Election smear websites: What the law says

It's been a swirling question since the Blackridge Strategy controversy broke: Did the smear campaign websites now linked to the company, and that targeted two women candidates in the last election, break any laws?

What legislation applies?

Election rules in Ontario are covered by the Municipal Elections Act (MEA). 

In play here are rules regarding third-party advertising during elections. 

These are defined as election ads paid for by any group or person who is not a registered candidate.

Prior to 2018, third-party advertising was not regulated for municipal and school board elections. But in a move to raise transparency, rules were added that require all third parties to register with the municipal clerk's office. The underlying principle is that it's important for the public to see who paid for ads that trumpet, or target, a candidate. 

The registration question 

Only three entities registered as third parties in October's municipal election in London. They are listed here on the city's election website and neither Blackridge Strategy, nor its co-owner Amir Farahi, are listed. Blackridge's other co-owner Jake Skinner also didn't register. but as a candidate for school board trustee, he wouldn't have been allowed to.

Next, the question becomes: What penalties — if any — would apply to groups that created a third-party campaign advertisement as defined in the MEA, but didn't register as a third party. 

Section 88.4 of the Municipal Elections Act says:

No individual, corporation or trade union shall incur expenses for a third party advertisement that appears during the restricted period for third party advertisements unless the individual, corporation or trade union is a registered third party under section 88.6 when the expenses are incurred and when the advertisement appears. 2016, c. 15, s. 48. 

Section 94.1 of the Municipal Elections Act says an individual who breaks the rules could be liable for a fine of up to $25,000 and a prison term of up to six months. For corporations or trade unions, the fine for not registering could be up to $50,000. 

And who enforces? 

The city's compliance audit committee, guided by the city clerk, investigates complaints regarding campaign financing, but its jurisdiction only extends to candidates and third parties registered with the clerk's office. 

At the June 11 council meeting and with the Blackridge controversy making daily headlines, Coun. Stephen Turner asked city staff what options are available to deal with groups that run election ads without registering as a third party. 

City Clerk Cathy Saunders responded that there's nothing in the Municipal Elections Act that gives the city authority to perform compliance audits for third party groups that are not registered.

Late Monday, CBC News learned that Londoner John Hassan has filed with the clerk's office a request for compliance audit of Van Meerbergen's campaign finances. Hassan said he's making the move in the hopes it will lead to a fulsome public airing of the role Blackridge played in the last election. 

'That seems odd to me' 

Saunders said that city staff investigated the smear websites when they appeared and took down election signs that had similar wording to those websites. The websites were taken down shortly after they appeared.

That's the extent of what the clerk's office can do under the MEA, she said.

Turner was clearly perplexed.

"That seems odd to me," he said in council chambers. "Where something is registered, they are subject to some oversight, where something is unregistered and explicitly prohibited by the act, they are not subject to any oversight.

"If the compliance audit committee can only deal with registered candidates, and registered third parities, who oversees those who did not register?" Turner asked.

Turner then moved an emergent motion at the meeting. It directed the civic administration to "investigate and report back to the next meeting of the Corporate Services Committee with options for creating an independent panel to receive and review complaints associated with potential violations of the Municipal Elections Act." 

City lawyer weighs in

City solicitor Barry Card pointed to a section of the act (88.7) which gives the municipality the authority to remove signs and advertisements that aren't paid for by properly registered third parties. Beyond that though, there's nothing in the act that grants the municipality the power to do more, he said.

"That's all there is to it," Card said. "That action was taken, those signs were removed and the activity ceased. That exhausted what the municipality's power is." 

Card said if even there's a "power vacuum" in the rules, it doesn't mean the municipality has the ability to fill that vacuum by forming a new body to investigate. 

So, back to Turner's question: Who investigates third parties that don't register?

"It's the duty of police to investigate and to lay charges where they consider appropriate," said Card. "It's not the function of the council to do that."

With that, Turner withdrew his motion. 

What about the police? 

If it's police that would investigate, is this on their radar? 

CBC News asked London Police Service spokesperson Const. Sandasha Bough if anyone had asked police to probe the actions of Blackridge Strategies, Amir Farahi or Jake Skinner during last fall's election. 

Here's how Bough replied by email:

"Unless charges are laid — we are unable to confirm ongoing investigations."

Benoit Duchene, a lawyer specializing in municipal law and a partner with Gowling WLG in Ottawa, agrees the rules could be clearer and tighter. 

"All of this works in theory if everybody plays by the same rules, and not everybody plays by the same rules," he said. "Where the act says you have to register before doing any third party advertising, a lot of people don't."