Pal: [00:16:01] Right. We don't have mandatory voting. So if parties think you're not going to vote for them, what's their incentive to try to get you to turn out? Also the flip side is maybe they have incentives to suppress your vote. And we've had various scandals around voter suppression in Canada over the last 15 years [For an example of a voter suppression controversy in Canada, consult: Key facts in Canada’s robocalls controversy]. In the US, that's an ongoing thing. So there's a lot of potential consequences for the way the data is used, privacy, but then also what it means for how democracy operates in general?


Elizabeth Dubois: [00:16:31] Completely. There's lots more we could dig into there. But I actually want to change lanes just slightly.


Elizabeth Dubois: [00:16:38] So one of the things that I'm really interested in is how social media influencers and other online personalities are becoming important political actors. [We] did a whole season dedicated to influencers last season on the podcast [Consult: Season 6 of the Wonks and War Rooms podcast]. One of the things that has come up has been that these influencers are not necessarily paid. They're definitely often not paid through the normal platforms' advertising system[s], like you're not necessarily placing a Facebook advertisement as you're getting your influencer to share whatever view. They're being invited to the Democratic National Convention in the US and given more access than journalists ever did [to learn more about influencers attendance at the Democratic National Convention in 2024, consult NPR’s article: For the first time, the DNC welcomes influencers to the stage]. That access is not really considered payment. The coverage that they do isn't necessarily considered an in-kind donation.


Elizabeth Dubois: [00:17:34] Basically, tracking the money gets really tricky. So there's the complexities around how we deal with spending there. But then there's also a question about how we deal with the idea of coordination. So I know that in a lot of democratic countries or nations, we've got the idea of, yes, we can use spending as a limiter, but there's also limits on how much coordination you can do and when that needs to be disclosed and that kind of thing. So now I've just laid out a picture, not actually asked a question. Initial thoughts on that? What does that look like? How do we deal with new actors that are changing the way we even think about how campaigns might interact with third parties?


Mike Pal: [00:18:23] It's such a fantastic example, and I learned mainly from your work and listen[ed] to your podcast on influencers. On the narrow point, when money changes hands, that looks to be like you're paying for not advertising space, but some kind of communication service. So that looks like something the [Canada Elections] Act should count as spending basically. And then it has to be accounted for in various ways.


Mike Pal: [00:18:48] Now, if there isn't money changing hands, it's more informal. Or it's about influence. It's like inviting a celebrity to a meeting, getting a photo op. So it's sort of an evolution of the way politics happens. And maybe it just falls outside of this legal framework. And that's okay. It depends on if there's money changing hands or not, is the main question for me. 


Mike Pal: [00:19:18] What it suggests, though, is campaign tactics are evolving all the time. And the parties and interest groups, interest groups we call third parties who do advertising, they're learning from commercial advertisers and commercial actors, but they're also learning from entertainment and celebrities and anyone who has and keeps an audience and tries to communicate with them. So to me, it's part of this broader trend of political actors following other parts of society that are very sophisticated in how they try to engage us and keep our attention and have people spend money or follow or like or retweet or whatever the payoff actually is.


Elizabeth Dubois: [00:20:05] Bringing it back to the data idea, one thing that influencers and content creators more broadly are really known for is knowing their audience. It's not just that they know how to get a message out to their audience. They know a lot about who that audience is. They have all kinds of demographic information. They've got all kinds of insights about what their particular set of followers cares about and likes [Learn more about Influencers and their audiences relationship in Season 6 Episode 7 of Wonks and War Rooms: Parasocial Relationships with T.X. Watson]. And so it's like this deep dive into the data that they do that people who pair with them or campaigns that pair with them get a benefit from.


Mike Pal: [00:20:39] Right. And the data they have is valuable too. That's part of what you can access if an influencer is on your side.


Elizabeth Dubois: [00:20:46] And then you get that access that's not necessarily tracked in any way, particularly if it's not like they've given you access or given the whole database to you. You've gained access to it. Is that something that we have a money equivalent for?


Mike Pal: [00:21:06] It could be. It's like transferring a list of information about a list of individuals that your organization has. So that could be something that has a financial value. Absolutely.


Elizabeth Dubois: [00:21:18] It's interesting. I think it's going to continue to evolve. You mentioned they might look like celebrities. They might look, in this case, like data brokers. They might look like journalists, who we all also treat differently from a celebrity or a citizen or a campaigner. So I'm sure there's more to come.


Mike Pal: [00:21:36] You're watching an influencer's video stream and all of a sudden they've got a hat with the branded logo of a political party on it. And that's something new in Canadian politics. But if commercial entities are doing it, parties and interest groups are also using it for political communication.


Elizabeth Dubois: [00:21:57] Totally. So one of the things this makes me think about is, where are the lines in terms of, okay, you have a hat of a party or you wear [a] t-shirt or you wear a particular colour to signal support for a party. That seems like any citizen is allowed to do that. You choose to do that. Now, if you've been paid to do that, different scenario, [we] need some disclosure there. What about things like, if you've been fed talking points? Or particular communication lines have been provided? How does that play out?


Mike Pal: [00:22:34] To go back to your point on coordination. Federally, the legislation talks more about collusion, which is also kind of a loaded term. 


Elizabeth Dubois: [00:22:48] Collusion seems scarier than coordination.


Mike Pal: [00:22:50] Collusion sounds scarier, for sure. Coordination comes up a lot. That's part of the Ontario legislation [Consult: Bill 195, Banning Collusion in Electoral Advertising Act, 2011]. Part of the US Federal Election Commission. [They] have a lot of rules on coordination. Federally, collusion it's really if you've got a political party over here and a third party interest group over there, they can't be colluding to try to evade their spending limits. So the political party can't tell the third party, here's $100,000, go advertise on this radio station at this time because those are the voters we want to target, and use this message. That is collusion. It's essentially an advertisement the [political] party should have paid for, that the third party is doing for them. So that is prohibited. You can't do that. Third parties can't collude and third parties can't collude with political parties.


Mike Pal: [00:23:37] Coordination is a little more subtle because it might be some version of that scenario I just gave you. You know who we'd really like to target and would help our campaign, if you targeted parents with more than three children who live in this region. And if you could communicate with them for us, that would be great. That's important.


Mike Pal: [00:23:55] So the US, federally, has some very strict rules on coordination. [You] can't share information about campaign tactics and who you would like to target with your political communications. Some people who work on a political campaign can't then go to the interest group that then runs advertisements. Because how can you control the information that's in your brain from the campaign? So there are rules like that around coordination. Sometimes using the same vendor, like who is designing the ad for you. There can be rules separating what the party and the interest group can do to try to stop that kind of coordination. So it's a little less specific federally than it is in Canada than in some other jurisdictions.


Mike Pal: [00:24:42] Collusion, as you say, is a little bit of a scarier, more serious sounding term. But once you start thinking about it, the only thing that's banned, prohibited is collusion. You've got to be pretty unsophisticated to write an email titled "collusion," saying please do the following 12 things. So these indirect rules around what vendors are you using; who's running campaigns and moving between campaigns; what you can post publicly on your website; what we'd like to see some other entity do. Those are the more subtle rules to stop coordination that undermines the integrity of the other rules, like spending limits and contribution.


Elizabeth Dubois: [00:25:19] That makes sense. And then the follow on from that is, as new actors emerge as important political actors. As influencers, I would argue, have done in the last cycle or two. And as we might see evolve because the makeup of who's involved in campaigns shifts over time. As that kind of changes, maybe those smaller rules underneath aren't quite adapted yet to the context. And so that's why we see grey zone things happening.


Mike Pal: [00:25:50] Absolutely. And so sometimes the rule's broad enough and they can fit within that. But if the law's been there for a long time, the people who have to enforce it are much more comfortable if they've got a new signal from [the Canadian] Parliament that, yes, influencers are included. And so sometimes, I sit on the outside and think you can apply the law that exists now and that's probably good enough. But it's often better to have Parliament actually signal to us that it's trying to capture the full range of what's actually happening now as campaigning evolves.


Elizabeth Dubois: [00:26:20] And so Parliament can signal that by explicitly updating law, like we had the Elections Modernization Act a few years back to close some loopholes and make some new adjustments. Is that what you mean when you say Parliament signaling?


Mike Pal: [00:26:36] Exactly. [The] Elections Modernization Act, one of the examples I gave earlier, makes it illegal to impersonate [the] Chief Electoral Officer or a candidate. That's pretty broad. My reading is if you use AI to impersonate one of the people you can't impersonate, that's covered by the existing law. Now, maybe we as a society prefer if Parliament says explicitly, here are the rules around AI and elections because they're democratically elected and that's how we make decisions. But the law is probably broad enough now to deal with a lot of the problems that AI, narrowly in terms of impersonation, brings up.


Elizabeth Dubois: [00:27:16] That makes me think, too, about the role of the Chief Electoral Officer and some non-Parliamentary entities that also have a bit of a role in saying, well, we can give you guidelines on how to interpret these things. So the one I'm thinking about is when the ad registry got introduced, there was a guidance, a note that came out from the C[hief] E[lectoral] O[fficer] of Elections Canada saying, even if it's not through the official Meta advertising system, if it's paid for and put on social media as an advertisement, it still counts [to learn more about the guidelines on electoral advertisements consult: Partisan and Election Advertising on the Internet (PDF)[193 KB]]. You still have to include that. Just in case there's any lack of clarity here. It's not just their official system. And so that didn't come directly from Parliament, but was very much in line with what Parliament had come forward with.


Mike Pal: [00:28:07] Right. Elections Canada performs really well compared to [other] election commissions around the world. It's non-partisan, it's independent, and it has a lot of discretion to administer and interpret the legislation, including things around the advertising registry. And so they meet with the political parties. There's a committee where Elections Canada meets with political parties [Advisory Committee of Political Parties]. Parties can ask for interpretation notes explaining what provisions mean. Elections Canada publishes guidelines and manuals. If you're running a campaign, what do you need to know? And so they do all that to inform people what the [Canada Elections] Act says and what their view is where there's some room for interpretation.


Mike Pal: [00:28:57] We've got a separate entity, the Commissioner [of Canada Elections]. I know you wanted to talk about the different groups. [The] Commissioner [of Canada Elections] enforces the [Canada Elections] Act, can lay charges that are then prosecuted by the Director of Public Prosecutions. We've got a host of different non-partisan, independent entities that are really foundational to making the system work.


Elizabeth Dubois: [00:29:15] You mentioned Elections Canada is non-partisan and is actually seen as non-partisan, which I think is an important component; the Commissioner [of Canada Elections] is non-partisan and is seen as non-partisan. We know from other jurisdictions that sometimes these non-partisan bodies either actively aren't non-partisan or aren't seen that way. And that brings up a whole host of problems in terms of the integrity of an election. Because if you can't trust the system, how do you trust the results of the system?


Mike Pal: [00:29:45] Yeah. Elections Canada, as I say, is held in high esteem around the world, among the group of people who pay attention to election administration. We're a little vulnerable, though, to go back to our discussion from earlier on democratic decline.


Mike Pal: [00:29:59] If we had a new democracy that was being created today, or you were changing your constitution in some country today, there is no way you would put your election commission created and empowered by a regular statute that any political majority in Parliament can change at any time that it wants. Almost every country, new country, new constitution or significant amendment puts it in the constitution, which doesn't make it impossible to manipulate. Lots of countries around the world in this moment of decline have tried to stack election commissions with partisans, even if they were created by the constitution. But it makes it harder to change. The procedures are more rigorous. They're harder to meet, to be able to actually change the text of the constitution that creates the election commission.


Mike Pal: [00:30:47] So that's one of the vulnerabilities we have in Canada. [If] Parliament wants to get rid of the Chief Electoral Officer, get rid of the powers of Elections Canada set out in the legislation, they can do that by a 50% plus one [of Members of Parliament] and then the same in the Senate. And so that's a little bit worrisome.


Elizabeth Dubois: [00:31:07] It's a little scary.


Mike Pal: [00:31:08] It is a little bit scary. I think we've been lucky so far, partly because the professionalism and performance of Elections Canada hasn't given people reason to doubt it significantly. But we're in this moment, right. [I was] teaching my democracy seminar today about the “Big Lie”, this idea that claiming without justification or without evidence that the electoral system is rigged on one side or the other. So it's not just disinformation in general, lying about where the other candidate was born or whether they were convicted of a crime or something like that. It's deliberate misinformation, deliberately spread[ing] incorrect information about whether the process of voting, counting the votes, certifying the result is fair or not.


Mike Pal: [00:31:58] That is happening in the United States. That is happening around the world. We have some evidence of that happening in Canada [Consult: The Big Lie: Is Canada’s Election 44 at Risk from Foreign Interference?]. And so I do worry about “Big Lie” type rhetoric being used to try to undermine the perceived integrity of the electoral process, even in the absence of fraud or rigging of the system.


Elizabeth Dubois: [00:32:20] Absolutely. We hear, “oh, the election was stolen and then evidence”, which is not actually founded as evidence, but it's spread online often as if it were evidence of how stolen it was. [That] starts to make people question, even if it doesn't make people believe for sure that [it] happened. It makes them less certain about the electoral system [and] potentially makes them less likely to vote. Definitely less likely to know who or what to trust. If we pair that with okay, well, we also have an electoral agency that could be vulnerable if there's political will to change it and impact it, that's a risky combo.


Mike Pal: [00:33:06] It's a risky combo. And we have really robust protection for freedom of political expression in Canada because of the Charter of Rights [and Freedoms]. And that's a good thing.


Elizabeth Dubois: [00:33:17] Yeah, we want that.


Mike Pal: [00:33:17] We want that. It does make this problem of disinformation harder to deal with. And so partly we might disagree what disinformation is, in a particular example. Reasonable people could disagree. People of different political views might disagree. But even if you're lying about the integrity of the electoral process, and we can agree it's a lie, we still really want to make sure there is space for robust debate.


Mike Pal: [00:33:46] Some jurisdictions in Canada have dipped their toes in the water a little bit. British Columbia has put in place some prohibitions in their legislation prohibiting essentially versions of the “Big Lie”, lying about the integrity of the process. So that's one way of trying to deal with disinformation, the big lie aspect of disinformation. Knowing that we can't and shouldn't, under the Charter [of Rights and Freedoms], simply try to ban disinformation, in general, because that is contrary to our tradition of free political expression. But it still gives us a wicked policy problem of what to do if people don't trust institutions and are open to believing disinformation that is designed to further undermine trust and maybe harm political participation.


Elizabeth Dubois: [00:34:36] And then we can think about, implied in this conversation so far, the role that partisan competition might have within Canada. But then we add the layer of foreign interference and we know, for example, that there are multiple foreign nations that are very much interested in undermining democracies in the US, in Canada and elsewhere. We know that there are countries that are actively trying to spread disinformation that convinces people that they should not trust democracy. And that's a real problem.


Mike Pal: [00:35:13] Right. And the communications platforms we use are very flat online. So people can be reached from anywhere. It's so different, as I try to tell my students who are younger than me, than the very managed broadcasting system where people got the vast amount of their information about politics from CBC and a small number of television broadcasters. That's where the vast majority of people got the vast majority of their information until quite recently. And so that's changed and it's more open. There's lots of benefits to that. But it means foreign entities, state actors, [and] non-state actors have much more direct access to Canadians when they're thinking about who to vote for or what they believe or what policies they want.


Mike Pal: [00:36:03] The distance between some made up political story being invented somewhere else around the world, and then a bunch of Canadians consuming that information, and a number of them believing it is very short these days. [It] doesn't take much time for public opinion to shift on the basis of new and often incorrect information. So that's one of the challenges about online politics. And the foreign interference angle just exacerbates it.


Elizabeth Dubois: [00:36:33] Absolutely. We could talk for so much longer, but we are coming to time. So I want to end with the impossible question of what's next? What do we do? Rather than ask you to actually solve all of our election law problems and deal with every single threat, maybe you could give us a sense of what you think the current or next set of key issues are?


Mike Pal: [00:37:03] We should probably say a little more about AI and elections. I know that everybody's thinking about that transforming society in all sorts of different ways, including elections, including how parties operate, including the vendors and the software and all of that [Learn more about AI and elections in Elizabeth Dubois and Michelle Bartleman’s 2024 report: The use of AI in Canadian Politics].


Mike Pal: [00:37:18] We're sort of in that moment. Before we had this kind of decade long debate about social media and social media platforms, or at the time 2015/2016, we didn't know what was happening on the platforms. But we didn't know that we didn't know, especially in those early days. And so as academics and the media, we were always trying to play catch up to what was happening.


Mike Pal: [00:37:43] Now with AI, we know it's transforming things. We know it's still in the relatively early stages, but I think most people [who] spend a lot of time studying elections and democracy know we don't know enough to know what's actually happening. We don't know how it's being used now, and we certainly don't know the implications, like when the next US election comes along four years and a month from now. It's safe to assume things will transform quite dramatically.


Mike Pal: [00:38:12] Not saying anything new, that AI is a big challenge on the horizon, but I think being humble about it and knowing we are going to have to react quite a bit and adapt laws in response or interpret existing ones in new ways, that is something that at least we know we're going to have to do. That to me is the big challenge. We have to fill in the content, but we know we're going to have to do it. Whereas I think it was a little more mysterious, at least putting ourselves back in [the] 2014/2015 mindset, what would come of online politics and social media platforms and foreign interference.


Elizabeth Dubois: [00:38:49] I agree. Especially the social media impacts. Back at that point, we were just coming off of this seven or eight years of maybe these tools are going to be democratizing and maybe they're going to make everybody more able to participate - this like utopian view. And so it feels like right now we're a little bit more level headed with technologies. [They] can get used for a lot of really pro-democratic, really helpful things. But they can also be used in ways that are potentially harmful. And we need to understand the helpful and the harmful components as we're thinking about how to deal with them.


Mike Pal: [00:39:30] Right. Techno utopianism or optimism in the election space doesn't persuade. [It] doesn't mean we should reject the technologies. But we've got to look skeptically at the claims about what it can do and then think, do we want it to do the things that people are making it do?


Elizabeth Dubois: [00:39:50] Absolutely. Thank you so much. This has been a great conversation. We will have a whole bunch of links to different resources that we mentioned in the show notes and in our annotated transcripts. We make them in French and English. They're available at polcommtech.ca. So there'll be lots more for people who are listening and want to learn more about this to dig into. Thank you.


Mike Pal: [00:40:11] Thanks for having me. It's been great. Always fun to chat about elections.


Elizabeth Dubois: [00:40:15] I also wanted to mention that I'm recording today from the traditional and unceded territory of the Algonquin people. I want to acknowledge the Algonquin people and their long standing relationship with this land that remains unceded. Thanks.


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