Canada’s New Elections Bill to Limit Third-Party Financing, Advertising and Disinformation

On March 20, 2024, the Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs tabled Bill C-65: An Act to amend the Canada Elections Act (Bill) in the House of Commons. The Bill’s proposed amendments to the Canada Elections Act (Act) will see the removal of barriers to voting, encourage voter participation, provide increased safeguards to protect personal information and implement measures to protect against foreign interference in Canada’s federal elections.

If passed, these measures will have significant implications for third-party financing, contributions, partisan and election advertising, and the processing of personal information by political parties.

The Bill reflects one of the commitments in the March 2022 Supply and Confidence Agreement between the governing Liberal Party of Canada and the New Democratic Party.

Key Legislative Amendments

Third Parties

To prevent foreign actors from influencing Canadian election outcomes through the use of foreign funding sources, the Bill proposes the following amendments to the Act:

• A third party will be prohibited from accepting crypto assets, money orders or payment products as contributions made for partisan activity, partisan advertising, election advertising or election survey purposes.
• A third party that receives a contribution in the form of a crypto asset, money order or prepaid card must within 30 days after becoming aware of the receipt of the contribution:
  • Return the contribution to the contributor
  • If it is impossible to return the contribution, destroy it unused, or
  • If it is impossible to return or destroy the contribution, convert it into money and pay the amount to the Chief Electoral Officer, who will then forward the amount to the Receiver General
• A third party will be prohibited from accepting anonymous contributions and may use contributions from Canadian individuals only if it is paying for regulated expenses. Where a Canadian individual has contributed more than C$200 to a third party for regulated expenses, the third party must include in the interim third-party-expenses return the following information:
  • The name of the individual and their address
  • The amount of each contribution
  • A list of the property or services that was contributed
  • The date that each contribution was made
• The registration threshold for third-party registration is increased from C$500 of aggregate expenses to C$1,500.

Expansion of Foreign Entities Captured by the Act

The proposed changes would significantly expand the definition of foreign entities that are subject to restrictions on their ability to exert influence. The Bill broadens the definition of a “foreign entity,” “foreign third party” and “foreigner” to include corporations where one of the “primary activities that it carries on” in Canada “consists of doing anything” to influence electors to vote or refrain from voting for a “potential candidate” or “eligible party.”

Previously, these definitions in the Act were more narrowly limited to businesses that did not have a place of business in Canada or those whose “only activity” was the preceding conduct in relation to candidates and registered parties. The effect of this change is to expand the scope of corporate entities captured by the Act’s undue influence safeguards and broaden the types of activities that fall within the Act’s third-party financing restrictions.

Protecting the Integrity of Canada’s Electoral Process

To combat foreign interference in Canadian elections, the federal government is proposing the following changes:

• Extending the prohibition on a foreign person or entity from unduly influencing an elector during the election period to vote or refrain from voting for a particular candidate or a registered political party to also apply to “potential candidates” and “eligible parties” at all times
• Expanding the prohibition on publishing misleading materials during the election period that falsely purport to be from the Chief Electoral Officer, a Returning Officer, a political party, a candidate or a prospective candidate to include “potential candidates,” “nomination” and “leadership contestants” at all times
• Prohibiting persons and entities from selling advertising space to foreigners wishing to conduct undue influence through the use of partisan advertising messages
• Addressing the use of artificial intelligence and deep-fake impersonation methods by amending offences to clarify that they apply regardless of the means or method used to commit the offence

Notably, it is unclear who would be considered a potential candidate, how that test would be made out from the legislation and at what step of the electoral process an individual would be a potential candidate.

Privacy Regime of Federal Political Parties

The Bill’s proposed amendments further clarify and confirm Parliament’s intent that one national, uniform and complete privacy regime applies to eligible parties and political parties respecting their collection, use, disclosure, retention and disposal of personal information. Further, the Chief Electoral Officer has exclusive jurisdiction to regulate the personal information practices of political parties. In support of that intent, the proposed amendments will require political parties to adopt a privacy policy with prescribed content. In particular, the policy must:

• Be publicly available in both official languages
• Include the types of personal information a party collects, retains, uses, discloses and disposes of and explain how the party collects, retains, uses, discloses and disposes of personal information (indicating whether it does so in the context of online activities or through the use of cookies)
• Include a description of the training offered to the party’s employees and volunteers with access to personal information
• Include security safeguards and require third parties to take appropriate protection measures when processing personal information
• Require a party to take reasonable steps in the case of unauthorized access or disclosure, including informing any individual if the breach creates a real risk of significant harm
• Prohibit the party or anyone acting on the party’s behalf from:
  • Providing false or misleading information about the purposes for which the party collects personal information
  • Selling personal information
  • Disclosing personal information to the public for the purpose of causing harm
• Include the name and contact of a designated privacy officer who would attend one meeting a year with the Chief Electoral Officer to discuss privacy matters

The party’s designated privacy officer will need to certify that the political party is in compliance with its privacy policy. Failing to comply would be a violation under the Act that could result in an administrative monetary penalty.

The Bill will also allow an elector, at the elector’s request, to have the elector’s name, address and identifier removed from any lists made available to registered parties, eligible parties, members or candidates for a period of five years.

Voting Date

The Bill moves the date of Canada’s next federal election from October 20, 2025, to October 27, 2025, to avoid conflict with Diwali. One effect of the new date is that it effectively grants pension entitlement to 80 Members of Parliament who were elected in Canada’s October 21, 2019, federal election if they remain in office until the next election. This amendment will impact Members of Parliament from all four major political parties.

Voting Process

The Act also introduces changes to the voting process:

• Adding two additional days of advance polling, bringing the total to six days
• Improving access to voting for electors residing in long-term care
• Streamlining the process for applying for and voting by special ballot
• Establishing permanent voting offices in post-secondary institutions
• Providing electors who require assistance with voting a choice on who may assist them when voting

Notably, the Bill does not implement two of the priorities that had been identified in the Supply and Confidence Agreement: expanding “Election Day” to include three days of voting and allowing electors to vote at any polling place within their electoral district. These priorities have been addressed in the Bill by requiring the Chief Electoral Officer to make reports to the Speaker of the House of Commons on the feasibility of these measures, with an aim to have them implemented by 2029.

Additionally, the Chief Electoral Officer must make a report to the Speaker of the House of Commons setting out:

• A process to determine whether a registered party or an eligible party has, as one of its fundamental purposes, the promotion of hatred against an identifiable group of persons
• The proposed consequences of such a determination

Offences

The Bill makes amendments to expand provisions relating to the administration of the Act:

• The existing strict liability offences in the Act have been expanded to include accepting a contribution in the form of crypto assets, money orders and prepaid payment products and failing to return, destroy or remit such contributions to the Chief Electoral Officer.
• An impersonation or misleading publication offence will apply regardless of the medium of the representation or the manner or place in which the representation is made. 
• Disrupting the conduct of an election through the unauthorized use of a computer will be an offence, as will knowingly making or publishing a false statement with the intention of affecting the results or disrupting the conduct of an election.
• The Bill expands the scope of parties that may be captured by the Act's offence provisions. A person or entity will be a party to a violation committed by another person or entity and is liable for the violation if it:
  • Does or omits to do anything for the purpose of aiding that other person or entity to commit the violation
  • Abets that other person or entity in committing the violation
  • Counsels that other person or entity to commit the violation
  Where an entity commits a violation, any of the entity’s directors, officers, agents or mandataries who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to and liable for the violation. This is a significant change and will impact a broad range of broadcasters, media and communication platforms in Canada, whether or not the person or entity that actually committed the violation is subject to proceedings under the Act.
• The Bill also grants the Commissioner of Canada Elections specific powers with respect to any conspiracy or attempt to commit, or being an accessory after the fact or counselling in relation to, a contravention of the Act to address foreign interference in Canadian elections.

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