Briefing material – Appearance before the House of Commons Standing Committee on Procedure and House Affairs (March 2, 2023)
Provisions of the Canada Elections Act relating to foreign interference falling under the compliance and enforcement mandate of the Office of the Commissioner of Canada Elections
The Commissioner of Canada Elections is responsible for ensuring that the Canada Elections Act (the Act) is complied with and enforced.
The Table 1 and Table 2 below outline the provisions of the Act which fall under the compliance and enforcement mandate of the Commissioner, and could cover or relate to, depending on the circumstances, instances of foreign interference. The tables below are not exhaustive and are provided in summary form as reference.
"Disinformation/misinformation” and “Intimidation or duress” Provisions – Table 1
| Description | Prohibition | Offence* | Potential Penalties |
|---|---|---|---|
| Knowingly making or publishing, during an election period, specified false statements about a candidate, prospective candidate, leader of a political party or a public figure associated with a political party | 91 | 486(3)(c) or 486(4)(a) – intent | 500(5)– SC**: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both |
| Unduly influence an elector by foreigners to vote or refrain from voting or to vote or refrain from voting a certain way | 282.4(1) | 491.2(1)(p) or 491.2(2)(a) – intent | 500(5)–Ibid. |
| Acting in collusion with a person or entity for whom subsection 282.4(1) applies (foreigners) | 282.4(4) | 491.2(1)(q) or 491.2(2)(b) – intent | 500(5)–Ibid. |
| Selling advertising space to a person or entity to whom sub.282.4(1) applies to allow them to transmit or cause to be transmitted election advertising | 282.4(5) | 491.2(1)(r) or 491.2(2)(c) – intent | 500(5)–Ibid. |
| Preventing an elector, by whatever means, including misinformation or disinformation, from voting at an election | 282.6 | 491.2(1)(s) – intent | 500(5)–Ibid. |
| By intimidation or duress, or by any pretence or contrivance, compel/influence or attempt to compel/influence a person to vote or refrain from voting, or vote or refrain from voting a certain way | 282.8 | 491.2(1)(v) – intent | 500(5)–Ibid. |
| Falsely represent themselves, with intent to mislead, to be the Chief Electoral Officer, an election officer, a person authorized to act on the Office of the CEO’s behalf, a person authorized to act on behalf of a registered party or registered association, or a candidate or person authorized to act on their behalf, etc. | 480.1(1) | 500(5)–Ibid. | |
| 502(2)(h.1) – corrupt practice for a candidate or their official agent | 502(3): For the next 7 years, cannot: a) be elected to or sit in the House of Commons; and b) hold any office under the appointment of the Crown or Governor in Council. | ||
| Distributes, transmits or publishes any material, with intent to mislead the public, that the material purports to be made, distributed, transmitted or published by or under the authority of the Chief Electoral Officer, or a returning officer, political party, candidate or prospective candidate (misleading publication) | 481(1) | 500(5)–Ibid. | |
| Unauthorized use of computer with intent to affect the results of an election | 482(1) | 500(5)–Ibid. |
*Please note that the above provisions in Table 1 are not subject to the Administrative Monetary Penalty (AMP) regime. An AMP is a compliance and enforcement measure available to the Commissioner which sets out an amount to be paid by a person or entity. An undertaking can be offered in instances where an AMP could be imposed. A person or entity cannot be subject to both an AMP and a prosecution for the same contravention.
**SC: on summary conviction; IN: on indictment
Illegal Funding & Financing Provisions – Table 2
| Description | Prohibition | Offence* | Potential Penalties |
|---|---|---|---|
| Third party using funds from a foreign entity | 349.02 | 495.21(1)(a) – strict liability offence | 500(1)–≤$2,000 fine, ≤3 months, or both; *500(5.1) Plus fine, ≤ 5 times the amount of foreign funds used |
| 495.21(2) – intent | 500(5)– SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both; *500(5.1) Plus fine, ≤ 5 times the amount of foreign funds used | ||
| Third party circumventing and colluding to circumvent prohibition on use of foreign funds | 349.03 | 495.21(1)(b) – strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both; *500(5.1) Plus fine, ≤ 5 times the amount of foreign funds used to circumvent |
| 495.21(2) – intent | 500(5)–SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both; *500(5.1) Plus fine, ≤ 5 times the amount of foreign funds used to circumvent | ||
| Foreign third party incurring regulated expenses during the pre-election period | 349.4 | 495.3(1)(b) – strict liability | 500(1)—≤$2,000 fine, ≤3 months, or both |
| 495.3(2)(e) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both; *505(4): if group or corporation, ≤$100,000 fine | ||
| Foreign third party incurring regulated expenses during the election period | 351.1 | 496(1)(a.1) – strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 496(2)(e) –intent | 500(5)– SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both; *505(4): if a group or corporation, ≤$100,000 fine | ||
| Contributing while being an ineligible contributor | 363(1) | 497(1)(a)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(a) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Failing to return or pay amount of ineligible contribution | 363(2) | 497(1)(b)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| Person authorized to accept contributions failing to issue receipt | 366 | 497(1)(d)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(c) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Individual exceeding contribution limit | 367(1) | 497(2)(d) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both |
| Person or entity circumventing contributor eligibility rules or contribution limit, or colluding for that purpose | 368(1) | 497(1)(e)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(e) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Person or entity concealing source of contribution, or colluding for that purpose | 368(2) | 497(1)(f)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(f) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Accepting excessive contribution | 368(3) | 497(2)(g) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both |
| Person or entity entering into prohibited agreements | 368(4) | 497(2)(h) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both 501(2) and (3)(a) – Court may order party deregistration |
| Soliciting or accepting a contribution on behalf of a political entity where there is a rep. that the contribution would be transferred to a person/entity other than the political entity | 369(1) | 497(2)(i) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both; 501(2) and (3)(b) – Court may order party deregistration |
| Person or entity colluding to circumvent 369(1) | 369(2) | 497(2)(j) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both; 501(2) and (3)(c)— Court may order party deregistration |
| Individual making indirect contribution as an individual | 370 | 497(1)(g)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(k) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Individual exceeding $20 cash contribution limit | 371 | 497(2)(l) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both |
| Failing to return contribution or pay amount of contribution made in contravention of specific provisions | 372 | 497(1)(h)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(m)–intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Person or entity making an ineligible loan, guaranteeing a loan, or borrowing money | 373(1) 373(2) | 497(1)(i)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(n) – intent | 500(5)–SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Individual making indirect loans | 374 | 497(1)(j)–strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497(2)(o) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Candidate accepting a gift or advantage that might reasonably be seen to have been given to influence them | 477.9(1) | 497.4(1)(t) – strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497.4(2)(u) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| 502(2)(h.01) – corrupt practice | 502(3): For the next 7 years, cannot: a) be elected to or sit in the House of Commons; and b) hold any office under the appointment of the Crown or Governor in Council. | ||
| Failure of candidate to provide the CEO with a statement that discloses gifts within 4 months of polling day | 477.9(5) | 497.4(1)(u) – strict liability | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497.4(2)(v) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both | ||
| Candidate providing CEO a statement of gifts that is substantially incomplete or false or misleading | 477.95 | 497.4(1)(w) – strict liability (for (b)) | 500(1)–≤$2,000 fine, ≤3 months, or both |
| 497.4(2)(x) – intent | 500(5) – SC: ≤$20,000 fine, ≤1 year, or both; IN: ≤$50,000 fine, ≤5 years, or both |
*Please note that all of the above prohibitions in Table 2 are also subject to the AMP regime. Under section 508.5, the maximum penalty is: $1,500 for an individual, and $5,000 for a corporation or entity.
However, if an ineligible donor makes a contribution to a party, association, candidate, etc. (section 363) or an individual makes a contribution in excess of the limits imposed by the Act (section 367), the maximum amount of the AMP is an amount equal to twice the amount that was contributed in contravention of that section, plus a maximum of: $1,500, in the case of an individual; and $5,000, in the case of a corporation or an entity.