Public messaging during an election period: You may need to register ASAP

August 13, 2021 | Gerald D. Chipeur, Nicole K. D’Aoust

Under the Canada Elections Act, there must be a general election on the third Monday of October in the fourth calendar year after the last general election.  However, the Prime Minister may ask the Governor General to call an election earlier and it is expected that he will do so imminently.  Elections Canada anticipated this possibility and in June 2021 published a Political Financing Handbook for Third Parties to be used for non-fixed-date general elections.[1]

Once an election is called, charities and non-profits that spend $500 or more on certain “regulated activities” during the election period must register as a “third-party” with Elections Canada.[2]  The election period starts on the date on which the election is called and ends when the polls close on election day.  These requirements are set out in the Canada Elections Act.

In the charities context, “regulated activities” include “issue advertising” and “election surveys”.  “Issue advertising” is defined very broadly.  It generally means any type of transmission to the public during the election period of a message that takes a position on an issue with which a political party or candidate is associated.  Issue advertising could include, for example, hosting a public panel or discussion on a topic that is within the constitutional jurisdiction of the federal government, such as environmental matters, indigenous issues, international relations, criminal law, and other federal matters.

The definition of an “election survey” is similarly broad.  It captures surveys that ask the public for their position on an issue with which a political party or candidate is associated.  This could include, for example, sending a survey or hiring a third-party to conduct a survey to solicit the public’s feedback on policy approaches to address matters of current political debate.

In the context of non-profits, “regulated activities” include, in addition to the activities described above, partisan activities that promote or oppose a political party, nomination contestant, potential candidate, candidate, or party leader.  Making telephone calls, sending text messages, and canvassing are examples of partisan activities. Charities are prohibited from engaging in partisan activities.

If your organization spends $500 or more on these activities, it must register.  Note that the $500 threshold is not just total cash expenses, it includes the total of all resources applied towards the activity, including staff time, and the cost of space and equipment.

In light of the broad meaning of “regulated activities” and the low $500 threshold, it is likely that many activities will be caught by these rules and trigger a registration requirement.

Your organization must be registered no later than the date on which the regulated activity first takes place. Thus, organizations need to take the time now to consider whether any of the activities they have planned in the coming weeks trigger this registration requirement, and plan to register on the date the federal election is announced.  The registry will open online on Elections Canada’s website on the day the writ drops.[3]

Once registered, information about your organization (name, address, and other contact information) will be listed on a publicly searchable “Third-Party Database” maintained by Elections Canada.  There are significant cash penalties for non-compliance.  Elections Canada has significant infrastructure to enforce the rules and apply the penalties.

As stated above, the requirement to register as a third-party discussed in this article is pursuant to the Canada Elections Act.  This is separate from the requirement to potentially register as a lobbyist under the federal Lobbying Act, and separate from the rules in the Income Tax Act and Canada Revenue Agency policy that prohibit registered charities from being partisan.  Should you require assistance to determine your organization’s obligations under the Canada Elections Act, or another statute that regulates “political activities” or advocacy, we would be pleased to assist you.

[1] See Elections Canada website – Political Financing Handbook for Third Parties, Financial Agents and Auditors – June 2021

[2] Note that these rules also apply to social enterprises that are structure as business corporations, trustees of trusts, and unincorporated associations.

[3] See Elections Canada website – Questions and Answers for Third Parties


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