Law Library Stacks

Back to Index of Foreign Involvement in Elections

Full Report (PDF, 696KB)

The Canada Elections Act contains provisions on foreign influence in elections. In 2018, the Act was partly amended to prohibit foreign entities from spending money to influence elections. The amending legislation is expected to change the way in which parties and stakeholders interact in the periods leading up to the upcoming October 2019 general election. Only individuals who are Canadian citizens or permanent residents can make a contribution to a registered party, a registered association, a candidate, a leadership contestant, or a nomination contestant. Third parties are not permitted to use funds for a regulated activity (like advertising or survey expenses) if the source of funds is a foreign entity. The Act also prohibits foreign third parties from participating in elections and incurring expenses for regulated activities that take place during a pre-election period and the election period.

I. Elections in Canada and Foreign Influence

The Canada Elections Act[1] regulates the conduct of federal general elections of members to the House of Commons. Contribution and spending limits are also regulated by the same Act.

In 2017, conservative lawmakers and activists raised concerns over the flow of foreign funds from leftist American advocacy groups, particularly to third party groups, during Canada’s 2015 general elections. At the time, there was criticism of a loophole created by the law, which only prohibited “third parties from accepting non-Canadian funds if those contributions are earmarked for election advertising. If the money is collected by those Canadian-based groups more than six months before an election it is not subject to regulations, and it ‘gets mingled with Canadian funds.’ ”[2]

In early June 2017, the Senate Committee on Legal and Constitutional Affairs expressed concern that the “[c]urrent law does not sufficiently protect Canadian elections from being influenced by foreign entities, whether through direct interference or by providing funding to third parties.”[3] The Committee’s findings were contained in a report titled Controlling Foreign Influence in Canadian Elections,[4] which resulted from “the committee’s review of the Chief Electoral Officer’s report on the October 19, 2015 federal election as well as Elections Canada’s conduct of the election.”[5]

In 2018, the government of Canada introduced amendments to “modernize the Canada Elections Act to address the realities facing Canadian democracy in 2019.”[6] The Elections Modernization Act[7] received Royal Assent on December 13, 2018, and the government stated that “[t]he new legislation is part of a comprehensive plan to safeguard Canadians’ trust in our democratic processes and increase participation in democratic activities.”[8] Upon the enactment of the law, the government press release stated that

Canadians can feel confident that their elections are safe from foreign influence and cyber disruption. The Elections Modernization Act will help Canadians know where information is coming from, guard against misinformation and interference during an election period. Further, foreign entities will now be prohibited from spending to influence elections. The Government of Canada believes in a whole-of-government approach that will protect and defend Canada’s democratic institutions from cyber threats and foreign interference.[9]

The amending legislation is expected to change the way in which parties and stakeholders interact in the periods leading up to the upcoming October 2019 general election.

Back to Top

II. Foreign Influence on Elections

A. Foreign Contributions to Elections

1. Individual Contributions to Election Participants

Under the Canada Elections Act, only individuals who are “Canadian citizens or permanent residents of Canada can make a contribution to a registered party, a registered association, a candidate, a leadership contestant or a nomination contestant.”[10] Subsection 363(1) of the Act establishes this prohibition:

No person or entity other than an individual who is a Canadian citizen or is a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act shall make a contribution to a registered party, a registered association, a nomination contestant, a candidate or a leadership contestant.[11]

A person or entity that contravenes subsection 363(1) is guilty of a hybrid offense, which may be prosecuted as a strict liability offense or as an offense requiring intent to be proved.[12]  The punishment for a strict liability conviction is a fine of not more than CA$2,000 (about US$1,514) or imprisonment for a term of not more than three months, or both.[13] The punishment for an offense requiring intent is as follows:

(a) on summary conviction, to a fine of not more than $20,000 [about US$15,223] or to imprisonment for a term of not more than one year, or to both; or

(b) on conviction on indictment, to a fine of not more than $50,000 [about US$38,072] or to imprisonment for a term of not more than five years, or to both.[14]

2. Foreign Contributions to Third Parties and Prohibition on Foreign Third Parties

According to Elections Canada,

[i]ndividuals or organizations that participate in the democratic process, but do not seek election themselves, may want to continue their activism during elections to support certain parties or candidates. Because parties and candidates are limited in how much they can spend for elections, the Canada Elections Act (the Act) regulates others’ participation to ensure a level playing field in terms of spending. In the law, those who are regulated under these rules, whether they are corporations, groups, individuals or others, are called “third parties.”[15]

a. Third Party Use of Foreign Funds

Third parties are not permitted to use funds for a regulated activity if the source of funds is a foreign entity:

Prohibition — use of foreign funds

349.02 No third party shall use funds for a partisan activity, for advertising, for election advertising or for an election survey if the source of the funds is a foreign entity.[16]

Prohibition — circumventing prohibition on use of foreign funds

349.03 No third party shall

(a) circumvent, or attempt to circumvent, the prohibition under section 349.02; or

(b) act in collusion with another person or entity for that purpose.[17]

Every third party that contravenes subsections 349.02 or 349.03(a)-(b) is guilty of a hybrid offense, which is subject to the same punishments as those set out for subsection 363(1), above.[18] 

b. Partisan and Election Expenditure During Pre-election and Election Period

The Canada Elections Act prohibits foreign third parties from participating in elections and incurring expenses for regulated activities that take place during a pre-election period and the election period. Section 349.4 of the Act deals with the pre-election period:

Prohibition — spending by foreign third parties

349.4 (1) A foreign third party shall not incur the following expenses:

(a) partisan activity expenses in relation to a partisan activity that is carried out during a pre-election period;

(b) partisan advertising expenses in relation to a partisan advertising message that is transmitted during that period; and

(c) election survey expenses in relation to an election survey that is conducted during that period.[19]

Definition of foreign third party

(2) In subsection (1), a foreign third party is a third party in respect of which

(a) if the third party is an individual, the individual

(i) is not a Canadian citizen,

(ii) is not a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, and

(iii) does not reside in Canada;

(b) if the third party is a corporation or entity,

(i) it does not carry on business in Canada, or its only activity carried on in Canada during a pre-election period consists of doing anything to influence electors during that period to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at the following election, and

(ii) it was incorporated, formed or otherwise organized outside Canada; and

(c) if the third party is a group, no person who is responsible for the group

(i) is a Canadian citizen,

(ii) is a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, or

(iii) resides in Canada.[20]

Every third party that contravenes subsections 349.4(1) is guilty of a hybrid offence that is subject to the same punishments set out above.[21]

Certain prescribed activities are also prohibited during an election period:

Prohibition — spending by foreign third parties

351.1 (1) A foreign third party shall not incur the following expenses:

(a) partisan activity expenses in relation to a partisan activity that is carried out during an election period;

(b) election advertising expenses in relation to an election advertising message that is transmitted during that period; and

(c) election survey expenses in relation to an election survey that is conducted during that period.

The same punishments as above apply.[22]

B. Undue Influence by Foreigners

The Elections Modernization Act also established a new offense that prohibits foreign actors from unduly influencing electors and an offense of colluding with a foreign actor to unduly influence electors:

Undue influence by foreigners

282.4 (1) No person or entity referred to in any of paragraphs (a) to (e) shall, during an election period, unduly influence an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at the election:

(a) an individual who is not a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act and who does not reside in Canada;

(b) a corporation or entity incorporated, formed or otherwise organized outside Canada that does not carry on business in Canada or whose primary purpose in Canada during an election period is to influence electors during that period to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at the election;

(c) a trade union that does not hold bargaining rights for employees in Canada;

(d) a foreign political party; or

(e) a foreign government or an agent or mandatary of a foreign government.

Meaning of unduly influencing

(2) For the purposes of subsection (1), a person or entity unduly influences an elector to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election if

(a) they knowingly incur any expense to directly promote or oppose a candidate in that election, a registered party that has endorsed a candidate in that election or the leader of such a registered party;

(b) one of the things done by them to influence the elector is an offence under an Act of Parliament or a regulation made under any such Act, or under an Act of the legislature of a province or a regulation made under any such Act.

Exceptions

(3) For greater certainty, subsection (1) does not apply if the only thing done by the person or entity to influence the elector to vote or refrain from voting, or to vote or refrain from voting for the particular candidate or registered party, consists of

(a) an expression of their opinion about the outcome or desired outcome of the election;

(b) a statement by them that encourages the elector to vote or refrain from voting for any candidate or registered party in the election; or

(c) the transmission to the public through broadcasting, or through electronic or print media, of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news, regardless of the expense incurred in doing so, if no contravention of subsection 330(1) or (2) is involved in the transmission.

Collusion

(4) No person or entity shall act in collusion with a person or entity to whom subsection (1) applies for the purpose of contravening that subsection.[23]

Undue influence by foreigners and collusion are offenses that require intent[24] and are liable to

(a) on summary conviction, to a fine of not more than $20,000 [about US$15,223] or to imprisonment for a term of not more than one year, or to both; or

(b) on conviction on indictment, to a fine of not more than $50,000 [about US$38,072] or to imprisonment for a term of not more than five years, or to both.[25]

C. Selling Advertising Space

Foreigners who unduly influence an elector cannot be sold advertising space:

Selling advertising space

(5) No person or entity shall sell any advertising space to a person or entity to whom subsection (1) applies for the purpose of enabling that person or entity to transmit an election advertising message or to cause an election advertising message to be transmitted.[26]

Selling advertisement space is an offense that requires intent and is subject to the same penalties as set out above for this type of offense.[27]

D. Broadcasting Outside Canada

The Elections Modernization Act also added a prohibition on the use of broadcasting stations outside Canada to influence elections:

Prohibition — use of broadcasting station outside Canada

330 (1) No person shall, with intent to influence persons to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election, use a broadcasting station outside Canada, or aid, abet, counsel or procure the use of a broadcasting station outside Canada, during an election period, for the broadcasting of any matter having reference to an election.

Exception

(1.1) Subsection (1) does not apply in respect of any matter that is broadcast if the broadcasting signals originated in Canada.

Prohibition — broadcasting outside Canada

(2) During an election period, no person shall broadcast, outside Canada, election advertising with respect to an election.[28]

A person who willfully contravenes subsections 330(1) or (2) is liable on summary conviction to a fine of not more than CA$50,000.[29]

Back to Top

Tariq Ahmad
Foreign Law Specialist
August 2019


[2] John Paul Tasker, Tory Senator Wants to Close ‘Troubling’ Election Loophole on Foreign Funds, CBC News (May 31, 2017), https://www.cbc.ca/news/politics/linda-frum-foreign-funds-election-1.4138155, archived at https://perma.cc/AX6R-AM4M; J.J. McCullough, Canada Shouldn’t Let Concerns Over Foreign Funding Stifle Free Speech, Washington Post (June 13, 2017),  https://www.washingtonpost.com/news/global-opinions/wp/ 2017/06/13/canada-shouldnt-let-concerns-over-foreign-funding-stifle-free-speech/, archived at https://perma.cc/ZCS2-HZZ8.

[3] Press Release, Standing Senate Committee on Legal and Constitutional Affairs, Voting law must be Strengthened to Block foreign Influence in Elections (June 8, 2017), https://sencanada.ca/en/newsroom/ voting-law-must-be-strengthened-to-block-foreign-influence-in-elections/, archived at https://perma.cc/C92P-24AK.

[4] Standing Senate Committee on Legal and Constitutional Affairs, Controlling Foreign Influence in Canadian Elections (June 2017), https://sencanada.ca/content/sen/committee/421/LCJC/reports/ Election_Report_FINAL_e.pdf, archived at https://perma.cc/9AC6-H94X.

[5] Press Release, Standing Senate Committee on Legal and Constitutional Affairs, supra note 3.

[6] Press Release, Government of Canada, Government of Canada Passes Elections Modernization Act (Dec. 14, 2018), https://www.canada.ca/en/democratic-institutions/news/2018/12/government-of-canada-passes-elections-modernization-act.html, archived at https://perma.cc/7RZE-CSXE.

[8] Press Release, Government of Canada, Government of Canada Passes Elections Modernization Act supra note 6.  

[9] Id.

[10] Elections Canada, Political Financing Handbook for Candidates and Official Agents (EC 20155) 22 (Feb. 2018), https://www.elections.ca/pol/can/man/ec20155/2018-01_e.pdf, archived at https://perma.cc/6K2L-Q6P7.

[11] Canada Elections Act, § 363(1). 

[12] Id. § 497(1)(a) & 497(2)(a).

[13] Id. § 500(1).

[14] Id. § 500(5)(a)-(b).

[15] New Requirements for Third Parties: Corporations, Unions, Groups and Individuals, Elections Canada, https://www.elections.ca/content.aspx?section=pol&dir=thi&document=backgrounder&lang=e (last updated June 14, 2019), archived at https://perma.cc/M55L-B9HR.

[16] Canada Elections Act, § 349.02. 

[17] Id. § 349.03. 

[18] Id. §§ 495.21, 500(1) & 500(5)(a)-(b).

[19] Id. § 349.4(1).  

[20] Id. § 349.4(2).  

[21] Id. §§ 495.3(1)-(2), 500(1) & 500(5)(a)-(b).

[22] Id. § 500(1) & 500(5)(a)-(b).

[23] Id. § 282.4(1)-(4).  

[24] Id. § 491.2 (1)(p)(q)-(2)(a)(b).

[25] Id. § 500(5)(a)-(b).

[26] Id. § 282.4(5).

[27] Id. §§ 491.2 (1)(r)-(2)(c) & 500(5)(a)-(b).

[28] Id. § 330(1)-(2).

[29] Id. §§ 495(4)(e) & 500(4).

Back to Top

Last Updated: 12/30/2020