Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 27 - Evidence - May 10, 2007
OTTAWA, Thursday, May 10, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-31, to amend the Canada Elections Act and the Public Service Employment Act, met this day at 10:58 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
Senator Oliver: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs is here today to begin its study on Bill C-31, to amend the Canada Elections Act and the Public Service Employment act.
Bill C-31 proposes a wide ranging series of measures directed at enhancing accuracy of voting information and preventing or minimizing abuses in the voting process.
It seeks to improve the way that personal information about electors is gathered and incorporated into the national register of electors, and ultimately made available to election officials, as well as candidates and their representatives in the course of elections and between elections.
The bill also introduces at the federal level a requirement that voters provide identification at polling stations before they can exercise the right to vote.
The changes proposed in the bill are a response by the government to a series of recommendations proposed by the House of Commons Standing Committee on Procedure and House Affairs in its thirteenth report in June 2006, entitled, Improving the Integrity of the Electoral Process: Recommendations for Legislative Change.
The committee developed its recommendations in conjunction with its review of the recommendations for legislative reform, contained in the Chief Electoral Officer's report on the thirty-eighth general election, tabled in the House of Commons on September 29, 2005.
To speak to us today on this matter I am pleased to introduce Minister Peter Van Loan. He was first elected June of 2004 as the Member of Parliament for the new riding of York Simcoe and was re-elected as the Member of Parliament for York Simcoe on January of 2006. On January 4, 2007, Mr. Van Loan was appointed Leader of the Government in the House of Commons and Minister for Democratic Reform.
In a professional capacity, Mr. Van Loan was associated with the law firm of Fraser Milner Casgrain LLP, and practiced municipal and planning law for 16 years. He has an honours BA, Master of Arts in International Relations, Bachelor of Laws, as well as a graduate planning degree from the University of Toronto, where he later taught in the master's planning program.
Accompanying the minister today we have from the Privy Council Office, Matthew King, Assistant Secretary for Legislation and House Planning, and Natasha Kim, Senior Policy Advisor for Legislation and House Planning. Also we have from Justice Canada, Raymond MacCallum, Counsel for the Human Rights Law Section.
We remind honourable senators that the minister will be here with us today only until 12 p.m., but the officials will remain for further questions, so we will restrict the first hour to the minister.
Minister Van Loan, welcome. You now have the floor.
Honourable Peter Van Loan, P.C., M.P., Leader of the Government in the House of Commons and Minister for Democratic Reform: I think those comments were comprehensive. I almost have nothing to add in summarizing the bill.
[Translation]
I thank the committee for inviting me to talk about Bill C-31. To start with, let me emphasize that the bill is built on solid foundations. As you know, Bill C-31 proposes a number of amendments to the Canada Elections Act in order to improve the integrity of the electoral process.
The bill is based on recommendations made by the Standing Committee on Procedure and House Affairs in its 13th report that was tabled in the House of Commons last June. The recommendations were developed by the committee in a spirit of non-partisanship.
[English]
The thirteenth report of the Standing Committee on Procedures and House Affairs was the product of the committee's thorough study of recommendations made by the Chief Electoral Officer on improving the electoral process, as well as the committee's own experience as to what was needed to ensure our process continues to operate with the high degree of integrity that Canadians expect.
The committee heard from a number of witnesses on all aspects of their study, including executives of all four political parties represented in the House of Commons, the Chief Electoral Officer and the Privacy Commissioner.
When the government tabled its written response to the thirteenth report on October 20, we supported virtually all the recommendations. Four days later Bill C-31 was implemented to introduce those recommendations.
The House of Commons debated Bill C-31, and the Committee on Procedures and House Affairs thoroughly reviewed the bill. The committee heard additional witnesses including representatives from student, Aboriginal and homeless groups.
The bill was passed by the House on February 20, 2007.
I want to emphasize the bill before you today is the product of much expertise and experience. It reflects the Chief Electoral Officer's expertise in administering elections. It reflects the recommendations of the house committee that is responsible for studying in depth all electoral matters, and it reflects the will of the elected members of Parliament who have all experienced first hand the challenges of the electoral process.
The bill is about ensuring the procedures and machinery of our democratic process continues to operate with integrity. It does so by making a host of improvements to many facets of the Canada Elections Act. Taken together, they will ensure the confidence of the public in our process.
First, I will give an overview of the bill.
[Translation]
With that introduction, I would now like to briefly discuss the bill, which, in my view, can be divided into four main themes.
[English]
The first theme is improving the accuracy of the National Register of Electors and electoral lists.
[Translation]
First, Bill C-31 includes a number of important changes designed to improve the accuracy and integrity of the National Register of Electors. It is from this register that electoral lists are generated. Candidates, parties and election officials use these lists during campaigns and when overseeing the voting itself.
As you already know, the register replaced door-to-door enumeration in 1997.
Bill C-31 makes the changes needed to modernize the legal framework so that the register stays effective and efficient from one election to the next.
[English]
For example, there is currently a consent box on the front page of the income tax return form that allows Canadians to consent to sharing their name, address and date of birth with Elections Canada for inclusion in the register. This source of information has been a pivotal one for the Chief Electoral Officer to update the register. However, many non-citizens, not entitled to vote, are checking the box and making the information, and ultimately the register, less reliable.
Bill C-31 provides the authority to change the question on the income tax form to make it clear that it applies only to Canadian citizens.
It already is clear that it should be filled out only by Canadian citizens, but this bill will allow an additional question where they are asked expressly to state their citizenship. That question should improve the accuracy of the information.
The bill also updates statutory authorities to allow returning officers to perform updating initiatives related to the register between election periods; to clarify the ability of the Chief Electoral Officer to exchange information with the provincial electoral authorities; and to permit the chief electoral officer to use stable identifiers that will insist in ensuring the information on electors and the register is updated and reliable. That is what we call a unique voter number.
Elections Canada updates the register from different sources, and the stable identifier will make cross-referencing more efficient.
Each of these reforms was recommended by the Chief Electoral Officer so that Elections Canada can maintain a better, more up-to-date, national register. They are required to produce more accurate lists of electors that will assist in ensuring integrity of the vote and will improve the ability of candidates to reach out to electors. As one in the business, as certainly I am, when dealing with voters lists and trying to communicate with voters, we often see with a permanent national register many cases where Robert, Bob, and Bobby are three separate voters. The unique identifier number should help eliminate those cases.
The next theme is improving communication with the electorate. This relates to a second set of amendments in the bill, those which improve communication between candidates, political parties, election officials and the electorate.
For instance, updated lists of electors will be distributed on the nineteenth day before polling day, and annual lists will be distributed a month later to incorporate more changes of address from summer moves. This change will give candidates and parties more accurate lists with which to conduct their campaigns.
The bill will also assist the ability of candidates to campaign more effectively by extending their existing right of access to apartment buildings and multiple residences, to gated communities and to public areas such as shopping malls. This bill will authorize election officials to access apartment buildings and gated communities to carry out their duties under the Elections Act. It will facilitate their ability to conduct targeted revision of the voters lists in areas of high mobility or low registration, particularly rapidly growing urban areas.
Together, these reforms will help create a more informed electorate that is more connected to the political process.
The third theme is improving accessibility of the vote.
[Translation]
The third group of changes in the bill seeks to improve access for eligible voters. For example, Bill C-31 changes the rules on transfer certificates in order to remove useless obstacles that could prevent people from voting. Electors with physical disabilities will no longer have to ask for approval three days in advance to vote in a level-access polling station. And if someone's polling station is changed by Elections Canada after having received a voter information card, the person will not be denied the right to vote if he or she goes to the polling station that was originally designated.
Bill C-31 will provide greater flexibility in setting up more advance polling stations. At the moment, each advance polling station must serve at least two polling districts. When the district is large or remote, this can be an obstacle for electors who have to travel long distances. Bill C-31 will repeal this legal constraint and allow an advance poll to be established in every polling district if required.
[English]
Mr. Chairman, steps being taken by the government to enhance voter turnout in the country by making the vote more accessible to all Canadians are Bill C-16 on fixed dates for elections, which was assented to last week; Bill C-31, which we are discussing today; and Bill C-55, which was introduced yesterday to add additional advance polling days to the electoral cycle.
The fourth theme is that of voter identification and voter fraud. One of the most important aspects of Bill C-31 deals with addressing the potential for voter fraud. The House of Commons Standing Committee on Procedure and House Affairs underscored this issue as a guiding theme of its thirteenth report, and the party executives that appeared before the Committee agreed that more needed to be done to protect the integrity of our voting system.
The fundamental principle of our democratic system is one citizen, one vote. Each time this principle is broken, it impairs the confidence and integrity of our democracy. Indeed, each time this principle is broken, it is a grave insult to the vast majority of Canadians who legitimately cast their vote in an election. This situation is particularly so in close elections where the reality of voter fraud can determine who is elected and who is not, and where the spectre of voter fraud can undermine the legitimacy of an elected candidate.
Canadians need to have confidence in their electoral system, and Bill C-31 takes action to enhance that confidence by reducing the opportunity for voting fraud through a simple step: It amends the Canada Elections Act to require Canadians to show identification before voting. Like other reforms proposed in this bill, this change is not a radical one but a procedural improvement that will produce concrete results. In fact, voters are asked to show identification at many other levels, provincially and municipally, and I think all of us have experienced occasions when voters have said to us, ``I could not believe it — they did not ask me to show any ID. Anyone could have gone in and said they were me and voted.'' All of us have experienced voters telling us that.
Canadians seeking to register on election day must already produce identification to prove their identity and residence. Any registered voter can be challenged to prove their identity and entitlement to vote by a poll worker or by a candidate's representative before they can vote. In most cases, voters should carry identification with them when they go to vote. Bill C-31 makes the requirement to produce proof that voters are who they say they are an automatic standard requirement.
As well, the bill provides three reasonable options to meet this requirement. First, they can show one piece of identification issued by a government body, which has their name, photo and address, such as a driver's licence. Second, they can show two pieces of identification that together establish identity and residence, but without a requirement for a photograph on those pieces of identification. The bill provides that the Chief Electoral Officer will publish a list of the kinds of identification that will be acceptable. The Chief Electoral Officer has established a preliminary list and is consulting with the House of Commons Standing Committee on Procedure and House Affairs and the Advisory Committee of Political Parties to ensure that this list of potential identification items is thorough and fair.
Third, even if someone has no identification, they may still vote by swearing an oath or affirmation and by having another elector who is on the voters list for that poll vouch for them.
[Translation]
The process of elector identification will harmonize the federal system with that of other jurisdictions, such as Quebec and a growing number of municipalities in Canada. Ontario, for example, has just introduced a bill providing for elector identification in provincial elections. Each jurisdiction must decide for itself what works best for its electors. The balanced approach in Bill C-31 reflects the recommendations of the members of the Committee on Procedure and House Affairs, and has the full support of members of Parliament.
[English]
I have covered a fair bit of ground in my presentation because many improvements are proposed in Bill C-31. I could say much more but I suspect that senators might have some questions. In closing, I underscore that this bill will improve the integrity of our electoral process. It will do so by small changes that will have a large impact on ensuring that elections are run smoothly, efficiently and in a manner that will continue to secure the confidence of Canadians.
Like our other democratic reform bills introduced in this Parliament, Bill C-31 is a step toward strengthening democracy and accountability in our country.
The Chairman: Minister, thank you for the most comprehensive overview. You have covered a great deal of the bill.
Honourable senators, I will start with the opposition critic, Senator Baker, please.
Senator Baker: Thank you, Mr. Chairman. First, I will ask the minister whether he would support an amendment to the bill. I will distribute one part of the reason for this question to members and the minister. I am distributing the minister's comments at report stage of the bill in the House of Commons, in which the minister referenced the date of birth and the question of whether this information should be included in the bill.
The main reason for asking this question, minister, is that throughout Canada, in all jurisdictions in certain circumstances, some courts have judged a date of birth to have a reasonable expectation of privacy surrounding it. Minister, in your home province of Ontario, many cases before the Ontario courts, before which you have appeared as a lawyer, have a consistent ring. I will identify a couple of cases and speak to the decisions: In 2006, R. v. E.(M.) Justice Murray of the Ontario Court of Justice said that obtaining an accused core biological information — date of birth — amounted to unreasonable search and that the accused had subjective expectation of privacy and information. In 2007, J. Jones of the Ontario Court of Justice said at paragraph 50 that the evidence obtained was in violation of section 8 and section 9 of the Charter because the officer had obtained the person's date of birth. Of course, there are other cases. In a traffic case, the information is on the license, so there would be no attachment of a reasonable expectation of privacy.
As well, it has been litigated at the Federal Court of Appeal as a violation of section 7 of the Charter in the provision of a date of birth when the Canadian Privacy Commissioner brought a case before that Court in 2000.
Thus, at various court levels in certain circumstances, we have violations of the Charter of Rights and Freedoms through the provision of the date of birth. I will read the comments of the minister in the House of Commons on Bill C-31. At page 1, the minister said:
I point out that while we opposed certain changes that occurred to the bill at committee, we are now prepared to support Bill C-31 in its current form. A big reason behind this is that we think this bill has benefitted from a multi-party degree of support, which is important in a bill of this nature.
On the next page, with reference to the date of birth on the list of electors, the minister said, at committee:
. . . we opposed that as well. However, it is now there in the bill and, as I said, in the spirit of cooperation, we are prepared to support it at this stage so that the bill may move forward.
I will put the question directly to him. The Privacy Commissioner will appear before the committee and is opposed to this provision. Case law is opposed to this provision because it is a violation of the Charter. Minister, would you support an amendment to this bill to remove the date of birth, in the spirit of cooperation with this Senate committee.
Mr. Van Loan: There is much to say in response because it is a long story.
Senator Stratton: I suggest you give the history of this provision as well.
Mr. Van Loan: When the original Procedure and House Affairs Committee dealt with this matter, there was no recommendation that the birth date be included. The Bloc Québécois at that time dissented. It is the practice in Quebec to include the birth date on the Quebec voters list. The argument was that the practice had worked well. When the proposed legislation went to committee, ultimately, the Liberal party and the Bloc advanced the amendment to include the birth date. That amendment was opposed by the Conservative party. However, it was adopted.
When it came back to the House, it was important that the bill remain non-partisan, in my opinion at least, because of the nature of the bill, because of the way it came, based on original advice from the Chief Electoral Officer, and because of the way all parties had cooperated on it. I think, sometimes, on matters relating to the operation of the electoral process, it is important that we maintain a broad consensus. At that time, we took a decision to abandon our resistance to the amendment that had been advanced by the Liberals and the Bloc and to accept it. That is what we did.
Of course, if the Senate were to amend it, to reverse that amendment introduced by the Liberals and the Bloc at the committee level and accepted by the House of Commons, that would mean the bill would go back to the House of Commons where those two same parties sought to include that amendment. Therefore, I expect your question is less for me and more for the Liberals and the Bloc in the House of Commons where I expect they would seek to restore the provision that they took the initiative of putting into the bill, as they did at committee.
There are other reasons. Obviously, the major one was a question of it being non-partisan. I was mindful of the evidence of the Privacy Commissioner at committee. When she was asked if there was a problem on the issue of privacy protection if the birth date was included, from her evidence on Wednesday, June 14, she said: ``I am neither for nor against.''
She did not have a view. That was her position.
Senator Prud'homme: That is a good position.
Mr. Van Loan: Furthermore, Michel Guimond from the Bloc pressed the point when he stated:
If my understanding of your response to Ms. Picard is correct, you would prefer to leave this decision up to the legislator. It is up to us, parliamentarians, to decide if that is the way to go. You see no legal problem with regard to the legislation that you are charged with applying. Correct?
Jennifer Stoddart responds: ``Correct.''
In her view, there were no privacy issues and she is the Privacy Commissioner. Had she felt there was a serious privacy question, that situation may have given me more concern.
I think one can readily distinguish, as you did on the distinction between traffic cases and criminal cases, some of these Charter decisions. I am trying to plumb the depths of my mind to figure out what kind of due process section 7 concerns could arise from a birth date. Someone more creative than me will come up with a process. There are creative criminal lawyers out there, and creative judges too.
I do not know that they apply here. One fundamental element of voting in this country is an age test. Voters must be 18 years of age. Obviously, to some extent that information is crucial for the qualification to vote.
The other reason I gather it is important is for insuring that we can distinguish between different individuals with the same name and in certain communities that is a common phenomena. That is increasingly a phenomenon particularly in new ethnic communities. In Korean communities, there are something like seven last names.
[Translation]
Senator Nolin: I would like to clarify something. You referred to the House of Commons committee's report. Just so that I can be sure everyone understands, the chief electoral officer recommended that the year of birth of each elector be included, and the House committee came back with the proposal to include the date of birth. The nuance is important to understand.
[English]
Mr. Van Loan: The original recommendation was that the birth date be there, but only available at the polling stations. There was a question of expanding access so it was available to the parties who would have a copy of the list, to use in their scrutineering, monitoring and oversight of the electoral process.
Senator Stratton: What about privacy, theft of identity? Had that question been asked on the House side? If someone has the date of birth plus the person's name, would that lead to a potential for identity theft?
Mr. Van Loan: They were cognizant of that issue at committee. That is why those questions were asked of the Privacy Commissioner. The issue also arose in debate in the House. The NDP, particularly, raised that as a matter of concern. Of course, we have come a long way. When I was a kid, they used to post the voters list on the telephone pole at the end of the block.
Senator Stratton: Not date of birth.
Mr. Van Loan: They put down everybody's professions. It was always fun to see who was a teacher, who was a homemaker, who did what and who pretended to do what.
People would take the list. They wanted a list and they thought it was entertaining. Obviously, there are greater concerns about privacy.
It should be underlined that this information is available only to the Elections Canada officials and to the political parties. It would not be more broadly available than that, and there are provisions in the act that create penalties for improper use of that information.
There are legal protections in place, and you might debate whether those protections are sufficient, because some people break the law. You might want to debate whether those fines are sufficient, but there is a structure in place that provides protections.
Senator Baker: Our chair is a former professor of law, so he keeps that gavel going.
The thing that struck me, minister, about the date of birth was that if someone wants to check their line of credit in the bank on the telephone, or their credit in a credit card — let us take an example, MasterCard at the Bank of Montreal — they phone up and the last two questions they are asked for identification are these: Please give the month of your birth followed by the number sign. After they do that, then it says: Please give the day of your birth followed by the number sign.
They access then their line of credit, their credit card, and they can do all kinds of things. They can transfer things around. They can pay bills and so on.
As far as section 7 is concerned, this problem is a real one in the real world. Some elderly people use it as their personal identification number, PIN. These things have all been litigated, as you are probably aware.
Section 7 comes in, by the way, because it violates the Privacy Act. The Privacy Act, under the definition section of section 3, defines personal information as a person's age. Date of birth is personal information. That has been litigated, as I mentioned before, when the customs department wanted to give information, the date of birth, to the unemployment insurance commission. The courts ruled that if it is used for that exclusive purpose within that department that is fine. That is okay under the Privacy Act, section 8 (3), but if it is not, then it is not okay.
What you have now agreed with certain opposition parties to do is to distribute this list of dates of birth, three times between elections, to party workers throughout the country. With the passage of this bill, everybody's date of birth will be known to everybody in Canada if you distribute it as it says, to party workers throughout Canada.
Do you not think, if you go back and check with the Privacy Commissioner or you go back and check with the opposition parties, that perhaps they might have changed their mind? In that circumstance, would you agree to an amendment to this bill removing the date of birth?
Mr. Van Loan: I have the evidence of the Privacy Commissioner here. I have seen the correspondence from the Privacy Commissioner.
Senator Baker: Perhaps she changed her mind.
Mr. Van Loan: I do not know that she has. Perhaps she has. I see that her question is, she encourages you to apply a test on the appropriate level of, if I can use the word, intrusiveness. I feel oddly perplexed here being asked to defend a Liberal-Bloc amendment that was, I do not want to say foisted upon us, but in the spirit of cooperation I am defending it.
I think the evidence is clear. It is a bit of an exaggeration to say it goes to everyone in Canada. Political parties have some responsibility for the control of that information; and they have liability under the act for the distribution of that information.
Everyone needs to be mindful of that. You may be dismissive of it, but if political parties are dismissive of their responsibilities for that privacy, they run a serious risk.
Senator Milne: As you know, minister, political parties accept people who walk in off the street and volunteer. Anyone can walk in off the street and say, I will make some phone calls for you. They are handed a certain portion the voters list and told, please do.
Mr. Van Loan: I would not give them that kind of information if I did that.
Senator Milne: I am concerned, as Senator Baker is, not so much about the year of birth, but the actual date — the month and the day. I also understand from clause 6 in the bill that the Chief Electoral Officer will be able to collect and retain driver's licence numbers of electors throughout Canada. Is that correct?
Mr. Van Loan: Right now, Elections Canada already receives it. We are not talking about the parties, but Elections Canada receives the information. The issue here is whether they must then dispose of it presumably until the next round of information received from the provinces. That is the way the updating of the list operates. The rationale behind that is, being allowed to retain it allows for the cross-referencing so they do not have duplicate and triplicate entries of any voter on the voters list.
Senator Milne: If this passes and you have the year of birth, a unique identifier number applied to every single elector and the driver's licence information, does this information not greatly increase the possibility of identity theft? This theft is an increasing concern for Canadians. It happens more and more. It seems to me a voters list posted to a telephone pole will be a wide-open invitation.
Mr. Van Loan: Let us be clear: The driver's licence number is never made available to the political parties. I do not think it is even available to the returning officer for the riding. That information is used centrally by Elections Canada in Ottawa for updating the list through their database.
Of course, you can make the same objections to the income tax information. However, one hopes that Elections Canada officials have the same level of integrity as government officials that work at Revenue Canada, or that work at a provincial ministry of transportation, and they respect the privacy of that information. Of course, they have significant legal obligations to do that. The option, if one wishes to depart from that, is to return to the door-to-door enumeration.
Senator Milne: Which might be a good idea, given the amount of fraud that I know personally goes on — that I have run into in elections.
Mr. Van Loan: There was a decision in 1997 to depart from that for many reasons — the difficulty of putting those together, the cost of putting those lists together. Some people saw the financial incentive, being paid on a voter basis, to put every single soul they could find, and others, on a voters list. Others did not bother going door-to-door to find the voters. Therefore, the permanent voters list is the way we have gone.
We are not looking to change that here. It would be beyond the scope of this legislation to do that, and that would be a dramatic change to our electoral system.
Senator Milne: To go back, to it might make for a lot more accuracy on the list. It has been depressing working with lists in elections.
Mr. Van Loan: I do not disagree. However, you will be encouraged that one of the things in this legislation is to give greater authority to Elections Canada to conduct those updates in an area of high growth; and to give them additional tools to go into the condominium they were not allowed to go in before, or the newly built gated community they could not go into before, so they can conduct those updates by door-to-door enumeration where they see that need.
Senator Milne: Following on the right to access, is clause 12 the new provision that will allow candidates to campaign openly in shopping centres and public places?
Mr. Van Loan: Yes.
Senator Milne: Clause 9 will let the Chief Electoral Officer share the date of birth and citizenship, I assume — and perhaps driver's licence — with the provincial election authorities throughout Canada. Is that true, and have any of the provincial authorities expressed any concern about their levels of being able to protect that information?
Mr. Van Loan: I am not aware of any concerns raised about protecting that information. This question is obviously for the provinces and the federal government, or election officials at both levels being able to rely on each other's work to improve the accuracy of the voters list.
Senator Milne: Can you explain to the committee why clause 40 and clause 41 were included in this bill? What was the rationale for tacking them on at the end? These clauses are the coming-into-force clauses. Clause 41 is the public service — ``the period of employment of a casual worker may not exceed 90 working days.'' Then coming into force — certain sections come into force two months after the day on which it receives Royal Assent, but others do not come into force until eight months after the day. Is that a way of cutting off some of the casual employees?
Mr. Van Loan: I will turn to my officials on that question because I am not familiar with the genesis of that provision.
Senator Milne: If the officials can stay on after you leave, minister, I do not want to take away from senators' time on questioning the minister. We can get an answer from them after you leave, sir.
At that point, I will let someone else take over the questioning.
Senator Stratton: My question has to do, again, with this whole issue of the date of birth. It is a serious concern of this committee. I know that Senator Baker and I have talked about it before. I have also had discussions with other MPs expressing the same concern.
Perhaps if there is a history, for example, you quote that it now occurs in Quebec. How long has that been going on? Is there a history where we can say that we have an assurance that there has not been a problem in Quebec? Are there other jurisdictions — for example, outside of the country — where they require this date of birth that we can look to find assurance that this is not a problem? That would be most helpful.
Mr. Van Loan: I do not know the length of time that it has been done in Quebec. All I know is that at the Procedure and House Affairs Committee, the members from Quebec, the Bloc and Liberal parties, were assertive that the system worked well and they had confidence in it. I am not aware of problems or abuses that have arisen from its use.
Senator Stratton: That is appreciated, but perhaps we could have some definitive answer with respect to that provision. Is there any possible way to have an answer from the province?
Mr. Van Loan: Mr. King has undertaken to come back to you on that.
Senator Fraser: I have more of the same, minister. We are all in favour of systems that make elections work, that encourage people to vote, that encourage the elections to be fair and honest and that discourage fraud. It is my understanding that the date of birth is included — in part, at least, and maybe entirely — to minimize confusion over voter identity.
I know that there are places where that is necessary. Take my own name: I was originally from Nova Scotia and there are many people with my name there. I can understand, therefore, that there might be a need for some further identifying information.
However, clauses 4 and 5 of this bill require for each elector a unique, randomly generated identifier number. I gather the reasoning for that, when the Chief Electoral Officer first proposed it, was to avoid confusion over identity of electors. My question, is why do we need both?
Mr. Van Loan: Again, I feel funny defending a Bloc and Liberal amendment, but I will do the best I can, in my spirit of cooperation. My answer will be, having worked with the databases and voters lists before, I can tell you that it is not unusual for someone to end up with two unique voter identifier numbers. Keep in mind that with mobility at the level it is and people moving all over the country, they are dealing not only with two Joan Frasers in Poll 72. They are dealing with two Joan Frasers anywhere in the country, and Joan Fraser having moved from Halifax to Antigonish, and then they must figure out if it is the same Joan Fraser. That provides a cross-check or reference. I assume that would be a reason one would want to look to birth date.
Senator Fraser: You have given the answer. I remain confused and a bit perplexed, but we will pursue this issue.
Mr. Van Loan: Perhaps you might want to call some Liberal and Bloc members to provide the evidence for this.
Senator Fraser: My second question, minister, has to do with Bill C-55, which you presented in the House yesterday and which is also concerned with elections. Why did not you do it all together?
Mr. Van Loan: Bill C-31 was designed to be a response to the Procedure and House Affairs Committee recommendations based on the Chief Electoral Officer's recommendations. It is a free-standing concept that bundles together all those largely administrative changes. Obviously, yesterday's bill is of a greater policy nature. In simple terms, I was not the minister back then, so it was not my idea back then, and we have a different situation now. I believe they deal with different principles too.
Senator Fraser: We will see whether we agree when the bill comes to us.
Senator Zimmer: Thank you, minister, for appearing this morning. I want to shift gears and get off those issues and talk more about the homeless and First Nations. Someone raised concerns about the limitations that new identification requirements may impose upon certain groups of people who may not possess suitable identification, such as the homeless. The alternative to providing identification would be to require the would-be voter to take an oath and have another person in the same polling division vouch for him or her, which obviously would require planning on the part of the would-be voter. How would the new procedures be communicated to groups such as the homeless, who cannot be reached through traditional means?
Mr. Van Loan: Elections Canada has obviously a fair bit of communications they do on voting requirements. We have created a structure in the bill where there are a number of different alternatives for someone to vote with one piece of identification, as we said, with address and photo. Some homeless may have that, some may not, or two pieces of identification. It is up to the Chief Electoral Officer under this structure to determine what would be appropriate. For example, a letter of residence from a homeless shelter may be sufficient to establish that identification, along with something like a health card and the like. Some people make the argument that homeless people may not have a health card. Other people make the counter-argument that it would be a good thing, if someone is homeless, that we ensure they have that kind of health card so they can access public health, which is important, and particularly important for homeless people.
I think anything that encourages engagement with the network of social supports that we have in a place is not a bad thing.
Senator Zimmer: As far as the First Nations go, on a similar vein, First Nations representatives argued before the House Standing Committee on Procedure and House Affairs that members of the First Nations would be prevented from voting as a result of the identification requirements since, again, many lack government-issued pieces of identification, especially those living in remote areas of the country where there are few government agencies. The bill attempts to address this concern by deeming a government-issued identity card under the Indian Act to be an authorized piece of identification for voting purposes. Do you feel this measure is sufficient to ensure that First Nations members will not be prevented from voting?
Mr. Van Loan: We have an adequate provision there. That is a special provision that exists for both the homeless and the Aboriginal situation. The vouching ability remains in place. Another voter can vouch for them, failing the ability to meet the identification standard. This legislation takes away a daisy chain of vouching, where someone vouches for another, who then vouches for another, who then vouches for another, which could raise questions of integrity, but someone can vouch for them. If they are a vouched-for voter, they cannot vouch for someone else. Most individuals in a community like that will have no difficulty finding other voters who, if from the same community would be familiar with them and would be able to vouch for them.
Senator Zimmer: Will it address the problem of First Nation members such as those living in the cities, not remote areas, who may not qualify as an Aboriginal for a variety of reasons and thus may not qualify for certification under the Indian Act?
Mr. Van Loan: I think we end up with the same kind of situation as we have for the unregistered, homeless elector in that it creates a number of alternatives. If they do not have a fixed address, they essentially fall into the same position, and I think those are ample opportunities.
[Translation]
Senator Nolin: Mr. Minister, my questions are on an important element of your bill and deal with elector identification at polling stations. I read the House of Commons report on the subject with great interest; mention is made of it there — and I quote: ``Many Canadians have expressed concern about the potential for fraud.''
Your bill accepts the committee's recommendation that requires electors to provide two pieces of identification at the polling station, or, if they do not have that identification, to have their identity vouched for by another elector with the required identification.
My question is about the evidence that the government has. I know the answer in part because the Privacy Commissioner appeared before a House of Commons committee yesterday. Right off the bat, she said that Canada did not have enough information, and had no clear picture of the extent of the identity theft problem.
So this is my question: Are we not trying to solve a problem at polling stations without really knowing how big the problem is?
My second question — you can answer them together given the little time we have: Have you considered possible challenges under the Charter? Does the requirement for two pieces of identification not infringe on a person's right to vote? If so, have you set up mechanisms, or held discussions, that satisfy you that your approach could withstand any Charter challenges?
[English]
Mr. Van Loan: In terms of a Charter challenge, there are several ways of approaching that and whether it would survive the Charter. We are all cognizant of the aspect of the Charter that says that all rights are subject to such restrictions as are reasonably and demonstrably justifiable in a free and democratic society. Ensuring that democratic elections are indeed democratic, and voters who have the right to vote are the only people voting, is a reasonable thing. That would be a cornerstone for a free and democratic society. Any restrictions in place, provided they did not go too far, would not be unreasonable, and would survive that. It has been required at other levels, municipally. I do not know of any Charter challenges that have been launched on that basis, probably because few people think that it would be reasonable to do so. I do not know of anyone who feels they have been denied the right to vote and launched a case. There may be some, but I am not seeing any.
I will, though, draw your attention to the fact that the act has already had provisions of this nature for some time. Already in the act, at two levels, there is the requirement to prove one's identity.
One is in the case where a poll official demands a voter's identity or if a representative of the political party asks that a voter prove their identity, they are already required to do so. All this legislation does is to take that potential requirement away from the case where someone decides to check or wants to challenge a person. The legislation makes it uniform for everyone, namely, that everyone must produce identification. That is already required at other levels in elections right now.
That provision has been managed well by Elections Canada. I am unaware of any Charter challenges in either scrutiny or a polling official or a deputy returning officer asking that a voter prove their identity. I am not aware of any voters having contested that.
[Translation]
Senator Nolin: I would like to come back to the question of personal information and full dates of birth for electors. Your argument is — legitimately, I would say — that you want to be sure that the elector standing in front of the deputy returning officer and wanting to vote is in fact the elector he says he is. I think that is valid. In clause 18 of the bill we have before us, it says that the returning officer will give the deputy returning officer an official electoral list that contains the gender and the date of birth of each elector. As I read this section, it is clear that you actually do want to make sure that the staff, the election officials, are able to confirm, using the information in the official list, that the person before them is indeed that person. I gather that gender will appear only on the list given to the deputy returning officer, right? This information will not be on the official list that goes to the candidate?
[English]
I think the answer is yes. The only mention of sex is there.
Matthew King, Assistant Secretary, Legislation and House Planning, Privy Council Office: The issue of sex is from the old regime. It is not mentioned in Bill C-31.
Senator Nolin: It is not. That is my point. That means we already have a regime where we give information to scrutineers to alert them that if a man shows up and says, ``My name is Josée Verner,'' and that voter is supposed to be a woman, the scrutineer will at least have the information to say, ``No, you are not that person.''
Why has selective information for scrutineers not been implemented for all the information about the date of birth of an individual? Why not restrict it only to the year of birth for the list you distribute to candidates and political organizations?
Mr. Van Loan: One could go to that alternative, year of birth only. Obviously, that would be 365 times less accurate in terms of precision. As I say, this amendment is from the other parties, and some people might say that information is still an intrusion into privacy, and some people might say that is sufficient. I leave it to you to judge what is sufficient.
Certainly, if your question is the basic one of qualification to vote, the year may be sufficient, but if it is in the year 18 years previous, it might not be sufficient to determine qualification to vote.
[Translation]
Senator Prud'homme: Thank you, Mr. Chairman, and thank you also to my colleagues who are yielding their place to me.
[English]
I have been following this since I was elected 43 years ago.
Mr. Van Loan: To the Senate? Oh, no.
Senator Prud'homme: I already said to the minister that I would love to have a debate in his own district on the reform of the Senate because I am of the opinion that if there is to be reform, it should start with the House of Commons.
I have been involved in this issue, and it represents a lot of difficulty. I have gone through, as you have said, this list on the pole. It was something done at our request to take it off the pole for security reasons, especially in the big city.
I opposed it. I lost, but I still believe we will go back to that. If an elector, a Canadian citizen, is upset at having their date of birth circulating and it being abused, as I am convinced it will be abused, there is a column in the income tax form where it asks whether they will allow their name, et cetera, to be sent to the Chief Returning Officer. All the elector needs to do is say no. I had a long discussion with Mr. Kingsley on that matter. That practice eventually will lead to a massive number of people in the city who will register only on the day of the election. We do not know the numbers, but I thought it would be an average of a thousand: Now, I hear in the big cities, it is way over a thousand that register the day of the vote. Therefore, these people could not be on a list that would be provided, since they are voting only on the day of the election.
I suggest to you kindly that maybe you should put your intelligence — you have a lot, I am told — to re-examining the question of a permanent list. Will you consider re-examining that issue? If the list is not as accurate as many of us think, it means the percentage of people voting is lower because too many people are on the list who should not be.
Mr. Van Loan: That situation should be corrected.
Senator Prud'homme: Do you not see a danger, especially for elderly citizens, in having their date of birth on papers that will circulate massively? I do not want to give an example: It is a well known one. A well-known man is using it at the moment to call every elector, every day, to wish them happy birthday. Some people resent that. He is a politician at the provincial level.
You would do a great service to Canada and Canadians if you were to accept the amendment to remove the date of birth. Security can be provided otherwise, as we have done in the election, where they must produce two pieces of identification, one of which must have their picture on it. That went a long way in Quebec, and I am not convinced that the Bloc and the others were right in their report to the committee. They overemphasized the views that you have so well expressed on their behalf, most likely.
Mr. Van Loan: On the question you raised about people not filling out the income tax form, of course, that will not be sufficient to keep the birth date off the list because other sources of information are used to compile the list, such as driver's licences and so forth, all of which have date of birth, so that may not come to pass.
In terms of the permanent voters list, all of us are troubled by the quality of the voters lists. I am not sure whether we would be less troubled if we went back to the old system or kept the new system. I know many people were troubled by the quality of the list under the old system, too, which is why, presumably, it was changed.
You speculate that we are understating turnout, in that more people are showing up to vote, but the voters lists have a lot of people who should not be there. Others argue the opposite, that many people never appear on the voters list for whatever reason: they do not bother to pay income tax; they never do returns; they do not fill out those boxes; they do not have a driver's licence; or, they turn 18 but never do anything to cause themselves to be put on a voters list. It can go either way, but any of us who work with the list know that the lists are not the quality we want them to be.
I am all ears for people who have suggestions for better systems. Straight forward enumeration had its limitations. Elections Canada will tell you they had difficulty finding people to do the limited enumerations they do in this day and age. People do not want to go into difficult neighbourhoods. They think there are biases. They do not want to go into certain buildings to knock on doors. They are frightened to do that. Then there are the incentive questions. People were enthusiastically over-enumerating. There is difficulty finding people to do that work. Everybody already has a job. It is a difficult problem. Some think we should go to an American-type system, where the onus is on the citizen to register. If they do not, that is their problem.
There has been a lot of resistance in Canada to go down that path. I am all ears for any suggestions people have.
I will take one more question, but I apologize: I have a phone call with a radio station in eight minutes.
Senator Joyal: The Supreme Court of Canada interpreted section 3 of the Charter as:
Every citizen of Canada has the right to vote in an election of the members of the House of Commons.
As interpreted, that right, in a way, facilitates the right to vote. The objective of the bill, which is to help the identification, includes, in my opinion, invasion of privacy. Being interpreted around section 7 of the Charter, as mentioned by Senator Baker and Senator Nolin, will meet the question of the reasonable limit, as you stated properly.
The reasonable limit too, has limits. This is the oak test. The oak test requires the aims to be used. In this case, the date of birth has to be measured with the objective of the bill, which is to maintain the identity of the voters.
The Oaks test says it must not only be proportionate, but it must be the least invasive. You know the law as well as I and honourable senators around this table know it.
It seems to me, if we are to balance the objective of the bill with the Charter question, we must make that reasoning. Are we not crossing the line of what should be the least appropriate means or tools used to check the identity of voters? That to me is the question we need to answer on this bill.
Mr. Van Loan: I will go back to my starting comments. That position was the starting position of the government. In the spirit of cooperation and keeping the bill non-partisan, we acceded to the suggestion that emanated from the Liberal and Bloc members of the committee to expand the inclusion of birthdate, making it available to the political parties.
As for applying the test, one sometimes finds that any given court on any given day can come up with any given answer. That is something that the Privacy Commissioner recommended. She directed us to make that decision in the House of Commons. She said it was properly in our realm. It was fine in her ambit. It was up to us, as legislators, to make that decision.
The Chairman: Minister, on behalf of the committee, I want to thank you for coming today and answering some difficult but extremely important questions. Your officials will stay because I have a list for the second round of things that honourable senators wish to pursue.
Mr. Van Loan: I apologize that I have to go, but I appreciated the opportunity to come. Thank you for this discussion. I encourage you to go back and talk about these ideas.
Senator Milne: I trust you are not castigating the Senate.
Mr. Van Loan: I end up having to do it so often. There is an easy way to change that.
Senator Milne: I come back to my question of the minister on clauses 40 and 41 of the bill. Why were these included?
Mr. King: Sorry, I am trying to find the exact reference for the senator.
Senator Milne: It says:
Subsection 22(2) of the Public Service Employment Act is amended by striking out the word ``and''. . . and by adding the following after paragraph (i):
(j) extending the period of employment referred to as subsection 50(2) for any position or person or class of positions or persons.
Then following, we have clause 41.
Natasha Kim, Senior Policy Advisor, Legislation and House Planning, Privy Council Office: Clauses 40 and 41 were included in direct response to a recommendation by the Chief Electoral Officer in his report. The Committee on Procedure and House Affairs endorsed these provisions. Due to a recent amendment to the Public Service Employment Act, casual workers were limited to work only 90 days over a 12-month period. Given recent experience, with successive minority Parliaments, Elections Canada found it hard for casual workers to meet that time limit. Clauses 40 and 41 allow, by regulation, the term of casual workers to be extended beyond that 90-day period.
Senator Milne: Yes, but why is it in this act?
Ms. Kim: It deals with the operation of elections and the administration of it.
Senator Milne: Are you are speaking about casual workers employed only by Elections Canada?
If Elections Canada has hired some casual workers right now in the anticipation of a spring election, can they not hire those same casual workers again later in the year if there happens to be a late fall election?
Mr. King: Under existing conditions of the Canada Elections Act and the Public Service Employment Act, that work would be limited to 90 days. This amendment would give the Chief Electoral Officer the discretion required to extend that same person over a 90-day period. If we had back-to-back minority governments that might exist for who knows how long, then the Chief Electoral Officer has this flexibility to extend their existing work force.
Senator Milne: The amendment says it ``may not exceed.'' It does not give them the ability to extend it.
Ms. Kim: I believe you are looking at clause 41. It says: may not exceed ``Unless extended by regulations.''
Mr. King: The actual term would be extended under the regulations. It would need to be extended in regulations, partially to make sure it is targeted and limited to election workers.
Senator Milne: Therefore it is targeted strictly at election workers, and this clause would give the Chief Electoral Officer the ability to hire the same people twice, if there happen to be two elections in one year.
Mr. King: Yes.
Senator Milne: Thank you.
I am looking at proposed section 147 on page ten of this bill. It says:
If a person asks for a ballot at a polling station after someone else has voted under that person's name, the person shall not be allowed to vote unless he or she takes the prescribed oath.
Can you explain that to me? Does that mean that Elections Canada will allow more than one person to vote under one name? Does it allow one person to vote twice?
Will it allow some fraudulently inclined person to vote in the advanced poll and then take the oath, which would not mean anything to them, and vote on election day?
Ms. Kim: This provision already exists in the Canada Elections Act currently. It has only been re-enacted with technical amendments. The new wording would allow someone to vote, who has been crossed off, providing they take an oath. If there has been a technical error on the voters list, and someone is crossed off as having voted, this provides a paper trail that can be checked afterwards to ensure fraud has not occurred.
Senator Milne: One of our own senators had precisely this situation in the recent Quebec elections. Neither he nor his wife was allowed to vote, even though they had been life-long residents of the community, recognized by everyone in the polling station. They had been marked as having voted in the advanced poll, so they were not allowed to vote.
Senator Prud'homme: I think we should recheck that situation because that would be against the law. If someone else has voted in someone's name, and the person swears an oath as to their identity, they can vote. I do not understand what happened in that case.
Senator Milne: I am well aware of that and they were well aware of that but they were still not allowed to vote.
The minister mentioned the possibility of people having two unique identifying numbers, which is possible in our highly mobile and technologically advanced age.
Again, this possibility would allow someone to vote twice, would it not?
Mr. King: In theory, I suppose it would allow that situation to happen.
That might be one reason that the Chief Electoral Officer wanted to add to the stable identifier a further year-of- birth qualification to give poll workers another means to check the identity at the poll.
Senator Milne: You said, year of birth.
Mr. King: I said, year of birth, yes.
Senator Milne: Not actual day and month. Thank you.
Mr. King: No: That was his recommendation.
Senator Baker: I will be brief, Mr. Chairman. Going back to Senator Nolin's questions to the minister, I wonder whether this bill will affect in any way a problem that arose during the Quebec election, I believe, when someone was not permitted to vote because her face was veiled. Did that happen? I am not sure.
Does the bill make reference to that?
Mr. King: It does not specifically address the wearing of veils. It does have a new requirement that a voter show identification at the polls — either a photo ID with name and address or two pieces of ID, or the third option, which is to be vouched for.
It is the government's view that Elections Canada has managed this issue adequately over the last number of elections. It is anticipated that Bill C-31 gives Elections Canada and the Chief Electoral Officer the flexibility to continue in the same way.
I believe I read stories about Elections Canada having begun an outreach process with affected groups in our society and that the process continues. It is anticipated that Elections Canada will continue to manage this process.
The Chairman: Senator Baker's question was specific about veils, and you did not address that.
Mr. King: I am sorry, I thought I said there is no specific reference to veils in the bill. Perhaps I misunderstood the senator's question.
Senator Nolin: How will you manage photo IDs?
The Chairman: If someone arrives with photo ID but the face is veiled, how can the ID be verified?
Mr. King: It would seem obvious to me that someone who prefers to satisfy the identification requirements by use of a photo would reveal that person's face to match to the photo, I would think. On the other hand, there are other means to prove one's identity, such as two pieces of other identification.
The Chairman: — or be vouched for.
Mr. King: Yes, neither requires removal of a veil. As I say, I believe Elections Canada is in the process of consulting with affected groups.
Senator Baker: According to this bill, the two pieces of identification, not identified in the bill, would act as alternate identification to a government-issued photo ID. The specifics of the alternative identification will be left to the Chief Electoral Officer to determine. Those two pieces of identification might not contain a photo ID. Is that correct?
Mr. King: I have one quick addition to your comments, senator. Indeed, the Chief Electoral Officer has the flexibility to develop a list of acceptable ID. As the Government House Leader mentioned this morning, a preliminary list of acceptable identification has already been tabled, in my understanding, with the House of Commons Procedure and House Affairs Committee. I see this issue as more of a dialogue between the House Committee and the Chief Electoral Officer.
Senator Baker: Allow me to help a bit. In the case of the province of Quebec, the Chief Electoral Officer made a decision, which he reversed one day later. I do not know if officials have discussed this and, if not, that is fine. Would the Chief Electoral Officer have the same jurisdiction under Bill C-31 to do exactly the same thing as the Quebec Chief Electoral Officer did under Quebec legislation?
Mr. King: I do not want to speculate on how the Chief Electoral Officer would respond to this, in particular a new Chief Electoral Officer. It is to Elections Canada's advantage to consult now with communities. The government believes that the Chief Electoral Officer will find a way to make this work.
Senator Baker: My last question has been referenced by Senator Joyal and Senator Nolin. As some would say, when trying to kill a mosquito, do not use a fly swatter but rather use a baseball bat.
Senator Stratton: We have to do that in Manitoba.
Senator Baker: For the record, the section 7 argument referenced by Senator Nolin and Senator Joyal falls under the overbreadth doctrine, in which the Supreme Court of Canada determined that when we institute legislation that is broader than necessary to accomplish a legitimate objective, the principles of fundamental justice will have been violated if an individual's rights have been limited for no reason.
I quote from R. v. Heywood, Cory J. for the Majority, at paragraph 516:
If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights have been limited for no reason.
In the case of Aunt Suzie who comes in to vote after this bill is passed and Aunt Suzie is known by the entire community, in fact, some people sitting at the table may even be relatives of Aunt Suzie but Aunt Suzie does not have a photo ID because she does not drive. Aunt Suzie must produce other forms of identification. If she does not have it, she must find someone to swear on her behalf. Then, the bill says, that person must be read the provisions of punishment for a person who lies under oath.
In other words, they must understand that someone could be sentenced to six months in jail if they have lied and Aunt Suzie is not who they says she is. They must understand they can be subjected to a fine of up to $5,000? That is a huge change from the existing law under which that person can vote today.
I do not know if you want to comment on that. It might be better left for the minister to respond.
Mr. King: You might be right, senator, in saying that the minister might want to comment.
The Chairman: As an aside for honourable senators, the Chief Electoral Officer will appear as a witness before the committee next week and the Chief Electoral Officer of Quebec will appear as a witness. We have the Privacy Commissioner of Canada, the assistant Privacy Commissioner of Ontario, and others coming. A lot of other witnesses will be able to respond directly to many of the questions being asked, particularly about the Quebec law.
Senator Nolin: I want to go to clause 11, which deals with the authority to campaign in apartment buildings and condominiums, and clause 12, which deals with churches. There are two exceptions to that rule, and I will read clause 11(2) in French.
[Translation]
Subsection (1) does not apply in respect of a person who is in control of a multiple-residence building whose residents' physical or emotional well-being may be harmed as a result of permitting the activities referred to in that subsection.
My question is about the exceptions mentioned in subclause 2 of clause 11, and about clause 12. Who decides on the exceptions?
[English]
Senator Nolin: Who decides that? I am the candidate and I want to campaign tomorrow or today. I want to go in that church, and someone says no. It is limiting, as section 12 states, in that it does not apply in respect of place if ``campaigning in or on it would be incompatible with the function and purpose of the place or inconsistent with public safety.''
I accept that, but who decides?
Senator Baker: It is a religious place.
Senator Andreychuk: They rent out halls.
Mr. King: Elections Canada would be charged with making that determination.
Senator Nolin: I think we should be more precise in the bill. That is my sub-question.
We should inform those who must work with that law. They should be alerted before going to a church and saying, I want to campaign. Who will police that? I think we should look into that issue.
In subclause 20(c), we are aware of this ongoing jurisprudence about what is a registered party, and now I understand, reading subclause 20(c), that 48 hours after the closure of nomination, the party is registered. I want to understand what the process is and how it will work? Enlighten me.
Ms. Kim: In relation to clause 20, this technical amendment was recommended by the Chief Electoral Officer because the act previously said that it did not have the 48 hours after the close of nominations and this would have prevented eligible parties that are not yet registered who have to field a candidate that is confirmed.
Senator Nolin: One candidate?
Ms. Kim: The candidate must already be confirmed. If the cut-off point for registration is at the close of nominations rather than at the last date at which a nomination can be confirmed, there is a 48-hour window that would prevent an ineligible party from becoming registered if they did not receive their confirmation of a candidate in time. This was a technical amendment in relation to that.
Senator Nolin: It means that the one-candidate party will be able to campaign, and have the name of that party on the ballot, even though the registration is not official?
Ms. Kim: This provision entitles the registration to be official if they are fielding a candidate in that election.
Senator Nolin: Okay.
In clause 23, I have an interpretive question that deals with proposed section 149. Since when in an act of Canada do we refer to ``his or her'' polling station? Have we done that in the past, referred to ``his or her?'' It is notable to see that it is only in English.
Ms. Kim: Mr. Chairman, drafting policy is to have gender-neutral language.
Senator Nolin: I thought an elector is a ``his.''
Senator Baker: The polling station —
Senator Nolin: Is that is the only place in the act that we use ``his or her'' when referring to a person who could be a man or a woman?
Ms. Kim: I think a number of provisions in the act currently, and as it has been amended over time, incorporate gender-neutral language, either ``his or her'' or some kind of neutral singular pronoun.
Senator Nolin: I do not have a problem. I only want to know if it is a new way to refer to an individual. Is it the new way? We will do it, but I do not think it is appropriate. It overburdens the text for nothing.
Our acts are gender-neutral. If we decide it will be ``her'' every time now, let us do it, but up to now, we have been using ``his.''
The Chairman: In the past it was always ``him.'' This wording is an attempt to bring some neutrality.
Senator Nolin: I understand the political correctness of the amendment, but it is not exactly the way we write bills.
Senator Fraser: My instinctive reaction is to be in favour of explicit gender equality. However, if we say in one clause of a bill ``his or her'' and in all other clauses we say ``his,'' are we creating trouble for ourselves?
Ms. Kim: In terms of statutory interpretation, there is a provision in the Interpretation Act, I believe, that deems any reference to ``him'' to include ``her'' or ``he'' to include ``she.''
Senator Fraser: I know that. If in one section of a bill we have made an exception to the general practice and we use ``his or her,'' is that likely to affect anything? What I am saying here is almost theoretical, but it is a real question even so.
Ms. Kim: My understanding is there is no legal difference there.
Raymond MacCallum, Counsel, Human Rights Law Section, Department of Justice Canada: The first order of business is to determine Parliament's intent. I think the intent is clear, and the recognition of the reality that bills, especially enactments such as the Canada Elections Act, are amended piecemeal over time, and some periods of time more often than not. I do not think there will be any problems in terms of interpreting the intent of Parliament here.
Senator Andreychuk: On that point, maybe Senator Joyal can recall better than I, but I understood that there was a conscious drafting policy to be gender-neutral. We would not say ``his,'' we would say ``his and her,'' and I think that has been put forward rather forcefully on the equality basis. I notice further down it talks about ``his or her spouse,'' but this is not the first act. Every time we say ``his,'' we say ``his or her,'' unless we actually intended only the male species.
I thought that was a policy decision in drafting directed by the government sometime after the Charter.
We could say elector but they say, ``in his or her polling station.''
Senator Baker: Is ``in the elector's polling station'' appropriate?
Senator Andreychuk: That could have been a choice. The argument was that they could say ``his'' because of the Interpretation Act, but it must be ``his or hers.''
Senator Nolin: Let us dig into that argument.
Senator Andreychuk: I am not drafting. I am saying I want neutrality.
Senator Nolin: We will talk about clause 26 in French now, and the proposed amendment to section 161(1)(b).
[Translation]
Subsection 1(b) reads:
[. . .] soit en prêtant le serment prescrit s'il est accompagné d'un électeur dont [. . .] [. . .] by taking the prescribed oath, and is accompanied by an elector whose [. . .]
It should read:
[. . .] soit en prêtant le serment prescrit s'il ou elle est accompagné(e) d'un électeur. [. . .] by taking the prescribed oath and he or she is accompanied by an elector [. . .]
What is the idea? I understand that we want to respect everyone, but if we do it one place, we have to do it everywhere, not just when we feel like it.
[English]
Mr. MacCallum: I am not a drafter, but I can appreciate the concern for consistency. It is always a goal and one that is not always perfectly met. In terms of drafting the ideal enactment, consistency of language is the goal. I can convey your concerns back to the drafting section, if you wish.
Senator Prud'homme: In French, you have to double the ``F.''
Senator Andreychuk: At one point, the drafters appeared at the Standing Senate Committee on Legal and Constitutional Affairs and indicated how they go about drafting the French version and the English version. We also had some testimony way back about attempting to get at the legislation so that it is gender neutral, that it is not ``his'' only. Why have they chosen one style in the French and one in the English? Perhaps the question should go to the drafters and we should get an answer back.
I am looking at the proposed amendment to section 143(6), on page 9 of the bill:
An elector who has been vouched for at an election may not vouch for another elector at that election.
Can you tell me the practicality of that provision? If I vouch for someone in one polling station, and then I go to another constituency and vouch for someone, can that be picked up immediately, or will that only be found if it is drawn to the attention of Elections Canada officials by some means?
Mr. King: To vouch for someone, their name needs to be on the list of the poll in which they are doing the vouching. They could do it the one time, providing that is their home polling station; but they would not be permitted to go to another poll and vouch for someone else because their name would not be on that list.
Senator Andreychuk: I go back to the problem of names being similar, which may show up in other polls. How do we catch these dilemmas? This act seems to have tried to correct some electoral fraud, so identity becomes important. How do we catch those problems? Do we catch them after or are some caught on the spot — other than what scrutineers do? Is there any mechanical way to catch oddities or differences?
Mr. King: I would argue that the principles in this act, the objectives of this act, are to prevent any type of fraud from happening. The chair noted that the Chief Electoral Officer will be here in a few weeks. I am sure Elections Canada can answer better than we can steps they routinely take — either through audit or some other means — to pick up most election fraud.
The spirit of the report that was given to the House committee by the Chief Electoral Officer, and the report from the House procedures committee committed to the government, were both replete with a series of means to prevent fraud. That is a big emphasis in the bill as well.
Senator Andreychuk: Going back to Senator Baker, was it your Aunt Suzie you were talking about?
Senator Baker: Any Aunt Suzie who presently does not have an ID with a picture and does not drive a car or tractor.
Senator Andreychuk: The dilemma was to equalize all Canadians. There may be some polling station where everyone knows Aunt Suzie, but they may not know me. Does the act not try to treat all electors equally? On identification by people who know them, that has happened to me. I have gone in and they said, do not bother because we know you but I insisted they go through the process. It should not be that they know Aunt Suzie: It should be how every electorate goes through the process.
Mr. King: I agree although, with the senator's indulgence, I did try to side-step Aunt Suzie but here she is again. I agree completely with that. That balance needs to be struck between protecting the right to vote for eligible Canadians while, at the same time, ensuring that the maximum number of people who can vote do so. I think that balance was struck, or tried to be struck, in the House procedure committee report and it is the balance that the government believes it struck in this bill.
Senator Joyal: I want to draw your attention, on page 7, to clause 18. It amends subsection 107(2) and 107(3) of the act. I want to draw your attention to subsection107(3):
Each returning officer shall deliver to each candidate a printed copy and a copy in electronic form of a version of the revised lists of electors and the official lists of electors that indicates each elector's date of birth.
In other words, as my colleague Senator Prud'homme told me, if you pay $200 to register as an independent candidate, you will receive two copies of the list — one in an electronic form, is that right?
Ms. Kim: Correct.
Senator Joyal: Go back to page 4 of the bill, clause 10(2)(e), that amends section 56 of the act, which is the prohibition to,
knowingly use personal information that is obtained from the Register of Electors except as follows:
(i) to enable registered parties, members or candidates to communicate with electors in accordance with section 110,
(ii) for the purpose of a federal election or referendum. . . .
Therefore, there is a restriction to the use of the electronic list.
Section 56 of the Electoral Act is the general prohibition of not using, and that general prohibition is covered under Part 4 of the act. Perhaps Ms. Kim might understand what I am saying. If you are responsible for an offence under section 56, you are covered under Part 4 of the act, which says that ``Every person who contravenes paragraph 56(e) (unauthorized use of personal information recorded in Register of Electors) is guilty of an offence.''
Then, later in the act we find out the punishment for that offence. Say they sell the electronic list. Imagine, for $200, an independent candidate can register and obtain the electronic list. What is the penalty? As my friend, Senator Nolin has said, $1,000 a page.
Senator Nolin: $500.
Senator Joyal: Have you ever done it? I apologize.
[Translation]
Senator Nolin: Candidates' deposits have gone up.
[English]
Senator Joyal: It is section 500 of the act, of course; and as my learned friend and senator has said, it is $1,000.
Every person who is guilty of an offence under any of subsections 485(1) . . . is liable on summary conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than three months, or to both.
It seems to me there is a question of public policy here since we are disclosing so much information easily available on registration as an independent candidate. I am not making any assumption concerning all the volunteers entering party headquarters during an election campaign that have access to the list. I am removing that factor. They are all honest citizens.
However, suppose a person really wants to obtain the list, how much does it cost to register and what is the penalty? It seems to me there is a disproportion between what the personal information we give access to — because we know now that with the date of birth, they can access all kinds of personal information on the person — and the penalty that is envisaged there. As Senator Nolin said, it seems we are not aware here of the theft of identity that is taking place on a much broader basis than it was when the list was nailed on a post. Now, there is telemarketing and all the schemes that exist to try to sell something to people on the basis of their age.
Particularly in relation to vulnerable people, like the seniors Senator Prud'homme mentioned, it seems to me there is a public policy issue there. I am not convinced we have the right deterrent. A penalty is supposed to be a deterrent. The deterrent is not comparable to the level of the risk created by providing all that information.
Mr. King: I will not repeat the history of the date of birth migration through this legislation, because the House leader did that with a great deal of clarity this morning. However, given that migration pattern, it is possible that this situation may be an unintended consequence of that amendment. I will leave it to my colleague from the Department of Justice to comment more substantively on the deterrent. It seems to me that it may or may not have been one of those issues that were not given full consideration after the amendment was agreed to.
Mr. MacCallum: You have correctly pointed out the low level of the penalty, which is not out of line for similar statutes that Parliament has enacted that deal broadly with administrative or regulatory affairs. That critique could be applied to any number of statutes that pose similar risks in terms of opportunities for wrongdoing and criminality. The level of deterrent is an important policy discussion for this body, as well as for the government.
Senator Milne: My concern about this act is the increased possibility of identity theft because of it. That is the one thing that really bothers me about it, because I know how easy identity theft could be.
Elections Canada provides not only voters lists to campaign offices and candidates. It provides lists that include phone numbers. Now, voters lists will have the telephone number, address, name, date of birth, sex and whether they are Canadian citizens or not. We are increasing exponentially the possibility for identity theft through this legislation.
Ms. Kim: I am not sure if I have much more to comment on that, aside from my understanding there is no phone number given out by Elections Canada on electoral lists.
Senator Milne: Oh, yes.
Senator Fraser: Oh, yes.
Senator Milne: Every single campaign is provided a list from elections that includes telephone numbers and apartment numbers, everything. Anyone who has ever worked on an election campaign, knows that well. Of course these lists are photocopied right and left in campaign offices.
Senator Prud'homme: In the real world that we live in, especially those of us who ran for election — as I did 10 times — and in the legal atmosphere or stratosphere, there is a big nuance. I will give two concrete examples, and then you will understand questions I may ask.
An elderly lady received a nice letter from a realtor on the occasion of her birthday. The realtor also offered to provide real estate services. She asked me, ``How do they know my birthdate?'' I do not think that realtor — who was once a candidate — sends letters of that kind to younger people or young couples. It is our duty to see if there is danger to senior citizens, especially in the example given by Senator Joyal, who can express that better than I.
The second example is of a politician who phones electors every day until one night he went to a male tavern that still exists in some places and was told, ``Next time you call my wife to wish her happy birthday, I will kill you.'' He still calls every elector every day. He is a good friend, but even if he was not a good friend I would not mention his name. It is fascinating. I could not believe he would take the time, but it works immensely well.
Do not laugh too much you young people, but I may return to active elections. Organized parliamentarians — not to call them politicians — could use this list well. Being a parliamentarian, he will be entitled by law to have the list. In fact, all he needs to do is ask someone to run as an independent and he will obtain the list and all necessary information from the candidate. This could be valuable.
You can register and try to convince your own minister privately. As an independent, I will vote for an amendment if there is one in the Senate.
Senator Nolin: I have a follow-up on the example that Senator Prud'homme used. If we go to clause 19, can we conclude that the two gentlemen Senator Prud'homme referred to are contravening section 110(3) of the act?
To present it differently, an electoral list cannot be used by a candidate outside the electoral period.
Ms. Kim: That is right. Perhaps not the electoral period, but the purposes are set out in terms of what uses can be made of the lists of electors. In relation to a candidate, that includes communicating with the electors.
Senator Nolin: If I read paragraph 3:
A candidate who receives a copy the preliminary lists of electors . . . may use the lists for communicating with his or her electors during an election period, including . . . .
Ms. Kim: If we look at preceding subsections of section 110, they refer to things parties can do with the list; for example, the annual list.
Senator Nolin: That is the party, not the candidate.
Ms. Kim: In relation to a candidate, you are right.
Senator Nolin: The candidate cannot use the list outside the electoral period. The two examples used by Senator Prud'homme would be in contravention of the act, right?
Ms. Kim: I believe so.
Senator Nolin: They would be subject to a $1,000 fine.
Senator Prud'homme: Precisely when does the election period begin? When the writ is dropped, or once you become a candidate? They may become a candidate a year and a half before the election and, for the purpose of electioneering, they are a candidate. If I am wrong I would be delighted to have you correct me.
Ms. Kim: Under the statute, I believe the election period is defined from the issue of the writ, and they can only confirm themselves as a candidate from the issue of the writ until the deadline for close of nominations. That definition is only within the election period.
The Chairman: On behalf the committee I want to thank all three of you for staying after the minister left to answer many difficult questions. You have done a great job and we appreciate it. As you know, next week we will have many more witnesses who will be here to shed their light on the same questions and some new ones. We appreciate the background you have given us to prepare for next week.
The committee adjourned.