Bill C-65: An Act to Amend the Canada Elections Act (Electoral Participation Act)

Tabled in the House of Commons, May 30, 2024

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-65, the Electoral Participation Act, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which the Bill potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

Overview

Bill C-65 would amend the Canada Elections Act (the CEA).  The proposed reforms would introduce various measures aiming to encourage and support participation in the electoral process, enhance privacy protections for voters and further safeguard the integrity of the electoral system, including in relation to the risk of foreign influence. The main Charter-protected rights potentially engaged by the proposed measures include:

• Democratic rights (section 3)

  The CEA, which governs elections to the House of Commons, sets out detailed procedures that give effect to the democratic rights protected by section 3 of the Charter. Section 3 provides that every Canadian citizen has the right to vote in an election of members of the House of Commons and “to be qualified for membership therein”. It protects the right of each citizen to play a meaningful role in the political life of the country. The CEA establishes a comprehensive set of conditions for exercising the right to vote and the right to run as a candidate in a federal election – conditions that potentially engage section 3 of the Charter.

• Freedom of expression (subsection 2(b)) and freedom of association (subsection 2(d))

  Because the rules applicable to federal elections also regulate certain activities of individuals and associations that may fall within the broad interpretation of political expression, they potentially engage subsections 2(b) and 2(d) of the Charter. Subsection 2(b) provides that everyone has freedom of thought, belief, opinion and expression, and includes freedom of the press and other media of communication. Subsection 2(b) protection for freedom of expression has been broadly interpreted as encompassing any activity or communication, aside from violence or threats of violence, that conveys or attempts to convey meaning. Subsection 2(d) provides that everyone has freedom of association. It protects the collective action of individuals in pursuit of their common goals.

• Right to life, liberty and security of the person (section 7)

  The administration and enforcement of the CEA, which can involve the prosecution of offences with a potential punishment of imprisonment, potentially engages section 7 of the Charter. Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.

• Right against unreasonable search and seizure (section 8)

  Requirements in the CEA to disclose information to government officials potentially engage section 8 of the Charter. Section 8 guarantees to everyone the right to be secure against unreasonable search and seizure and has been interpreted to protect a reasonable expectation of privacy, including informational privacy. A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and it is carried out in a reasonable manner. The assessment of the reasonableness of the law is a flexible one that takes into account the nature and purpose of the legislative scheme, and the nature of the affected privacy interests.

• Equality rights (section 15)

  Finally, the conditions for exercising the right to vote in a federal election that are set out in the CEA have the potential to engage section 15 of the Charter.  Subsection 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination on various grounds, including age and mental or physical disability. Subsection 15(2) of the Charter clarifies that subsection 15(1) does not preclude laws, programs or activities that have as their object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of their age or mental or physical disability.

Encouraging and supporting voter and candidate participation

The Bill would amend the CEA with a view to encourage and support voter participation.  Two additional days of advance polling would be authorized, as would increased flexibility for holding advance polling in remote, isolated communities with smaller populations. There are various measures aiming to make it easier to vote by way of special ballot. In addition, the Chief Electoral Officer would be explicitly authorized to establish offices for voting by special ballot in post-secondary educational institutions. The Bill would also broaden the circumstances in which an elector could vote at a polling station in their electoral district other than the polling station associated with their name on the list of electors.

Bill C-65 would also introduce various rules aiming to support voter participation and eliminate barriers to voting within long-term care facilities where seniors or persons with a disability reside. Greater flexibility around who may assist a voter to vote would also be introduced. The law would no longer specifically require that individuals assisting voters be a “friend or relative” of the voter. The current prohibition on assisting more than one elector for the purpose of marking a ballot would also be lifted.

Under Bill C-65, a one-time change to the statutory rules governing the date of fixed date elections would be made. Should a fixed date general election be held in 2025, it would fall on Monday, October 20, 2025. Under the Bill, this election would take place one week later, on Monday, October 27, 2025, to accommodate a day of cultural significance for a community in Canada.

To prevent subsequent fixed date elections from occurring on a day of cultural significance or other days not suitable for an election, such as an annual holiday, the Bill would modify and add to the existing rules that determine when and how a mandatory election date fixed by the CEA may be changed on recommendation of the Chief Electoral Officer. The Chief Electoral Officer would be given greater flexibility with respect to possible alternative dates and would be required to prepare and publish reasons for a recommended change of date.

With respect to facilitating candidate participation in the electoral process, the Bill would ease certain requirements that must be met for prospective candidates to be nominated to run for election. The general requirement to obtain at least 100 names, addresses and signatures of electors consenting to a candidacy will be reduced to 75. For certain larger or more remote areas of the country, where transportation and communication facilities may be limited, the current reduced requirement of 50 signatures will remain unchanged. For all electoral districts, having a witness to the signatures added to a candidate’s nomination papers would no longer be required.  Finally, administrative changes would be made to the timelines applicable to the process by which a prospective candidate’s nomination may be confirmed under the Act.

The measures impacting voter and candidate participation potentially engage the right to vote under section 3 of the Charter because they would alter the conditions under which individuals exercise the right to vote and candidates participate in the electoral process. The following considerations support the consistency of these measures with section 3 of the Charter. The measures support all individuals to exercise their right to vote. They aim to facilitate, rather than undermine, meaningful participation in the electoral system by extending opportunities to participate in advance polls or by way of special ballot or facilitating candidate participation.  Where new administrative rules change certain deadlines that apply to the confirmation of a candidate’s nomination, they make only minor adjustments; they will apply equally to all prospective candidates; and they will enhance the verification process. In cases where the implementation of the measures proposed would be subject to the discretion of returning officers, this discretion must be exercised in accordance with the Charter.

These measures may also potentially engage equality rights under section 15 of the Charter to the extent that they aim to facilitate the electoral participation of certain groups in the Canadian population, such as seniors and persons with a disability who reside in institutional settings, as well as religious and cultural communities observing a holiday or day of particular cultural significance on a fixed election date. Considerations in support of the Charter consistency of these measures include the fact that they would further the aims and values of the Charter’s equality rights, including ensuring reasonable accommodation and preventing barriers to equal participation in society. The measures proposed in the Bill would assist voters who may be subject to a disadvantage to exercise their right to vote on an equal basis with others.

Enhancing privacy protections

The Bill would introduce a range of measures seeking to enhance the protection of personal information. These measures include new limits on the disclosure of the preliminary voter list to political parties who request it from Elections Canada. To be entitled to receive the preliminary lists of electors for an electoral district in respect of which a writ has been issued, a registered or eligible party must meet new criteria aimed at ensuring only legitimate uses of the list. Electors would also be entitled to have their name, address and voter number removed from the lists of voters for a five-year period on request.

In addition, the Bill would impose new requirements on political parties to increase protections for personal information. It would require the privacy policies of all eligible and registered federal political parties to contain a suite of new and enhanced requirements, including protections related to transparency, security safeguards, data breach notifications, training and prohibited uses of personal information, such as its sale. The Chief Electoral Officer must be satisfied that a party’s privacy policy meets the required contents under the CEA for a party to be eligible for registration. Certification by the party’s privacy officer that the party complies with its policy would be required for maintaining registered party status. Non-compliance with a party’s privacy policy by a person or entity acting on the party’s behalf would constitute a violation under the CEA, which may be enforced by way of the existing administrative monetary penalty provisions.

To the extent that measures introducing enhanced privacy protections have the potential to impact communications between political parties and voters or the capacity of a political party or voter to meaningfully participate in the electoral process, they potentially engage subsection 2(b) and section 3 of the Charter.

Considerations supporting the consistency of the privacy protections proposed in the Bill with the Charter include the following. The privacy-related measures would protect voters’ personal information. Respecting voters’ privacy is an important aspect of maintaining trust in the democratic process. New limits on accessing the preliminary list of electors apply only to political parties, not individual candidates for election. These limits impose reasonable requirements for access to the information on preliminary voter lists by political parties. They would better align the rules governing access to preliminary voter lists with the rules that currently govern access to later versions of lists of electors. They complement existing measures that already require that the personal information on the preliminary voter list be used only by electoral participants with a legitimate need to access it for purposes directly linked to the electoral process. The new restrictions on access to the voter lists by political parties would not limit parties’ freedom to communicate with voters using other tools or through any other means.  They would also not impact a voter’s inclusion on the voter registry.

The measures that would expand and enhance political parties’ obligations to protect personal information would advance the pressing public interest in maintaining trust in the electoral process. The new requirements for political parties’ privacy policies would protect against unlawful, unauthorized and non-transparent practices with personal information. They would support the development of, and compliance with, context-sensitive rules addressing fundamental privacy principles recognized in other federal privacy law regimes. The proposed privacy measures allow for a transparent balance to be struck between individuals’ interests in the protection of their personal information and candidates’ and political parties’ legitimate needs.

Cryptoasset, money order and pre-paid payment product contributions

The Bill proposes additional regulatory requirements related to contributions that are difficult to trace. Political parties, candidates and a range of other participants in the electoral system would be prohibited from accepting contributions in the form of a cryptoasset, money order or prepaid payment product, such as a prepaid credit card. Third parties would be prohibited from accepting any contribution of a cryptoasset, money order or prepaid payment product made for regulated activities. Because these sources of funding are difficult to trace, they provide a potential way to avoid existing contribution rules for regulated activities. Third parties, political parties, candidates and other entities would have 30 days to return any such contribution, destroy it unused, or take steps to transfer the contribution to the Receiver General. The Bill would require that the measure taken be documented in existing returns to the Office of the Chief Electoral Officer.

To the extent that donating to a political party, candidate or other participant in the electoral system may constitute a form of political expression or an act of association, the proposed measures potentially engage freedom of expression under subsection 2(b) of the Charter and freedom of association under subsection 2(d).

The following considerations support the consistency of the measures related to cryptoasset, money order or prepaid payment product contributions with subsections 2(b) and 2(d) of the Charter. These measures are intended to support the important objective of preventing undue influence over electoral participants or election results, including from foreign entities. They would limit only certain ways of making contributions that are difficult to trace and, as a result, may be used to avoid the rules that protect the integrity of the electoral system. Individuals would remain free to donate in other forms that are compatible with the financial transparency required under the CEA. These measures would further the important objective of protecting the integrity of Canada’s electoral system in a manner that may be viewed as proportionate to any potential impacts on freedom of expression and association.

Third parties undertaking regulated activities in the pre-election and election periods

The Bill would introduce changes to rules that apply to third party spending on regulated activities – specifically partisan activities, partisan advertising, election advertising and election surveys during the pre-election and the election period. Presently, third parties must comply with detailed transparency obligations only when they spend contributions given to them for the specific purpose of engaging in regulated activities. Contributions a third party receives for other purposes, or for no specific purpose, are not subject to the same transparency requirements, even when these contributions are spent on regulated activities. The Bill would introduce new limits on the sources of funds that may be used by third parties for regulated activities along with more detailed transparency requirements. These additional measures seek to enhance public confidence in the integrity of the democratic process by increasing transparency and limiting the possibility that potentially large amounts of funds from unknown origins, including from foreign sources, could be used by third parties seeking to exert influence on the electoral process.

To enhance transparency in relation to the sources of funds third parties spend on regulated activities, the Bill would require a third party to provide to Elections Canada the name and address of any contributor of more than $200 whose funds are used for partisan activities, partisan advertising, election advertising and election surveys in the election and pre-election periods. In addition, third parties that receive contributions would generally be required to use only contributions from Canadian individuals for regulated expenses, such as partisan and elections advertising. However, the Bill would create exceptions for some third parties whose funding is not substantially contribution-based and who may have limited or no access to contributions from Canadian individuals. In cases where the total amount of contributions received from all sources and for any purpose is ten percent or less of a third party’s revenues for the previous year, a third party may use its own funds, property or services for regulated expenses. Third parties who are permitted to use their own revenues for regulated expenses on this basis will be subject to a new obligation to include financial statements for the previous year under the CEA. Both individuals who are third parties and third parties who spend funds below the third-party registration threshold would not be subject to these new rules. In addition, the Bill would increase the amount third parties may spend on regulated activities before being required to register with the Chief Electoral Officer from $500 to $1500 in expenses for regulated activities.

As restrictions on contributions for, and spending on, regulated activities implicate political expression, the Bill’s regulatory requirements, which include penalties for non-compliance, have the potential to engage freedom of expression under subsection 2(b) of the Charter and may also engage freedom of association under subsection 2(d) of the Charter. The right to vote under section 3 of the Charter may also be potentially engaged to the extent the measures in the Bill could limit citizens’ meaningful participation in the electoral process.

The following considerations support the consistency of the measures with the Charter. The current lack of transparency in the use of funding of unknown origins for regulated activities increases the risk of foreign influence on Canadian elections. Limits aimed at preventing third parties from using foreign funds, or funds of unknown origins, for regulated activities enhance Canadians’ perception of the integrity of the electoral system. These limits help to ensure that debate during elections reflects the priorities of those with a direct interest in the outcome of the election. They enhance the overall transparency of the electoral process. The proposals would also support compliance with existing rules that prohibit the use of foreign funds by third parties and assist in preventing the avoidance of those rules. The proposed approach focuses on transparency and remains flexible. It can be satisfied by a range of possible ways in which a Canadian individual may be linked with contributions a third party uses for regulated activities.  In requiring this linkage, the measures better align the rules that apply to third parties with those that apply to candidates and political parties and treat contributors more consistently.

The measures have also been carefully tailored to accommodate the broad range of third parties in Canada and their diverse revenue models. There are exceptions for individuals, third parties that spend limited amounts who are not required to register, and third parties that obtain all or most of their funding other than from contributions, such as most private corporations.  In the case of non-contribution-based organizations, this funding other than from contributions (own funds) is still available for use for regulated activities provided alternative transparency obligations are satisfied. Subject to the spending thresholds that apply to all third parties, these third parties could continue to use their own revenues when they provide supporting financial statements to the Office of the Chief Electoral Officer. In addition, all third parties may always use any contributions from Canadian individuals for regulated activities and there continue to be no limits on the amount of individual contributions third parties may receive. The increased financial threshold for spending before registration with the Chief Electoral Officer as a third party is required further tailors the scope and limits the impact of the proposed measures.

The proposal to require third parties to report to Elections Canada the identities of certain contributors potentially engages protection against unreasonable search and seizure under section 8 of the Charter. The following considerations support the consistency of these measures with section 8 of the Charter. These rules would apply to only limited information that is relevant to the administration and enforcement of the CEA, an important regulatory regime. They represent limited intrusions into the privacy interests of third parties who wish to spend money on election activities and strike a reasonable balance between these interests and the importance of preventing foreign funds from being used for elections activity. The privacy of information about individual contributors will be protected in accordance with the practices of the third parties to whom they donate. To the extent contributors’ personal information is required to be provided to the Chief Electoral Officer, it will be further to clear and publicly available rules requiring the same degree of transparency for all contributions over $200 that a third party uses for regulated activities. Broadly analogous statutory powers authorizing the collection of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating criminal offences, have been upheld as reasonable under section 8 of the Charter.

Administration and enforcement mechanisms

The Bill would amend the CEA to expressly provide judges with the power to include a requirement to produce records or any other thing relevant to an investigation under the Act when the Commissioner of Canada Elections applies to a court for an order requiring an individual to attend to be examined by the Commissioner.

These measures may engage section 8 of the Charter as they create a new statutory authority under which the Commissioner of Canada Elections may acquire private information.

The following considerations support the consistency of a judicial power to order the production of records and other things relevant to an investigation with section 8 of the Charter. Providing the Commissioner with the necessary tools to investigate instances of alleged non-compliance swiftly and effectively with the CEA promotes public confidence in the integrity and validity of Canadian elections. The ability to seek a court order to compel individuals to provide information in relation to investigations would enhance the effectiveness and efficiency of existing powers that allow the Commissioner to investigate alleged non-compliance with the CEA in a timely and effective manner. The power could not be used with respect to suspects in the investigation. A judge would be required to authorize any production order and could do so only where there were reasonable grounds to believe an offence had been committed and that the materials to be produced would provide evidence of the offence.

Offences and violations

The Bill would update a number of existing offences and introduce new offences, including offences to further protect the integrity of Canada’s electoral system against the threat of undue foreign influence. The ban on foreign persons and entities unduly influencing electors to vote or refrain from voting for a particular candidate or party would be extended to apply at all times, rather than only during the election period. In addition, this prohibition would be expanded to include potential candidates and eligible parties under the CEA. Likewise, the existing rules that prohibit the use of a broadcasting station outside of Canada for the purpose of intentionally influencing electors’ votes for candidates and registered parties would be similarly extended to encompass any such use of a broadcasting station in the case of potential candidates and eligible parties. The current prohibition on selling advertising space to foreign persons or entities for election advertising messages would be expanded to include the sale of advertising space for partisan advertising messages and would now apply outside of the election period.

The Bill would create an offence for contravening the new requirement that third parties use only contributions from Canadian citizens or permanent residents to pay for regulated expenses when these requirements are engaged. Likewise, accepting, failing to return to the donor, failing to destroy, or failing to remit to the Receiver General by way of the Chief Electoral Officer donations made by way of cryptoassets, money orders, or pre-paid payment products means would become an offence.

To mitigate the risk of ballot interference, the Bill would extend existing offences against altering, defacing, destroying or tampering with regular ballots to include special ballots and their inner or outer envelopes. The integrity of the special ballot system would also be supported by two new offences, one related to tampering with an elector’s mark and the other addressing tampering with the inner or outer envelope of a special ballot. The current offence of fraudulently using a computer with the intention of affecting the outcome of an election would be broadened to also include the intention to disrupt the conduct of the election through the specific means currently listed in the CEA.

The Bill would also target disinformation through several new and updated offences. New offence provisions would address false or misleading statements related to particular aspects of the voting process along with false or misleading information in a candidate nomination paper.  This latter prohibition would capture fake signatures, for example. Nomination and leadership contestants would benefit from the protection of an existing ban on intentionally misleading materials that falsely purport to be from certain officials and electoral participants and this ban would apply at all times. Clarifying text confirming the scope of various offences involving disinformation would also be added. This text would make clear that certain prohibitions addressing the publication of false statements to affect election results, impersonation and misleading publications are technologically and geographically neutral to respond to the reality of contemporary informational flows.

In addition, the Bill would broaden the CEA to enable the Commissioner of Canada Elections to investigate and hold those who attempt to commit or knowingly aid in the commission of a violation or an offence accountable, along with those who counsel or incite another person or entity to commit a violation or an offence. The Commissioner of Canada Elections would be able to hold accountable individuals who counsel others to commit an offence or violation under the Act, even where the offence or contravention is not committed. Currently, only the person who specifically commits a violation or an offence under the Act may be held accountable.

Offences that can be punished with a term of imprisonment deprive the right to liberty. By engaging rights under section 7 of the Charter in this manner, these offences must accord with the principles of fundamental justice. In addition, some of the offence-related measures proposed in the Bill may limit expressive activities such as the use of a broadcasting station, the making and use of contributions to a third party and publishing false or misleading statements about the electoral process. Such measures may also engage expressive freedoms protected under subsection 2(b) of the Charter.

In reviewing the relevant offence provisions, the Minister has not identified any inconsistencies with the principles of fundamental justice. Many of the proposed changes to the CEA seek to respond to the threat of undue foreign influence outside of the formal election period. They would introduce or broaden prohibitions that only apply to foreign persons. These measures seek to protect the more compelling interests of Canadian individuals in the Canadian electoral process. These proposed changes respond to new or evolving threats with real potential to harm the integrity of Canada’s electoral system, which may occur at any time and have lasting impacts on voters and elections. Where new offences are being introduced, their scope has been tailored to advance the important objectives of the CEA in rational and targeted ways. They have been designed to ensure offences capture only intentional, blameworthy actions, in a very narrow set of circumstances specific to the electoral context. In the case of the new or modified offences implicating expressive freedoms, the careful tailoring that promotes consistency with the principles of fundamental justice also ensures that such offences may be viewed as having a proportionate impact on freedom of expression. These offences would typically implicate lower value expression that puts the integrity of the electoral system at risk and does little to further the underlying purposes of freedom of expression: the search for truth; enhanced self-development; and healthy participation in public affairs.