Canadian electoral law has grown in complexity and it continues to evolve. The administration of elections was haphazard and highly politicized in the early years after Confederation. Since then, two fundamental changes have been made to the Canadian electoral process. First is the creation of a non-partisan electoral system governed by very specific procedures and overseen by an independent election agency. Second, and more recently, is the regulation of political party campaigning, particularly its financial aspects.
In May 2000, Parliament enacted a new Canada Elections Act (CEA), which represented the first comprehensive overhaul of federal electoral law in almost 30 years. This review came in response to a number of electoral matters that have been the subject of court decisions in previous years. Since then, this legislation has been amended on several occasions, most notably:
This paper provides an overview of the nature and functioning of the Canadian federal electoral system in a question-and-answer format. Since Canada is a federal state, each province has its own system for elections to its legislature, and the federal and provincial electoral processes are independent of each other.
This paper provides an overview of the nature and functioning of the Canadian electoral system at the federal level 1 in a question-and-answer format.
The main body of Canadian federal election law is contained in the Canada Elections Act 2 (CEA), but many other statutes – including the Constitution Act, 1867, the Constitution Act, 1982, the Electoral Boundaries Readjustment Act, the Broadcasting Act, the Parliament of Canada Act, the Income Tax Act and the Criminal Code – also contain provisions regarding or affecting the Canadian electoral process.
As for federal referendums, the Referendum Act 3 is the main legislative instrument in this area. Only referendums related to the Constitution of Canada are covered by this Act.
For federal elections, the same standards apply across the country. However, since Canada is a federal state, the provinces and territories each have their own laws and systems for elections to provincial and territorial legislatures. The federal and provincial electoral processes are, therefore, independent of each other.
The Canadian electoral system uses the “first-past-the-post” or “single-member plurality” model. Voters can cast their ballot for only one candidate, and the one who gets the most votes in a constituency is the winner, without needing an absolute majority of the votes that were cast or that could have been cast.
The Chief Electoral Officer (CEO) is responsible for administering the federal electoral process and federal referendums; this person is the head of Elections Canada. The position of CEO was created in 1920 with the Dominion Elections Act. In 1927, the law was amended so that the CEO would be appointed by resolution of the House of Commons, rather than by the government of the day, thus recognizing that the office needed to have the confidence of all political parties represented in the House. 4
The current CEA provides for a non-renewable term of 10 years for the CEO . 5 Their appointment may only be revoked for cause and only by the Governor General on address of the Senate and House of Commons. 6 The CEO ’s salary, which is equal to that of a Federal Court judge, can be changed only by statute. 7
Elections Canada is the non-partisan, independent agency responsible for conducting federal general elections, by-elections and referendums. Elections Canada, under the CEO ’s direction, is responsible for the general management and oversight of the preparation and administration of federal elections and related reporting, and for administering the election expenses provisions of the CEA . Elections Canada also notifies the public about voter registration, and explains how voting works and how to become a candidate in a federal election. 8
Returning officers (ROs) are election officers who administer an election in the electoral district in which they are appointed. There are currently 338 RO positions in Canada, one for each federal electoral district. RO s must be entirely impartial in performing their duties; the CEA prohibits returning officers from engaging in any partisan political activities while in office. 9
ROs are appointed for a term of 10 years, which ends earlier if the person dies, resigns or ceases to reside in the electoral district in which they were appointed, or if they are removed from office for any of the reasons set out in the CEA .
The CEO may renew an RO ’s term after consulting with the leader of every recognized political party in the House of Commons. 10
Section 22 of the CEA provides for several other election officer positions, in addition to RO positions. Individuals representing a candidate at polling stations are not election officers. Table 1 outlines the role and method of appointment for each position.
Sources: Table prepared by the Library of Parliament using information obtained from Canada Elections Act, S.C. 2000, c. 9; Elections Canada, Employment; Elections Canada, Field Liaison Officers; Elections Canada, Assistant returning officer; and Elections Canada, Poll Workers.
The Commissioner of Canada Elections is responsible for ensuring compliance with and enforcement of the CEA and the Referendum Act, which includes investigating and prosecuting violations of these two Acts. The Commissioner’s position comes under the responsibility of the office of the CEO . 11
The Commissioner is appointed by the CEO , after consultation with the Director of Public Prosecutions, to hold office during good behaviour for a non-renewable term of 10 years (but may be removed for cause).
A person is not eligible to be appointed as Commissioner if they are or have been:
Only the Governor General, who represents the King as head of state, has the power under the Constitution to dissolve Parliament. This is a prerogative of the Crown. The process is set in motion when the Prime Minister recommends that the Governor General dissolve Parliament and request that the CEO issue the writ of election. 13
Under the Constitution Act, 1867 and the Constitution Act, 1982, elections to the House of Commons must be held at most every five years, 14 although they are traditionally held approximately every four years.
Since 2007, the CEA stipulates that a general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, unless Parliament is dissolved earlier. However, this does not affect the powers of the Governor General, including the discretionary power to dissolve Parliament. 15
The CEA specifies that polling day must be no earlier than the 36 th day and no later than the 50 th day after the day on which the writs were issued. In a federal election, the election period (or campaign period) can therefore last between 37 and 51 days. 16
The right to vote is set out in section 3 of the Canadian Charter of Rights and Freedoms (the Charter), which states: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” 17 This right has been interpreted in very broad terms by the Supreme Court of Canada, because it involves the right to effective representation and the right to play a meaningful role in the electoral process. 18
The CEA specifies that an elector is any Canadian citizen who, on polling day, is 18 years of age or older. This ensures Canadian adults have a quasi-universal right to vote; the CEO is the only adult Canadian citizen who cannot vote in a federal election. 19
From 1993 to 2019, Canadian citizens residing abroad were permitted to vote in federal elections if they had been absent from Canada for less than five years and planned to return to Canada. 20 These limitations were removed when the Elections Modernization Act 21 came into force.
Shortly after this legislation was passed, but before it came into force, the Supreme Court found that the provisions of the CEA that prevented Canadian citizens from voting if they had been absent from Canada for more than five years infringed on their democratic right to vote, as guaranteed by section 3 of the Charter, and that this violation was not justified by section 1 of the Charter. 22
Until 1997, a door-to-door enumeration of voters was conducted within the first days after an election was called. That year, a permanent voters’ list, called the National Register of Electors, 23 was established. The register is a database that contains the names of qualified voters, their mailing address, electoral district, gender and date of birth, and it is continually updated.
The National Register of Electors is used to produce the preliminary list of voters for federal elections, by-elections and referendums. This system also allows electoral lists to be shared among federal, provincial, territorial, municipal and school board jurisdictions, thereby reducing both duplication and costs.
A person is not required to be on the Register to exercise their right to vote, as long as they complete their registration on the list of electors before voting.
The Register of Future Electors 24 was created on 1 April 2019. Canadian citizens aged 14 to 17 can ask to be added to the Register of Future Electors; this makes it easier to add them to the National Register of Electors when they turn 18. Permission from a parent or guardian is not required in order to be added to the Register of Future Electors.
To ensure the proper rollout of the electoral process and to prevent electoral fraud, the CEA sets out identification requirements for confirming the identity of voters and their place of residence. These rules apply to both registration and voting. Under the CEA , electors have three options to prove their identity and address:
Alternatively, a person may be eligible to vote or register to vote if the address shown on the pieces of identification provided does not establish the elector’s residence (for example, the address is a post office box) but these pieces of identification are consistent with the person’s elector information on the list of electors. The residence of the voter is deemed to have been proven by this means. 26
The adoption of the Elections Modernization Act 27 in 2018 amended the CEA to allow anyone working in a long-term care institution to vouch for someone residing there, even if their residence is in another polling division or an adjacent electoral district. The number of people living in a long-term care institution for whom this person can vouch is unlimited. 28
Political parties are an integral part of the Canadian political process. In a parliamentary system, the electorate votes for candidates – the population is not electing a particular government, party or leader. However, the majority of those elected are members of a political party.
Under the CEA , a political party, whether registered or not, is defined as “an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.” 29
Until 1970, election ballots listed the names of candidates, but not their membership in a political party. This contributed to confusion among voters, as each person had to know who represented which party before entering the voting booth. The law was changed in 1970 so that a candidate’s political affiliation would appear on the ballot. This change coincided with the enactment of legislation that, for the first time, formally recognized political parties and made them subject to regulation by Elections Canada. 30
The CEA provides that a party is eligible for registration if its leader has duly applied for registration and if:
The application for registration must include the names and addresses of 250 voters who have officially declared themselves to be party members. An eligible party becomes a registered party when at least one of its candidates has been confirmed and the party has filed the application for registration at least 60 days before the writs of election are issued. The party is then listed in the Registry of Political Parties. 32
Registering a political party under the CEA is not mandatory, but it does bring significant benefits and opportunities, such as:
With these rights come corresponding duties and obligations, including the requirement to provide certain reports and declarations.
The qualifications and disqualifications for candidacy in a federal election are set out in several statutes, most notably in the CEA . 34 These conditions are closely related to the provisions that govern the right to vote. With some exceptions, any person who is entitled to vote may also become a candidate for election. They must be at least 18 years old and be a Canadian citizen. They do not need to reside in the electoral district in which they are seeking election. 35
The CEA also sets out a series of disqualifications that apply exclusively to electoral candidacy. For example, a person cannot be a candidate if they have been found guilty of an illegal or corrupt practice as defined in section 502 of the CEA , if they are a member of a provincial legislature or if they failed to meet financial reporting obligations in a previous election. 36
The formal nomination process requires the preparation of a nomination paper that contains the name and address of the candidate, their official agent (who is legally responsible for the receipt, disbursement and accounting of expenses) and their auditor (in some cases). The nomination paper must also include a declaration signed by the candidate consenting to the nomination and the witnessed signatures of at least 100 electors in the electoral district (50 for more remote electoral districts). The nomination paper must be submitted to the RO no later than the 21 st day before polling day. 37
No later than 24 hours before the close of nominations, the chief agent of a registered political party must provide to the CEO the names of the candidates they are endorsing for each electoral district and other related information. As part of the candidate verification process, the RO checks that the information about the party identified in the nomination paper matches the information provided by the party’s chief agent. This procedure seeks to ensure that only officially endorsed candidates run under a party’s name. 38
The selection of candidates by registered parties is governed by the nomination procedures established by each party. However, the CEA imposes various rules, in particular, it requires the party or financial officers to submit certain reports or statements to Elections Canada. 39 Limits on spending for those seeking nomination is normally set at 20% of the limit established for candidates in the election. 40
Since 1993, all electors can vote at an advance poll.
In Canada, federal elections are held on a Monday. If in the week the election is to be held, the Monday is a holiday, the election is held the next day, on the Tuesday. 41 The CEO may also recommend to the Governor in Council that the election be held on another day (the next day, Tuesday, or the following Monday) if the Monday in question coincides with a date of particular cultural or religious significance, or if a provincial or municipal election is scheduled at the same time. 42
Immediately after the close of a polling station, an election officer from each polling division counts the ballots in the presence of another election officer and persons designated to represent the parties or candidates, ensuring that all ballots are accounted for, whether used, rejected or unused. In the absence of party or candidate representatives, two electors assist with the ballot count. The number of votes cast for each candidate is then recorded by the other electoral officer on a tally sheet; the attending party representatives have the opportunity to examine each ballot and keep their own score on supplied tally sheets. 43
The CEA provides several criteria for rejecting ballots. If candidates or their representatives object to the rejection of a ballot, one of the election officers is required to record the objection(s). The officer conducting the count makes decisions about these objections so that counting can proceed. 44
Once the count is complete, a statement of the vote containing the results is prepared. The original and a copy of this statement are placed in the ballot box for the RO ’s use and copies of it are given to each of the candidates’ representatives present at the count. 45 Ballot boxes containing ballots and other prescribed documents are then sealed and sent to the RO . 46
Special ballots are subject to a similar but separate counting procedure overseen by the special voting rules administrator. 47
The CEA provides specific instructions for the rejection of ballots. Ballots that are unmarked, double-marked or improperly marked and ballots that identify the elector must be rejected, as must any ballot not supplied by the electoral official conducting the count. The CEA also provides instructions for handling problematic cases, such as ballots accidentally left unsigned by the electoral officer prior to the vote. 48
The official count is carried out by the RO , who then validates the results. If the official count indicates that two candidates have received an equal number of votes or that the number of votes separating the candidates is less than 1/1,000 th of the total votes cast, the RO must apply to a district court judge for a judicial recount. 49 Other persons can also apply for a judicial recount within four days after the official results are announced. All candidates can seek reimbursement of the costs associated with a judicial recount. 50
The CEA allows elections to be contested in certain circumstances. Any person who was entitled to vote or was a candidate in an electoral district may, by application to the proper court, contest an election held in that electoral district if any irregularities, fraud, or corrupt or illegal practices affected the election’s result. 51
In extreme cases, the results of an election can be annulled, but this is quite rare, as confirmed by the Supreme Court of Canada in an application contesting an election in the federal riding of Etobicoke Centre. 52
Part 16.1 of the CEA was added in 2014, and some sections were amended slightly in 2018. 53 It addresses voter contact calling services, which are calls made through calling services during an election period for any purpose related to an election, including:
Political entities and other persons or groups that use voter calling service providers to make live or automated calls to voters, must register with the Canadian Radio-television and Telecommunications Commission (CRTC) within 48 hours of making the first call during an election or by election. Further, any entity that uses its own internal services to make automated calls must also register within 48 hours after the first call is made.
Lastly, the CRTC is responsible for establishing and keeping the Voter Contact Registry to ensure transparent communications with voters during an election. 55
Under the CEA , an election survey is defined as a survey conducted to determine whether individuals intend to vote, and for whom they will vote or have voted in an election. Opinion polls on an issue with which a registered party or candidate is associated are also considered election surveys.
The publication of election survey results is prohibited on election day. However, there are generally no restrictions or prohibitions on the conduct of surveys during an election campaign or on the publication of their results. The CEA requires the disclosure of some information about these surveys, such as the funding source and the questions asked. 56
The rights of public sector employees to run and otherwise participate generally in elections have been the subject of much discussion and several court cases. 57 Federal public servants (except deputy heads) are permitted to engage in various political activities, 58 and in some cases, with the permission of the Public Service Commission of Canada, they may run for elected office. The Commission makes its decision based on factors such as the nature of the election, the employee’s duties, and the level and visibility of their position. 59
The holding of meetings and rallies as expressions of freedom of association and assembly is not subject to general restrictions, other than those intended to protect public order, such as the prohibitions in Canada’s Criminal Code against unlawful assembly or riot. The Criminal Code also contains general safeguards, like prohibiting weapons at a public meeting. It is an offence under the CEA to act or conspire to act in a disorderly manner intended to interfere with an election meeting during the period beginning the moment the writ is issued and ending the day after polling day. 60
The CEA contains a series of provisions that apply to candidates and their official agents (and, in some cases, any other person) regarding corrupt and illegal practices. Corrupt practice includes:
Similarly, illegal practice includes:
In addition to specific penalties, the CEA provides that any person found guilty of a corrupt or illegal practice is barred from being elected to or sitting in the House of Commons for five or seven years, depending on the nature and severity of the violation. The person is also not entitled to hold any office in the nomination of the Crown or the Governor in Council during the same period.
The CEA authorizes the Commissioner of Canada Elections to investigate and prosecute persons who contravene the CEA . Such investigations may be initiated as a result of a complaint or of the Commissioner’s own initiative. The power to lay charges was withdrawn from the Commissioner in a 2006 legislative amendment, and it was restored in 2018 with the adoption of the Elections Modernization Act. 62 After charges are laid, the Director of Public Prosecutions is responsible for conducting prosecutions on behalf of the Crown for violations under the CEA .
As an alternative to laying charges, the Commissioner may choose to take corrective measures in response to the offences, as appropriate in the circumstances. If there are reasonable grounds to believe that a person has committed or will commit an offence, the Commissioner may enter into a compliance agreement with that person. Such agreements are based on the offender’s voluntary commitment to comply with the requirements of the CEA and to publish the agreement. The Commissioner may also issue notices of violation that require the payment of an administrative monetary penalty or seek a court injunction to immediately terminate an activity or situation that they believe could jeopardize the integrity of the election campaign or undermine the public interest. 63
* This publication is based on two previous Library of Parliament publications. The following people contributed to their drafting: Andre Barnes, Michel Bédard, Sebastian Spano, Emma Butt, Michael Dewing, Dara Lithwick, Catherine McGovern, Brian O’Neal, Erin Prisner, James Robertson, Michael Rowland and Tim Schobert.
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