Forget about Musk’s citizenship, enforce the Canada Elections Act

Whether Elon Musk is a lawfully naturalized American or a “parasitic illegal immigrant” may be up for debate. That he is a Canadian citizen, however, is not.

Maye Musk was born in Regina, Saskatchewan. Thus, when her son, Elon, got his Canadian citizenship in 1988, he had the right to do so. And since Canada only revokes unlawfully obtained citizenships, Elon Musk is and should remain a Canadian citizen.  

Giving way to pressures asking for the revocation of Musk’s Canadian citizenship would set a dangerous precedent. After all, tearing apart his passport isn’t all that different from what President Trump is trying to do with his birthright citizenship order. In both cases, citizenship is treated as a privilege rather than an inalienable right.

Normalizing the idea that citizenship can be taken away from bad guys is a step down a slippery slope. Once you recognize that stripping people of their citizenship is part of a country’s arsenal of sanctions to punish bad behaviour, it becomes easier to weaponize it against opponents and minorities.  

That doesn’t mean the Canadian government should ignore the voice of the more than 370,000 people who signed the petition asking to revoke Musk’s citizenship. Despite its flaws, the petition sends an important message. It shows Canadians are concerned about his influence on their democracy and eager to do something about it.

Good news: protecting Canadian democracy is precisely what the Canada Elections Act is for.

One of the Act's great features is that it forbids undue influence from foreigners. Interestingly, the foreign influence offence applies to people who are both Canadian citizens and agents or mandataries of a foreign government. Given that Musk is in charge of the DOGE, an organization whose purpose is to implement the American president’s government efficiency agenda, he should be forbidden from engaging in undue influence.

But what does unduly influencing Canadians actually mean?

A good rule of thumb for gauging undue influence is whether or not money is involved. As long as no expense has been incurred, a foreigner can express opinions about Canadian elections. Spending money to promote or oppose a candidate, a party, or its leader, on the other hand, is generally off-limits.

Therefore, Musk can’t take a page from his American playbook to influence Canada’s election. He can’t set up sweepstakes to encourage Canadians to vote for Pierre Poilievre—the Conservative Party leader he’s endorsed. He can’t pay canvassers to knock on doors to promote Poilievre's bid. He can’t purchase advertising favouring the Conservatives, nor can he buy ads on topics strongly associated with them, such as the carbon tax.

That’s not really what Canadians are worried about, however. We have spending caps to prevent oligarchic capture of our elections, and save for enforcement issues, they are rather effective. The trickier question is whether Musk can do what he did for the Alternative for Germany (AfD), the far-right, populist, and anti-immigration party he recently put his weight behind.

This is a grey area.

However, one thing is certain: The speech Musk gave at the AfD campaign launch rally, his tweet saying that “Only the AfD can save Germany,” and his op-ed claiming that AfD is the “last spark of hope” for the country would all be considered legal under Canadian law. They all fall squarely within the exception provided for in Section 282.4 (3). This provision ensures that Canada doesn’t criminalize lawful speech that is protected by freedom of expression, such as former President Barack Obama endorsing Justin Trudeau in the 2019 and 2021 elections.

What about the massive boost Musk gave to AfD Leader Alice Weidel on X/Twitter? According to a study from the Atlantic Council and AlgorithmWatch, Musk’s use of his social media platform to support Weidel significantly increased overall engagement for her party. McGill’s Media Ecosystem Observatory found that something similar is happening with Canadian conservatives. Does amplifying politicians' tweets and hosting live online chats with them amount to undue influence if it were to occur during the next Canadian election?

Making the case that Musk hosting livestreams with politicians on social media constitutes undue influence is certainly possible. Section 330 of the CEA provides that intentionally influencing people to vote in a certain way by using a broadcasting station outside Canada is illegal. Given that the Canadian Broadcasting Act has recently been amended, its application to digital content is not entirely settled yet. That leaves some room to make a compelling case against Musk’s use of livestreams to amplify the voices of right-wing politicians in Canada.

Assimilating algorithmic amplification to undue influence, on the other hand, would take some creative lawyering and significant evidence-gathering efforts. This might be too much of an uphill battle, but that doesn’t mean Canadians are powerless. There is a more direct way to hinder Musk’s attempt to put his thumb on the scale. Users of X/Twitter frequently run into sponsored posts from influencers and lobby groups who promote right-wing ideas. Under the CEA, online platforms that sell this type of advertising during elections must set up a registry that journalists and researchers can use to ensure that political actors don’t engage in illegal advertising. X/Twitter no longer has one.

Failing to publish a registry is a strict liability offence; not having one is sufficient to be convicted. Platforms’ lawyers were concerned about the stringency of these provisions, and their lobbyists worked hard to get the government to water them down.

This is Musk’s Achilles heel.

As soon as the election is called, Canada could fine X—or even Musk himself—$2000 every time someone pays to share political content on the platform. And if Musk tries to fund any political activity or give a mic to right-wing politicians, the provisions against undue influence are ready to be enforced.

Of course, prosecuting Musk under the Canada Elections Act would not be as spectacular as ripping up his passport. But perhaps the best way to oppose a man who thrives on chaos, attention, and lawlessness was never to fight back with a lawless riposte anyway.